Torts Flashcards
Transferred Intent
The transferred intent doctrine allows an intent to commit a tort against one person to be transferred to the committed tort OR to the injured person. It applies to:
(1) assault
(2) battery
(3) false imprisonment
(4) trespass to land
(5) trespass to chattels
No tort liability for an attempted assault standing alone
Which of the following statements as to assault is correct?
(A) the plaintiff must be aware of the source of the threatened contact
(B) the plaintiff may apprehend an immediate harmful or offensive contact without feeling fear or intimidation
(C) a defendant is never liable for the plaintiff’s unreasonable fears
(D) transferred intent may not be used for assault
(B) - in an assault case, the P may apprehend an immediate harmful or offensive contact without feeling fear or intimidation - apprehension is not the same as fear or intimidation - apprehension here is used in the sense of expectation
*It is incorrect to state that a defendant is never liable for the plaintiff’s unreasonable fears. Although typically the plaintiff’s apprehension of harmful or offensive contact must be reasonable, and courts generally will not protect a plaintiff against exaggerated fears, a defendant will be liable if he knows of the plaintiff’s unreasonable fear and uses it to put the plaintiff in apprehension.
The P does not need to be aware of the SOURCE of the threatened contact - if the P apprehends an imminent harmful or offensive contact, the D who initiated the threat is liable even if the P does not know the D’s identity or location at that point
For a prima facie case of assault, the element of apprehension typically cannot be established by _____
Words alone
*words alone, no matter how violent, generally cannot create a reasonable apprehension of immediate harmful or offensive contact - some overt act is usually required - if the words are accompanied by an overt act, like clenching a fist, then apprehension may be proved
Prima facie case of Battery
The elements that must be established for a prima facie case of battery are:
(1) an act by the defendant that brings about harmful or offensive contact to the plaintiff’s person; (anything connected to P’s person is part of the person) (indirect contact also will suffice)
(2) intent by the defendant to bring about the harmful or offensive contact; and
(3) causation
*Contact is HARMFUL if it causes actual injury, pain or disfigurement
*Contact is OFFENSIVE if it would be considered offensive to a reasonable person (offensive = unpermitted)
If a person knows with SUBSTANTIAL CERTAINTY the consequences of his action, he has the INTENT necessary for battery - if NOT, then not liable for battery
(if a D intends to cause a harmful contact, he is liable for all of the consequences of his actions, whether he intended them or not. A defendant need not FORESEE the extent of the injuries caused by his intentional act to be held liable for them)**
Prima facie case for Assault
The prima facie case for assault requires:
(1) an act by defendant causing a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff’s person;
(2) intent by defendant to bring about in plaintiff apprehension of that contact; and
(3) causation
For there to be apprehension, P must be aware of the D’s act at the time that it is occurring
Force may not be used by ______
(A) a property owner to defend property from tortious interference
(B) a citizen in effecting a misdemeanor arrest
(C) a landowner to regain real property after being tortiously dispossessed
(D) an owner of chattel to recapture the chattel
(C) - A landowner may not use force to regain real property after being tortiously dispossessed. Most states do not allow resort to “self-help”
*An owner of chattel may use force to recapture the chattel when in “hot pursuit” of the tortfeasor. A demand for the return of the chattel must be made before the force is used, unless the demand would be futile or dangerous.
*A property owner may use force to defend the property from tortious interference. Although a property owner may use reasonable force to defend property, she may not use force that will cause death or serious bodily harm. Furthermore, 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
Can a defendant assert the defense of property if she uses force against one with a privilege to enter the property?
NO - whenever an actor has a privilege to enter upon the land of another because of necessity, right of reentry, right to enter upon another’s land to recapture chattels, etc., that privilege supersedes the privilege of the land possessor to defend her property
A landowner’s reasonable belief/mistake that he had a right to defend his property generally is not a defense to the entrant’s exercise of a privilege, such as necessity, that supersedes the defense of property right
Shopkeeper’s Privilege
A shopkeeper has a privilege to detain a suspected shoplifter for investigation. For the privilege to apply, the following conditions must be met:
(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 nondeadly force can be used
(3) the detention must be only for a reasonable period of time and only for the purpose of making an investigation
This is usually a defense to false imprisonment - but it is equally applicable as a defense to other intentional torts
Recapture of Chattels
If another’s possession began lawfully
- one may use only peaceful means to recover the chattel
If another’s possession began lawfully
- reasonable force may be used to recapture a chattel only when in hot pursuit of one who has obtained possession wrongfully, for example, by theft.
