Units 1 & 2

Question 1

The elements of battery are…

Answer 1

(1) Direct or indirect bodily contact was made with P;
(2) The contact was harmful or offensive;
(3) D’s action caused the contact with P; and
(4) D intended the contact or apprehension of contact.

Question 2

Battery

First, …

Answer 2

First, bodily contact with P occurred.

Bodily contact is the act of touching of another person or something attached to their body.

Here, bodily contact with P occurred when [facts].

Question 3

Battery
Second….

Harmful

Answer 3

Second, the contact was harmful.

Harmful bodily contact (1) physical impairment of the condition of another’s body, (2) physical pain or (3) illness.

D created harmful bodily contact because he did [X] which caused [y] as proved by [z].

Question 4

Battery
Second,….

Offensive

Answer 4

Second, [x] was offensive. [X facts ] show this contact was unwarranted by social standards prevalent at the time and place and would offend a reasonable sense of personal dignity.

Question 5

Battery
Third,….

Answer 5

Third, D’s voluntary, volitional movement caused the contact because [x].

Question 6

Battery
Fourth,…..

Answer 6

Fourth, D intended to cause the harmful (or offensive) contact [or apprehension of harmful (or offensive] contact because he acted with the purpose of doing [x]. (Or acted knowing with substantial certainty if he did [x], [y] was virtually certain to occur. This intent is evidenced by [y].

[optional for dual intent: If dual intent standard applies actor must also intend the contact to be harmful or offensive.]

Question 7

The elements of assault are….

Answer 7

(1) P had reasonable apprehension or anticipation of imminent contact;
(2) The anticipated contact would be harmful or offensive;
(3) Apprehension was caused by D’s volitional, voluntary actions;
(4) D intended to cause contact or apprehension of harmful or offensive contact.

Question 8

Assault
First,…

Answer 8

First, P had reasonable apprehension or anticipation of imminent bodily contact with their person.

Imminent apprehension is reasonable if a reasonable person in P’s position would have an expectation that harmful or offensive contact is about to occur unless prevented by self-defense or some other external force and P believes the actor had the ability to make contact.

P had reasonable apprehension of imminent contact. When D did [x], a reasonable person would have expected the harmful or offensive contact of [y] was imminent unless prevented by self-defense or some outside force because [z].

Question 9

Assault
Second….(harm)

Answer 9

Second, the bodily contact would have been harmful.

Harmful bodily contact is any (1) physical impairment of the condition of another’s body, (2) physical pain or (3) illness.

The contact would have been harmful because if D did [x] it would have caused P to experience [y].

Question 10

Assault
Second,….offensive

Answer 10

Second, the contact would have been offensive because [x] would offend a reasonable sense of personal dignity and is unwarranted by the social usages prevalent at this time.

Question 11

Assault
Third,….

Answer 11

Third, D caused the imminent apprehension.

An actor causes apprehension of contact when his volitional, voluntary actions result in apprehension of contact.

D caused P’s apprehension of contact because he did [x].

Question 12

Assault
Fourth….

Answer 12

Fourth, D intended to cause contact or apprehension of imminent contact that would be harmful (or offensive) because he acted with the purpose of doing [x] (or acted knowing with substantial certainty [x] would occur). This is proven by [y].

Question 13

Elements of False Imprisonment

Answer 13

The elements of false imprisonment are:
(1) P is confined within boundaries set by D;
(2) P was aware of the confinement or harmed by it;
(3) D’s act directly or indirectly caused the confinement; and
(4) D intended to cause the confinement of P or another person.

Question 14

False imprisonment
First,….

Answer 14

First, P was confined within boundaries set by D because D used [x] to which P submitted. This caused confinement because [y facts].

Options for x:
(1) physical barriers
(2) physical force or restraint
(3) express or implied threats of immediate physical force or restraint
(3) duress OR
(4) invalid or unlawful legal authority

Question 15

False imprisonment
Second…..(aware)

Answer 15

Second, P was aware of the confinement because he was conscious of [y].

Question 16

False Imprisonment
Second…. (harmed)

Answer 16

Second, P was harmed by the confinement.

Confinement is harmful when it causes pain, illness or injury.

P experienced [pain, injury or illness] because D did [x].

Question 17

False Imprisonment
Third….

Answer 17

Third, D’s voluntary, volitional actions [directly][indirectly] confined P because [x].

