TORTS RULES! Flashcards
Intentional Torts - INTENT
Intent is satisfied if defendant intended the consequence or was substantially certain the consequence would result.
Intentional Torts - TRANSFERRED INTENT
Intent can transfer from victim to victim or from tort to tort, but only within the torts of assault, battery, false imprisonment, trespass to land, and trespass to chattels.
Intentional Torts - CAUSATION
Causation is satisfied if defendant’s conduct was a substantial factor in bringing about the injury.
Intentional Torts - BATTERY
Battery is intentionally causing a harmful or offensive contact to the plaintiff’s person. No actual damages required. Punitives allowed.
Intentional Torts - ASSAULT
Assault is intentionally causing a reasonable apprehension in plaintiff of an immediate harmful contact with plaintiff’s person.
Intentional Torts - FALSE IMPRISONMENT
False imprisonment is intentionally causing plaintiff to be confined or restrained to a bounded area with no reasonable means of escape.
Intentional Torts - IIED
Intentional infliction of emotional distress is intentionally, or recklessly, by extreme and outrageous conduct, causing plaintiff severe emotional distress. To satisfy, a mental or emotional disorder must be recognized and diagnosed by a professional.
Intentional Torts - TRESPASS TO LAND
Trespass to land is the intentional act of physical invasion to another’s land.
Intentional Torts - TRESPASS TO CHATTELS
Trespass to chattels is intentionally interfering with the plaintiff’s right of possession of personal property that causes damages.
Intentional Torts - CONVERSION
Conversion is intentional interfering with plaintiff’s right of ownership which is so serious that if proven, defendant would have to pay fair market value with interest from conversion date.
Intentional Torts - DEFENSE (CONSENT)
The defendant is not liable if the plaintiff consented to act expressly, or implicitly, by custom, conduct, or words. One cannot consent to criminal acts, but jury can consider that consent in determining mitigation.
Intentional Torts - DEFENSE (SELF-DEFENSE)
Defendant is not liable if justified in using reasonable force to prevent a reasonable imminent threat of force (subjective and objectively reasonable). The Defendant has no duty to retreat if felonious assault, and he is not at fault in provoking. No duty to retreat in home.
Intentional Torts - DEFENSE (DEFENSE OF PROPERTY)
Defendant may use reasonable force, and must request that plaintiff desist until futile or dangerous to do so. Deadly force never allowed in defense of property, but a rebuttable presumption exists in the defense of home/work/car, that defendant is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself or another.
Intentional Torts - DEFENSE (NECESSITY - PROPERTY ONLY)
If interference is reasonable and necessary to avoid threatened injury or other force, and threat is more serious than aversion, the defense of necessity would apply. The defense is qualified though, in that the defendant must pay for injury caused by necessary aversion. (ex. plane landing in corn field)
Intentional Torts - DEFENSE (DISCIPLINE)
A parent or teacher may use reasonable force in disciplining children; considering the age, sex, and nature of the child’s behavior.
Defamation - COMMON LAW (PRIVATE PERSON AND PRIVATE CONCERN)
To prove defamation at common law, plaintiff must prove (1) defamatory language of defendant, (2) of or concerning plaintiff, (3) made negligently, (4) with publication by defendant to third party, and (4) damages to plaintiff’s reputation. A statement is defamatory if it injures plaintiff’s reputation, but defendant can assert the truth defense.
Defamation - DEFAMATION INVOLVING MATTER OF PUBLIC CONCERN
For defamation involving a matter of public concern, plaintiff must prove (1) false defamatory language of defendant, (2) of or concerning the plaintiff, (3) scienter, (4) publication by defendant to a 3rd party, and (5) damages to plaintiff’s reputation. Thus, plaintiff has the burden of proving the statement was false. If the plaintiff is a public official/figure, which would include sheriffs, police, taxi inspectors, he must prove by clear and convincing evidence that the statement was made with actual malice, that is he knew it was false or acted with reckless disregard as to its truth or falsity.
Defamation - DAMAGES (SLANDER)
With slander, plaintiff must prove special damages; show pecuniary loss as a result of statement’s effect on reputation. However, Jury may presume damages if slander per se: regarding trade/profession, serious crime, or infectious disease.
Defamation - DAMAGES (LIBEL)
With libel, damages depend upon three categories: (1) per se, (2) per quod (not defamatory on its face, but plaintiff can show extrinsic evidence and proof of special damages), and (3) an ambiguous interpretation. However, if one makes an oral statement that is likely to appear in print, and it does so appear in print, defendant is liable for both slander and libel.
Defamation - DEFENSES TO DEFAMATION
Absolute privilege against defamation include: (1) judicial or legislative hearing, (2) spousal communication. There is also a qualified privilege against defamation in reference letters.
Invasion of Right to Privacy - APPROPRIATION OF PICTURE OR NAME
Plaintiff must prove that the defendant used his or her picture or name for commercial advantage without authorization. Liability limited to the use of plaintiff’s likeness in connection with advertising, promotional, or labeling purposes. Not name in book.
Invasion of Right to Privacy - INTRUSION UPON SECLUSION
To establish intrusion upon seclusion, you must prove: (1) an authorized prying or intruding on the affairs or seclusion of plaintiff; (2) intrusion is highly offensive to reasonable person, and (3) the thing intruded upon was private.
Fraud - INTENTIONAL MISREPRESENTATION (DECEIT)
To prove intentional misrepresentation requires five elements: (1) misrepresentation of a material fact, (2) with the knowledge that it was false with intent to deceive, and (3) intent to induce plaintiff’s reliance, resulting in (4) actual and justified reliance (causation), and (5) damages.
Fraud - NEGLIGENT MISREPRESENTATION
To establish negligent misrepresentation, one must prove that (1) the defendant negligently, (2) made a material misrepresentation, (3) in a commercial setting, (4) which plaintiff justifiably relied upon, (4) causing, (5) damages.
