Torts - Outline Flashcards
Types of intentional torts . . .
- battery
- assault
- false imprisonment
- IIED
- trespass to land
- trespass to chattels
- conversion
Elements of battery . . .
a. harmful OR offensive bodily contact
b. w/ the P’s person
NOTES:
a. harmful OR offensive bodily contact
i. bar don’t ask a lot of questions about harmful
ii. breaks your bones, makes you bleed, go to hospital
iii. substitute the word “unpermitted” for offensive
iv. offensive = unpermitted; by a person of ordinary sensitivity (extreme or hyper-sensitivity is not taken into account)
v. ex. we take a break, he’s standing outside; where are the bathrooms? tap a student on the shoulder = not a battery
vi. ex. a form of sexual harassment; touching hair while saying he really likes her= battery
vii. ex. stroke each person’s hair in the room; we don’t pet each other, but not permitted by normal people = battery
b. w/ the P’s person
i. anything the P is connected to, holding, that is also considered part of the P’s person
ii. ex. holding a handbag
iii. ex. woman on a horse and slap the rear end of the horse – battery, the horse is considered part of her person
iv. NOTE: doesn’t matter how intimate the item is, it is has to be connected to your person (ex. prosthetic leg not attached not a battery)
Elements of assault . . .
a. D must place the P in a reasonable apprehension (P DOES NOT HAVE TO BE AFRAID; instead apprehension = knowledge
b. of an immediate battery
- words alone are NOT enough - need action
- immediacy can be destroyed by accompanying words
NOTES:
a. D must place the P in a reasonable apprehension
i. apprehension = NOT fear or anxiety; INSTEAD = knowledge (apprehend that mother will be making chicken tonight)
ii. PLAINTIFF DOES NOT HAVE TO BE AFRAID – they can be calm tranquil or mellow and still have a chance to recover
iii. the unloaded gun problem: what if the threat is an empty threat? conventional approach is to take a trip into the P’s head – if he doesn’t know THE TEST IS: reasonable apprehension (i.e. reasonable belief that you could be battered) .. . reasonable to think that the gun could be loaded
b. of an immediate battery
i. words alone lack immediacy; you have to have conduct – a menacing gesture; physical conduct
o words may sound immediate on their face – “In 10 seconds I’m going to punch you in the face b/c I used to be a professional boxer.” In the eyes of the law, NOT apprehension of immediate battery
o look for display of a weapon or waiving a fist in someone’s face; getting up out of a chair and crossing a room in anger
ii. when you have certain conduct, the immediacy can be destroyed by the accompanying words
o ex. conditional words; if you weren’t my best friends, I’d beat the crap out of you. = not immediate apprehension
_____ are not enough for the apprehension element of battery, but _____ is not required of P b/c apprehension equals ______.
Words
fear
knowledge
Elements of false imprisonment . . .
a. act of restraint
NOTE: an omission can be a restraint if their was a preexisting duty (i.e. flight attendant leaves immobile person on plane for hours)
b. confined in a bounded area
NOTE: not bounded if = i. an area is NOT bounded if there is a reasonable means of escape that the P can reasonably discover - ** TESTED ALL THE TIME (but not if dangerous disgusting or humiliating)
c. P knows that they are confined (lock roommate in room and unlock before wake up and P never finds out = not L
NOTES:
a. act of restraint
i. doesn’t have to be physical barrier- threats are sufficient
o ex. if you leave this room in the next 30 minutes I’ll shoot you and I display the gun – act of restraint – credible restraint will keep you in the room even the door is wide open
o ex. if you leave this immediate area I’m going to keep your keys and wallet = act of restraint
o has to be viable – can’t be: I’m going to turn you into a unicorn
ii. an omission can be an act of restraint if there was a preexisting duty
o usually will relate to facilitating P’s free movements
o ex. P has to fly from LA to MIA; employee takes her inside to get boarding pass; boards plane early; she gets to MIA, the cabin crew does nothing and ignores her entirely; she is trapped for an hour = valid claim for false imprisonment
iii. an act of restraint only counts (for bar) if the P knows about it or is harmed by it
o if you are restrained but you are oblivious, no harm no foul (even if I confess the prank to you later)
b. confined in a bounded area
i. an area is NOT bounded if there is a reasonable means of escape that the P can reasonably discover - ** TESTED ALL THE TIME
o translated: your not locked in if you can get out
o the test on the word reasonable – they’ll have D confine P in a space and their will be a way out, but the exit is going to be dangerous, disgusting, humiliating, or hidden = not reasonable
T or F; False imprisonment requires physical restraint.
