Torts

Question 1

What are the three general elements to prove an intentional tort.

Answer 1

1. tortious conduct (act)
2. requisite mental state (intent)
3. causation

Question 2

What is the definition of battery?

Answer 2

A defendant cuases a harmful or offensive contact with the person of another and acts with the intent to cause that conduct or th eapprehension of that conduct.

Question 3

What damages are available for battery?

Answer 3

nominal damages; damages from physical harm flowing from battery; many states allow punitive damages if the defendant acted outrageously or with malice

Question 4

What is the definition of assault?

Answer 4

The defendant engages in an act that causes reasonable apprehension of imminent, harmful, or offensive bodily conduct and the defendant intends to cause apprehension of such conduct or to cause such conduct itself.

Question 5

What damages are available for intent?

Answer 5

No proof of atual damages needed, nominal okay. Can recover for physical harm flowing from assault, in appropriate cases, punitive damages may be available.

Question 6

What is the definition of Intentional Infliction of Emotional Distress (IIED)?

Answer 6

Defendant intentionally or recklessly engages in extreme and outrageous conduct that causes the plaintiff severe emotional distress.

The defendant must intend to cause the severe emotional distress or act with recklessness as to the risk of causing severe emotional distress.F

Question 7

For purpoes of IIED, what constitues “extreme and outrageous conduct”?

Answer 7

Conduct that exceeds the possible limits of human decency so as to be entirely intolerable in a civilized society.

More likely to be extreme and outrageous if D is (1) in a position of authority or influence over P or (2) P is a member of a group with heightened sensitivity (young children, elderly)

Question 8

What must a public figure show for an IIED claim?

Answer 8

That the words contained a false statement of fact that was made with actual malice. Actual malice requires it be made with knowledge that the statement was false or with reckless disregard of its potential falsity.

Question 9

When can thrid parties recover for IIED?

Answer 9

1. If they are related bystanders– immediate family member who is present at the time of the conduct and contemporaneouosly perceives the conduct.
2. Defendant’s purpose - if defendant’s purpose in harming an individual is to cause severe emotional distress to a third party.

Question 10

What damages are available for an IIED?

Answer 10

Plaintiff must show severe emotional distress beyond what a reasonable person would indure, physical injury is not required.

If person is hypersensitive, D is only lable if thye knew of hypersensitivity.

Question 11

What is false imprisonment?

Answer 11

(1) The D intends to confine or restrain another within fixed boundaries;
(2) The actions (or inactions) directly or indirectly result in confinement; and
(3) Plaintiff is consvious of the confinment OR harmed by it.

Question 12

What is the Merchant’s Privilege for False Imprisonment?

Answer 12

A merchan can, for a reasonable time and in a reasonable manner, detain a suspected shoplifter.

Question 13

What is the intent requirement for FI?

Answer 13

The D must act with the purpose of confining the plaintiff OR knowing that the plaintiff’s confinement is substantially certain to result.

Confinement due to D’s negligence is not liable under FI.

Question 14

What damages can a plaintiff recover for FI?

Answer 14

Nominal and actual.

Question 15

What are the defenses to intentional tort?

Answer 15

1. Consent - implied and express
2. Self-Defense
3. Defense of Others
4. Defense of Property
5. Parental Discipline
6. Privilege of Arrest

Question 16

What is actual consent?

Answer 16

The plaintiff, by words or actions manifests the willingness to submit to the defendant’s conduct.

Question 17

What happens if someone consents by mistake?

Answer 17

The defense of consent is still valid unless the defendant caused the mistake or nknew of it and took advantage of it.

Question 18

What happens if consent is by fraud?

Answer 18

It is invalid if the fraud goes to an essential matter. Otherwise valid.

Question 19

What is presumed consent?

Answer 19

The plaintiff is silent (or otherwise nonresponsive) but in context, their silence and continued participation can reasonably be construed as consent.

Question 20

What are examples of presumed consent?

Answer 20

1. Emergencies
2. Injuries arising from atheltic contests – if within the scope of hte sport
3. Mutual consent to combat

Question 21

What is self-defense?

Answer 21

Force that is reasonable to defend against an offensive contact or bodily harm.

Question 22

Is there a duty to retreat for self-defense/

Answer 22

Traditionally yes, but now most jurisdictions don’t require it.

Question 23

When can the initial agressor claim self-defense?

Answer 23

When the other party responded to nondeadly force with deadly force.

Question 24

When is hte person acting in self-defense NOT liable for injuries to bystanders.

Answer 24

When the injury was accidental and the actor was not negligent toward the bystander.

Question 25

What is defense of others?

Answer 25

An individual may use reasonable force in defense of others, if that person would be entitled to use self-defense.

Question 26

What kind of force can be used in defense of property?

Answer 26

Reasonable force may be used if the person reasonably believes it is necessary to prevent tortious harm to property. Deadly force CANNOT be used in defense of property.

Question 27

What type of foce can be used to recapture chattels (personal property)?