Question 18

False Imprisonment
Fourth,…..

Answer 18

Fourth, D intended to confine P.

Intent is satisfied when an actor acts with the purpose of causing confinement or acts knowing with substantial certainty his actions will lead to the confinement of another.

When D did [x], he acted [for the purpose of confining P][knowing with substantial certainty that P would be confined] because [y].

Question 19

Elements of Intentional Infliction of Emotional Distress (IIED)

Answer 19

The elements of IIED are
(1) P suffered emotional distress
(2) the emotional distress was severe,
(3) D’s conduct was extreme and outrageous
(4) D intentionally or recklessly caused the distress.

Question 20

IIED
First,…

Answer 20

First, P suffered emotional distress because he experienced the mental reactions of [x] which are extremely unpleasant as shown by [y].

Question 21

IIED
Second,…..

Answer 21

Second, P’s emotional distress was severe because [x] was beyond what any reasonable man could be expected to endure because of [y].

Question 22

IIED
Third,….

Answer 22

Third, D’s conduct of [x] was extreme and outrageous because it surpassed all bounds of decency which a civilized society will tolerate.

Question 23

IIED
Fourth,…(intentional)

Answer 23

Fourth, D’s conduct was intentional.

Conduct is intentional when an actor consciously brings about emotional distress or knows with a substantial certainty that emotional distress will occur.

When D did [x], they consciously caused [or knew with substantial certainty that P would experience] emotional distress.

Question 24

Elements of Bystander IIED

Answer 24

(1) P must be present when D injures the victim or must have immediate perception of the injury;
(2) P must be a close relative of the injured victim;
(3) D must know P is present and related to the victim;
(4) P does not need to show relationship or presence if D hurts victim soley to damage P.

Question 25

Elements of Trespass to Land

Answer 25

The elements of trespass to land are:
(1) D entered the land, caused a thing or another person to enter the land, or left behind an object he had duty to remove;
(2) The land D was possessed by P;
(3) D intended to enter the land, cause a person or thing to enter the land, or to leave something behind he had a duty to remove.

Question 26

Trespass to Land
First,….

Entered

Answer 26

First, D entered the land.

An actor enters the land when volitional, voluntary movement causes him to pass onto the land.

D entered the land with volitional, voluntary movement because he did [x].

Question 27

Trespass to Land
Second,….

Answer 27

Second, the land was possessed by P because [x facts] prove he [was in occupancy of the land with intent to control it][was in occupancy and has not abandoned the land][had a right to immediate occupancy against all others].

Question 28

Trespass to Land
Third,….

Answer 28

Third, D intended to [enter the land][cause a thing to enter the land][cause another person to enter the land][cause a thing to be left behind on the land].

An actor had intention if he acted with the purpose of [entering the land][causing a thing/person to enter the land][causing a thing to be left behind], or knew with substantial certainty his actions would cause such.

[Optional: D did not need to have intent to trespass. Mistaken identify of the owner of the land does not change the intent required.]

D intended to [enter][cause a thing][cause another person] [leave behind a thing] because he did [y].

Question 29

Elements of Trespass to Chattel

Answer 29

The elements of trespass to chattel are:
(1) D dispossessed, used or otherwise inter-meddled with chattel that;
(2) was possessed by P; and
(3) D intended to dispossess, use or otherwise intermeddle with the chattel.

Question 30

Trespass to Land
First,….

Caused Entry

Answer 30

First, D caused [y] to enter the land because his his volitional, voluntary action [x] [directly][indirectly] resulted in the entry in [y] as shown by [z].

Question 31

Trespass to Land
First,….

Left behind

Answer 31

First, D left behind something he had duty to remove because [x].

Question 32

Trespass to Chattel
First,….

dispossessed

Answer 32

First, D dispossessed P of his chattel because he assumed control and deprived P of use of it when he did [x].

Question 33

Trespass to Chattel
Second,….

Answer 33

Second, the chattel was possessed by P.

An individual posesses chattel when he has physical control of the chattel or has right to physical control of the chattel above all others.

P possessed [x] because [y].

Question 34

Trespass to Chattel
Third,…..

Answer 34

Third, D intended to dispossess, use or otherwise intermeddle with P’s chattel.

Intent…
Intent to trespass not required.

D intended to do [x] because he did [y].

