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Torts Flashcards

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1
Q

Eggshell skull rule

A

If you commit an intentional tort against someone, you are responsible even when completely unforeseen harm results from it

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2
Q

Transferred Intent

A

When one intends any of the trespass torts and accomplishes any of them, the person is liable (even if the plaintiff is not the intended target and even if it is not the same tort as was intended)

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3
Q

What torts does transferred intent apply to?

A

All trespass torts EXCEPT IIED:

battery, assault, false imprisonment, trespass to land, trespass to chattels, sometimes conversion

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4
Q

Which torts can nominal damages not be recovered from ? i.e., which ones do you need to prove damages

A

Nominal damages can NOT be recovered from IIED, trespass to chattels, or negligence

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5
Q

List all trespass torts

A

battery, assault, IIED, false imprisonment, trespass to land, trespass to chattels, and sometimes conversion

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6
Q

Intent

A
  1. purpose or desire

2. knowledge with a substantial certainty

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7
Q

Describe broadly the 4 elements of battery

A
  1. Volitional act
  2. Intent to cause harmful or offensive contact
  3. Harmful or offensive contact results
  4. causation
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8
Q

Define volitional act for battery

What are some examples that do not qualify as volitional acts?

A

External manifestation of the will.

Being asleep / unconscious / reflexes are NOT volitional acts

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9
Q

Describe harmful contact (bodily harm) for battery

A

bodily harm is any physical impairment of the condition of another’s body, or physical pain or illness.

impairment: if the structure or function of any part of the other’s body is altered to any extent (even if the alteration causes no other harm)

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10
Q

Describe offensive contact for battery

A

Offensive contact is an objective standard

What would be offensive to an ordinary person, not an unduly sensitive person

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11
Q

What is the extended person rule and what does it apply to ?

A

Applies to battery.

Unpermitted and intentional contact with anything so connected to a body as to be customarily regarded as part of the other’s person ( or intimately associated with a person’s body )
is actionable as a battery

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12
Q

Define Assault

A

Apprehension of imminent bodily contact

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13
Q

Are words alone enough for Assault?

A

no

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14
Q

Describe the broad

4 elements of Assault

A
  1. Overt volitional act
  2. Intent to cause apprehension of immediate harmful or offensive contact
  3. Well-founded apprehension of imminent harmful or offensive contact
  4. Causation
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15
Q

What is an overt volitional act for assault

A

External manifestation of the will (think offer to touch)

Must be known to the plaintiff

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16
Q

Describe intent for assault

A

Intent to cause apprehension of immediate harmful or offensive contact
-either purpose or desire, or knowledge with a substantial certainty

Apprehension does not mean fear, it is the feeling imminent contact is coming

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17
Q

Describe well-founded apprehension of imminent harmful or offensive contact

A

Apparent ability to effectuate attempt.

The plaintiff truly believes that they are about to have the harmful or offensive contact come in contact with them.

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18
Q

Define False Imprisonment

A

The direct restraint of one person of the physical liberty of another without adequate legal justification.

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19
Q

Describe the 5 elements of false imprisonment

A
  1. Volitional act
  2. Intent to unlawfully confine another person within boundaries
  3. Actual confinement
  4. Causation
  5. Prisoner is conscious of confinement or harmed by it
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20
Q

Describe intent for battery

A

Intent to cause harmful or offensive contact

only intent to cause contact, does not need to be intent to cause harmful or offensive contact

Either:
purpose or desire to cause contact that is deemed harmful or offensive

knowledge with a substantial certainty that harmful or offensive contact will result

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21
Q

Describe volitional act for false imprisonment

A

Does not need to be overt, threat may suffice, but moral persuasion is not

broad imminence required

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22
Q

Intent for false imprisonment

A

intent to unlawfully confine another person within boundaries.
- purpose or desire or knowledge with a substantial certainty

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23
Q

define actual confinement for false imprisonment

A

fixed boundaries

No reasonable means of escape (reasonable means of escape does not mean things that will hurt your dignity)

Imminence is needed

Duress is enough (tested by: would a reasonable person feel free to leave)

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24
Q

Last element of false imprisonment

A

The person being confined is conscious of confinement or harmed by it.

Some jurisdictions recognize being harmed by confinement as sufficient by itself without the requirement of consciousness.