Answer 27

Reasonable force may be used to reclaim personal property that has been wrongfully taken, but only if you first request its return, unless that would be future. BUT if the taking was lawful, then only peaceful means can be used.

Question 28

What foce can be used to regain possession of land?

Answer 28

The common law rule was reasonable force was permitted. The modern rule is no force, only legal process.

Question 29

What force can be used during parental discipline?

Answer 29

Parents may use reasonable force as necessary to discipline children?

Question 30

When can a private citizen claim the privilege of arrest as a defense?

Answer 30

A private citizen is permitted to use reasonable force to make an arrest in the case of a felory IF (1) the felony has actually been commiteted and (2) the arresting party has reasonable grounds to suspect that hte person being arrested has committed the felony.

Question 31

What is trespass to chattels?

Answer 31

An intentional interference with the plaintiff's right to possess personal property by: (1) dispossessing hte plaintiff of hte chattle; (2) using or intermeddling with the planitiff's chattel; or (3) damaging the chattel

Question 32

What intent matters for trespass to chattels?

Answer 32

Only the intent to do the interfering act is necessary, you don't need to intend to interfere. Mistake about the legality of the action is not a defense.

Question 33

What damages are available for trespass to chattels?

Answer 33

In cases of dispossession or damage. - may recover actual damages, damages resulting from the loss of use, nominal damages, or the cost of repair. in cases of use or intermeddling - may only recover actual damages.

Question 34

What is conversion?

Answer 34

Intentionally committing an act depriving the plaintiff of possession of his chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff entirely of the use of chattel.

Question 35

What intent is required for conversion?

Answer 35

The defendant must only intend to commit the act that interferes. Mistake of law or fact is not a defense.

Question 36

What damages are available for conversion?

Answer 36

The plaintiff can recover the chattel's full value at the time of conversion.

Question 37

What factors do courts consider when differentiating between trespass to chattels and conversion?

Answer 37

(1) The duration and extent of interference (2) Defendant's intent to assert a right inconsistent with the rightful possessor (3) Defendant's good faith (4) Expense or inconvenience to the plaintiff (5) Extent of the harm

Question 38

What is trespass to land?

Answer 38

The defendant intentionally causes a physical invasion of someone's land.

Question 39

What intent is required for trespass to land?

Answer 39

Defendant only has to intend to enter the land or cause the physical invasion. Intent to commit a wrongful trespass is NOT required. And mistake of fact is not a defense.

Question 40

What is the difference between trespass and nuisance?

Answer 40

A trespass always involves an actual physical invasion or intrusion upon the land. A nuisance may or may not involve a physical invasion or intrusion.

Question 41

Who is the rightful plaintiff in a trespass to land case?

Answer 41

Anyone in possession of the land can bring an action, not just the owner.

Question 42

What are the defense to trespass to land?

Answer 42

1. Private Necessity - defendant is not liable for nominal damages, but will still be liable for actual damages caused. 2. Public necessity. - not liable for damages to property.

Question 43

What qualifies as an interference for purposes of private nuisance?

Answer 43

1. Must be annoying to an ordinary, reasonable person. (NOTE someone who is not actually bothered by an interference may still have a cause of action for nuisance if the interference would bother an ordinary, reasonable person.) 2. Courts will also balance hte interference with the utility of th enuisance.

Question 44

What is private nuisance?

Answer 44

An activity that substantially and unreasonably interferes with another use of and enjoyment of land.

Question 45

What is not considered a niusance?

Answer 45

Blocking sunlight or the obstruction of a view. UNLESS it is a spite fence or wall.

Question 46

What are the defenses to private nuisance?

Answer 46

1. Compliance with state or local administrative law or regulations -- evidence of whether actiity is reasonable, not a complete defense 2. "Coming to the nuisance" - NOT a complete defense, but a factor considered by the courts.

Question 47

What is public nuisance?

Answer 47

An unreasonable interference with a right common to the public as a whole.

Question 48

Who can bring a public nuisance case?

Answer 48

1. a public official on behalf of the public to abate the nuisance 2. a private individual who suffered special harm that is different from the general public

Question 49

What are the elements of negligence?

Answer 49

1. Duty 2. Breach 3. Causation 4. Damages

Question 50

What is a duty?

Answer 50

A legal obligation to act a certain way. There must be a duty and standard of care for the duty. In most cases, the standard of care is reasonable care, unless an exceptional standard applies

Question 51

Who is a duty of care generally owed to?

Answer 51

To all persons who may foreseeably be injured by the defendant's course of conduct. There is NO DUTY owed to an unforeseeable plaintiff.

Question 52

What is the majority view (Cardozo) for scope of duty?

Answer 52

It considers if a platiniff is in a class of persons who might be foreseeably harmed.

Question 53

What is the minority view (Andrews) for scope of duty?

Answer 53

It considers if the conduct could harm someone, the duty is owed to everyone. Saying foreseeability should be left to proximate cause.