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Torts Midterm > Midterm > Flashcards

Midterm Flashcards

1
Q

What are the elements of an intentional tort?

A

Act
Intent
Casaution

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2
Q

ACT

A

-A volitional action by D with
-A specific resulting consequence to P
-The ACT element requires proof of –
Some external manifestation of D’s will

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3
Q

INTENT

A 
D’s state of mind:
-Desire to cause the particular 
     wrongful result 
				OR
-Knowledge to a substantial
      certainty (KTSC) that the wrongful
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4
Q

CAUSATION

A

Nexus between D’s action & wrongful
consequence to P D’s intentional act must be

a substantial factor in bringing about the wrongful consequence to P

(D’s actions must be a material part of the resulting consequence to P)

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5
Q

Child Liability Rule

A
  • Children are liable for intentional torts to the same extent as other persons.
  • Infancy does not provide automatic immunity from liability
  • The child must be capable of
    forming & actually form the requisite intent
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6
Q

*Intent Element

MISTAKE DOCTRINE

A

-If a D intends to do acts which constitute
a tort, it is generally NO DEFENSE that –

-D mistakes the identity of the property
or person he acts on OR

-D mistakenly believes there is a privilege

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7
Q

MENTAL ILLNESS & INTENT

GENERAL RULE

A

-Mental illness does not provide
automatic immunity from liability

  • But, a mentally ill person must be
    capable of forming the requisite
    intent to be liable
    *Institutionalized patients are the exception to this
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8
Q

BATTERY

A

Battery occurs when …
D’s act intentionally causes
“harmful or offensive contact w/ the P’s person”

  • *For the tort of battery,Plaintiffs need not prove:
  • contemporaneous awareness
  • actual damage$
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9
Q

Battery Act Element

A

-A volitional act by D that Results in harmful or offensive contact to P’s person

BATTERY requires …

  • Contact
  • with P’s person
  • that is harmful or offensive
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10
Q

HARMFUL CONTACT (Battery Act)

A

Physical pain
Illness
Physical impairment/alteration
(e.g., unconsented medical procedure)

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11
Q

Fisher v. Carrousel Motor Hotel (Battery Contact)

A

Contact with P’s Person:

  • actual physical contact w/ P’s body
    or
  • contacting things intimately associated with & customarily regarded as part of P (ex. grabbing the plate from the Ps hand)
    -Contacts that are customary & reasonably necessary to daily living are not actionable
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12
Q

Battery Intention Element

A

Desire or KTSC that the act bring about harmful or offensive contact to P’s person

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13
Q

Single Intent (Majority Rule) *Battery

A

“SINGLE INTENT” (majority rule)
P must prove:
Desire or KTSC of contact w/ P’s person

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14
Q

DUAL INTENT (minority rule)

A

P must prove:
Desire or KTSC of contact w/ P’s person &
Desire or KTSC that contact be harmful or offensive

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15
Q

Battery Causation Element

A

D’s act must be a substantial factor bringing about the harmful or offensive contact to P’s person

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16
Q

Assault

A

Assault occurs when …

-D’s act intentionally causes reasonable apprehension of imminent harmful or offensive contact w/ P’s person”

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17
Q

Assault Element of Act

A

Volitional movement by D that results in P’s reasonable apprehension of IMMINENT harmful or offensive contact to P’s person

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18
Q

Apprehension (Assault act element)

A
  • an expectation, anticipation
  • may be fear, but fear not required
  • contemporaneous awareness required*
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19
Q

Key Issues for Assault

A 
Apprehension v. Fear
  Imminent 
  Mere Words Insufficient [split]
  Reasonable Apprehension [split]
  Apparent Ability 
  Civil v. Criminal Assault
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20
Q

Mere words Assault (Majority Rule)

A

mere words alone cannot constitute act for assault

but, mere words can negate an assault

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21
Q

Mere Words Assault (Minority Rule) *restatement approach

A

mere words cannot constitute act unless w/ D’s acts or circumstances put P in reason. apprehension of H/O contact

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22
Q

Reasonable Apprehension Majority Rule

A

P’s apprehension must be reasonable

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23
Q

Reasonable apprehension Minority Rule

A

P’s apprehension must be reasonable unless D knew P’s unreasonable apprehension & used it to cause P apprehn. of H/O contact

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24
Q

Western Union Tel.

