Intentional Torts

Question 1

What is the general rule for “burden of proof”?

Answer 1

The plaintiff bears the burden to prove a case by a preponderance of the evidence. This means that the plaintiff first beras the burden to prove the facts of the case, referred to as the burden of persuasion, and the evidence must be enough to convince the court or jury that the defendant, more likely than not, is liable for the plaintiff’s injuries, referred to as the burden of production.

Question 2

What is the general rule for an “act”?

Answer 2

An act is purposeful or volitional. The defenandant must be conscious at the time of the act.

Question 3

When are acts not sufficient to cause liability?

Answer 3

Defendants are not liable for acts committed while unconcsicous, asleep, or under coercion.

Question 4

What is the general rule for “intent”?

Answer 4

Intent is either specific, by the defendant targeting a [consequence] at the plaintiff, or general, where the defendant should have substantial cetainty that the [consequence] will occur to someone.

Question 5

Can intent be precluded by mistake, insanity, or age?

Answer 5

A defendant’s intent cannot be precluded by mistake, insanity, or age, unless the defendant lacks the capacity to understand what it is that he is doing.

Question 6

What is the transferred intent doctrine?

Answer 6

• Intent “follows the bullet” in a wrongful action
• One tort to another. If no intent for one tort, there is nothing to transfer.

Question 7

What is the broad and general rule for battery?

Answer 7

A battery is a tort where one person intends to touch another. For a battery claim to prevail, the plaintiff must prove, by a preponderance of the evidence, that the defendant acted with intent to cause contact (or apprehension of contact) which the plaintiff finds the contact harmful or offensive.

Question 8

How is causation determined in a battery claim?

Answer 8

Causation is determined in a battery claim by the defendant’s use of either direct force, such as the defendant’s fist hitting the plaintiff, or indirect force, such as the defendant breaking glass which hits the plaintiff.

Question 9

How is contact defined in a battery claim? What can be contacted with?

Answer 9

The contact must be with with the plaintiff’s body or belongings which are close enough to constitute an extension of the plaintiff’s body, such as a purse or a camera in hand.

Question 10

What makes a contact harmful or offensive in a battery claim?

Answer 10

Harmful contact is that which causes pain, illness, or other change in function or structure to the plaintiff’s body. Offensive contact would offend the dignity of a person of ordinary sensibilities.

Question 11

What are 6 examples of defenses to battery which are not effective?

Answer 11

• Consent is presumed in minor touchings warranted by social usages and determined by factors like time, place, relationship, degree of force, etc.
• Age and insanity, unless defendant lacks capacity.
• Sensitivities of the plaintiff, unelss the defendant knows.
• Contributory negligence
• Good motives
• When the plaintiff is unaware of the contact

Question 12

What are the broad and general rules of assault?

Answer 12

An assault is a tort where a person is apprehensive of a contact. For a claim of assault to prevail, the plaintiff must prove, by a preponderance of the evidence, that the defendant acted with intent to cause apprehension of an immediate or imminent harmful or offensive contact.

Question 13

When would the apprehension element not be satisfied?

Answer 13

When the defendant’s act would not cause a person of ordinary sensibilities to be apprehensive (unless the defendant knew of the plaintiff’s supersensitivities) and when the plaintiff is unaware of the act.

Question 14

When is the element requiring a threat of immediate or imminent contact not satisfied? (4)

Answer 14

• When the defendant does not have the present apparent ability to carry out the threat (factual inability is irrelevant)
• Words alone without actions are insufficient
• When a threat is conditional
• When it is a threat of future harm

Question 15

What are the broad and general rules of intentional infliction of emotional distress?

Answer 15

IIED is a tort where a person suffers severe emotional distress because of another’s actions. For a claim of IIED to prevail, the plaintiff must prove, by a preponderance of the evidence, that the defendant acted intentionally or recklessly through extreme and outrageous conduct to cause the plaintiff severe emotional distress.

Question 16

What is the burden of proof for IIED?

Answer 16

The burden of proof for a claim of IIED is held to a more demanding standard than by a preponderance of the evidence due to the outrageousness of the conduct and severity of the result.

Question 17

How is intent proven in a claim for IIED?

Answer 17

Through (1) the defendant’s desire to cause severe emotional distress; (2) that the defendant knew or should know with substantial certainty that his actions would cause emotional distress; or (3) reckless disregard for the high probability that emotional distress would occur.

Question 18

When does transferred intent apply to a claim of IIED? What are the exceptions?

