Intentional Torts/Found Property/Gifts/Liens/Bailments

Question 1

Do we care about the plaintiff’s special sensitivity when determining liability?

Answer 1

Nope! Only for damages (eggshell plaintiff rule)

Question 2

Are there incapacity defenses for intentional torts?

Answer 2

No. Children, drunk people, disabled people, all can be liable for intentional torts.

(Think of 5 year old kid pulling out chair (battery))

Question 3

What type of “intent” is necessary for an intentional tort?

Answer 3

The D must have desired to produce the legally forbidden consequence.

(Or when you knew to a virtual certainty the result would occur).

Also, transferred intent: As long as D had a legally forbidden intent, the intent is transferred if another party is harmed by accident.

Ex: Aiming to shoot A and shoot B. Or aiming to shoot above A’s head and hit A (transfer from assault to battery).

Question 4

What are the elements of battery?

Answer 4

1) The D must commit a harmful or offensive contact.
2) That contact must be with the plaintiff’s person.
(1) Harmful contact is obvious (injury). Offensive contact means violates a reasonable sense of personal dignity. Alternate definition is it is unpermitted by a person of ordinary sensitivity.
(2) Contact with plaintiff’s person includes anything the plaintiff is holding or touching or connected to.
* Example:* Lady is on horse and man slaps horse and she falls. This is a battery because she is connected to the horse!

Question 5

What are the elements of assault?

Answer 5

1) D must place plaintiff in reasonable apprehension.
2) That reasonable apprehension must be of an immediate battery.
(1) Apprehension means knowledge. Not about fear. For example, a tiny guy can put a big guy in fear of being hit, even if the big guy is not scared it will hurt.

Example 2: Pointing an unloaded gun at someone can put them in immediate apprehension, assuming they don’t know it is unloaded.

(2) Immediate battery is focused on the immediacy. Words alone lack immediacy. A naked verbal threat without a hand gesture is not enough to create an assault.

Question 6

How can words negate immediacy in assault?

Answer 6

Fist gesture + “I would punch you if you weren’t my friend!”

or

“I will beat you up at 10pm tonight!”

Question 7

What are the elements of false imprisonment?

Answer 7

1) D must commit an act of restraint
2) The P must be confined in a bounded area
(1) An act of restraint can be threats alone, need not be physical. An omission can also be an act of restraint (leave wheelchair user on plane).

Note: The act of restraint only counts if P knows of it or is harmed by it. If you are locked in your room in your sleep it doesn’t count.

(2) It is a bounded area if there is no reasonable means of escape that P can reasonably discover.

Leaving through sewer pipe is not reasonable. Nor hidden door.

Question 8

What are the elements of intentional infliction of emotional distress?

Answer 8

Ironically, the D need not act intentionally! Reckless is enough.

1) D must engage in outrageous conduct.
2) P must suffer severe emotional distress.

Note: Interesting tort because it is based on method and not result. You are allowed to distress people, just not in an outrageous way.

(1) Conduct is outrageous when it exceeds all bounds of human decency. [NOT mere insults.] Hallmarks of outrageousness: (a) repetitive or continuous conduct (sex harrassment, debt collection threats),
(b) D is a common carrier or innkeeper [deliberate meanness, insults, enough]
(c) P is a member of a fragile class (child, elderly, pregnant), and D knows this. Or if D targets a plaintiff’s known sensitivities like a phobia.
(2) Severe Distress must simply be alleged. P does not need to prove physical ailments. But severe distress* must be alleged, not mere annoyance, etc.

Question 9

What is special about common carriers and inn keepers?

Answer 9

They can more easily satisfy the “outrageous conduct” element of intentional infliction of emotional distress.

Question 10

What are the elements of Trespass to Land?

Answer 10

1) D must commit an act of physical invasion.
2) That act must interfere with P’s exclusive possession of the land.
(1) Physial invasion can be either in person [regardless of D’s knowledge of coming onto land!], or throwing or propeling a tangible object onto the land [not light, sound, smell].

Note: Intention element is missing if person has heart attack and falls onto land etc.

(2) The COA belongs to the person in possession and NOT the landowner. Trespass if penetrating soil or flying above at unreasonable distance.

Question 11

What is the difference between trespass to chattels and conversion?

Remedies?

Answer 11

Both are torts of intentional interference with an item of personal property.

Interference can be of 2 types:

1) Deliberate or intentional physical harm to chattel
2) Depriving person of possession to the chattel

They differ based on the amount of the harm. If modest damage, it is trespass to chattels, if significant harm, it is conversion.

Keying car vs. sledgehammering car. Taking pen for 30 min vs. 3 months.

Remedies: Conversion: full market value of item,

Trespass to chattels: Compensation for damage done.

NOTE: A mistake as to ownership is NOT a defense to these torts! Ex: Doesn’t matter if thought a phone was yours!

Question 12

What is a NY prima facie tort?

When can you not have this tort?

Answer 12

An intentional infliction of pecuiary harm without justification.

Elements:

1) Intent to do harm [more than just intent to do the act].
2) P must allege and prove special damages [pecuniary loss must occur].

NOTE: CANNOT have this tort where a traditional tort will be established (and can’t even have this if the intentional tort was barred by the S/L).

Question 13

How to deal with found property?

Answer 13

Abandoned Property

You can keep abandoned property. It is abandoned if owner (1) gives up possession and (2) has the intent to give up title.

Lost Property

(lost possession but had no intention to relinquish title)

Rules: The original owner always has the superior right.