Co. v. Hill (Assault)

A

The tort of assault requires …
The apparent ability to cause harmful or offensive contact
Actual ability is not required

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25
Q

DOCTRINE OF TRANSFERRED INTENT

A 
The law TRANSFERS INTENT where:
      D INTENDS to commit a TORT against
        ONE PERSON but instead –.
Accomplishes A DIFFERENT TORT
       against that person;

Accomplishes the intended tort but
against a DIFFERENT PERSON; or

Accomplishes a DIFFERENT TORT
       against a DIFFERENT PERSON
Applies to 5 intentional tords assault
   battery
   false imprisonment
   trespass to chattels
   trespass to property
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26
Q

FALSE IMPRISONMENT

A

D’s unlawful acts intentionally cause

  • P to be restrained or confined
  • Within a bounded area
  • Against P’s will
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27
Q

False Imprisonment Act:

A

Volitional movement by D that results in unlawful confinement/restraint of P in a bounded area against P’s will

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28
Q

False Imprisonment Intent

A

Desire or KTSC to bring about P’s unlawful confinement/restraint in a bounded area against P’s will

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29
Q

False imprisonment Causation

A

D’s volitional movement must be a substantial factor in P’s confinement/restraint in the bounded area against P’s will

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30
Q

FALSE IMPRISONMENT ISSUES(5)

A 
Bounded Areas
 Restraint Methods
 Unlawful
 P’s Awareness
 Against P’s Will
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31
Q

Bounded Area *false imprisonment

A
  • P must be confined or restrained “within a bounded area”

- Bounded areas are those fromwhich P has no reasonable means of escape. Could be small or large, stationary or mobile.

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32
Q

Methods of false imprisonment

A 
physical barriers
physical force
threats of immediate physical force
omissions
invalid use of legal authority
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33
Q

Parvi v. City of Kingston (False I)

A

P must be aware of confinement to recover for false imprisonment

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34
Q

Awareness of Confinement

A

Majority Rule: P must have contemporaneous awareness
RS Minority Rule: P must prove contemporaneous awareness of confinement or physical harm from it
Minority Rule: Contemporaneous awareness not required

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35
Q

Against P’s Will (False imprisonment)

A

P must prove restraint/confinement was against his/her will (P did not consent)

  • Submission to a verbal demand alone is not restraint against P’s will
  • Submission to moral/emotional persuasion is not restraint agst P’s will
  • Submission to economic persuasion is not restraint against P’s will
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36
Q

Intentional Infliction of Emotional Distress

A

Definition: D’s outrageous act intentionally or recklessly causes P’s severe emotional distress

Broken down elements:
Outrageous Conduct by D
Severe Emotional Distress to P
Intent & Recklessness

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37
Q

General Damage$ Rules

A

In general, for most intentional torts, P may recover …
.
nominal damage$ for technical violations &

compensatory damage$ for all proven consequential physical & emotional harm

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38
Q

Int’l Infliction of Emotional Distress (Elements)

A

ACT:
An extreme & outrageous volitional act by D that
results in P’s severe emotional distress

INTENT OR RECKLESSNESS:
Desire or KTSC that act will bring about P’s severe emotional distress (SED) or
Recklessness as to whether SED will result

CAUSATION:
D’s outrageous volitional act must be a substantial factor bringing about P’s SED

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39
Q

Outrageous Conduct *IIED

A

-D’s action must exceed all bounds
of conduct tolerated by society
-Based on objective test
-Mere rudeness does not rise to
extreme & outrageous conduct
-But some words may be outrageous
-Repeated or long duration
-words intended to exploit a known sensitivity (RS minority rule)
-insensitive jokes re death/grave bodily harm
Factors increasing likelihood conduct considered outrageous

  P’s vulnerability (e.g. child P)
  Power imbalance (e.g. teacher/student)
  Special relationships (e.g., innkeepers Ds)
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40
Q

Reckless Disregard (IIED Intent)

A

Deliberate indifference to a high degree of probability that severe emotional distress will follow

