Torts Flashcards
(89 cards)
Assault
Plaintiff could sue Defendant for assault. To establish a prima facie case, a plaintiff must prove the following elements:
- an intentional act by the defendant,
- causation,
-
a reasonable apprehension,
- P must have “knowledge” not “fear”
-
Of an immediate harmful or offensive touching (ie. Battery).
- Words alone (threat) lack immediacy – also need observable physical conduct
Battery
Plaintiff could sue Defendant for battery. To establish a prima facie case, a plaintiff must prove the following elements:
- a volitional act *by the defendant,
-
intent,
- Specific intent – goal to bring specific consequences
- General intent – D knows w/ “substantial certainty that consequences will result
- causation,
-
a harmful or offensive touching to plaintiff’s person
- Plaintiff’s person = Plaintiff and anything connected to P
- Harmful or offensive touching = measured by a reasonable person standard
- Offensive = contacts not acceptable in our society
- Touching doesn’t have to be immediately after D’s volitional act
Conversion
Plaintiff could sue Defendant for conversion. To establish a prima facie case, a plaintiff must prove the following elements:
- an intentional act by the defendant,
- that causes a serious interference,
-
with plaintiff’s right of possession in a chattel.
- Note the difference w/trespass to chattels is the remedies – if interference is significant “conversion” is the appropriate claim – if successful, a plaintiff may recover the fair market value of the chattel at time of conversion or seek recovery of the chattel (replevin).
False Imprisonment
Plaintiff could sue Defendant for false imprisonment. To establish a prima facie case, a plaintiff must prove the following elements:
-
Intentional,
- Intentional act can be a threat
- Omission is when D has a preexisting duty to act affirmatively to help P, but fails to do so
-
Physical or psychological confinement of another
- P is not confined or restrained if P doesn’t know she is confined or restrained
-
Within fixed boundaries,
- If there is a reasonable means to escape, then P is not “bounded”
- For any period of time,
- Without consent or privilege.
Intentional Infliction of Emotional Distress
Plaintiff could sue Defendant for intentional infliction of emotional distress. To establish a prima facie case, a plaintiff must prove the following elements:
- an intentional or reckless act by the defendant,
-
amounting to extreme and outrageous conduct,
- “Outrageous conduct” = exceeds all bounds of decency tolerated in out civilized society
- Hallmarks of outrageous conduct:
- Conduct is continuous or repetitive in nature
- The D is a common carrier or an inn keeper (obligation to be dubiously kind + courteous)
- P is a member of a “fragile class” (young children, elderly, pregnant women)
- Conduct if outrageous if D knows of Ps “hyper-sensitivity” and then exploits this “sensitivity”
- causation,
- severe emotional distress.
Trespass to Chattel
Plaintiff Adam could sue Defendant Baker for trespass to chattels. To establish a prima facie case, a plaintiff must prove the following elements:
- an intentional act by defendant,
- that causes an interference (intermeddling/damaging or dispossession),
-
with plaintiff’s right of possession in a chattel.
- Note the difference w/conversion is the remedies – if interference is minor “trespass to chattels” is the appropriate claim – if successful, a plaintiff may recover actual and loss of use damages.
Trespass to Land
Plaintiff could sue Defendant for trespass to land. To establish a prima facie case, a plaintiff must prove the following elements:
- an intentional act by the defendant,
-
that causes a physical invasion,
- D can either: (1) enter property or (2) throw or propel tangible objects onto the land
-
of plaintiff’s real property,
- Real property includes air above land and soil below to a reasonable distance
Private Nuisance
Plaintiff could sue Defendant for private nuisance. To establish a prima facie case, a private plaintiff must prove the following elements:
- an intentional or negligent act by the defendant,
- that causes a substantial (e.g., offensive, inconvenient, or annoying to the average person in plaintiff’s community), and
- unreasonable interference (e.g. the injury suffered by the plaintiff weighs more than the utility of defendant’s conduct),
- to plaintiff’s use or enjoyment of his property.
Public Nuisance
Plaintiff could sue Defendant for public nuisance. To establish a prima facie case, a plaintiff must prove the following elements:
- an intentional or negligent act by the defendant,
- that causes an unreasonable interference (e.g. the injury suffered by the plaintiff weighs more than the utility of defendant’s conduct),
- to the health, safety, or welfare of the community.
Intentional Torts Mnemonic
ABC-FITT + Private/Public Nuisance
Defenses to I/T - Consent
Defendant may defend that his intentional tort against Plaintiff was privileged due to consent. To establish this defense, a defendant must prove the following elements:
- plaintiff consented (express or implied), and
- defendant acted within the boundaries of the plaintiff’s consent.