Good Samaritan Law
A “Good Samaritan” law refers to a statute exempting licensed doctors, nurses, etc., who voluntarily and gratuitously render emergency treatment, from liability for ordinary negligence
*Has nothing to do with breach of duty - can’t be used to establish breach of duty
To show breach of duty, a plaintiff may rely on evidence of:
- custom or usage
- violation of a statute
- res ipsa loquitor
Joint and Several Liability (Traditional Contribution and Comparative Contribution)
Under joint and several liability, each defendant found by the trier of fact to be at fault for an indivisible injury is liable to the plaintiff for the ENTIRE AMOUNT of the damages incurred, not just a portion of it (of course, multiple recovery is not allowed).
*Under a joint and several liability system, COMPARATIVE contribution allows a defendant who pays more than his share of damages to recover the excess from the other jointly liable parties; responsibility is thus apportioned among those at fault.
TRADITIONAL contribution rules require all defendants to pay equal shares regardless of their respective degrees of fault, (while states with a COMPARATIVE contribution system impose contribution in proportion to the relative fault of the various defendants). Nevertheless, this simply means that a defendant (assuming it paid the judgment award to the plaintiff) has contribution rights against the other defendants - this DOES NOT means that the defendant’s liability to the plaintiff is based on their relative fault.
Conversion vs. Trespass to Chattels
Conversion consists of:
(1) an act by defendant interfering with plaintiff’s right of possession in the chattel;
(2) intent to perform the act bringing about the interference with plaintiff’s right of possession;
(3) causation; and
(4) damages - an interference that is serious enough in nature of consequence to warrant that the defendant pay the FULL VALUE of the chattel
*Intent to trespass is not required; intent to do the act of interference with the chattel is sufficient for liability
Trespass to Chattels:
- same elements as above, but damages = actual damages from harm to chattel or loss of use
*Trespass to Chattels = intentional act by the defendant that interferes with the plaintiff’s right of possession in the chattel
*Conversion = intentional act by the defendant that interferes with the plaintiff’s right of possession in the chattel AND the interference is serious enough in nature or consequences to warrant that the defendant pay the chattel’s full value
False Imprisonment
For false imprisonment, the plaintiff must show:
(1) an act or omission on the part of the defendant that confines or restrains the plaintiff to a bounded area,
(2) intent on the part of the defendant to confine or restrain the plaintiff; and
(3) causation
damages not required - P can recover nominal damages even if actual damages are not proved. punitive damages may be recovered if the defendant acted maliciously
**BUT, P must know of the confinement OR be harmed by it to recover
*having the status of being a trespasser does not preclude a plaintiff from recovering for false imprisonment (but trespasser would still be liable for their trespass)
Res Ipsa Loquitor
The doctrine of RIL provides that, where the facts are such as to strongly indicate that the plaintiff’s injuries resulted from the defendant’s negligence, the trier of fact may be permitted to infer the defendant’s liability. The plaintiff must establish that:
(1) the accident causing the injury is a type that would not normally occur unless someone was negligent; and
(2) the negligence is probably attributable to the defendant (meaning that this type of accident ordinarily happens because of the negligence of someone in the defendant’s position)
*(2) can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant - but actual possession of the instrumentality is NOT necessary
*Effect of RIL = inference of breach (NOT a “presumption” of breach)
- Where RIL is established, the P has made a prima facie case and no directed verdict may be given for D. The P can still lose, however, if the inference of negligence is rejected by the trier of fact
- *D is not required to present evidence of due care in rebuttal - if the jury elects not to infer negligence, it may find for the D even if the D presents no evidence on that issue