F, threats are enough
Not bounded, for purpose of false imprisonment if . . .
there is a reasonable means of escape that the P can reasonably discover - ** TESTED ALL THE TIME
o translated: your not locked in if you can get out
o the test on the word reasonable – they’ll have D confine P in a space and their will be a way out, but the exit is going to be dangerous, disgusting, humiliating, or hidden = not reasonable
IIED elements . . .
a. outrageous conduct = i. def. in restatement: conduct is considered outrageous if it exceeds all bounds of decency tolerated in a civilized society
b. P must suffer severe distress
c. NOTE: a D can be held L when behaving recklessly as well as intentionally (ii. the one intentional tort that has it is the name doesn’t have it in the name)
NOTES:
a. NOTE: a D can be held L when behaving recklessly as well as intentionally
i. you intend something if you intend to bring about the intended result, but here, reckless is also sufficient
ii. the one intentional tort that has it is the name doesn’t have it in the name
b. outrageous conduct
i. def. in restatement: conduct is considered outrageous if it exceeds all bounds of decency tolerated in a civilized society (to a NY, nothing exceeds the bounds of decency)
ii. guidance on this:
o mere insults don’t count; if they are part of other behavior, then may tip the balance, but not by themselves
o 4 hallmarks of outrageousness:
where the bad behavior is continuous or repetitive in nature (ex. make an explicit vulgar proposition to you at work; is it outrageous? I don’t know; some judges might send to a jury but hard to say, BUT if I do it every time I see you, it is much more likely to cross the line into outrageousness; another ex. is debt collector; course language, threats of physical harm) D is a common carrier or in-keeper (transportation company or hotel) – CL took view that travelers in a particularly vulnerable state – if they are deliberately mean to you = outrageous (ex. you can’t stay here, you are too ugly to stay here) P is a member of a fragile class of persons (3 fragile classes that the law recognizes – (1) young children (lean down to 5 year old child; “you no good scum sucking son or a bitch” = outrageous; even though mere words are not enough); (2) elderly persons – REMEMBER, its not about the person’s reaction, it’s ABOUT THE D’s behavior; (3) pregnant women (does the D have to know that the person is pregnant? YES – “secret tort baby”) D knows in advance that P has emotional weakness and deliberately targets that weakness – “If you exploit a known sensitivity of the P” (you know your co-worker is deathly afraid of kittens)
c. P must suffer severe distress
i. no specific proof requirement for this element – they can prove this element however she wishes; don’t have to prove with physical symptoms; great if you do, but don’t have to; don’t have to show lost days of work; offer what evidence you got and the jury makes decision
ii. how do they test this? they are going to negate the element in the body of the problem in a subtle way = they tell you the outrageous conduct and then say: P was mildly upset. = not going to win.
Unlike other intentional torts, a D found L for _____, for acting _____, as well as negligently.
recklessly
intentionally
Restatement def. of outrageous for purposes of IIED . . .
conduct is considered outrageous if it exceeds all bounds of decency tolerated in a civilized society
(remember that its not about the P’s reaction; its about the D’s behavior)
4 hallmarks of outrageousness for IIED . . .
where the bad behavior is continuous or repetitive in nature (ex. make an explicit vulgar proposition to you at work; is it outrageous? I don’t know; some judges might send to a jury but hard to say, BUT if I do it every time I see you, it is much more likely to cross the line into outrageousness; another ex. is debt collector; course language, threats of physical harm) D is a common carrier or in-keeper (transportation company or hotel) – CL took view that travelers in a particularly vulnerable state – if they are deliberately mean to you = outrageous (ex. you can’t stay here, you are too ugly to stay here) P is a member of a fragile class of persons (3 fragile classes that the law recognizes – (1) young children (lean down to 5 year old child; “you no good scum sucking son or a bitch” = outrageous; even though mere words are not enough); (2) elderly persons – REMEMBER, its not about the person’s reaction, it’s ABOUT THE D’s behavior; (3) pregnant women (does the D have to know that the person is pregnant? YES – “secret tort baby”) D knows in advance that P has emotional weakness and deliberately targets that weakness – “If you exploit a known sensitivity of the P” (you know your co-worker is deathly afraid of kittens)
3 fragile class of persons that the law recognizes for IIED/outrageous
(1) young children (lean down to 5 year old child; “you no good scum sucking son or a bitch” = outrageous; even though mere words are not enough); (2) elderly persons – REMEMBER, its not about the person’s reaction, it’s ABOUT THE D’s behavior; (3) pregnant women (does the D have to know that the person is pregnant? YES – “secret tort baby”)
How will they test the “severe distress” element of IIED on the bar?
they are going to negate the element in the body of the problem in a subtle way = they tell you the outrageous conduct and then say: P was mildly upset. = not going to win.