Question 35

Elements of Conversion

Answer 35

The elements of conversion are:
(1) D exercised dominion or control over chattel that…..
(2) was possessed by P; and
(3) D intended to exercise dominion or control; and
(4) D’s interference with P’s right to control his chattel was severe enough to warrant P’s recovery of the full value of the chattel.

Question 36

Conversion
First,….

Answer 36

First, D exercised dominion or control over chattel of another.

An actor exercises dominion or control over chattel when he….

D exercised dominion or control over [x] because he did [y].

Question 37

Conversion,
Second,

Answer 37

Second, P possessed the [x chattel because y facts] he had the to control it above all others.

Question 38

Conversion
Third,….

Answer 38

Third, D intended to exercise dominion or control over P’s chattel.

An actor exercises dominion or control over chattel when….

D exercised dominion or control over [ x] because [y].

Question 39

Conversion
Fourth,….

Answer 39

Fourth, D’s interference was serious enough to warrant P’a recovery of the full value because of [z].

Question 40

Assault
Ability

Answer 40

P’s Apprehension was not reasonable because [x facts] prove he knew [or believed] D did not have apparent ability to make the contact.

Question 41

Assault
Future

Answer 41

Threat of future harm, even with menacing gestures, is not sufficient to create reasonable apprehension of imminent contact. The contact must be about to happen.

Question 42

Assault
Conditional

Answer 42

Conditional threats of bodily contact are sufficient to create reasonable apprehension if the contact is imminent if P does not submit.

Question 43

Assault
Words

Answer 43

Mere words are not sufficient to create reasonable apprehension of bodily contact. An overt act by P is required.

Question 44

False Imprisonment
Blocking Direction

Answer 44

An actor is not liable for false imprisonment by intentionally preventing another from going in a direction in which he has a right or privilege to go. The confinement must be complete.

Question 45

False Imprisonment
Size and movement of area of confinement.

Answer 45

The area in which an individual is confined does not have to be stationary.

The area in which an individual is confined may be large - e.g.; an entire town or country.

Question 46

False Imprisonment
Malicious prosecution & abuse of process

Answer 46

An actor is liable to another for false imprisonment if he participated in an arrest without reasonable cause.

Question 47

False Imprisonment
Physical barriers

Answer 47

If a safe and reasonable means of escape is known to an individual, the individual is not confined.

P did not have a safe and reasonable means of escape because [x].

Question 48

False Imprisonment
Physical force

Answer 48

Resistance by the individual is not required.

It is irrelevant that the amount of force used by the actor is not sufficient to overcome the individual.

Question 49

False Imprisonment
Threat of Physical Force

Answer 49

Threat may be by words or other acts.

Threat of physical force if P leaves the boundaries set by the actor must be for immediate force.

P must believe D had the ability to carry out the threat.

Question 50

False Imprisonment
Duress

Answer 50

Confinement by duress occurs when a victim submits due to a threat to inflict harm on a member of the victim’s family or to their personal property.

Moral pressure is generally not considered sufficient duress to cause confinement.

Question 51

False Imprisonment
Invalid or unlawful use of authority

Answer 51

Confinement is complete if the individual against whom the invalid or unlawful use of authority is used believes it to be valid and submits to it.

Use of physical force is not required to constitute confinement.

Submission to the authority may be shown by words or actions.

An individual is not confined if he complied with a demand in order to avoid arrest.

Authority must be asserted in victim’s presence.

Question 52

False Imprisonment
Awareness of how confined

Answer 52

It is not required that P know by whom or how the confinement was imposed.

Question 53

False Imprisonment
Duty to release

Answer 53

Confinement may result from a refusal of the actor to perform a duty to release an individual from an existing confinement, or to aid in such release by providing a means of escape.

An actor is not required to do more than reasonable under the circumstances.

Question 54

IIED
Extreme and outrageous - insults

Answer 54

Mere insults are generally not actionable.

Question 55

IIED
Fourth,….(reckless)

Answer 55

Fourth, D’s conduct was reckless.

An actor’s conduct is reckless when he deliberately disregards a high degree of probability that the victim will experience emotional distress.

Question 56

IIED
Severe emotional distress clauses

Answer 56

The distress must be reasonable and justified under the circumstances.

There is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor has knowledge.

Bodily harm is not required.

