Bob Smith Flashcards
Learn Torts for the Bar Exam.
What are two ways to establish intent for an intentional tort?
Intent is established by defendant’s: (1) Desire to bring the action, or (2) Knowledge with Substantial Certainty that a Particular Effect will Occur as a result of defendant’s action.
Does it matter if a defendant meant for a particular harm to occur (tort act)?
No. So long as the actions were Purposeful, then the defendant is liable for the harm resulting from defendant’s actions. KEY: to establish defendant intended to do the ACT that caused the harm (not intent to do the resulting harm).
What is transferred intent?
Transferred Intent occurs when a defendant intends to commit a tort against one person, but actually commits a different tort against that person; - OR - commits the intended tort against a different person or a different tort against a different person. The defendant’s intent to commit the tort against the first person “transfers” to the tort actually committed, or to any person actually injured.
EXAMPLE of Transferred Intent
Z is angry with B and wants to punch him in the head. As Z throws his punch, B bends over and Z actually hits G. Z’s intent to commit a battery on B will transfer to the battery committed on G.
The doctrine of transferred intent is limited to which six torts?
Assault, Battery, False Imprisonment, Trespass to Land, Trespass to chattels, Intentional Infliction of Emotional Distress.
If an intentional tort is committed but the resulting harm is completely unforeseeable and unexpected, will the defendant be liable?
Yes. An intentional tortfeasor is liable for virtually every result stemming from defendant’s intentional act.
Does the defendant’s culpability matter regarding a finding of tort damages or tort liability?
Yes. The defendant’s liability and damages can be much greater depending on how culpable or how intentional the person’s actions. Punitive Damages are more likely for intentional torts than negligence or strict liability.
What are the elements of a battery in tort?
Battery:
1 - Intentional infliction of
2 - harmful or offensive bodily contact with
3 - another person.
e.g.: Z is angry with B and wants to punch him in the head, so Z does. Z has committed a battery.
To establish the tort of battery, what are the definitions of harmful contact and offensive contact?
Contact is harmful if an “actual injury” occurs.
Contact is Offensive if the contact “offends a reasonable person’s sense of dignity.”
e.g.: Z is angry with B and slaps B in the head, leaving a slight scratch on B’s face. Though the injury is slight, it’s sufficient to constitute a harmful touching.
If a person initially consents to a touching, can he later claim a tortuous battery?
Yes, But, only if the contact went “beyond the level of contact to which he consented.”
An example of this is playing basketball and the conduct (touching) becomes rougher than normal, which far exceeds the scope of the contact expected.
Will contact with something closely associated with a person’s body, rather than the body itself, satisfy the contact element of a tortious battery?
Yes. The contact can be with something very closely associated with the actual body of the person, such as clothing or objects being held by the person.
Does the defendant need to personally touch the plaintiff to establish the contact element in a tortious battery?
No. “Indirect contact is sufficient” to establish the contact element of a battery, so long as the defendant’s actions “set a force in motion” that leads to something touching the plaintiff.
Does the plaintiff need to be aware of the contact at the time of the touching to establish a tortious battery?
No. For a battery, the plaintiff “need not be aware of the contact when it occurs.”
Example: When Bill was sleeping, Trevor hit him on the head. Trevor committed a battery against Bill.
What elements are required to establish a tortious assault?
An assault is:
1 - the intentional
2 - causing plaintiff to be in reasonable apprehension
3 - of imminent harmful or offensive contact.