Elements of trespass to land . . .
a. act of physical invasion (2 ways)
o the D can enter P’s property
- D does not have to know (hiker from national park land) - law says buy a map
- intent to be on geographic location; if has heart attack and falls over, then NO INTENT
o throw an object onto the property
- land includes space above and space below
- throw a rock across yard but never touches still counts for this element
b. land
NOTES:
a. act of physical invasion
i. 2 ways:
o the D can enter P’s property
walking on the property or on a vehicle) THE D DOES NOT HAVE TO KNOW HE ENTERED P’s PROPERTY (hiker in national park; no fence, sign, or natural boundary crossed into private land = LIABLE);
the law says: buy a map
the intent is the intent to be in that geographic location; BUT if you have a heart attack and fall onto someone else’s land, then NOT L.
o throw an object onto the property
pick up a rock and throw it through neighbor’s window
has to be physical or tangible; THUS shining bright lights onto your neighbors land, creating shockwaves to break their glassware, sending odors ARE NOT throwing objects
b. land
i. includes the air above and soil below out to a reasonable distance (no on airplanes but kid throws ball that crosses the yard, even though doesn’t touch anything = trespass; not going to recover much, but it is technically speaking a trespass; even taking arm and waiving it over the other person’s land, that’s trespass
Elements of trespass to chattels / conversion . . .
a. interference (damage or steal)
b. with person property (anything you own other than land or buildings; furniture, data files etc.)
c. difference between the two is the amount of harm (degree of interference)
i. small; slight harm = trespass to chattels (ex. key car = cost of repair)
ii. extensive; great = conversion (ex. sledge hammer to car = not just 8k to fix glass etc., it’s the 15k to buy a new car)
iii. conversion gets special remedy = full value of item in question; NOT merely cost of repair; RULE: “conversion operates as a forced sale” – you break it; you bought it.
Differences between trespass to chattels and conversion:
the amount of harm (degree of interference) and damages
i. small; slight harm = trespass to chattels (ex. key car = cost of repair)
ii. extensive; great = conversion (ex. sledge hammer to car = not just 8k to fix glass etc., it’s the 15k to buy a new car)
iii. conversion gets special remedy = full value of item in question; NOT merely cost of repair; RULE: “conversion operates as a forced sale” – you break it; you bought it.
Conversion acts as a “_____.”
forced sale
What are the affirmative defenses to intentional torts and what torts do they apply to?
- consent (2 types: express and implied); applies to all 7
- the protective privileges
i. self defense
ii. defense of others
iii. defense of property - necessity; only applies to the property torts (trespass to land, chattel, conversion)
Elements of consent affirmative defense to intentional tort . . .
a. P had legal capacity
b. 2 types of consent
i. express consent: explicit words granting D permission to act in a particular way (sane person says hit me = not a battery)
o EXCEPTION: not a defense if obtained through fraud or duress; disregarded, invalid
ii. implied consent: (2 ways)
o via custom: when an individual goes to a place or engages in an activity where certain invasions are typical – the law assumes that you know what is typical and you are cool with it
barber’s chair opens up and the barber starts cutting hair = can’t sue barber for battery
most common = team sports
o via D’s reasonable interpretation of P’s objective conduct / body language consent
we are allowed to read the situations and make rational inferences from there
nothing that make ultimate act of sex acceptable (coffee after the movie does not equal ok to have sex)
iii. NOTE: all consent has a scope; if you exceed that scope you will be L for a tort (if you fall down and someone stomps on your foot = outside scope of consent)
o if you consent to an operation on one part of your body, an operation on another part of your body is outside of the scope of consent
2 types of implied consent . . .
o via custom: when an individual goes to a place or engages in an activity where certain invasions are typical – the law assumes that you know what is typical and you are cool with it
barber’s chair opens up and the barber starts cutting hair = can’t sue barber for battery
most common = team sports
o via D’s reasonable interpretation of P’s objective conduct / body language consent
we are allowed to read the situations and make rational inferences from there
nothing that make ultimate act of sex acceptable (coffee after the movie does not equal ok to have sex)
Exception to express consent . . .
not a defense if obtained through fraud or duress; disregarded, invalid
Drunk person says punch me. Not express consent because _____.
person doesn’t have the capacity to give the express consent.