Defenses to I/T - Self-Defense
Defendant may defend that his intentional tort against Plaintiff was privileged due to self-defense. To the establish this privilege, a defendant must prove the following elements:
- a reasonable belief,
-
that he was or about to be attacked by the plaintiff, and
- D must act in “real time” during the “moment” P attacks – no revenge
-
reasonable and proportional force was used.
- A mistaken belief as to the existence of danger is permitted as long as it is reasonable.
Defenses to I/T - Defense of Others
Defendant may defend that his intentional tort against Plaintiff Adam was privileged due to the defense of others. To establish this privilege, a defendant must prove the following elements:
- a reasonable belief,
- that a third person was or about to be attacked by the plaintiff,
- the third person could justifiably used force to defend themselves, and
-
reasonable and proportional force was used.
- A mistaken belief as to the existence of danger is permitted as long as it is reasonable.
Defenses to I/T - Ejectment (Defense of Property)
Defendant may defend that his intentional tort against Plaintiff Adam was privileged due to the defense of his real property. To establish this privilege, a defendant must prove the following elements:
- a timely demand to leave the real property [unless the statement would clearly be futile or dangerous],
- reasonable and proportional force was used to eject the plaintiff.
Defenses to I/T - Necessity (Defense of Property)
Plaintiff may defend that his entry onto Defendant property was privileged because of public necessity. To establish this privilege, a plaintiff must prove the following elements:
- that he entered onto another person’s property because it was reasonably and apparently necessary,
- to avoid a threatened injury to the public as a whole or a significant group of people, and
- the threatened injury was substantially more serious than the invasion onto D’s land to avert it.
Defenses to I/T - Recapture of Chattel
Defendant may defend that his intentional tort against Plaintiff was privilege due to the defense of recapture of chattels. To establish this privilege, a defendant must prove the following elements:
- he made a timely demand that plaintiff return the chattel [unless the request would have been clearly futile or dangerous],
- plaintiff intentionally and wrongfully possessed the chattel, and
-
defendant was in hot pursuit of one who has obtained possession wrongfully (i.e., theft).
- Generally, a defendant’s reasonable mistake is not permitted.
Defenses to I/T - Shopkeeper’s Privilege
Defendant Baker may defend that his intentional tort against Plaintiff Adam is protected by the shopkeeper’s privilege. To establish this privilege, a defendant shopkeeper must prove the following elements:
- a reasonable belief that the plaintiff committed a theft,
- the detention was conducted in a reasonable manner, and
- the detention lasted for a reasonable period of time.
Defenses to I/T - LEO’s Power to Arrest a Suspected Felon
Defendant may defend that his intentional tort against Plaintiff was privileged due to arrest. To establish this privilege, a defendant must show:
- he is a police officer,
- he reasonably believed that a felony was committed,
- by the person arrested, and
- reasonable force was used [deadly force is only permitted if the suspect poses a threat of serious harm].
Defenses to I/T - Private Person’s Power to Arrest a Suspected Felon
For a private citizen to establish the privilege of felony arrest, he must prove the following elements:
- he reasonably believed,
- that the person arrested committed a felony,
- a felony was in fact was committed, and
- reasonable force was used [deadly force is only permitted if the suspect poses a threat of serious harm].
Defenses to I/T - LEO and PP’s Power to Arrest a Suspected Misdemeanor
For a private person or police officer to establish the privilege of misdemeanor arrest, he must prove the following elements:
- the criminal offense caused a breach of the peace,
- the crime was committed in the arresting party’s presence, and
- reasonable force was used [and deadly force is never permitted].
Negligence
Plaintiff can sue Defendant for negligence. To establish a prima facie case, a plaintiff must prove the following elements: (1) defendant owed plaintiff a duty of care, (2) defendant breached that duty, (3) the breach was the actual and proximate cause, (4) of harm to the plaintiff.
Duty - Special: Violation of Statute
Violation of Statute (ICI+)
- If statute, court will look to the:
- Intent of the legislature in enacting the statute,
- If the plaintiff fell within the class of persons the statute was intended to protect and
- If the plaintiff suffered the type of injury the statute was designed to prevent.
- +: Evidentiary effect: Majority – Negligence Per Se, Minority: Inference of negligence, and CA: Presumption of negligence.
Duty - Special: Guest Statute (Passenger in Car)
If P is a guest, then he must show gross negligence (recklessness) on the part of the driver to recover to prevent insurance collusion.
Duty - Special: Omission to Act
No duty to go to the aid of another in an emergency unless:
- Injured by instrumentality under D’s control
- Special relationship between parties
- Statutory duty to act
- Gratuitous undertaking: No duty, however, if undertaken cannot leave individual in a worse situation.