Question 57

IIED
Special liability for public utilities, innkeepers and & common carriers

Answer 57

Public utilities, innkeepers & common carriers can be liable for IIED even if the distress is not severe if:

(1) Employee inflicted gross insults which reasonably offend P;

(2) Employee was otherwise acting within scope of their employment;

(3) P was a patron utilizing its facilities at the time of the insult.

Question 58

Essay:
Intro paragraph

Answer 58

P can bring claim(s) of [x] against D.

[Optional: P can bring a claim against [D’s employer] for D’s actions under the doctrine of Respondeat Superior.]

Each of these claims are [likely][not likely] to succeed in a court of law for the reasons that follow.

D will likely bring the defense(s) of [y] as a matter of law.

The defense will likely [fail][succeed].

Question 59

Essay Format

Answer 59

I. Introduction: Summary of torts and defenses
II. Tort 1 IRAC
A. Issue
B. Rule
C. Rule Explanation
D. Application and
Conclusion
III. Defense(s) to Tort 1
IV. Tort 2 IRAC
A. Issue
B. Rule
C. Rule explanation
D. Application and
Conclusion
V. Defense(s) to Tort 2

Question 60

Trespass to Land
Scope

Answer 60

Trespass to land can involve an invasion on, above or beneath the surface of the earth.

Flight by aircraft in the space above land is not trespass unless the aircraft enters the immediate space above the land, or it interferes substantially with possessor’s use or enjoyment of the land.

Question 61

Defense of Intentional Torts:
Consent
Invalidations

Answer 61

Effective consent can be invalidated if it is:

(1) induced by fraud;
(2) obtained by duress;
(3) given by an individual deemed incapable of consent; or
(4) given by an individual in a legally-protected class.

Question 62

Consent is invalidated by fraud when….

Defense of Intentional Torts:
Consent invalidated by fraud

Elements

Answer 62

Consent is invalidated by fraud when:

(1) P’s consent was induced by a mistake as to the nature of the invasion or harm to be caused by it;
(2) the mistake was material in nature; and
(3) D knew of the mistake or the mistake was induced by D’s misrepresentation.

Question 63

Defenses of Intentional Torts:
Consent

Actual

Answer 63

D may argue that he had [explicit][implied-in-fact] actual consent to do [y] and thus is not liable for [z].

Consent is the willingness in fact for conduct to occur.

To be effective, consent must be to a particular conduct or substantially the same conduct.

The court will likely find that D [did][did not] have [explicit][implied-in-fact] consent because [y].

Question 64

IIED -
Extreme & outrageous
Sensitive P

Answer 64

An actor is not liable for causing emotional distress to someone who is extra sensitive to emotional distress unless the actor knew of the sensitivity.

Question 65

IIED -
Extreme & outrageous
Abuse of authority

Answer 65

Abuse of a position of special authority and power lowers the line of outrage necessary for liability.

Question 66

Defenses of Intentional Torts:
List

Answer 66

The affirmative defenses a defendant can raise against liability for an intentional tort are:
(1) Consent
(2) Self-defense
(3) Defense of others
(4) Defense of property
(5) Private necessity
(6) Public necessity
(7) Recapture of property

Question 67

IIED
Extreme & outrageous
Legal rights

Answer 67

An actor is not liable for asserting his legal rights in an acceptable way.

Question 68

Defenses of Intentional Torts
Consent

Apparent -words/behavor

Answer 68

D may argue that he had apparent consent to do [y] and thus is not liable for [z].

Apparent consent is a possible defense when an actor can prove that a reasonable person in his position would believe that P actually consents to the conduct.

Words, acts, silence or inaction of P may justify the actor relying on apparent consent.

To be effective, consent must be to a particular conduct or substantially the same conduct.

The court will likely find that D [did][did not] have apparent consent because [y].

Question 69

Defenses to Intentional Torts:
Consent

Actual

Answer 69

D may argue that he had [explicit][implied-in-fact] actual consent to do [y] and thus is not liable for [z].

Consent is the willingness in fact for conduct to occur.

To be effective, consent must be to a particular conduct or substantially the same conduct.

The court will likely find that D [did][did not] have [explicit][implied-in-fact] consent because [y].

Question 70

First,…

Defenses of Intentional Torts
Consent

Fraud

Answer 70

P’s consent was induced by the mistake of [x] which was because [y].