NEW YORK: If value is under $20, finder must make a 1 year reasonable effort to find owner, and can keep property after that.

Over $20, must give item to the police.

Question 14

How do you give an inter vivos gift?

Answer 14

Inter Vivos Gifts: Gifts given during the lifetime.

Giving an inter vivos gift requires:

1) Donative Intent__: Donor intends to pass title.
2) Acceptance by donee: Only time there is no acceptance is when the donee affirmatively does NOT accept gift. Silence is considered acceptance.
3) *Valid Delivery: Item must be delivered. Small items must be given. Big items, can give keys, title (like car). There are 4 murky areas:
a) First-Party Check: Delivery only when cashed, because gifter could stop payment at any time beforehand.
(b) Third-Party Check: Gifter gets check, then writes giftee’s name on back and hands it over. Delivery upon handing it over.
(c) Stock Certificates: Complete Delivery upon signing back of certificate and handing over.
(d) Agents: If gift given to donee’s agent, delivery is complete. If donor gives gift to donor’s own agent with instructions to give it to donee and then calls him home before completion, there is no delivery.

Question 15

What is a gift causa mortis?

How does it work?

Answer 15

This is a gift given in contemplation of death.

Rule: Gift is only final if:

(1) At time gift is given there is an imminent risk of death that is likely to occur, and
(2) The donor dies.

Note: Gift doesn’t occur if the donee dies first! (crazy scenario)

Question 16

What is a general lien?

Answer 16

A right to retain a bunch of property assets as security for a general balance due.

Example: Hotel. Checkout day, you leave room, they change key card until you square up the bill. Note that giving you one of the items back doesn’t release the lien on everything else [they can give you your atm card].

Question 17

What is a special lien?

Answer 17

A right to retain specific property that is actually the property to which the services were provided.

Example: Mechanic’s lien on your car. Once the property is given back, the lien is terminated. (But you still owe him the money).

Question 18

What is a bailment?

Who is bailor, who is bailee?

Answer 18

When you surrender possession of an item for a limited time and a limited purpose.

Owner of item is bailor, possessor is bailee.

Question 19

What does a bailment create?

Answer 19

The bailee has a legal duty to care for the item.

Question 20

What are the 4 tricky bailment scenarios?

Answer 20

1) Item inside another item: The inquiry is is it common for this to happen? [Regarding a parking garage/car trunk, spare tire is within bailment, gold bullion bars are not].
2) Safe deposit box: Exception to above, the bank is the bailee of all contents of a safe deposit box, that is the point of the box.
3) Garage: it is only a bailment if you turn over the key (the bailee must have control).
4) Coat Check: Bailment is created, but statutes are meticulous. Know that a simple hook rather than a coat check does not create a bailment.

Question 21

What are the 7 intentional torts?

Answer 21

1. Battery
2. Assault
3. False Imprisonment
4. Trespass to Land
5. Trespass to Chattels
6. Conversion
7. Intentional Infliction of Emotional Distress

Question 22

What are the affirmative defenses to intentional torts?

Answer 22

1) Consent
2) Protective Privileges [Self-Defense, Defense of Others, Defense of Property]
3) Defense of Necessity [Public and Private]

Question 23

What intentional torts is consent a defense to?

Who can give consent?

What types of consent are there?

How fair does consent go?

Answer 23

Consent is a defense to ALL 7 intentional torts.

Only a person with legal capacity can give consent. [Children can consent to age appropriate things like wrestling, but not surgery or sex]

Express Consent: Valid, unless obtained through fraud or duress. (Example: A man pretending to be a doctor cannot get express consent)

Implied Consent: Two Types:

1) Implied Consent based on customary practice: If contacts are customary, no tort. Examples: Haircutter, playing sports, jostling on subway.
2) Implied Consent based on the D’s reasonable interpretation of plaintiff’s conduct or body language: We can use common sense.

Finally: All consent has a scope. Often tested in surgery context.

Question 24

What protective privileges are defenses to affirmative torts?

Answer 24

1. Self-Defense
2. Defense of Others
3. Defense of Property

Question 25

When can a D claim a protective privilege as an affirmative defense to an intentional tort?

How much force can be used?

Timing?

Answer 25

Rules for self-defense, defense of others, and defense of property are the same. Need:

1) Proper Timing: D can only have the defense if they are responding to an imminent threat. You cannot participate in revenge.
2) Reasonable Belief that the threat is Genuine. A reasonable mistake is ok (you can grab someone’s luggage out of their hand at baggage claim if you think it’s yours, although a battery-like touching.
3) Can only use the force necessary to respond to the threat. Deadly force for a deadly threat. Can never use deadly force for defense of property!

NEW YORK: In NY you cannot use deadly force if there is a possibility of retreat. Does not apply in your home, or to police officers.

Question 26

What is the defense of necessity a defense to?

Answer 26

Only the three property torts.

Question 27

What is the defense of public necessity?

Answer 27

Defense of public necessity arises when D commits a property tort in an emergency to protect the community as a whole or a significant group of people.

Example: Shoot a rabid dog to protect children.

Question 28

What is the defense of private necessity?

How do damages work?

Answer 28

The defense of private necessity is a defense to a property tort commited in an emergency to protect a person’s own intrerest.

1) D remains liable for compensatory damages.
2) D is not liable in a private necessity case for nominal or punitive damages?
3) As long as private necessity continues, D can remain on P’s property in a position of safety [he cannot be expelled or evicted].