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Flashcards in Intentional Torts Deck (90)

Elements of an Intentional Tort

(1) Act
(2) Intent
-Wanted it or new with substantial certainty
-Transferred intent doctrine says it can transfer
(3) Causation
-Must be a substantial factor


Transferred Intent Limitations

(1) Assault
(2) Battery
(3) False Imprisonment
(4) Trespass to land
(5) Trespass to chattels



(1) Harmful/offensive contact
-Reasonable person standard
-Can be direct or indirect (setting a trap)
(2) To plaintiff
-Anything connected to P
(3) Intent
(4) Causation


Damages for Battery/Assault/False Imprisonment/Trespass to Land

Nominal recovery even if actual damages not proven.
Punitive for malicious conduct



(1) Reasonable apprehension in P (of battery)
-Reasonable person standard
(2) Immediate harmful or offensive conduct
(3) Intent
(4) Causation


False Imprisonment

(1) Act that confines P to bounded area
(2) Intent
(3) Causation


Intentional Infliction of Emotional Distress

(1) Extreme and outrageous conduct by D
-Transcends all bounds of decency
(2) Intent or recklessness
(3) Causation
(4) Damages - severe emotional distress - only intentional tort that requires damages


IIED for Bystander

(1) Prove IIED Elements, or
(1) Bystander present when injury occurred
(2) Close relative of injured
(3) D knew of 1 and 2


Trespass to Land

(1) Physical invasion of P's real property
(2) Intent
(3) Causation


Trespass to Chattels

(1) D interferes with P's right of possession (Minor)
-ANY ACT of interference will suffice - mistaken belief not allowed
(2) Intent
(3) Causation
(4) Damages
-Recover loss of use damages (disposed - rent value)



(1) D interferes with P's right of possession (Major - but doesn't have to be permanent)
-ONLY substantial interference (refuses to return, alters, longer withholding the more it is conversion)
-Accidental damage does not amount do conversion, unless no permission
(2) Intent
(3) Causation
(4) Damages
-Fair market value at time of conversion


D's Defense to Intentional Tort - Consent

(1) Express consent
- except fraud, duress, D knew of mistake
(2) Implied consent
-Reasonable person would infer from the n circumstances


D's Defense to Intentional Tort - Defense of Self/Others/Property

(1) When is defense available?
(2) Is mistake allowed?
(3) How much force can be used?


D's Defense to Intentional Tort - Self Defense

(1) D reasonably believed she is being attacked, and used reasonable force.
(2) Reasonable mistake to existence of danger allowed
(3) Reasonable force (including deadly if reasonable)
-No duty to retreat
-Not available to initial aggressor
-Can extend to third parties


D's Defense to Intentional Tort - Defense of Others

(1) D must reasonably believe other person could have used force to defend himself
(2) Reasonable mistake as to whether other being attacked allowed
(3) Can use as much force as he would have used had he been the one being attacked


D's Defense of Intentional Tort - Defense of Property

(1) Only reasonable force allowed after warning to leave (unless that would be futile)
(2) Reasonable mistake on whether intrusion occurred, no mistake allowed if P had privilege
(3) Reasonable force may be used but no deadly force or bodily harm.


D's Defense of Intentional Tort - Reentry onto Land

Use summary procedure like ejectment - no self help allowed.


D's Defense of Intentional Tort - Recapture of Chattels

Only peaceful means to recover - force only when in hot pursuit.
(1) Demand it back (unless futile/dangerous)
(2) Only recapture in hands of tortfeasor or party who knew
(3) Enter land - reasonably if on wrongdoer's land or innocent party/no privilege if owner negligent (wondering cows example).


D's Defense of Intentional Tort - Privilege of Arrest - Misdemeanor Arrests

Must be a breach of peace committed in arresting party's presence - reasonable force but no deadly.


D's Defense of Intentional Torts - Privilege of Arrest - Felony

Police - must reasonably believe felony occurred and the person he arrests committed it.
Citizen - felony must have been committed and reasonable belief person committed it.


D's Defense of Intentional Torts - Necessity

Only applies to property torts:
(1) Public - act is for public good
(2) Private - limited number of people (D must still pay for damage)


D's Defense of Intentional Torts - Shopkeepers Doctrine

(1) Reasonable belief shoplifting occurred
(2) Reasonable manner
(3) Reasonable period of time


D's Defense of Intentional Torts - Discplining

Parent/teacher reasonable force only


Common Law Defamation

(1) Defamatory language
(2) Of or concerning P
(3) Publication by D to third party (intentionally or neg.)
(4) Damage to P's reputation

AND if public concern, add constitutional requirements
(5) Falsity of defamatory language - P's burden
(6) Fault amounting to actual malice