Question 71

Second,…

Defenses of Intentional Torts
Consent

Fraud

Answer 71

The consent [was][was not] material in nature because [z].

Question 72

Defenses of Intentional Torts
Consent
Fraud

Third,..

Answer 72

D knew of the mistake as proved by [y]. OR The mistake was induced by D’s misrepresentation because [[y].

Thus, P’s consent was invalid and this defense will not be successful.

Question 73

Defenses of Intentional Torts:
Types of Consent

Answer 73

Actual (Explicit)
A person actually consents to an actor’s otherwise tortious conduct if he is subjectively willing for that conduct to occur.

Apparent (Implied) Consent
An actor is not liable if an otherwise reasonable person in the position of the actor would believe the other actually consents to the conduct.

Question 74

Defenses of Intentional Torts:
Types of Actual Consent

Answer 74

Explicit consent
Demonstrated in words or writing

Implied-in-fact consent
Implied from actor’s conduct

Question 75

Defenses of Intentional Torts:
Manifestation of apparent consent

Answer 75

Apparent consent can be manifest by D’s words, acts or even his silence or inaction.

Question 76

Taking part in an activity

Defenses of Intentional Torts
Consent

Apparent

Answer 76

A person is generally deemed to implicitly consent to the reasonably foreseeable results of
activities in which she voluntarily participates as permitted by the activities rules or usages.

Intentional, reckless, or negligent conduct beyond that reasonably incident to the activity is generally not foreseeable.

D [can][cannot] rely on apparent consent as an affirmative defense because [y].

Question 77

Elements of effective consent

Answer 77

To be effective consent must be:
(1) Given by one who has the capacity to consent or by a person empowered to consent for him;
(2) to the particular contact, or to substantially the same contact;

Minor differences in degree or consent usually do not invalidate effective consent.

Question 78

Effective Consent

Child or deficient mental capacity

Answer 78

If the person consenting is a child or of deficient mental capacity, consent may stil be effective if he is capable of appreciating the nature, extent, and probable consequences of the conduct consented to even if the individual’s parent or guardian did not consent.

Even when a person is competent to give consent a statute may prevent consent from being effective.

P was [a minor child][a person with mental deficiency] . P’s consent was [effective][not effective] because [x].

Question 79

Effective Consent

Medical procedures

Answer 79

Effective consent is not invalid because of:
(1) Minor differences in degree or extent
(2) The contact was less invasive than that for which consent was given
(3) Unexpected conditions calling for emergency actions

Question 80

Effective Consent
Conditional consent

Answer 80

Consent is conditional when it:
(1) Is to be effective on the occurence or nonoccurence; or
(2) Is to be effective on the existence or nonexistence of a fact; or
(3) subject to a condition that terminates consent if condition is not met.

Conditional consent is not effective until the condition has been satisfied or if the consent terminated due to failure to satisfy a condition.

Question 81

Effective Consent

Restricted consent

Answer 81

If consent is restricted by time,place or in other respects, it is effective only within the limits of the restriction.

Question 82

Termination of consent

Answer 82

Consent is terminated when the actor knows or has reason to know the other is no longer willing for him to continue the particular conduct.

Unwillingness may be manifest by words or conduct or apparent from terms of the original consent.

Consent is not effective for further conduct once it has terminated.

Question 83

Informed Consent to medical treatment

Answer 83

If a doctor obtains a patient’s consent to an operation without informing him of the operation or the extent of the harm that is necessarily involved, patient’s consent is not held to be “informed consent.”

If the surgeon knew the patient was not aware of what he was consenting to and was not willinging togive consent to the surgeon to operate in any way he sees fit, then the patient’s consent was induced by a substantial mistake.

e.g. consent is not effective as a defense for battery

some courts apply this principle to failure to disclose significant risks. However most courts hold that to be a negligence or medical malpractice issue, not a tort of battery issue.

Question 84

Definition

Consent under duress

Answer 84

Duress is constraint of another’s will that compels him to **unwillingly **consent.

Question 85

Consent by duress
What qualifies?

Answer 85

Must be drastic in nature and must clearly and immediately overpower will of P.

Includes:
(1) force or threats of force against P, P’s immediate family, or P’s valuable property

(2) threat of arrest, imprisonment or prosecution of P or a member of P’s family.

Age, sex, mental capacity, relation of the parties and antecedent circumstances may be significant in determining if consent was by duress.