Answer 18

Generally, it doesn’t, unless:
1. The plaintiff is an immediate family member of the victim and is present during the conduct;
2. The plaintiff is not an imediate family member of the victim but is present during the conduct and suffers bodily harm as a result of witnessing the conduct; or
3. The defendant acts with purpose or knowledge to cause a third party harm or reckless indifference to circusmtances highly likely to distress a third party.

Question 19

What is required of causation in an IIED claim?

Answer 19

There can be no other intervening cause for the severe emotional distress.

Question 20

What constitutes extreme and outrageous conduct for purposes of IIED?

Answer 20

Beyond all bounds of decency, atrocious, intolerable in a civilized community

Question 21

When may the degree of outrageousnes be lowered in a claim for IIED?

Answer 21

1. When the defendant knows the plaintiff is an individual with heightened sensibilities (children, pregnant women, the mental inform);
2. When the defendant knows of the plaintiff’s sensitivities, even when not otherwise obvious; or
3. When there is a special relationship between the plaintiff and defendant (e.g. common carriers, innkeepers, utility)

Question 22

When will words alone support a claim of IIED?

Answer 22

When there is a special relationship AND a gross insult AND the defendant knows the plaintiff is a member of a group of heightened sensibilities

Question 23

What is the continuing tort doctrince, and how does it apply to IIED?

Answer 23

The continuing tort doctrine states that the statute of limitations for a serious of tortious acts begins on the date of the last of tortious act. For IIED, outrage can be an accumulation occurring as a result of the series of torts. Each event does not have to reach the level of outrage required.

Question 24

What is severe emotional distress? How is it proven?

Answer 24

That which a person of ordinary sensibilities could not be expected to endure. Duration and intensity are proven by evidence such as doctor’s visits, medications, and other treatments.

Question 25

What damages may be assessed under a claim of IIED? Do they require proof?

Answer 25

Damages always require proof for IIED. The majority allows punitive damages for a claim of IIED. The defendant may also be liable for any bodily harm to the plaintiff and expenses incurred as a result of such.

Question 26

What are the broad and general rules for false imprisonment?

Answer 26

False imprisonment is a tort where a person is confined by another. For a claim of false imprisonment to prevail, the plaintiff must prove, by a preponderance of the evidence, that the defendant acted intentionally to cause the confinement of the plaintiff or a third person within boundaries fixed by the defendant of which the plaintiff had knowledge of or was harmed by.

Question 27

When is a defendant not liable for false imprisonment?

Answer 27

A defendant is not liable for false imprisonment if he lacks the requisite intent but causes a transitory or otherwise harmless confinement, even if negligent of or reckless to a risk which threatens bodily harm.

Question 28

How is causation proven in a claim of false imprisonment?

Answer 28

The plaintiff must prove that the defendant caused the confinement through imposition of barriers, physical force, threats of physical force to plaintiff or family, or by asserted legal authority.

Question 29

What does not justify causation in false imprisonment?

Answer 29

Words alone do not constitute false imprisonment. Shame, emotional duress, and financial duress usually do not justify false imprisonment.

Question 30

What is complete confinement as required by false imprisonment?

Answer 30

Complete confinement is that which the plaintiff has no reasonable means of escape, or if a reasonable means of escape exists but the plaintiff does not know about it.

Question 31

What are fixed boundaries as required by false imprisonment? What isn’t a fixed boundary?

Answer 31

Boundaries may be large or even immobile and do not necessarily require walls to constitute boundaries. However, exclusion from one area would not constitute fixed boundaries.

Question 32

How is the plaintiff’s knowledge of or harm by confinement proven? How can knowledge be challenged?

Answer 32

The plaintiff has knowledge of confinement if he is conscious and aware of the confinement at the time the confinement happens. Harm by confinement is that which causes pain, illness, or change in structure or function of the plaintiff’s body.

Knowledge can be argued by the plaintiff’s capacity, or inability, to akcnowledge confinement.

Question 33

What losses may be compensated under a claim for false imprisonment?

Answer 33

Loss of time, phyisical discomfort, inconvenience, bodily harm due to a reasonable escape, loss of business and business opportunities.

Question 34

What are the broad and general rules for trespass to chattels and conversion?

Answer 34

Trespass to chattels and conversion are torts where a person has interfered with another’s personal property. For a claim of trespass to chattels to prevail, the plaintiff must prove, by a preponderance of the evidence, that the defendant acted intending to affect the plaintiff’s chattel through a minor interference with the plaintiff’s possessory rights by dispossession, use, or physical contact. Absent dispossession, damage in the form of substantial loss of use or impairment of conditions, quality, or value. For conversion, the plaintiff must prove that the interference was major.