Written or printed or radio/tv
P need not prove special damages



P needs to prove special damages


Defamation - D's fault required based on public or private figure

(1) If P is public figure
-D's actual malice (knowledge or reckless disregard) - damages presumed
(2) If P is private person/public concern
-At least negligence as to statements falsity - damages only for proved injury
(3) If P is private person/private concern
-No fault as to truth or falsity need to be proven - presumed damages under common law rules


D's Defenses to Defamation

(1) Consent
(2) Truth
(3) Absolute privilege
(4) Qualified privilege


Invasion of Right to Privacy

(1) Using P's picture or name
(2) Intrusion of P's affairs or seclusion
-Highly offensive to reasonable person
(3) Publication of facts painting P in false light
-Highly offensive to reasonable person
-If public, must prove actual malice
(4) Publication of private facts about P
-Highly offensive to reasonable person


Intentional Misrepresentation

(1) Misrepresentation of fact
(2) Scienter - D knew or believed it was false
(3) Intent to induce P to act
(4) Causation (reliance)
(5) Justifiable reliance
(6) Damages (actual loss)


Negligent Misrepresentation

(1) Misrepresentation in a business capacity
(2) Breach of duty toward P
(3) Causation
(4) Justifiable reliance
(5) Damages


Interference with Business Relations

(1) Valid contractual relationship exists
(2) D's knowledge of the relationship
(3) Intentional interference
(4) Damages


Malicious Prosecution

(1) Institution of criminal proceedings
(2) Termination in Plaintiff's favor
(3) Absence of probable cause
(4) Improper purpose
(5) Damages


Abuse of Process

(1) Wrongful use of process for ulterior motive
(2) Act or threat against P



(1) Duty to act as a reasonable person under the circumstances
-Cardozo: only if in foreseeable zone of danger
(2) Breach
(3) Actual and proximate cause
(4) Damage


Basic Standard of Care for Reasonable Person

It is an objective standard - one's conduct measured against what the average person would do.
-Mental deficiencies not at issue.


Basic Standard of Care for Professionals

Possess knowledge and skill of a member of the profession in good standing in similar communities
-Medical: national standard to all physicians


Basic Standard of Care for Children

It is a subjective standard - Standard of a child of like age, education, intelligence, and experience


Basic Standard of Care for Common Carriers/Inkeepers

Very high degree of care - only applies if P is a guest or passenger


Duties owed by Bailee

(1) Sole benefit of bailor: low standard of care
(2) Sole benefit of bailee: high standard of care
(3) Mutual benefit: ordinary standard


Duties owed by Bailor if sole benefit of bailee

bailor must inform bailee of known dangers


Duty to Undiscovered Trespassor

Artificial: No duty
Natural: No duty
Operations: No duty


Duty to Discovered/Anticipated Trespassor

Artificial: Duty to warn if highly dangerous
Natural: No duty
Operations: Reasonable care


Duty to Child on Property (Attractive Nuisance)

Artificial: Duty to warn or make safe if foreseeable risk outweighs expense of eliminating danger
Natural: Duty to warn or make safe if foreseeable risk outweighs expense of eliminating danger
Operations: Reasonable care


Duty to Licensee (Social Guest)

Enters with owner's permission for benefit of licensee and not owner
Artificial: Duty to warn or make safe
Natural: Duty to warn or make safe
Operations: Reasonable care


Duty to Invitee

(Enters for benefit of inviteor (walmart))
Artificial: Duty to inspect and warn or make safe
Natural: Duty to inspect and warn or make safe
Operations: Reasonable care


Duty of Lessor and Lessee

Lessor must warn of which he is aware
If lessor repairs, he is liable for unreasonably dangerous conditions


Duty Imposed by Statute

(1) P is within the protected class
(2) Statute was designed to prevent the type of harm P suffered


Negligent Infliction of Emotional Distress

(1) P in zone of danger
(2) P must suffer physical symptoms


NIED of bystander outside zone of danger

(1) P and person injured closely related
(2) P was present
(3) P observed or perceived the event


Duty to Act?

No - but can if
(1) assumed
(2) D caused peril
(3) special relationship between parties
(4) prevent harm to third persons.


How do you show Breach?

(1) Custom or usage
(2) Violation of statute
(3) Res Ipsa Loquitur - occurrence establishes breach


Res Ipsa Loquitur

(1) Accident is the type that normally doesn't occur
(2) Negligence attributable to D


What causes must be shown after duty and breach established in a negligence case?

(1) Actual
(2) Proximate


Neglience Cause - "But for" Test

Applies where several acts combine to cause an injury


Negligence Cause - Substantial Factor Test

Several causes and any one of the causes could have been sufficient to cause the injury


Negligence Cause - Alternative Causes Approach

Two acts but only one caused the injury and not known, burden shifts to D


What is proximate cause?

After establishing actual cause, then must show proximate cause - that is - D liable for all harmful results that are the normal incidents caused by his acts (foreseeability test).