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41
Q

Bystander Plaintiffs

A

Bystanders are the indirect sufferers of defendant’s conduct

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42
Q

Burdens of Proof

A

Plaintiff has burden of proving his/her prima facie case by a preponderance of the evidence
Defendant has burden of proving … all affirmative defenses by a preponderance of the evidence

43
Q

CONSENT *affirmative defense

A

P’s willingness/permission for conduct that constitutes a tort to occur
Express by words or gestures
(actual consent)

Implied by conduct or custom
(apparent consent)

By operation of law
(legal consent)

44
Q

Hackbart v. Cincinnati Bengals *consent

A

Consent Implied by Custom
A person may impliedly consent to –

Conduct w/in rules of game &
Conduct w/in customs of game
But NOT to conduct outside rules/customs

45
Q

Consent by Operation of Law

A
  • emergencies
  • surgical exception

Consent may arise by law but only
in emergency situations
when P cannot provide consent

46
Q

VALID CONSENT? *checklist

A 
Fraud
Incompetency
Scope of Consent
Duress
Illegal Act
47
Q

FRAUD

invalidating consent

A

P’s consent is invalid if …
D knowingly misrepresents an essential part of the interaction

Consent is not a valid defense when obtained by fraud
Fraud exists where P’s consent is based on
-a mistake caused by or known to D (ex. thought man in room was doctor)
-the mistake is material (mistake relevant to giving the consent)

48
Q

Incompetency

invalidating consent

A

children
mentally disabled
drugs & alcohol

49
Q

Validity of Consent

A

In order for express consent to be valid,

D’s conduct must w/in the scope of P’s consent

It must be given by someone competent to give consent

50
Q

Duress (invalidating consent)

A

Duress is the use of physical force or threats of imminent physical force

51
Q

illegal acts

invalidating consent

A

Traditional C.L. Rule (majority)

P cannot validly consent to illegal conduct
D’s consent defense fails

52
Q

DEFENSE OF SELF

A

When a person has –

a reasonable belief that s/he is being
or is about to be attacked

s/he may use such force as is reasonably
necessary for protection against injury

53
Q

DEFENSE OF SELF – LIMITS

A 
Reasonable Necessity (no mistake doctrine)
  Reasonable Amount of Force
  No Retaliation
  Retreat v. Standing One’s Ground
  Aggressors
54
Q

retreat rule

(non-deadly force)

A

There is no duty to retreat
before using non-deadly force
in self-defense

55
Q

Majority Rule for DEADLY Force

A

No duty to retreat (“stand your ground” rule)

If reason. belief under attack, may use reason. force in defense (including deadly force)

56
Q

Minority RS Rule for DEADLY Force

A

Retreat required before using deadly force

Unless there’s no safe retreat or the attack is in victim’s home

57
Q

Aggressors & Self-Defense

A

General Rule:
No defense for initial aggressor

Exceptions:
victim retaliation
victim escalation

58
Q

DEFENSE OF OTHERS

A

A person may use reasonable force to defend another person from immediate physical harm

59
Q

Traditional Rule

defense of others

A

A person may use reasonable force to
defend another person …

ONLY when other person could have
reasonably used force for self-defense
D must “step into shoes” of victim
Mistake Doctrine applies

60
Q

Modern Rule

defense of others

A

A person may use reasonable force to
defend another person …

When s/he reasonably believes the other person needs self-defense

Mistake doctrine not applied

61
Q

Defense of Property

A
  • A person may use reasonable force to prevent a tort against his/her property
  • Deadly force may not be used in defense of property
62
Q

Defense of Property

A

General Rule:
A person may use reasonable force to
prevent a tort against his/her property

Limits:
Reasonable force only (never deadly force)
Notice required (unless unsafe/useless)
Mistake Doctrine Applies

63
Q

recovery of property

A

Owner may use reasonable force to recover personal property immediately after dispossession

64
Q

Recovery of Property Limits:

A

Hot Pursuit
Reasonable Amount of Force (demand first & no deadly)
Mistake Doctrine Applies

65
Q

Merchant’s Privilege

A

Merchant has a privilege to –

Detain a person for a reasonable investigation if they have a reasonable belief property taken unlawfully

