Torts Flashcards
What are the three main elements required to prove an intentional tort?
(1) An Act
(2) Intent
(3) Causation
When is intent established in an intentional tort situation? (2 ways)
(1) When the actor acts with the purpose of causing the consequence; or
(2) When the actor knows that the consequence is substantially certain to follow.
Can Children or Mental Incompetents be held liable for intentional torts?
Yes, if they act with the requisite intent.
What are the three scenarios that lead to transferred intent?
(1) A different intentional tort committed against the intended victim;
(2) The intended tort committed against an accidental victim; and
(3) A different intentional tort committed against an accidental victim.
* See Outline pg. 1 for good examples.*
What are the required elements for battery?
(1) The Defendant causes a Harmful or Offensive contact with the person of another; and
(2) Acts with the intent to cause that contact, or the apprehension of that contact.
In reference to establishing Battery, what is considered a “Harmful” or “Offensive” contact?
Harmful - A contact that causes injury, pain, or illness.
Offensive - A contact that a person of ordinary sensibilities would find offensive
- e.g. Expectorating on someone, Groping someone, etc.*
- Notes: The victim need not be conscious or aware of the contact. Defendant’s foreknowledge of victim’s hypersensitivity may lead to liability. The “contact” can be direct, but need not be (water bucket propped up on door, etc.).*
For the purposes of establishing Battery, what is considered to be “The Person of Another”
The person’s body and anything connected to it, including a hat, the bike you’re riding, or the pet you have on a leash.
What damages can be recovered from a Battery?
Plaintiff can recover nominal damages in the absence of proof of harm.
Plaintiff may also recover damages from physical harm flowing from the battery.
Punitive Damages may be awarded if the defendant acted outrageously or with malice.
What is the Eggshell Plaintiff rule; how does it relate to Battery?
Per the “eggshell plaintiff” rule, a defendant is liable for all harm stemming from a battery, even if it is much worse than the defendant or anyone else expected it to be.
List one Defense to battery.
The Consent defense; battery does not exist if there is express or implied consent.
e.g. Getting into a boxing ring.
What are the elements required to cause Assault?
(1) The Defendant causes Reasonable Apprehension of an imminent harmful or offensive bodily contact; and
(2) The Defendant intended to cause the apprehension, or to cause the contact itself.
* Note: Actual Contact is not required for assault. To establish Reasonable Apprehension, Plaintiff must be aware of the Defendant’s action; and that action must cause a reasonable person to be apprehensive.*
* Generally, mere words are insufficient, except in special circumstances where the defendant could potentially cause imminent harm (e.g. “Your money or your life” uttered in a dark alley behind someone can constitute assault.*
What Damages can be recovered for Assault?
Same as with Battery;
Nominal damages may be awarded without proof of injury;
Damages can be recovered for any physical harm flowing from the assault.
Punitive damages may be awarded in appropriate cases.
What are the elements of an Intentional Infliction of Emotional Distress claim?
(1) The Defendant Intentionally or Recklessly engages in;
(2) Extreme and Outrageous conduct that
(3) causes the plaintiff severe emotional distress.
* Note: Defendant’s actions must be a cause in fact of the plaintiff’s harm.*
In terms of IIED, what might cause a court to more likely find conduct or language extreme and outrageous?
(1) The Defendant is in a position of authority or influence over the plaintiff;
(2) The plaintiff is a member of a group that has heightened sensitivity (Elderly, Children, Etc.)
With respect to IIED, what are the Constitutional Limitations on claims by/about Public Figures?
Public figures are unable to recover for IIED unless they can show that the words contain a false statement of fact, and that statement was made with actual malice.
Actual malice in this context is defined as a statement having been made that was knowingly false, or was made with reckless disregard for its potential falsity.
IIED may also be inapplicable to private plaintiffs if the conduct at issue is speech on a matter of public concern (Snyder v. Phelps)
How does conduct toward Third Parties interplay with IIED?
(Immediate Family Members, Bystanders)
If an immediate family member of a victim of extreme and outrageous conduct is present at the time of and witnesses said conduct, they may be entitled to recover under the IIED tort even if there was not bodily injury to the victim.
A bystander can recover for IIED if they were present for the conduct, perceives the conduct, and experiences a physical manifestation of the distress.
The same rules apply if a defendant commits a different intentional tort that causes severe emotional distress to another.
What must someone prove to recover damages for IIED?
The plaintiff must prove severe emotional distress beyond what a reasonable person should endure.
The Outrageous nature of the conduct is often sufficient evidence of the plaintiff’s distress.
Hypersensitivity - If the plaintiff experiences an unreasonable level of emotional distress, then the defendant is only liable if he had awareness of the plaintiff’s hypersensitivity.
Physical injury is not required. except for bystanders.
What are the elements of False Imprisonment?