Proximate Cause - Liablity in Direct and Indirect Cause Cases

(1) Direct Cause Case
-D liable for all foreseeable harmful results
(2) Indirect Cause Case - intervening force combines with the D's conduct to cause P's injury
-Foreseeable results: D liable
- Unforeseeable results: D not liable


Damages in Negligence Case

(1) P can recover economic and noneconomic
(2) Punitive usually only available if D was malicious or reckless
(3) Interest and attorneys fees not recoverable
(4) Duty to mitigate
(5) Insurance claim does not reduce collection


Defense to Negligence - What jurisdiction is Missouri?

Assume: Pure Comparative Negligence Jurisdiction - P can recover even if he is over 50% at fault.
Remember: Partial Comparative Negligence Jurisdiction - P can recover only up to 50% at fault.


Defense to Negligence - Assumption of Risk

(1) P knew of risk
(2) P proceeded in face of risk


Strict Liability

(1) D's activity imposes an absolute duty to make safe
(2) Dangerous aspect is actual and proximate cause
(3) P suffered damages
-Comparative negligence rules apply


Products Liability - Any Theory

(1) Defect
(2) Existed when it left D's control
(3) Then add additional elements depending on theory (strict is easiest)


Products Liability - Intent

(1) Defect - Any foreseeable P
(2) Existed when it left D's control
(3) D liable if they intended or knew the consequences


Products Liability - Negligence

Anyone in the supply chain
(1) Defect - Any foreseeable P
(2) Existed when it left D's control
(3) Duty
(4) Breach
- show negligent conduct lead to supplying a defective product (either by -Design, manufacture, warning, inspection)
(5) Causation
(6) Damages


Products Liability - Strict

Anyone in supply chain - Use this for entering a defective product into the supply chain.
(1) D is a commercial supplier of product
(2) D produced or sold a defective product
(3) Defective product actual and proximate cause of injury
(4) P suffered damages to person or property


Product Liability - Implied Warranties of Merchantability

Only the purchaser and her household and guests. Only merchant can be sued
(1) Defect
(2) Existed when it left D's control
(3) Duty -
(4) Breach - Sale of goods not generally acceptable
(5) Causation
(6) Damages


Product Liability - Implied Warranties of Fitness

Only the purchaser and her household and guests. Anyone in supply chain can be sued
(1) Defect
(2) Existed when it left D's control
(3) Duty -
(4) Breach - Sale of goods not fit for purpose that seller has reason to know or knows
(5) Causation
(6) Damages


Private Nuisance

Substantial, unreasonable interference with another private individual's use or enjoyment of property TO AN AVERAGE PERSON IN THE COMMUNITY
-Note this is about enjoyment, versus possession with trespass to land


Public Nuisance

Unreasonably interferes with the health, safety, or property right of the community. Private citizen bringing action must so special injury to claim public nuisance


Vicarious Liability

Third party responsible for torts of another (usually employment)
- Frolic and detour - minor deviations still liable - major employer is not
-Intentional Torts - not within scope of employment


Vicarious Liability - Employee/Servant

Employer Liable if within scope


Vicarious Liability - Independent Contractor

Employer NOT liable unless activity is inherently dangerous


Vicarious Liability - Partner/Joint Venture

Other partners liable if tortious act within scope of partnership


Vicarious Liability - Driver

Owner NOT liable unless permissive use statute in place


Vicarious Liability - Bailee of chattel

Bailor not liable


Vicarious Liability - Child

Parent not liable (except for intentional torts)


Vicarious Liability - Patron of Tavern

Not liable in absence of Dramshop Acts


Joint and Several Liability

Two or more negligent acts combine to proximately cause one injury. Each is liable for the entire damage incurred, so P may recover full amount against any of the D's.



D who pays more under joint and several liability can have a claim against other D's - usually about equal fault, or where actively negligent in causing P's injuries



Shifts entire loss among tortfeasors - usually when one is much less responsible


Duty Standard

Duty to act as a reasonable person under similar conditions. Duty extends to any person while engaging in the activity.


Intent can be either...

General - D knows with substantial certainty consequences will occur.
Specific - D's purpose in acting is to bring about the consequences.


Attractive Nuisance Doctrine

(1) Dangerous condition on the land which owner should be aware
(2) knows or should know children frequent the vicinity
(3) Child cannot appreciate the risk


Nondisclosure of risk during a medical procedure is considered...

breach of duty of care - must prove negligence.



entrusts goods to the bailee (you when you go to the drycleaner)



holds the bailor's goods (the drycleaner)


Contributory Negligence

P even 1% at fault - complete bar to recovery. Most jurisdictions have dropped this.


Last Clear Chance

P's rebuttal to defense of contributory negligence. P says D had the last clear chance to avoid. ONLY APPLICABLE TO CONTRIBUTORY NEGLIGENCE