Question 86

Consent implied-by-law

Answer 86

Consent implied in law can be found where:

(1) an emergency makes it apparently necessary for D to make a physical contact with the plaintiff, in order to prevent harm to the plaintiff, before the plaintiff is able to give his consent; and

(2) D has no reason to believe the plaintiff would decline to consent if given the opportunity.

Question 87

Elements of effective consent

Answer 87

To be effective, consent must be voluntary, for the same or substantially same conduct that occurred and given by someone with legal capacity to consent.

Question 88

Legal capacity to consent

Underage victim

Answer 88

In many jurisdictions, the law sets a minimum age, below which a person lacks the legal
capacity to consent to particular acts.

Question 89

Legal capacity to consent

Mentally deficient

Answer 89

Deficiency must either:
(1) Prevent P from forming the understanding necessary to consent or
(2) make P so suspecitible to suggestion that any consent could not be voluntary.

Question 90

Scope of Consent

Answer 90

Consent is given for conduct, not the result.

Consent is not valid if D’s conduct exceeded the reasonably understood scope.

Question 91

Defenses of Intentional Torts
Apparent Consent

Types

Answer 91

Implied by conduct
Implied by P’s words, actions, silence or inaction

Implied by law
Implied by an emergency to prevent harm to P before P can consent

Question 92

Self-Defense Elements

Non-deadly force

Answer 92

D can claim an affirmative defense of self-defense if:

(1) He believed:
a. Someone was about to intentionally make contact with him
b. The contact is unprivileged
c. The contact would be harmful or offensive;

(2) His belief was reasonable;

(3) The force used:
a. Was reasonable (i.e., not excessive); and
b. Not intended or likely to cause death or serious bodily harm; and

(4) He was not the initial aggressor

D [can][cannot] claim self-defense because [x].

Question 93

Self-Defense Elements

Deadly force/serious bodily harm

Answer 93

D can claim an affirmative defense of self-defense if:

(1) He reasonably believed:
a. Someone was about to intentionally use force against him that could cause death or serious bodily harm

b. The contact could only be avoided by use of immediate force

c. He could not retreat with complete safety (unless in his dwelling place);

(2) The force used:
a. Was reasonable (i.e., not excessive); and

(3) He was not the initial aggressor.

D [can][cannot] claim self-defense because [x].

Question 94

Self-defense
Proportionality Factors

Answer 94

(1) degree of force

(2) method and object used

(3) the overall context in which the force is used, and

(4) necessity to make a rapid decision.

Question 95

Self-defense

Reasonable belief

Answer 95

D’s belief that force is necessary must be honest and objectively reasonable under all
the circumstances.

D’s mistake about the need for use of force does not invalidate a claim for self-defense.

Question 96

Self-defense

Retaliation and pre-emptive force

Answer 96

An actor may not use force
to retaliate against another’s prior use of force or to preempt another’s use of force in the
indefinite future.

Question 97

Self-defense

P was privileged by reasonable mistake of fact

Answer 97

If P is privileged to use force against D due to P’s reasonable mistake of fact that is not D’s fault, then D may use proprtionate force against P’s use of force.

Question 98

Self-defense

Initial aggressor

Answer 98

Privileged to use reasonable force in two situations:
(1) Disproportionate reponse by P
(2) If D **withdraws **and clearly and reasonably communicates he no longer intends to use unlawful force, but P uses force after threat has passsed.
Accounting for P’s excitement and possible lack of time to reflect and assess the situation.

Question 99

Elements of public necessity

Answer 99

D can asset an affirmative defense of public necessity if:
(1) D reasonably believed [x conduct] was necessary to avert serious, imminent harm;
(2) The harm would protect the public at large, and
(3) The threat of harm is more serious than the invasion of P’s property.

D cannot be held liable for reasonably necessary damages to P’s property but is liable for damages greater than what was reasonably necessary.

D [can][cannot] rely on the defense of public necessity because [x].

D will be liable for [y] damages.

Question 100

Elements of Private Necessity

Answer 100

D can assert a partial affirmative defense of private necessity if:
(1) D reasonably believes conduct was necessary to avert serious, imminent harm;
(2) The harm would protect D or another person; and
(3) The threat of harm is more serious than the invasion of P’s property.

D cannot be held liable for punitive damages but is liable for damage or loss to P’s real or personal property.