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25
IIED
Intentional infliction of emotional distress
26
Describe the 4 elements of IIED
1. intentional (or reckless) conduct 2. Extreme and outrageous act 3. Causation 4. Severe emotional distress
27
Intent for IIED
Intentional or reckless conduct Intent (purpose or desire or knowledge to a substantial certainty) to cause emotional distress Not all jurisdictions allow reckless conduct, some strictly require intent
28
# Define recklessness how does it compare to intent
Deliberate disregard of a high degree of probability less than intent but more than negligence
29
Define extreme and outrageous act for IIED
If you recited the facts to an average member of the community, it would make them stand up and shout "outrageous" objective standard and is a really high bar. Person of ordinary sensibilities but special knowledge counts
30
Define the element severe emotional distress for IIED
VERY high bar. not only is it relevant to amount of recovery, but it is necessary to meet IIED criteria
31
Trespass to land
unauthorized and therefore unlawful entry into the close of another )no need to prove damages). Must be a physical object but not necessarily the person
32
Describe the 4 elements of trespass to land
1. Volitional act 2. Intent (purpose or desire or knowledge to a substantial certainty to enter the land of another 3. Entry 4. Causation
33
Describe intent for trespass to land
intent (purpose or desire or knowledge to a substantial certainty) to enter the land of another. Still liable for mistakes... its just the intent to do the volitional act in question. Tripping / falling does not count.
34
Describe entry for trespass to land
Does not have to be a person Could be an animal/livestock Could be an object (think metal post in snow staying beyond welcome is trespass) sky above/ground below to a reasonable level
35
Trespass to chattel elements
1. Volitional act 2. intent to affect chattel (still liable for mistakes) 3. Causation 4. Invasion of chattel interest
36
Describe intent to affect chattel for trespass to chattels
Intent to make physical contact with the chattel | liable for mistakes
37
Describe invasion of chattel interest (4 options)
1. Deprivation of use 2. Bodily harm to the possessor (or harm to something in which the possessor has a LPI 3. Impairment as to condition, quality, or value 4. Dispossession (for a substantial period of time)
38
Conversion
Intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay full market value of the chattel (think of conversion as a forced sale)
39
Elements of Conversion
Same elements as trespass to chattels 1. Volitional act 2. intent to affect chattel 3. Causation 4. Invasion of chattel interest
40
Factors in upgrading trespass to chattels to conversion
1. extent and duration of taking 2. actor's intent / good faith 3. harm done to chattel 4. inconvenience / expense to other person
41
Are you liable for mistakenly committing a trespass to chattel?
mistake is no defense. think of it as you did act in question - you intentionally took something - though you may not have known it wasn't yours, the mere fact you took it is intent
42
If you mistakenly commit conversion, are you liable?
yes. You are still liable for mistakes.
43
Can you go after immediate parties for trespass to chattels?
Yes ex. if your bike was stolen you can go after the person who stole your bike, the store that sold the bike, bona fide purchase who bought bike all could be guilty of conversion
44
Does conversion extend to any intangible things?
Yes- think CompuServe case. The LPI was their business reputation
45
If the defendant offers the item back in conversion, does the plaintiff have to accept it?
no
46
T/F? Taking something with the intent to steal it is always conversion
yes, but that doesnt mean you cant have conversion without the intent to steal
47
Hypo: | Walk outside with umbrella, wind ruins it. Conversion?
Yes because significant damage
48
Privileges / affirmative defenses: who has the burden of proving them?
defendant has burden of pleading / proving
49
What are the three types of consent?
1. actual or express consent (verbal or in writing) 2. Implied / apparent consent 3. Implied-by-law consent
50
Describe the implied / apparent consent
Reasonable person standard: what a reasonable person in the defendant's position would believe based on the circumstances Can be through customs (like violence in sports) or through actions (outward manifestation). Think holding out arm for shot
51
Describe implied by law consent
Medical emergencies Have to have them all Patient unable to given consent risk of serious harm if treatment delayed reasonable person would consent physician has no reason to believe patient would refuse
52
What are the circumstances in which consent is not valid / not effective?
infancy, intoxication, incompetence, consent to illegal activities The majority think you cannot consent to illegal activities while the minority say you can. You can never consent to illegal acts that are meant to protect the person consenting (like statutory rape)
53
When do you have the privilege of exercising self defense?
You are privileged to use force when it reasonably appears that the actor is about to inflict imminent battery. objective standard
54
How do you determine how much force you are able to use against someone in self defense?
The amount of force is limited to the amount of force reasonably necessary to prevent harm. Force has to be proportional to the crime
55
Are mistakes allowed in self defense?
yes. no liability for reasonable mistakes unless you acted negligently
56
When is deadly force allowed to be used during self defense?
only acceptable in reasonable apprehension of loss of life or great bodily injury
57
When can you argue self defense as the original aggressor ?
Only have you have retreated
58
Is there a duty to retreat when non deadly force is used ?
no
59
Is there a duty to retreat with deadly force?
Courts are split. Minority say you must retreat if you can do so safely ... unless you are in your own home
60
Can you use self defense against an aggressor that has already retreated?
No
61
Is verbal provocation typically enough to justify use of self defense?
no not usually unless it is accompanied by hostile factors.
62
When is defense to other applicable?
privilege based on defending others You are privileged to use reasonable force if you think its necessary
63
What happens if you make a mistake when you are defending others?
The majority think you are still privileged (not liable) The minority rule is if the person you are defending does not have privilege, then you don't either.
64
How much force is necessary when defending property?
The amount of force reasonably necessary to deter entry to reasonable person.

1L (2 decks)

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