Torts Flashcards
Intention Torts and Incapacity
Rule: Intentional torts do not recognize incapacity as a defense
Reasonable Plaintiffs
Rule: Extreme sensitivity of P is disregarded
**Assume P is a reasonable person
Doctrine of Transferred Intent
Rule: If at the beginning of the scenario, a D attempt to commit a tort to one party, but either (1) another is harmed, or (2) the party is harmed in another way, D will still be held liable
Intent Definition
Rule: Acting with the desire to produce the legally forbidden consequence
7 Intentional Torts on the Exam
(1) Battery
(2) Assault
(3) False Imprisonment
(4) Intentional Infliction of Emotional Distress
(5) Trespass to Land
(6) Trespass to Chattels
(7) Conversion
Battery - Elements
(i) D intentionally causes a harmful or offensive contact (iii) with Ps person
Note: Does not have to take place instantaneously
Assault - Elements
(i) D intentionally causes a reasonable apprehension (ii) of an immediate result
Notes:
- Must have knowledge/ be aware (ex. cannot be sleep)
- No requirement to be afraid
- “Talk is cheap”, words alone does not lead to assault
False Imprisonment - Elements
(i) D intentionally commits an act of restraint that (ii) confines P in a bounded area (and P is aware)
Notes:
- Threat is sufficient to cause a restraint
- Omission - if there is a preexisting duty between parties, failing to act and remove a restraint may cause a false imprisonment
False Imprisonment - Bounded Area
Rules: (1) bounded area need not be specified
(2) not bounded if there is a reasonable method of escape
Note: Reasonable does not include anything unsafe, humiliating, or hidden
Intentional Infliction of Emotional Distress - Elements
(i) D intentionally desires to engage in extreme and outrageous offensive conduct that (ii) causes P to suffer extreme distress
Notes:
- Conduct is outrageous when it exceeds all bounds of decency tolerated in a civilized society
- Mere insults are not outrageous conduct
- If D has prior knowledge of particular sensitivity of P and targets it is outrageous
Intentional Infliction of Emotional Distress - 3 Hallmarks of Outrageous Conduct (Most highly tested)
(1) Conduct that is repetitive in nature
(2) If D is a common carrier or innkeeper
(3) P is a member of a fragile class of persons
- young children
- elderly people
- pregnant women
Trespass to Land - Elements
(i) D intentionally commits an act of physical invasion (ii) of land
Notes:
- Physical invasion = physically go onto property, even if UNAWARE of crossing boundary
- does not need to harm
- objects count as well
- Land = air above and soil below out to a reasonable distance
Trespass to Chattels - Elements
(i) D intentionally interferes with personal property by harming
Conversion - Elements
(i) D intentionally interferes with personal property by (ii) depriving of possession
Affirmative Defenses
(1) Consent
(2) Protective Privileges -
(i) Self Defense, (ii) Defense of Others, (iii) Defense of Property
(3) Necessity -
(i) Public, (ii) Private
Consent
Rule: Consent is an affirmative response, express or implied, to a particular behavior
Two Types:
(1) Express Consent
(2) Implied Consent
Notes:
- Person must have capacity
- Exceptions: Fraud or duress negates or eliminates consent
Two Types of Consent
Rule: Consent may be either express or implied.