All consent has a _____ that may not be exceeded.
scope
What are the protective privileges (affirmative defenses to intentional torts) and elements?
a. Which are they:
i. self defense
ii. defense of others
iii. defense of property
b. Elements:
i. proper timing: “imminent or in progress” – i.e. NO REVENGE (but note, a second blow may follow the first)
ii. D must have a reasonable belief that the threat is genuine
o means that a reasonable mistake DO NOT negate a privilege – you can make a mistake in reading the situation so long as it’s a reasonable error (ex. someone else picks up your bag by accident at the terminal and you grab it; he sues you for battery – you say defense of property = you win; I had a reasonable belief that was my bag and that I needed to do that to protect my property
iii. amount of force is “necessary” force to prevent
o excessive force = L
o ex. someone goes to punches you in the face, but you can’t take a knife and plunge into your chest
o ex. if someone is using deadly force, then you may respond in a deadly fashion; if someone is lunging at you with a knife, you can take out a gun and shoot them
o FL DISTINCTION: You are presumed to have a reasonable fear of death/great bodily harm and are allowed to use deadly force if someone enters a dwelling or an occupied vehicle (car jacking).
o NOTE: The rule of proportionality prohibits us from using deadly force to protect personal property (no guns to save your laptop)
o NOTE: You can’t do by mechanical device what you can’t do in person (no booby trap; deadly mechanical devices)
FL distinction relevant to protective privilege
iii. amount of force is “necessary” force to prevent
o excessive force = L
o ex. someone goes to punches you in the face, but you can’t take a knife and plunge into your chest
o ex. if someone is using deadly force, then you may respond in a deadly fashion; if someone is lunging at you with a knife, you can take out a gun and shoot them
o FL DISTINCTION: You are presumed to have a reasonable fear of death/great bodily harm and are allowed to use deadly force if someone enters a dwelling or an occupied vehicle (car jacking).
o NOTE: The rule of proportionality prohibits us from using deadly force to protect personal property (no guns to save your laptop)
o NOTE: You can’t do by mechanical device what you can’t do in person (no booby trap; deadly mechanical devices)
When does the necessity defense apply?
a. only apply to the property torts (trespass to land, chattel, conversion)
b. 2 situations:
i. D invades P’s property in an emergency to protect community as a whole or significant group of people (often a natural disaster; a fire, usually a big one; crazed gunman in a tower picking off people one by one); into this scenario comes a hero - “the savior of the city” – needs some object that doesn’t belong to him
ii. D invades P’s property to protect interest of own – not savior of city but saving himself – not treated as generously
o 3 legal consequences associated with protecting own interest
private necessity remains L for compensatory damages (pay for the actual harm that you do)
private necessity actor immunized from nominal or punitive damages
while the emergency continues, the P in the case cannot throw a private necessity D of his land; RATHER, the P must tolerate his presence, unmolested, on the land, in a position of safety; in an emergency we all have a right to sanctuary
ex. D is a cross country hiker in MN in February; sudden an unexpected blizzard – broken window = pay to fix; door open and walk in, give me nominal damages of $1 out of principle = farmer loses; punitive = farmer loses – the technical trespass is disregarded in an emergency; farmer kicks him out and Dave sustains harm = farmer is L
3 legal consequences associated with protecting own interest in necessity defense (as opposed to “hero scenario”) . . .
private necessity remains L for compensatory damages (pay for the actual harm that you do)
private necessity actor immunized from nominal or punitive damages
while the emergency continues, the P in the case cannot throw a private necessity D of his land; RATHER, the P must tolerate his presence, unmolested, on the land, in a position of safety; in an emergency we all have a right to sanctuary
ex. D is a cross country hiker in MN in February; sudden an unexpected blizzard – broken window = pay to fix; door open and walk in, give me nominal damages of $1 out of principle = farmer loses; punitive = farmer loses – the technical trespass is disregarded in an emergency; farmer kicks him out and Dave sustains harm = farmer is L
While an emergency continues, the P cannot throw a _______ plaintiff of his land.
private necessity
What are the economic/dignitary torts?