Question 35

What does the plaintiff not have to prove for a succesful claim of trespass to chattels or conversion?

Answer 35

The plaintiff does not have to prove ownership, only possessory rights greater than that of the defendant.

Question 36

What are chattels? What aren’t chattels?

Answer 36

Chattels are tangible, movable property and can include documents into which a title are merged and documents that convey the value of a chattel. Human tissue, real property, intellectual property, or other intangible assets (e.g. trade secrets) are not included.

Question 37

What are the 5 factors used to determine the seriousness of an interference?

Answer 37

1. The extent of the defendant’s dominion or control over the property;
2. The defendant’s intent to assert a right inconsistent with the plaintiff’s right to the property;
3. The defendant’s good intentions;
4. The extent and duration of the interference; and
5. Inconvenience and expense to the plaintiff.

Question 38

What is dispossession?

Answer 38

Dispossession occurs when the defendant intentionally takes a chattel without permission through force, fraud, or duress; by barring access; destroying; or taking into the custody of the law.

Question 39

What is the election of remedies, and how does it affect a plaintiff’s recovery for trespass to chattels or conversion?

Answer 39

The election of remedies is the idea that a plaintiff can recover for either trespass to chattels or conversion but not both. The plaintiff can choose which to recover under. Potential remedies are (a) return of the item, (b) return of the item with cost of repairs, (c) full compensation for the item, and (d) punitive damages for malicious, spiteful, mean-spirited interference.

Question 40

When are bailees liable for conversion? When are they not? What is the bailee’s remedy?

Answer 40

• Bailees are liable when the chattel is received with notice of the rightful owner’s claim or when redilvering to the bailor with notice of the rightful owner’s claim.
• Bailees are not liable when the chattel is received without notice of the rightful owner’s claim, redelivered to the bailor without notice of the rightful owner’s claim, or redelivered to the true owner.
• Bailees faced with adverse claims may give the chattel to the court or by the “Registry of the Court”

Question 41

When are good faith purchasers liable for conversion? When are they not?

Answer 41

• Liable when the item was originally stolen.
• Not liable when the item was originally obtained by fraud.

Question 42

What is the discovery rule and how does it affect a conversion claim?

Answer 42

The discovery rule delays the statute of limitations. For conversion, the statute of limitations begins accrual at the first conversion or when the conversion is discovered with reasonable diligence. Multiple conversions does not stack.

Question 43

What are nominal damages? What are their requirements?

Answer 43

Nominal damages may be awarded to vindicate the plaintiff’s technical right and do not require proof of losses.

Question 44

What are compensatory damages?What are their requirements?

Answer 44

Compensatory damages are awarded for proven losses (wages, medical expenses, and pain and suffering).

Question 45

What are punitive damages? What are their requirements?

Answer 45

Punitive damages are rare and awareded as punishment to the defendant for reckless, willful, or wanton behavior and are held to the burden of proof of clear and convincing evidence.

Question 46

What is consent and how does it interact with all intentional torts?

Answer 46

Consent is a total bar to liability. The plaintiff bears the burden to prove a lack of consent. Consent may be expressly given by the plaintiff to the defendant, made apparent from the plaintiff’s conduct, or implied in a medical emergency when the plaintiff is otherwise unable to provide express consent.

Question 47

When is consent not effective? (5)

Answer 47

• When it is exceeded, meaning it is no longer the conduct the plaintiff originally consented to
• When it is to something illegal, because nobody has the right to consent to that which is prohibited by the law
• When it is given under duress
• When the plaintiff lacks the capacity to consent (child, mentally deficient)
• When the consent is given as a result of a mistake by the plaintiff AND the mistake is known or induced by the defendant

Question 48

What is required for a succesful self-defense claim?

Answer 48

Anyone other than the aggressor who anticipates immediate physical harm may use reasonable force in self-defense.

Question 49

What is reasonable force?

Answer 49

Nothing beyond the force you’re met with.

Question 50

When is deadly force justified?

Answer 50

Use of deadly force is justified only by a threat of deadly force and retreat may be required.

Question 51

What are the 4 factors of reasonability for self-defense?

Answer 51

1. The amount of force the aggressor asserted;
2. The means or the object by which the aggressor applied force;
3. The manner or method used by the aggressor to apply force; and
4. The surrounding circumstances under which the defender apllied force (size, age, gender, etc.)

