Midterm Torts Flashcards
(28 cards)
Battery
In order to recover for Battery ______ would have to prove the following elements. (1) Volitional act; (2) Intent; (3) Causation; (harmful or offensive contact with Plaintiff’s person. or some object closely associated with the Plaintiff’s person.
TIPS:
Indicate when facts are silent
Battery involves actual contact
Contact that is not offensive will not satisfy a Battery. I.E brushing up against someone on a subway or tapping someone on the shoulders to ask for directions.
The extent of the injury is irrelevant in assessing whether the tort occurred, no injury is required at all. Any nonconsensual, intentional touching may be a Battery. Even if Defendant believes he is helping still may be a Battery.
However, if Defendant knows of Plaintiff’s particular susceptibility, an ordinarily non-offensive contact can constitute a battery. I.E someone pregnant or with a disability.
The plaintiff need not be aware of the contact when it occurs.
Volitional Act
A volitional act is one that is the product of the person’s conscious mind. The person cannot be sleepwalking, having a seizure or a reflux movement or other physical movement not brought about by the defendant’s conscious mind.
Intent
A defendant acts with intent when it is the defendant’s purpose to bring about a result or when the defendant knows with substantial certainty that a result will occur.
TIPS
Intent is usually determined by looking at the defendant’s words and actions.
For a defendant to be liable for an intentional tort the defendant has to act volitionally and with intent
For a defendant to act intentionally, the defendant does not have to intent a Battery or any particular tort.
Mistaken belief as to the identity of the person or mistaken belief as to ownership of property does not negate intent.
Children and insane people are capable of forming intent. Insanity cannot be used as a defense to a tortious act.
Causation
Is satisfied when but for the defendant’s conduct, the Plaintiff would not have experienced any harm. Indicate the harm suffered …..Here ……..Therefore
TIPS
Actual Causation “but for defendants conduct” When multiple actions could have alone caused plaintiff’s harm courts will look at whether defendant’s conduct was a substantial contributing factor to the Plaintiff’s harm. Summers v. Tice allows courts to shift the burden to the defendants when both acted negligently to the plaintiffs but only one caused the harm.
Enterprise liability
Market share theory of causation
Proximate Causation is a doctrine that allows a court to cut off the defendants liability
A court may cut off proximate cause if there are intervening forces that are unforeseeable. I.e Negligent medical treatment is foreseeable. Criminal conduct isn’t usually foreseeable. A court may also cut off liability if public policy dictates that liability can not be spread so far.
Intentional Infliction of Emotional Distress
In order for ____ to recover for IIED, _______ would have to prove the following. (1) volitional act;(2) Intent or recklessness; (3) Extreme and outrageous conduct; (4) causation; (5) Severe emotional distress.
IIED (Intent or Recklessness)
_____ purpose to may/or may not have been cause severe emotional distress to _______, but ______behavior can suggest that she was acting with recklessness about causing emotional distress. Here (List all of the things done to the victim) The state “ This conduct seems to demonstrate a recklessness, which would cause __Victim_ to experience severe distress. Most jurisdictions require that there be physical manifestations of the distress.
TIPS
No transferred intent
Defendants conduct must exceed the bounds which could be tolerated in society
Insulting language alone is not enough to constitute intentional infliction of emotional distress.
Intent- For Infliction of Intentional Emotional Distress
Act done for purpose of causing the distress or with the knowledge that severe emotional distress is substantially certain to be produced by such conduct.
Extreme or Outrageous conduct
_______ conduct may be the type of conduct that would qualify as extreme and outrageous conduct, which is beyond the bounds of human decency. List conduct …..Here… then conclude Thus, _____ conduct may qualify as extreme and outrageous conduct.
Tip
Abusive language is typically not actionable
Exceeds bounds which could be tolerated in society.
Severe Emotional Distress
_____ claim will on succeed if _______ experienced severe emotional distress. List distress. Here….. Therefore ___ claim is satisfied or not satisfied.
Tip
More than just hurt feelings.
Assault
In order for ___ to recover for Assault the following elements must be proven. (1) Volitional Act; (2) Intent to make contact, and the intent to cause apprehension. (3) Causation; (4) Reasonable apprehension of an imminent harmful or offensive contact.
TIPS
If there are multiple assauls indicate “ Futher there are ___ separate incidents in the fact pattern which might be assaults. List each one and evaluate.
Physical injury is not required
Words are not enough to constitute an assault
Mere preparation is not enough
An action that does not create a reasonable apprehension is not assault
Apprehension- anxiety or fear that something bad is going to happen
To experience a reasonable apprehension of an imminent harmful or offensive contact the plaintiff must be aware.
Threats done I the future is not assault. The harmful or offensive contact must be imminent.
Pointing an unloaded gun is an assault. The tort merely requires an apparent ability to carry out the threat.
Intent for Assault
To hold a defendant liable for assault, the defendant must have the intent to bring about apprehension in the Plaintiff or have the intent to cause an immediate harmful or offensive contact with the Plaintiff. Intent is satisfied if the defendant has a purpose to bring about a result or if she knows with substantial certainty that the result will occur. Here… analyze.
Assault ( Reasonable Apprehension of an Imminent Harmful or Offensive Contact )
_____ was likely aware that ____ was about to _____ him\her. Thus, ___ would have experienced apprehension of an imminent harmful offensive contact with his/ her person, _____ did/ did not experience apprehension. Here…..this is indicated by the facts that ….thus all elements of assault are or are not satisfied ,and ____ can or can not recover for assault unless there is a valid defense.
