Torts Flashcards
(33 cards)
Intentional Tort
Intentional interference with a person and/or their property. Need intent.
ABCFIITT
Assault, Battery, Conversion, False Imprisonment, Intentional Infliction of Emotional Distress, Trespass to Land, Trespass to Chattels
Determining Intent
Result Desired - acted in order to bring about what actually happened, or knew in acting that what actually occurred was substantially certain to happen
Transferred Intent - intended to harm one party but harmed the plaintiff instead. applies from person to person, tort to tort; and person to person AND tort to tort.
Transferred Intent Applicable Torts
Battery, assault, false imprisonment, trespass to land, trespass to chattels (recent exams primarily assault, battery, false imprisonment)
Assault (Intentional Tort)
Act by Defendant - volitional movement, not just words
Intent - to cause harmful or offensive contact
Well-founded Apprehension of Immediate Battery - reasonable, immediate
Causation - caused or set in motion causing the apprehension
Battery (Intentional Tort)
Harmful or Offensive Touching - resulting in injury/pain/disablement or offend reasonable person’s sense of personal dignity (awareness of contact not required)
By the Act or Authority of Defendant - volitional movement
Intent - to inflict harmful or offensive touching
Causation - substantial factor in causing injury
Conversion of Chattels
Plaintiff in Possession or Entitled to Immediate Possession - generally not intangibles unless “merged” w/ an instrument (like stocks)
Act by Defendant - volitional movement by the D
Intent - to deal w/ chattel in the manner in which he actually did so
Invasion of Chattel Interest - serious invasion of another’s chattel
Causation - caused or been substantial factor
Remedy - total value of chattel at time and place of conversion. no damages for sentimental value
Invasion of Chattel Interest (Conversion of Chattel)
Destruction
Dispossession
Refusal to Surrender Chattel on Demand
Misdelivery of Chattel - even if in good faith
Using Chattel w/o Authority - have actual possession, but no authority to make use of it
Receipt of Stolen Property - even if in good faith
Disposing of Stolen Property - even if in good faith
Chattels - Distinguishing between Trespass vs Conversion
Extent of the dominion over the chattel
Duration of interference
Harm done to chattel
Inconvenience/expense to injured party
Good faith or lack thereof by controlling party
Intent to assert a right inconsistent w/ rightful possessor’s control
False Imprisonment
Act by Defendant - volitional act causing P’s confinement, mere words may be sufficient
Intent - intent to confine either P or member of immediate family
Total Confinement or Obstruction of Plaintiff - diff methods, time irrelevant, awareness required unless injury is caused, availability of reasonable means of escape available and known then no confinement
Causation - either legally caused or set in motion the force
Methods of Confinement
Physical Force - P need not resist and need not be overpowered
Threats or Duress - Threats of harm to P or member of family/duress relating to P’s property
Barriers to Escape - Actual or apparent physical barrier
Refusal to Release - Legal duty to release, but refusal to do so
False Arrest - improper assertion of legal authority and P submits
Intentional Infliction of Mental or Emotional Distress
Act by D - words alone my suffice
Constituting Extreme and Outrageous Conduct - conduct must have been “outrageous” to person of normal sensibilities; if P has special sensitivities, actionable if D knew or had reason to know
Intent to Cause Severe Emotional Distress - desire to cause result or knowledge of substantial certainty of result
Causation - actual and proximate
Damages - more outrageous conduct, less need for physical signs
Trespass to Land
Exclusive Possession or Entitled to Immediate Possession - invasion beneath or above surface; lessee could maintain action for trespass
Act by D - volitional movement
Intent - no specific intent for trespass, just intend to go there
Invasion of Land - physical object penetrating either land or airspace; may cause other person to enter
Causation - substantial factor
Damages - if no actual damage, liable for nominal damages
Trespass to Chattels
Plaintiff in Possession or Entitled to Immediate Possession
Act by Defendant - volitional movement
Intent - deal w/ chattel in manner in which actually dealt with; need not know chattel not his own
Invasion of Chattel Interest
Causation - volitional movement, substantial factor
Actual Damages - actual damage necessary, no nominal damages
Remedies - for dispossession, recover for loss of use and for harm to it, or the value of the chattel at time of conversion
Invasion of Chattel Interest (Trespass)
1) impaired quality, value or condition
2) deprived possessor of use
3) caused bodily harm to possessor or chattel
Dispossession - includes theft
Intermeddling - interferes, but does not actually challenge interest, like graffiti
Privileges and Defenses (Intentional Torts)
Consent - may be express, apparent, or implied by law.