(1) Defendant intends to confine or restrain another within fixed boundaries;
(2) the actions directly or indirectly result in confinement;
(3) Plaintiff is conscious of the confinement, or is harmed by it.
* Notes: Fixed area may be large; irrelevant. Fixed area may be mobile (e.g. a van).*
Duration of confinement is immaterial.
Defendant must either act with purpose to confine the plaintiff, _or_ with knowledge that the plaintiff’s confinement is substantially certain to result.
List some methods by which a person can be confined as it relates to False Imprisonment.
- Physical Barriers
- Threats
- Physical Force
- Invalid Invocation of Legal Authority (pretending to be a police officer)
- Duress
- Refusal to provide a safe means of escape
Note: Courts may also find false imprisonment when a defendant has refused to perform a duty to help a person escape.
What is the shopkeeper’s privilege as it relates to false imprisonment?
A shopkeeper may detain a suspected shoplifter for a limited time and in a reasonable manner.
List the six (6) defenses to intentional torts.
- Consent
- Self Defense
- Defense of Others
- Defense of Property
- Parental Discipline
- Privilege of Arrest
Describe Express Consent as a defense to intentional torts.
What about Consent by Mistake or Consent by Fraud?
Express Consent is words or actions that manifest the willingness of a plaintiff to submit to the defendant’s conduct.
- Defendant’s conduct may not exceed the scope of the consent.
- Consent by mistake is a valid defense, unless the defendant caused the mistake or knew of it and took advantage of it.
- Consent by fraud is not a valid defense if it goes towards an essential matter.
Describe Implied Consent as a defense to intentional torts.
Implied Consent arises when the plaintiff is silent or unresponsive in such circumstances as silence or a lack of response can reasonably be construed as consent.
Some Prime Examples:
- Emergencies
- Injuries Arising from Athletic Contests (as long as conduct is within the scope of the sport; defendant can’t be reckless)
- Mutual Consent to Combat
Can a Lack of Capacity negate consent?
Yes, lack of capacity can negate consent, especially in instances of youth, intoxication, and incompetency.
Discuss the Self-Defense defense to intentional torts. (Note; Defense of Others follows the same rules)
(Level of Response, Duty to Retreat, Initial Aggressor, Injuries to Bystanders)
Use of Self-Defense requires that the Defendant used proportionate force to defend against an offensive contact or bodily harm (i.e. not excessive force).
Under the Duty to Retreat, traditionally most courts required an attempt to retreat before one could use deadly force.
The initial aggressor in a situation cannot assert self defense, unless the other party has responded to nondeadly force with deadly force.
A person acting in self-defense is not liable for injury to bystanders provided the injury was accidental and the actor was not negligent towards the bystander.
Describe the Privilege of Arrest for Felonies
(Private Citizen vs. Police Officer)
For Private Citizens, reasonable force may be used to make an arrest in the case of a felony if:
(1) The felony has actually been committed (No “mistake” defense if no crime committed); and
(2) The arresting party has reasonable grounds to suspect the person being arrested committed the felony. (is a defense if there is a reasonable mistake with regards to identity).
Police must reasonably believe that a felony has been committed and the person arrested for it committed the felony.
Police do not face tort liability if there is a mistake as to whether or not a felony was actually committed.
Describe the Privilege of Arrest as it relates to Misdemeanors
(Private Citizen vs. Police)
An arrest by a Private Person may only be made if there is a “breach of the peace.”
Police may only arrest if the misdemeanor was committed in the officer’s presence.
What is Trespass to Chattels and what level of Intent is required?
A Trespass to Chattels is an intentional interference with the plaintiff’s rights to possess personal property. Comes about by either:
(1) dispossessing the plaintiff of the chattel;
(2) using or intermeddling with the plaintiff’s chattel; or
(3) damaging the chattel.
Intent to interfere is not required; merely intent to do whatever the interfering act was is required.
Mistake about the legality of the action is no defense.
Differentiate between Trespass to Chattel(s) and Conversion.
Generally speaking, the only major difference is the degree to which the chattel is damaged or interfered with. In the event of a conversion, the entire value of the chattel must be recovered, whereas trespass to chattels can be less.
What damages may be recovered in the event of a Trespass to Chattels or Conversion.
In the case of Trespass to Chattels, Actual Damages, damages resulting from the Loss of Use, Nominal Damages, or the cost of repair.
For Conversion, the chattel’s full market value at the time of conversion.
What factors are considered when a court will decide between Trespass to Chattels and Conversion?
- The duration and extent of the interference;
- Defendant’s intent to assert a right inconsistent with the rightful possessor;
- Defendant’s lack of good faith;
- Expense or inconvenience to the plaintiff; and
- Extent of the Harm
What is Trespass to Land? What Intent is required?
Trespass to land occurs when a defendant intentionally causes a physical invasion of someone’s land.
With respect to Intent, the defendant need not intend to commit a wrongful trespass; the defendant need only to intend to enter the land or to cause physical invasion.