Question 52

What is the effect of any mistake of fact by the defender in an instance of self-defense?

Answer 52

The privilege of self-defense even exists when the defender reasonably but mistakenly believes the self-defense is necessary. Relevant factors include the circumstances of the event and past history or relationship between the parties.

Question 53

What is required for a successful claim of defense of others?

Answer 53

Anyone who believes force is necessary to protect another may use reasonable force to do so.

Question 54

Does a mistake destroy the privilege of defense of others?

Answer 54

Authority split on whether mistake destroys the privilege. Generally there is a restricted right to intervene, but some states have enacted criminal codes to allow it.

Question 55

What is required for a successful claim of defense of property?

Answer 55

• One can use reasonable force to prevent a tort against property
• Usually have to ask the tortfeasor to stop or return the property before the application of force, unless demand would be futile or might be dangerous
• Cannot cause serious bodily harm or death unless the tort committed also puts you at risk

May be superseded by other privileges like necessity.

Question 56

Can mechanical devices (e.g. electric fence, barbed wire) be used to protect property?

Answer 56

ONLY IF they do not employ deadly force or risk of serious bodily harm and ONLY IF there is a serious threat of death or bodily harm to the homeowner or family and ONLY IF the use of such is reasonable and necessary under the circumstances AND you give adequate warning

Question 57

When can you use deadly force to protect property? (3)

Answer 57

• When the intrusion also in fact constitutes a threat of death or serious bodily harm to the person of the homeowner or family.
• When the intrustion is not privileged
• Prior to use of force, the homeowner demands the tortfeaso desist or leave and the demand is ignored

Question 58

What is necessary for a succesful defense of recapture of chattels?

Answer 58

Reasonable force used to retake property that was taken by force, fraud, or other tortious conduct if the tort is discovered promptly and there is a fresh pursuit.

Question 59

What is required for a successful claim of the detention for investigation, shopkeeper’s privilege? Is it destroyed by mistake? Who can assert the privilege?

Answer 59

If a merchant reasonably believes someone has shoplifted, they can detain them for investigation using reasonable force and for the time necessary for a reasonable investigation.

Privilege is not destroyed by mistake and can be extended to non-merchants.

Question 60

What standard is required for a proper arrest? For shopkeeper’s privilege?

Answer 60

Probable cause
Reasonable suspicion

Question 61

What is necessary for a succesful public necessity claim?

Answer 61

When action is necessary to avert a public disaster, a person is completely privileged to interfere with land or chattels, and a person resisting the use of force, including reasonable/deadly force.

Question 62

What is necessary for a succesful claim of private necessity? Is the defendant still liable for anything?

Answer 62

Where an act is necessary to protect any person from death or serious injury, or land or chattel from destruction or injury, a person has the privilege to enter land or interfere with chattels, even to use reasonable or deadly force to enter the property. BUT the privilege is incomplete in that the person will be liable for all damages to property or chattels sustained in the exercise of the privilege.

Question 63

What is the unlawful conduct defense?

Answer 63

Historically, one has not been barred from recovery for interference with his legally protected interests merely because he was committing a tort or crime. But it can trigger a defense such as contributory negligence or another privilege.

Question 64

How do courts treat the unlawful conduct defense? What are the 5 factors addressed in the various statutes?

Answer 64

There is no majority or minority rule. States have various statutes addressing:
1. The nature of the criminal conduct that triggers the rule;
2. Theories of recovery that are barred;
3. The types of claims that are precluded;
4. How closely the criminal conduct must be related to the injuries for which recovery is sought; and
5. Whether there must have been a prior adjudication of criminal responsibility.

Question 65

What are examples of other terminology used for the unlawful conduct defense? (3)

Answer 65

• In pari delicto: there is no recourse among wrongdoers
• Unclean hands: bars equitable claims (e.g. fee forfeiture)
• The plaintiff’s criminal conduct is the sole cause of any harm that befalls the plaintiff

Question 66

What is the general justification defense?

Answer 66

When conduct does not fall within the other categories of defenses or privileges, a general justification may be made for the defendant.

Question 67

What are the 4 factors used to determine whether a general justification defense is appropriate?

Answer 67

1. The need for the defendant to protect people or property;
2. The defendant’s duty to aid in apprehending wrongdoers;
3. The manner and place of the occurrence; and
4. The feasibility of alternate courses of action.