Self-Defense
Defense of Others - anyone endangered, other party entitled to act in self-defense
Defense of Property
Re-Entry on Land - not allowed since there are judicial procedures for adequate remedy
Re-Capture of Chattels - only for tortious dispossession and shopkeeper’s privilege
Privilege to Arrest
Necessity
DARNCOPS: Discipline Cases; Arrest; Recapture of Chattels; Necessity; Consent; Others, Defense of; Property, Defense of; and Self Defense
Self-Defense
Reasonable
Threats of Force - if threats only place P in apprehension, D can threaten more force than privileged to use
Non-Deadly Force - reasonable apprehension of bodily contact, reasonable means used to avoid the contact, not duty to retreat UNLESS P not intentionally creating risk/P mistakes D’s identity (D must use reasonable means to resolve mistake)
Deadly Force - reasonable apprehension of serious harm, majority view no duty to retreat but minority view duty to retreat when that can be safely accomplished except when D is in his own home, retreating would risk danger to third party, or D is attempting valid arrest
Limitations on Self-Defense Privilege
Danger Terminated - if D knows danger terminated, no SD
Use of Excessive Force - D liable for whatever amt of the force was excessive, and P may protect self
Privileged Use of Force by P - such as valid arrest
Intentional Use of Force Against Third Person - if third person comes between D and P, then D not privileged against liability for harm to third person
Defense of Property
Non-Deadly Force - intrusion of D’s land/chattel not privileged or D reasonably believed it was not privileged, reasonably believe force necessary, D must have demanded intruder desist and intruder ignored demand
Deadly Force - generally may not be employed in defense of property
Mechanical Devices - devices are either reasonable and necessary or customary in area, D gives adequate warning of use of device, intrusion must actually pose threat of death or serious injury to D or immediate family
Threats - privileged to threaten greater amount of force than would be permitted to actually use
Re-Capture of Chattels
Tortious Dispossession - D is privileged to use reasonable, non-deadly force to recapture chattel if four conditions met:
1) Immediate Right to Possession; 2) Demand for Return; 3) Fresh Pursuit - “reasonably diligent in discovering loss and reasonably diligent in efforts at recapture; 4) P at fault - either tortiously dispossessed or receiver w/ knowledge of stolen goods
Shopkeeper’s Privilege - storekeepers can temporarily detain anyone reasonably suspected of tortiously taken goods/failed to make payment. Reasonable mistake protected if meets requirements.
Requirements:
1) Reasonable Suspicions - stopping shoppers at random and questioning not privileged; 2) Investigation on Premises - needs to be on store premises or immediate vicinity; 3) Reasonable Force; 4) Reasonable Manner and Duration of Detention - limited to period of time reasonably necessary for investigation
Privilege to Arrest
Misdemeanor Arrest Without Warrant
Felony Arrest Without Warrant
Arrest made Under Warrant - warrant must be fair on its face
Amount of Force Privileged - diff btwn misdemeanor and felony
Right to Invade Land - if has privilege to use force to arrest, also privileged to enter another’s land
Effect of Defendant’s Misconduct after Arrest - if valid arrest followed by excessive force/delaying release on bail, original arrest not privileged, or modern view is D is liable for misconduct following arrest
Misdemeanor Arrest Without Warrant
Accepted common law no, most jurisdictions allow if misdemeanor in presence of police officer
Felony Arrest Without Warrant
Private Citizen - felony is being committed, or reasonably appears to be committed in his presence
Police Officer - reasonable grounds for believing both that a felony had been committed and person arrested had committed it
Necessity
May interfere w/ real or personal property of another when it is reasonably necessary to avoid threatened injury from natural or other force and where threatened force is substantially more serious than invasion
Public necessity - act for public good
Private necessity - act solely for benefit or person/property from destruction or serious injury. actor must pay for any injury they cause
Strict Liability
Liability w/o regard to the “fault” of the defendant.
Absolute Duty on party of D to make it safe,
Breach of that Duty,
Breach was the Actual and Proximate Cause, and
Damage to the P’s Person or Property