Even beyond store premises
(if in “immediate vicinity”)

66
Q

Shopkeeper’s Privilege (a.k.a Merchant’s Privilege)

A

A shopkeeper may …

use a reasonable amount of force to
detain a person for a reason. period to
reasonably investigate possible theft
AND, a reasonable mistake will not deny D the privilege (no mistake doctrine)
**The specific limitations vary widely among the jurisdictions

67
Q

PROPERTY TORTS (3 Types)

A

trespass to real property
trespass to chattels
conversion

68
Q

Trespass to Real Property

A

D’s act intentionally causes …

interference w/ P’s right of exclusive possession of real property

69
Q

TRESPASS TO LAND : ACT

A

A volitional action by the D that
results in interference w/ P’s right of
exclusive possession of real property

70
Q

Trespass to land intent

A

Desire/KTSC to enter/remain on the land
** Intent to interfere with someone
else’s right to land) is not required

71
Q

Trespass to land causation

A

D’s action must be a substantial

factor in bringing about the interference

72
Q

TRESPASS TO LAND

KEY CONCEPTS & ISSUES (4)

A

Interference (Invasion)
Possession & Possessors
Real Property
Intent to Enter/Remain

73
Q

Interference *Trespass to land

A

Interference = Invasion
Direct or Indirect
By something tangible

74
Q

Possession * Trespass to land

A

A person who is in possession of real property is one who …

Is occupying the property w/ intent to control it, or

Has right to immediately occupy property nobody else is occupying

75
Q

Land Possessors

A

current occupiers

owners & landlords w/ a right
to enter vacant property

certain adverse possessors

*P’s exclusive right to possess land extends:
above the ground surface ~ 500 ft of actual or beneficial use, above ~500 = no right
Below ground is actual or beneficial use
“at least near the ground”

76
Q

Real Property

A

Land

Fixtures

77
Q

Dougherty v.

Stepp * Trespass to land

A

-“Any unauthorized entry into the close of another constitutes a trespass”
-In general, proof of actual damages is not required for trespass to land
-But, can be recovered for “acts done on the land”
“Any unauthorized* entry into the close of another constitutes a trespass”
_______
* Juris. split re proof of consent/authorization is part of P’s prima facie case or D’s affirm. defense

78
Q

MISTAKE DOCTRINE

A

If a D intends to do acts which constitute
a tort, it is generally no defense that –

D mistakes the identity of the property
or person he acts on OR

D mistakenly believes there is a privilege

79
Q

Trespass to Chattels

A

D’s act intentionally causes …

interference w/ P’s right ofpossession in chattels

80
Q

Trespass to Chattels

Key Concepts

A 
Chattels
 Interference (the 4Ds)
 Intent to Affect the Chattel
 Damage$
 Possessors
81
Q

chattels

A 
personal property
        (e.g., casebook, laptop, cattle)

other than real property
(land & fixtures to land)

82
Q

interference *trespass to chattels

4ds

A 
Actual Damage
  Substantial Deprivation of Use
  Dispossession
  Bodily harm to possessor (split)
*if none of those apply then it is mere intermeddling
83
Q

intermeddling

A

All intentional contact w/ chattels other than dispossession
Even the most trivial contacts
(including contacts that don’t rise to interference)

May or may not give rise
    to trespass (may/may not be actionable)
84
Q

dispossession

*trespass to chattel

A

D exerts dominion & control over chattel in a manner inconsistent with the P’s right of possession

85
Q

intent for trespass to chattel

A

For trespass to chattels, D must have desired to affect the chattel
KTSC s/he would affect the chattel

** Intent to interfere someone else’s chattel is not required

86
Q

damage$

Trespass to chattel

A

For trespass to chattel, D must prove;
actual damages
a compensable monetary loss from the interference w/ their chattel (e.g., cost to repair/replace broken bike spoke)
Exception:
actual damages may not be reqd. where interference is a dispossession &
nominals may be awarded

87
Q

TRESPASS TO CHATTELS elements

A

ACT:
Unauthorized & volitional act by D that results
in interference w/ P’s right of possn of a chattel

INTENT:
Desire/KTSC that the act will affect the chattel
Transferred Intent Doctrine

