Torts for BAR Flashcards
P’s super sensitivies not taken into account UNLESS
D knew of them in advance
Ordinary average person should be default standard for intentional torts
Everybody can be liable for INT tort (young, dumb drunk)
A person intends the consequence of her action if it was her purpose to bring about the consequence or if she…
doesn’t wish result but has sub. certainty that result will occur anyway (same as intended consequence)
intent can transfer from intended to actual victim
intent can also transfer from tort to tort
Battery elements
(1) harmful or offensive Contact (unpermitted) (P super sensitivty not taken into account unless D knew about them)
(2) With the P’s person - includes anything physically contacted with the P. (plate in P hand. car holding P).
Assualt elements
(1) apprehension
(2) of an immediate contact
Must be reasonable apprehension. Appreehension is not fear or intimidation. Apparent ability creates reasonable apprehension.
Immediacy - words alone not enough; Words coupled with conduct can be enough. However, words coupled with conduct can undo the conduct and any reasonable apprehension
If battery and assault work on same fact pattern - choose battery
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False Improsenment elements
1: sufficient act of restraint
2: to a bounded area
Threats are enough for restraint. Inaction is enough if there was an understanding that D would act for P’s benefit. P generally must be aware of confinement as its taking place. Confinements length of time not relevant.
Bounded area: a mere inconvenience is not enough; not bounded if a reasonable means of escape which P is aware.
IIED (a fallback position when other tort theories aren’t working) elements:
1) outrageous conduct AND
2) damages
Outrageous: insult not enough unless day after day. Consider type of P (pregnant, young child, elderly).
Consider type of D (common carriers and inn keepers, an insult to P is outrageous).
P’s super sensitivies not to be taken into account unless D knew of them.
Damages: proof of severe emotional distress. No need to prove physical harm.
Intent: recklessness can suffice. Transferred intent is Unavailable for IIED.
Only if D knows close relative present, then that Fam member can prove IIED directly b/c D knew action would harm P (this is not a transfer of intent)
Trespass to Land …..
1) act of physical invasion
2) To land
no need to show knowledge of D crossing property line. Propelling physical object onto property will suffice.
Trespass to Chattels and Conversion
1) Act of Invasion
2) To personal property
Some damage = trespass to chattels.
Lot of damage = Conversion.
For conversion, damage can include serious interference with posessory rights. Take item and not return it.
Consent - defense to int. tort. Good defense to all int torts and defamation and invasion of privacy
Capacity - P must have capacity to consent. (child, mental impaired, P who is coerced or forced, or consent given under fraud or mistake all invalid).
Express consent “go ahead and do it” - look for facts relating to mistake, fraud, coercion.
Implied Consent arises through custom and usage or through P’s own conduct.
Self Defense - defense to int. tort
person justified in using reasonable force to prevent what she reasonably believes to be an imminent threat of force against her.
Reasonble belief: Reasonable person in D’s position would have believed D was in danger.
REasonble force: may only use degree of force reasonably necessary to aoid the threatened harm.
- deadly force reasonable only when defender reasonably believes she’s facing a threat of deadly force herself. Response must be commensurate.
- retreat before using deadly force unless in own home.
Defense of Others
person may defend other person in same manner and under same conditions as person attacked would be entitled to defend himself.
Mistaken belief: D not liable if reasonably believed another person was endangered.
Defense of Property
person may use reasonably force to defend his real or personal prop. deadly force may never be used to protect prop alone.
Can only use reasonable force to recapture prop if in HOT PURSUIT. Cant use force 2 weeks later to get prop.
Shopkeeper’s privelege
detention of shoplifter
shopkeep can keep shoplifter in a reasonable manner for a reasonable time.
Shopkeeper using defense of prop. Shoplifter might say false improsenment.
Necessity
used only in conjunction with intentional torts to property.
Public necessity - unlimited/unqualified privilege to protect a lot of people. (mayor destructs houses to stop fire).
Private necessity - a Qualified privilege to protect a limited umber of people, maybe only herself. Must pay for Damages Caused!!!
Discipline
Teacher/parent can use reasonable force when disciplining children.
Defamation
1) defamatory statement that turns out to be false
2) of and concerning the P,
3) published to a 3rd party,
4) resulting in damages to the P.
Defamatory statement is one that injures P’s reputation. P’s rep for honesty, integrity… lowering reputation in community. mere name calling not enough.
Def bears burden of proving truth of the statement. Truth is a defense to defamation claim.
