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Texas Bar Exam: MBE > Torts > Flashcards

Flashcards in Torts Deck (110)
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1

What are the three elements to an intentional tort?

1) Voluntary act - Defendant must have the state of mind that directed the physical movement.

2) Level of Intent - Defendant acts with purpose or acts with substantial certainty that the consequence is going to occur (consequence being the act that is tortious). What matters here is that the defendant intended to commit the tort, not necessarily that the defendant intended the particular harm that followed.

3) Causation - Defendant's conduct was a substantial factor in creating the harm.

2

T/F - Both children and mentally incompetent persons can be held liable for intentional torts if they act with the requisite intent.

True.

3

What is transferred intent? What does it apply to?

A person intends to commit an intentional tort against another but instead commits:

1) A different tort against the same person,

2) The same intentional tort against a different person, OR

3) A different intentional tort against a different person.

This applies to the intentional torts of battery, assault, false imprisonment, trespass to land, and trespass to chattels. DOES NOT APPLY TO INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

4

What are the elements of a battery? Go into detail about each.

1) Intentional contact with the person of another

2) That is harmful or offensive

3) Without that person's consent.

Consent can be express or implied. Contact is harmful if it causes an injury, physical impairment, pain, or illness. Contact is offensive if a REASONABLE PERSON would find the contact offensive. Exception - Defendant might be liable if AWARE that the victim is hyper sensitive but acts none the less.

The "person of another" means that person and anything CONNECTED TO the person.

5

Does the plaintiff have to be aware of harmful or offensive contact in order to bring a claim for battery?

No.

Example - unconscious medical patient is inappropriately touched by someone and later finds out.

6

What damages are recoverable for battery?

No proof of actual harm is required. Thus, you can recover nominal damages.

Some states allow punitive damages if the defendant acted with malice or outrageously.

Egg Shell Plaintiff Rule applies - you are liable for all damages despite whether the plaintiff has some unknown condition.

7

What are the elements of assault?

1) An action with the intent to cause contact OR the IMMINENT APPREHENSION of contact,

2) That results in a REASONABLE APPREHENSION of an imminent contact,

3) Without the plaintiff's consent

Plaintiff's apprehension must be reasonable. Unlike battery, the PLAINTIFF MUST BE AWARE or have knowledge of the defendant's act. Actual fear is not required, only a reasonable apprehension of an imminent contact.

Imminent means WITHOUT SIGNIFICANT DELAY. Threats of future harm are not sufficient.

Mere words do not constitute an assault, but words coupled with circumstances can indicate an imminent threat of harmful or offensive contact.

8

What damages are recoverable for assault?

No proof of actual damages is required. Plaintiff can recover nominal damages.

Plaintiff can also recover damages from physical harm flowing from the imminent apprehension (ex: plaintiff suffers a heart attack).

9

What are the elements of Intentional Infliction of Emotional Distress (IIED)?

1) Intentionally or recklessly

2) Acting with extreme or outrageous conduct

3) That causes the plaintiff severe emotional distress.

Courts are hesitant to award this. Remember that the defendant must act with the intent to cause severe emotional distress or at least be reckless as to the risk of causing it. THERE IS NO TRANSFERRED INTENT HERE.

Extreme or outrageous conduct - that which exceeds the limits of common decency so as to be intolerable to society.

More likely if the plaintiff is in a position of authority or influence over the plaintiff OR the plaintiff is a member of a group that the defendant knows has a heightened sensitivity.

10

Can intentional infliction of emotional distress be claimed by a third party? Explain.

Yes

If the conduct is directed at a member of the victim's immediate family who is present at the time of the conduct, and the defendant is AWARE of that presence, then that person can be liable, WHETHER OR NOT THERE HAS BEEN PHYSICAL INJURY.

If there is a bystander who is present, and the defendant is AWARE of that bystander's presence, and that bystander suffers distress that results in BODILY INJURY, then that person can be liable.

11

What makes emotional distress severe?

The plaintiff must prove that severe emotional distress is beyond what a REASONABLE PERSON could endure.

12

What are the damages for Intentional Infliction of Emotional Distress?

Physical injury is NOT required UNLESS the plaintiff is a bystander other than a family member. Otherwise, nominal damages may be awarded.

13

What are the elements of False Imprisonment?

1) Act with intent to confine or restrain another within boundaries fixed by the defendant or act knowing with substantial certainty that confinement is to occur;

2) The actions directly or indirectly result in that confinement; and

3) The plaintiff is AWARE OF OR HARMED BY the confinement.

There is no confinement if there is a REASONABLE MEANS OF ESCAPE.

14

T/F - A court may find that a false imprisonment has occurred where a defendant has refused to perform a duty to release a plaintiff from existing confinement or to provide a means of escape.

True.

15

What is the Shopkeeper's Privilege?

A shopkeeper can detain a suspected shoplifter without being considered false imprisonment.

Must be for a reasonable amount of time. Can't continue confinement after duty arises to release the suspect.

16

T/F - A plaintiff can sue for false imprisonment if they are negligently confined.