Transferred Intent
If _____intends to strike A, but miss and hit B. The intent to strike A is transferred and can be used to support liability for an intentional tort against B. Transferred Intent also works when I intend one tort, but another occurs . _____ intent to cause ______ to _____ can be used to satisfy the intent necessary for ____ intentional tort___. then analyze
TIPS
Analyze under Intent second element, state what intent is. Then state “ ___ can rely on the doctrine of transferred intent….then indicate how it can be used to satisfy the intent element.
Transferred Intent is not allowed in Conversion and Intentional Infliction of Emotional Distress.
False Imprisonment
To recover for False Imprisonment, ____ will have to prove the following (1) volitional act (2) Intent to confine (3) Causation (4) Confinement.
- Volitional Act- already listed
- Intent to confine-
The intent is satisfied when the ____ acts with a purpose to bring about a result or the ___ knows with substantial certainty that a result will occur. Here……. had a purpose to confine, because ……therefore. - Causation -Already listed
- Confinement
Confinement is satisfied when the ____ is restrained and the ____ is aware of the confinement or harmed by the confinement. Confinement occurs when there are no reasonable means of escape to a bounded area. If you remain of your own free will, you are not falsely imprisoned.
TIP
Even if momentarily trapped, and had to push the door open to escape False Imprisonment is satisfied. You must indicate how Plaintiff was aware of confinement. Preventing someone from leaving is confinement.
Trespass
In order for _____ to recover in a claim for tresspass against _____the following elements must be proven. (1) Volitional Act; (2) Intent to enter the property with the purpose, knowledge, and substantial certainty. (3) causation; and (4) Physical invasion of Plaintiffs possession of real property.
TIP
Plaintiff don’t need to be the owner of the property. Anyone with possession can maintain the suit. Cant invade the Plaintiffs underground nor air space above.
Trespass to Chattel
____ can sue ___ for Trespass to Chattels, and to recover for Trespass to Chattels _____ will have to prove the following (1) Volitional act; (2) Intent to contact the chattel; (3) Causation; (4) Intermeddling or interference with the chattel; (5) Actual harm.
Actual harm can be satisfied in one of three ways (1) chattel is damaged ; (2) There has been significant dispossession of the chattel; (3) the plaintiff or a family member is injured as a result of the intermeddling….. Here ____ is satisfied because ……. therefore ……
Conversion
In order for ____ to recover in a claim of conversion, the _____ must prove the following. (1) volitional act (2) Intent to exercise dominion or control; (3) causation ; (4) Excercise dominion or control over chattel; (5) Excercise of dominion is sufficient to require the defendant to pay the full value of the chattel.
TIPS
Consists of the purpose of taking personal property with the intent of exercising over the chattel ownership inconsistent with the real owner’s right of possession with substantive certainty.
Conversion results in forced sale.
Defenses- Self Defense/ Defense of Property
A person has a right to use force in self-defense when the person reasonably believes he/she is threatened with unlawful force. The force used in self-defense must be proportional to the force the person is facing. Here …… Thus, -___ use of force was or was not justified by self-defense.
TIP cant use deadly force solely for the defense of property, must warn and give individuals the opportunity to leave and the force must be reasonable.Life is more important than property.
Defense- Justification
A private person can use reasonable force to arrest someone who has
engaged in criminal conduct or to prevent a crime in progress. Here ….. _____ is justified in using reasonable force to restarin_____ thus, this defense is satisfied.
Tip
Can be used for false imprisonment
Defense- Shopkeeper Privilege
A store owner, employee, or security guard are allowed to use reasonable
force to detain a person for a reasonable period of time when the person is
suspected of shoplifting or other criminal conduct within a store. Here ……..Therefore,____ was justified in using reasonable force to restrain ________ and escort him/her out of the store.
Tip
Occurs if the owner reasonably believes the individual has unlawfully taken goods from the store.
Defense-Necessity
Defense permits a person to act in a tortious manner to avoid greater harm when an emergency is not in their own making.
TIP
The private necessity to protect your own property or small group is not a defense. Private necessity is not c complete privilege just partial because an individual must pay for damages, just not punitive damages.
Defense Consent
The defendant’s privilege is limited to the conduct to which the plaintiff consents. If the defendant goes beyond the consent given and does a substantially different act, he is liable. Implied Consent: Although consent is normally expressed in words, it may also be inferred from conduct. Emergency: The unforeseen emergency will justify the surgeon in proceeding on the assumption that the patient would consent if he were conscious and understood the situation. Consent by Fraud: A plaintiff cannot ordinarily consent to the defendant’s conduct if the plaintiff assented while mistaken about the nature and quality of the invasion intended by the defendant. Illegal Settings: Consent in illegal settings follows two views. Majority opinion states no one can consent to illegal activity. Minority opinion states consent ignores equal wrong and encourages rather than deters. Formal Settings: There is the assumption of risk but a defendant may be liable for his injury if his conduct is such that it is either deliberate, willful or with a reckless disregard for the safety of the other player.
Defense of others
Minority - The right to use force is derivative to the other person’s right to use force, and the majority is if you reasonably believe someone is threatened with unlawful force. If you reasonably belief then you may use force as long as proportional.
Negligence
To recover against ____ for negligence ___ will have to prove the following elements; (1) duty; (2) breach; (3) causation; (4) damages.