D is liable for any damages greater than what was reasonably necessary.

D [can][cannot] rely on the defense of private necessity because [x].

D will be liable for [y] damages.

Question 101

Defense of Others

Answer 101

D can assert an affirmative defense of defense of others if:
(1) D believes the person being aided had the right of self-defense AND his intervention is necessary for protecton of the person;
(2) D’s believe was correct or reasonable;
(3) D’s use of force was reasonable.

Even if person being aided did not have the right of self-defense, D can rely on this defense as long as he reasonably believed the person aided could use self-defense.

D [can][cannot] rely on defense of others because [x].

Question 102

Defense of Property
Elements

Answer 102

D can assert a defense of defense of property if:

(1) D acted to prevent a tort against his real or personal property;

(2) D had not already been dispossessed of the property or was in “hot pursuit”;

(3) D made a request for P to desist unless the request would be futile or dangerous;

(4) D used reasonable force.

Question 103

Defense of Property

Effect of Mistake

Answer 103

1. Reasonable mistake allowed if mistake involves whether an intruson has occured or whether a request to desist is required: reasonable mistake
2. Mistake is not allowed where P has privilege to enter the property that supersedes defense of property right unless P intentionally or negligently caused the mistake.

Question 104

Defense of Property

Privileges that Supersede

Answer 104

1. Public or private necessity
2. Right of re-entry
3. Right to recapture chattels

Question 105

Re-entry into land

After dispossession

Answer 105

Privilege abolished in most states. If force is used to retake possession, D is liable for injury

Question 106

Recovery of Property
(Recapture of Chattel)
Elements

Answer 106

D can asset a defense of recapture of chattel against a tort claim of trespass to land if:
(1) Property is not on P’s land because of D’s actions;
(2) D made a timely demand for P to return the chattel;
(3) D entered at a reasonable time and in a reasonable manner;
(4) Force was not used unless in “hot pursuit”
(5) D did not cause a breach of peace;
(6) D remained on the land no longer than reasonably necessary;
(7) P was the tortfeasor or a third person who knew or should have known the property was tortiously claimed.

Question 107

Shopkeeper’s Privilege

Answer 107

D is privileged to detain P if:
(1) D is a shopkeeper
(2) D has reasonable belief that person has stolen or is attempting to steal;
(3) The detention is for a reasonable time; and
(4) The detention is in a reasonable manner.

D’s privilege is not based on whether the accused is guilty or innocent.

D [can][cannot] assert an affirmative defense of shopkeeper’s privilege because [x].

Tort of false imprisonment

Question 108

Privilege of Arrest of a third person

Answer 108

Depending on facts of a case, D may have privilege to arrest a third person.
1. Invasion of land - privilege to enter another’s land for purposes of effecting the arrest.
2. Subsequent misconduct - D may still be liable for subsequent midconduct.

3. Mistake - one who makes an arrest under the mistaken belief that it is privileged may be liable for false imprisonment.

Question 109

Disciplining Children

Answer 109

Parent, guardian or teacher may use reasonable force if:
(1) Reasonable under the circumstances in time and manner
(2) For purposes of disciplining or promote the welfare of the child;
(3) Reasonable considering age, and seriousness of behavior.

A babysitter is not a “guardian”.

Question 110

Umbrella Justification Defense

Answer 110

Justification is a defense for restraint or detention if:
(1) Reasonable under the circumstances in time and manner
(2) Imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real property in one’s lawful possession; or
(3) Custody is unlawful.

Reasonableness of actions is determined from consideration of all the circumstances, including:
(1) Consideration of the need to protect the persons and property in his charge;
(2) Duty to aid in the investigation;
(3) Apprehenson of those inflicting damage,
(4) The manner and place of the occurrence; and
(5) Feasablity and practicality of other alternative courses of action.

Question 111

Respondeat Superior
Elements

Answer 111

X Company may be vicariously liable for any torts committed by Y employee if:
(1) Y was an employee when the tort occurred;
(2) Y was acting within the scope of his employment.

Question 112

Conversion v. Trespass to chattel factors

Answer 112

1. Extent and duration of D’s exercise of dominion or control
2. D’s intent
3. D’s good faith
4. Extent and duration if P’s resulting interference
5. Harm done to the chattel
6. Expense & inconvenience caused to P.