- Defamation
2. Privacy
Elements of defamation . . .
a. D made a defamatory statement that specifically identified the P
b. “publication” of the statement (the D must disclose the defamatory statement to 1 person other than the P – that’s enough)
- DOES NOT HAVE TO BE INTENTIONAL
c. damage
T/F. A defamatory statement can be spoken or written.
T
Define a defamatory statement . . .
tends to adversely affect reputation (typically an allegation of fact that reflects negatively on you and causes other people to think negatively of you)
A defamatory statement tends to _____ reputation (typically an allegation of fact that reflects negatively on you and causes other people to think negatively of you)
“adversely affect”
T/F. Name calling is considered defamatory. “Bill is a no good son of a bitch.”
False
T/F. A defamatory statement must identify the person by name.
False. Can by by position, for example. The attorney general of Florida is a . . . .
T/F. A dead person can be defamed.
False.
person has to be alive; once dead you can speak with impunity
The publication requirement for defamation means ____ need(s) to hear the statement.
at least one other person other than P
ii. the more people the D tells, the more harm and the more money
iii. does NOT have to be INTENTIONAL
T/F. For defamation, I must intentionally publish the statement.
False.
The publication requirement for defamation means at least one other person other than P needs to hear the statement.
ii. the more people the D tells, the more harm and the more money
iii. does NOT have to be INTENTIONAL
Damage categories for defamation . . .
- liable
- slander
a. slander per se
b. slander not per se
Liable relates to the _____ category for ______. A libelous statement must be _____.
damages
defamation
predicated on written statement or something that is permanently captured
If the statement is libelous, then the impact on damages is that _____.
damages are presumed so P does not have to prove them; thus if they offer no evidence of damages, it still gets to the jury
Slander relates to the _____ category for ______. The two types of slander are _____ and _____ (include how damage element of defamation must be proved for each)
damages
defamation
o slander per se = same treatment as liable i.e. presumed
o slander NOT per se = damages must be proved
How do you identify slander per se and impact on proving damages?
o slander per se = same treatment as liable i.e. presumed
any statement related to 4 itemized topics (1) relating to P’s business or profession; (2) P has committed a crime of moral turpitude (deceit, dishonesty, income tax fraud physical violence; generally petty crimes like public drunkenness are NOT considered crimes of moral turpitude; (3) imputing un-chastity to a woman (P is a slut; Debbie knows the Dolphins really well; (4) suffering from a loathsome disease (when you have the disease, other people loathe you – there are only 2: leprosy AND venereal disease ** (has been on the exam)
If slander is not per se, how does it impact the litigation?
means that P has to show economic harm (ex. you got fired; can’t get a job; revenues are down at your place of business; trying to negotiate a contract and they walked away from you) SOCIAL HARM DOES NOT COUNT – ex. thrown of the bridge club or no one invites you to dinner does NOT count
T/F. Social harm can be used to prove the damages element in a case that is not slander per se.
False
What are the affirmative defenses to defamation?
- consent
- truth
- the privileges (absolute and qualified)
- when the subject matter of the defamation is a matter of public concern
Elements of consent affirmative defenses to defamation
same as intentional tort consent affirmative defense
a. P had legal capacity
b. 2 types of consent
i. express consent: explicit words granting D permission to act in a particular way (sane person says hit me = not a battery)
o EXCEPTION: not a defense if obtained through fraud or duress; disregarded, invalid
ii. implied consent: (2 ways)
o via custom: when an individual goes to a place or engages in an activity where certain invasions are typical – the law assumes that you know what is typical and you are cool with it
barber’s chair opens up and the barber starts cutting hair = can’t sue barber for battery
most common = team sports
o via D’s reasonable interpretation of P’s objective conduct / body language consent
we are allowed to read the situations and make rational inferences from there
nothing that make ultimate act of sex acceptable (coffee after the movie does not equal ok to have sex)
iii. NOTE: all consent has a scope; if you exceed that scope you will be L for a tort (if you fall down and someone stomps on your foot = outside scope of consent)
o if you consent to an operation on one part of your body, an operation on another part of your body is outside of the scope of consent