‘of and concerning’ = D’s statement must be reasonably understood to refer to the P. Large group = no. Small group = more likely.
‘Publication’ = communicated to a 3P who is capable of understanding it. publication must be intentional or at least negligent on part e of D. (Doesnin c’t mean printed doc). Overheard by eavesdropper is not a printed doc.
‘Damages’ - when defamation is spoken (slander), P must prove special damages. When defamation is written or broadcast (libel), juries may presume damages. EXCEPTION: P can recover presumed damages in cases of slander per se
Slander per se includes
1) statements that impugns ones trade or profession
2) statements that accuse P of committing serious crime.
3) traditionally statements that imply P has a loathsome disease.
4) Traditionally, statements that impute unchastity on women.
Common Law Defenses to Defamation Cases
1) Truth - D has burden to prove Truth
2) Absolute privilege to defame others even if comment made intentional or malicious. 3 categories.
3) Qualified Privilege to make defamatory statement in course of legit public debate or statement made to serve the interest of the person receiving the publication. If you abuse it you lose it.
3 categories of Absolute privilege
Abs priv applies no matter how bad D behaves.
a) statements made in course of Judicial Proceedings
b) statements made in course of Legislative Proceedings
c) communications between spouses
Constitutional Limitations - First Amendment protests speech on matters of public concern. Two elements added to P’s prima facie case….
1) Falsity (P must prove statement was false; at common law, D has truth as aff. def.)
2) Fault - P must prove some level of fault regarding D’s knowledge of whether statement was T or F.
Public Person must prove ACTUAL MALICE (knowledge of falsity or reasonable disregard of truth). P must prove actual malice to recover presumed or punitive damages, jury cannot presume.
Private Person must prove fault amounting to at least negligence.
Appropriation (invasion of right to privacy)
Use of P’s name or picture for COMMERCIAL advantage w/o permission.
Appropriation of P’s name/image/likeness w/o permission.
P’s likeness must be used for advertising, promotional, or labeling purposes. Newsworthy sources not actionable.
Intrusion (invasion of right to privacy)
Interference with a P’s seclusion in a way that would be highly offensive to a reasonable person.
Ex: eavesdropping device at house. Telescope looking into neighbors window.
Limitation: P must be in place where she has expectation of privacy.
Fallback to this tort is possibly IIED.
False Light (Invasion of Right to privacy)
widespread dissemination of info that is in some way inaccurate and that would be highly offensive to a reasonable person. (not quite defamation).
Public Disclosure of Private Facts (invasion of right to privacy)
widespread dissemination of factually accurate info that would be normally confidential, and disclosure of which would be highly offensive to a reasonable person.
*Must be PRIVATE FACT. newsworthy disclosures not actionable.
Defenses to invasion of right to privacy
1- Consent
2- Absolute and Qualified Privileges - which only apply to False Light and Public Disclosure Claims.
Fraud (Deceit) (5 elements)
1) Affirmative Misrepresentation (Intentional). (Silence generally will not suffice.)
2) Fault. (Scienter must be shown; D made aff. misrep of fact and knew it was false. fraud is intentional cause of action)
3) Intention to Induce Reliance. (Statement must be material. Central aspect of transaction).
4) Actual and Justifiable Reliance. (normally justifiable to rely on the opinion of one who has superior skill or knowledge in the subject matter of the transaction).
5) Damages. Actual out of pocket $ loss.
Comparison of Fraud with Negligent Misrepresentation (where D makes statement negligently, rather than intentionally).
Negligent Misrepresentation liability normally confined to commercial transactions (D usually business person).
Liability normally confined to particular P whose reliance is contemplated (D knew P would rely on statement).
Inducing Breach of K (Intentional Interference with Business Relations)
intentional action that causes a 3rd person to breach an existing K with the P.
Interference with Contractual Relations
D may be liable if interference with P’s contractual relations makes performance more difficult, even if the interference does not actually cause a breach.
Interference with Prospective Economic Advantage
D may be liable for interfering with a P’s expectation of economic benefit from 3rd persons, even in the absence of a K.
Malicious prosecution
criminal proceeding brought against someone w/o probable cause.
Abuse of Process
Wrongly using any form of legal process for improper purpose or alterior motive.
NEGLIGENCE
Duty, Breach, Causation, Damages.
Duty is owed to all people who are FORESEEABLE Victims of your failure to take precautions.
P’s foreseeable as a matter of law includes Rescuers and Viable Fetuses (even if D had no knowledge woman was carrying fetus).