(1) Express Consent - explicit words, written or oral, that gives individual allowance to act in a particular way
(2) Implied Consent - (i) voluntarily engages in customary behavior; OR
(ii) D’s reasonable interpretation of P’s objective conduct and the surrounding circumstances (body language)
Note: For implied, D is the decider of “reasonable”
Scope of Consent
Rule: Consent only extends to a particular categort
Protective Privileges (3)
(1) Self Defense
(2) Defense of Others
(3) Defense of Property
Self Defense - Elements
Time - Rule: Party must engage in the heat of the moment or almost instantaneously (a reasonable amount of time). Cannot be preemptive (too soon) or revenge (too late)
Accuracy - Rule: Party must have a reasonable belief that the threat is genuine
Scope/ Rule of Proportionality - Rule: Actions must be in proportional force to initial actions
Note:
Retreating - Majority Rule: No requirement to Retreat
Deadly Force - Majority Rule: Deadly force may not be used to protect property (also cannot use deadly mechanical devices)
Necessity Doctrines
Public Necessity - Rule: D commits a property tort during an emergency situation that protects the community as a whole
Private Necessity - Rule: D commits a property tort during an emergency situation that protects self interest, that grants a privilege to enter and a privilege to remain
Notes:
- Only applies when the underlying claim is a property tort
- Public = Absolute defense, no liability
- Private = Qualifying defense, ONLY compensatory damages owed (no liability for nominal or punitive damages)
Negligence - Elements
Rule: The elements of negligence are (1) duty (law), (2) breach (facts), (3) causation (factual and proximate - logic and policy) (4) damages (facts +slight law)
Negligence: Part I - Duty
Rule: Duty of care is a legally imposed obligation to take risk reducing precautions for the benefit of others
To Whom Do You Owe a Duty: to foreseeable victims
Zone of Danger: If you are outside the zone of danger, you are not a foreseeable victim, thus you are not owed a duty
Exception:
Rescuers are owed a duty of care, because danger invites rescue (Cordoza)
Standard: Reasonably Prudent Person
Negligence - Duty: Standard of Care
Rule: For duty, courts look to the reasonably prudent person standard of care. This is an objective standard, generally independent of the attributes of particular people
Exceptions:
- Specialized Knowledge or Skill: Courts will take into consideration RPP plus additional skill or knowledge where relevant
- Physical Attributes: Courts will take into consideration physical attributes, where relevant (i.e. blind, one leg, etc.)
Negligence - Duty: Special Standard of Care (Children)
Rule: There are specialized standards of care for children, that are subjective
(i) children under the age of 5 owe no duty of care, i.e. cannot be liable for negligence
(ii) For children between 5 - 18 years of age, the SOC is that of a child of same (i) age, (ii) experience, and (iii) intelligence, acting under similar circumstances
Exception: If child is engaged in an adult activity, then the RPP standard is used (ex. motorized vehicles - boat, tractor, jet ski, etc)
Negligence - Duty: Special Standard of Care (Professionals)
Rule: The standard of care for professionals is to exercise the same care as an average member of their same profession, providing similar professional services
Note: Empirical Standard
- This is when cases end up in malpractice suits
- Expert witnesses almost always needed
- **on exam do not use “reasonable doctor”
Use of Force - Recapture of Chattel
Rule: An owner may use reasonable force to recapture a chattel when in “hot pursuit” of the tortfeasor. The defense of recapture of chattels is limited by the circumstances of the original dispossession. When another’s possession of the owner’s chattel began lawfully, the owner may use only peaceful means to recover the chattel
A demand for return of the chattel must be made before force is used, unless the demand would be futile or dangerous.
However, force can be used only against the tortfeasor or a third party who knows that the chattel was tortiously obtained. If an innocent third party has obtained the chattel, the owner is no longer privileged to use force to effect a recapture of the chattel.
False Imprisonment - “Shopkeeper’s Privilege”
Rule: In addition to having a reasonable belief as to the fact of theft, a shopkeeper is required to conduct the detention in a reasonable manner and detain the suspect for a reasonable period of time for the privilege to apply
By statute in some states and case law in others, shopkeepers have been given a privilege to detain someone suspected of shoplifting and thus avoid liability for false imprisonment. The following conditions must be satisfied: 1. There must be a reasonable belief as to the fact of theft; 2. The detention must be conducted in a reasonable manner and only non-deadly force can be used; and 3. The detention must be only for a reasonable period of time and only for the purpose of making an investigation
Use of Force - Real Property
Rule: A landowner may not use force to regain real property after being tortiously dispossessed. Most states today do not allow resort to “self-help”; one who has been wrongfully excluded from possession of real property may bring an ejectment action or other summary procedure to recover possession
Note: One may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force could not lawfully be directly used, e.g., against a mere trespasser
Negligence - Duty: Special Standard of Care (Possessors of Property): Premises Liability
Land = Property
Rule: For possessors of property, there is no single standard of care, SOC depends upon type of entrant