False.

You can sue for negligence though.

17

T/F - Transferred intent does not apply to false imprisonment.

False

18

What damages are recoverable for false imprisonment?

Actual damages are not required, and nominal damages can be recovered, UNLESS the plaintiff is not aware of the confinement.

19

What are the common defenses to intentional torts?

Express or Implied Consent - Plaintiff can express intent by words or actions. Intent can be implied if a reasonable person would object and you are silent OR when you signal indirectly you willingness to endure certain conduct.

Consent by Mistake - A valid defense unless the defendant caused the mistake or knew of it and took advantage of it.

Consent by Fraud - Invalid as a defense if it goes to an essential matter.

Self-Defense - One may use REASONABLE FORCE to defend against an offensive contact or bodily harm. You may also use deadly force if reasonable (usually in your own home).

Defense of Others - REASONABLE FORCE is allowed upon a reasonable belief that that party would be entitled to use self defense.

Defense of Property - Reasonable force is allowed when it is reasonably necessary to prevent tortious harm to property. DEADLY FORCE NOT ALLOWED.

Recapture of Chattels - Reasonable force allowed. If the taking was lawful and merely beyond the time consented to, then only peaceful means may be used.

Force to Regain Possession of Land - Commonly law says reasonable force, but the MODERN RULE SAYS NO FORCE ALLOWED.

20

T/F - The initial aggressor is not entitled to self-defense.

True

21

T/F - Parents may use reasonable force or impose reasonable confinement as necessary to discipline their child.

True

22

What is the Privilege of Arrest?

A private citizen is permitted to use force to arrest in the case of a felony IF:

1) a felony was committed, AND

2) The arresting party has reasonable grounds to suspect that the person being arrested case committed the felony.

In other words, a private citizen cannot make a mistake is to if the felony was actually committed.

NOTE: A policeman who makes a mistake as to whether a felony has been committed is not subject to liability.

23

T/F - For misdemeanors, an arrest may only be made if there is a nuisance.

False. Only if there is a breach of the peace.

24

What are the elements for trespass to chattels? What damages are recoverable?

1) Intentional interference with the plaintiff's right to chattels (only intent to do the act is necessary / not intent to deprive plaintiff). MISTAKE OF LEGALITY IS NOT A DEFENSE.

2) By Dispossessing the plaintiff OR Using or intermeddling with the plaintiff's use of the chattel,

Plaintiff may recover damage and loss of use for dispossession. Plaintiff may recover only actual damages for use or intermeddling (includes diminution in value or the cost of repair..

25

What constitutes a conversion? What damages are recoverable?

Defendant intentionally commits an act depriving the plaintiff of possession of his or her chattel or interfering with the plaintiff's chattel in a manner SO SERIOUS as to deprive the plaintiff ENTIRELY of the use of the chattel.

Can occur by exercising dominion or control over the plaintiff's chattel. If the original acquisition was not wrongful, then plaintiff must first demand return of the chattel before suing for conversion.

Plaintiff can recover the chattel's FULL VALUE at the time of the conversion. Plaintiff can also seeek an action for replevin (return of the chattel).

NOTE: Defendant must only intend to commit the act that interferes. MISTAKE OF LAW OR FACT IS NOT A DEFENSE.

26

How do we tell if there is a conversion or a trespass to chattels?

Conversion is to such a degree that the defendant should have to pay the full value.

Courts consider the following factor:

1) The duration or extent of the 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; and

5) Extent of harm to the chattel

27

What constitutes a trespass to land? What damages are recoverable?

Defendant intentionally causes a physical invasion of someone's land. Intent to enter the land is all that is needed (not intent to trespass). This includes failing to leave the plaintiff's property after a lawful right of entry has expired.

MISTAKE IS NOT A DEFENSE.

No proof of actual damages is required. Nominal damages can be recovered.

28

Is necessity a defense to trespass (private or public)?

A private necessity (emergency) to trespass is a privilege belongs to a person who enters onto the land of another or interferes with their personal property to prevent an injury or to prevent another harm. THIS IS NOT A COMPLETE DEFENSE. Still must pay actual damages caused while trespassing.

A public necessity to trespass is a privilege belonging to a trespasser who does so to protect a large number of people from public calamities. THIS IS A COMPLETE DEFENSE TO ALL DAMAGES.

29

What constitutes a private nuisance?

Private nuisance - An activity that SUBSTANTIALLY and UNREASONABLY interferes with another's USE and ENJOYMENT of land.

Intent can be negligent, intent, reckless, OR the result of an abnormally dangerous activity.

NOTE: Courts have historically refused to find the blocking of sunlight or the obstruction of views to be a nuisance UNLESS they are purposefully done to "spite" the other person.

30

Defenses to Private Nuisance.

If negligent - assumption of risk or comparative negligence might apply.

Compliance with state or local administrative regulations is not a complete defense, but it is evidence as to reasonableness.

"Coming to the nuisance" - If you move somewhere knowing about a conduct, courts are hesitant to allow to you complain. Again, this is not a complete defense.