CAUSATION:
The act must be a subst’l factor bringing
about the interference w/ P’s possn

DAMAGE$: NEW!
Actual damage$ required(unless dispossession)
Nominals unavailable (unless dispossession)

88
Q

possession

trespass to chattel

A

P must have possession of the chattel at the time or be entitled to possession on demand
(e.g., owners, finders, borrowers, even converters)
Possession generally involves physical control of the personal property

89
Q

CONVERSION

A

D’s act intentionally causes a substantial interference w/ P’s right of possession in chattels

For conversion, the personal property must be:
Tangible personal property or
Intangible market commodity, literary or scientific, or commercial trade secret info

90
Q

Conversion Definition

A

“An intentional exercise of dominion & control over a chattel which so seriously interferes w/ rt of another to control it that the actor may justly be required to pay the other the full value of the chattel”

91
Q

CONVERSION

KEY CONCEPTS

A

Substantial Interference
Intent
Conversion remedies

92
Q

Substantial Interference

A 
Wrongful Acquisition 
   Severely Damaging or Altering
   Seriously Misusing
   Wrongful Disposing, Transfer, Misdelivery 
   Wrongful Receiving 
Wrongful Detention
93
Q

Substantial Interference Factors

A 
extent or duration of D’s control
intent to assert right of control inconsistent w/ P’s right of control
 good/bad faith
 harm to the chattel
 actual inconvenience or expense to p
94
Q

Differences between conversion & Trespass to Chattels:

A

Degree of Interference
Technical Violations
Remedy
Doctrine of transferred intent

For conversion, the recoverable
damage$ include:
Full value of the ppty OR
Nominal damages

** In contrast, trespass to chattels only
allows recovery of
Diminution of value (e.g. repair cost) or
Damages for deprivation (e.g. rental value)

95
Q

Doctrine of Transferred Intent

Applies to 5 Int’l Torts

A 
assault
   battery
   false imprisonment
   trespass to chattels
   trespass to property
96
Q

CONVERSION Elements

A

ACT:
volitional act by D that results in
Subst’l interference w/ P’s rt to possess chattel

INTENT:
Desire/KTSC that the act will affect the chattel
NO Transferred Intent Doctrine

CAUSATION:
D’s action must be a subst’l factor bringing
about the subst’l interference w/ P’s chattel

97
Q

Conversion Damage$

A

The measure of damages is based on:

Full Value at time of conversion
Market Value (“forced sale”) 
 If there’s no or minimal market value then ...
 .
  Replacement Value
  Repair Cost
  Manufacture/Cost to Recreate
98
Q

AFFIRMATIVE DEFENSES TO PROPERTY INVASIONS

A 
consent
 defense of self
 defense of others
 defense of property
 recovery of property (to excuse claim of trespass to RP)
  necessity
99
Q

Defense of Property

A

General Rule:
A person may use reasonable force to
prevent a tort against his/her property

Limits:
Reasonable force (just to stop, never deadly)
Warning required (unless unsafe/useless)
Mistake Doctrine applies

100
Q

Entering Land to Recover Property

A

A person is privileged to enter another’s land to recover personal property when:
A demand is made (unless futile)
The entry is reasonable
D did not create the need for the intrusion

101
Q

NECESSITY DEFENSE

A

A person is privileged to interfere
w/ another person’s property
interests to avoid some greater injury …
to public at large (Public necessity)
to private interests (Private necessity)

Requires a REASONABLE BELIEF of necessity

102
Q

Public Necessity

A

Allows D’s interference w/ ppty rights
to avoid greater public harm &
Is an absolute privilege
(privileged conduct + no liability for damages)
Excuses interference w/ P’s ppty rights if
To avoid greater harm to public
Appear reasonably necessary (D has a reasonable belief re need to interf.)
Involve only a reasonable amount of interference
To avoid imminent harm

103
Q

Private Necessity

A

A privilege exists to interfere with another person’s property
to avoid serious or greater injury to private interestsAllows interference w/ property interests
to avoid a greater private harm

  • if reasonable belief
  • in imminent circumstances (emergency)
  • provides a qualified privilege
    (privileged, but responsible for damages)

Torts Midterm (1 decks)

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