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Intentional Torts: General Elements

• Intentional tort actions require: (1) a voluntary act; (2) committed with intent (either specific or general intent); AND (3) causation (“but for” causation or conduct was a substantial factor).
• Specific intent exists when a person desires that his conduct cause the resulting circumstances. General intent exists when a person is substantially certain that his conduct will cause the resulting circumstances


Doctrine of Transferred Intent

• Under the Doctrine of Transferred Intent, the intent to harm one party can be transferred to another party that was injured when:
(1) the defendant had the intent to commit a crime or a tort against one particular individual; AND
(2) if in the act of trying to accomplish that tort another person is injured. The doctrine of transferred intent only applies to the intentional torts of battery, assault, false imprisonment, trespass to land, and trespass to chattels



• A defendant is liable for Battery when there is (1) an intentional, (2) harmful or offensive contact, (3) with the plaintiff’s person (including anything connected to the plaintiff).
• Bodily harm is the physical pain, illness, or physical impairment to another’s body. A bodily contact is offensive if it offends a reasonable sense of personal dignity (analyzed under the reasonable person standard). A claim may be supported by nominal damages; plaintiff need not suffer actual damages



• A defendant is liable for Assault when there is (1) an intentional act, (2) that causes the plaintiff to be placed in reasonable apprehension, (3) of imminent harmful or offensive contact with the plaintiff’s person.
• The reasonable apprehension element requires the plaintiff to be BOTH: (i) aware of the defendant’s act; AND (ii) believe that the defendant is able to commit the act. A claim may be supported by nominal damages; plaintiff need not suffer actual damages


False Imprisonment

• A defendant is liable for False Imprisonment when he (1) intentionally acts, (2) to restrain plaintiff to fixed boundaries (one with no reasonable means of escape), AND (3) the plaintiff is conscious of the confinement or is harmed by it (the extent of the false imprisonment is generally not relevant). It is immaterial whether the act directly or indirectly causes the confinement.
• The restraint may be accomplished through threats, and DOES NOT need to be physical or stationary (only in one place). A claim may be supported by nominal damages; plaintiff need not suffer actual damages


Intentional Infliction of Emotional Distress

• A defendant is liable for Intentional Infliction of Emotional Distress if: (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous (conduct that transcends all bounds of decency); (3) the defendant’s act caused extreme emotional distress (causation); AND (4) the plaintiff actually suffered severe emotional distress (damages). An act is reckless if it’s a deliberate disregard of a high risk that emotional distress will follow.
• Where such conduct is directed at a third person, the defendant is liable if he intentionally or recklessly causes severe emotional distress: (a) to a member of such person’s immediate family who is present at the time (whether or not such distress results in bodily harm); OR (b) to any other person present, if such distress results in bodily harm


Trespass to Land

• A defendant is liable for the intentional tort of Trespass to Land if (1) he intentionally, (2) either (a) enters the land in the possession of another; (b) causes an object or a third person to enter the land of another; (c) remains on the land; or (d) fails to remove an object from the land that he is under a duty to remove.
• Intent to trespass is NOT required; the ONLY intent required is that the defendant intended to enter/remain on the subject land. The plaintiff must be a possessor of the land at the time the trespass takes place (i.e. owner or tenant).
• A claim may be supported by nominal damages; plaintiff need not suffer actual damages. If plaintiff suffers actual damages, he may recover either: (a) the decrease in value of the property; OR (b) the cost to repair the property


Trespass to Chattels & Conversion

• A person is liable for Trespass to Chattels when he (1) intentionally interferes with another’s personal property (including damage or preventing a party from using the property), AND (2) the amount of damage is small.
• A person is liable for the tort of Conversion if the amount of interference is substantial, in which the converter is liable for the full market value of the chattel involved. o To determine if there is substantial interference, the court will consider the following factors: (i) extent and duration of dominion/control; (ii) intent to deprive the owner of possession; (iii) the tortfeasor’s good faith; (iv) extent and duration of resulting interference; (v) harm done to the chattel; and (vi) inconvenience and expense caused.
• Mistaken ownership of the property is NOT a defense to either tort.


Intentional Tort Defenses: Consent

• Consent is a defense to intentional torts, and may be express or implied through words or conduct. Consent need not be communicated to the actor. o Apparent consent is an effective defense when words or conduct are reasonably understood to be intended as consent, such as with customary practice or the person’s failure to object. Implied by law consent occurs under certain special circumstances, such as medical emergencies.
• Defendant’s actions CANNOT exceed the bounds of the consent given. The consenting party must have capacity, and consent may be withdrawn at any time. Some courts hold that a person cannot consent to a criminal act


Self-Defense/Defense of Others

• A defendant is NOT liable for harm to the plaintiff if he:
(1) reasonably believed that the plaintiff was going to harm him or another; AND (2) used reasonable force that was necessary to protect himself or another



• A defendant is NOT liable for harm to the plaintiff’s real or personal property if defendant’s acts were (1) necessary (or reasonably appeared to be necessary), (2) to prevent serious harm to a person or property. Necessity is applicable only to intentional torts against property.
• Public necessity is when the defendant acts for the public good and is a complete defense. Private necessity is an incomplete privilege (the defendant will be liable for any damages caused unless the purpose of his acts were to help the plaintiff), and occurs when defendant is protecting his own or a few other’s property interests


Privilege to Arrest

• A privilege to arrest is a defense to false imprisonment. A privilege to arrest is generally regulated by statute, but is more likely to occur when the crime is serious (a felony) and if the defendant directly observed the crime when making the arrest.
• To make a citizen’s arrest for a misdemeanor, the detainee must have (1) committed an act that constitutes a breach of the peace, (2) in the presence of the arresting citizen


Shopkeeper’s Privilege to Detain for Investigation

• In most jurisdictions, shopkeepers have the privilege of (1) temporarily detaining, (2) a person reasonably suspected of theft, (3) in or near their store, (4) for the purpose of an investigation. This privilege is a defense to false imprisonment. Reasonable non-deadly force may be used to detain the individual, when a request to remain has been made and refused


Negligence Elements

• A prima facie case for negligence requires: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty; (3) the breach was the actual and proximate cause of the plaintiff’s injuries; AND (4) damages. To make a prima facie case, a party must offer sufficient evidence so that a reasonable jury could find that ALL of the above elements have been met


Duty: To Whom a Duty is Owed

• Under the Andrews view, a duty of care is owed to all foreseeable plaintiffs. However, under the Cardozo view, a duty of care is only owed to foreseeable plaintiffs who are within the zone of danger


Duty: Affirmative Duty to Act

• Generally, there is NO duty to act affirmatively. However, an affirmative duty to act will arise in certain circumstances: (1) A pre-existing relationship between the parties (i.e. parent-child, landowner-entrant); (2) The defendant put the plaintiff in peril; (3) The defendant has undertaken to rescue the plaintiff; OR (4) A duty is imposed by law


Standard of Care: Reasonable Person Standard

• Every person owes a duty to act as a reasonable prudent person would act under like circumstances. A reasonable prudent person takes appropriate measures to avoid foreseeable risks. This duty of care is owed to all foreseeable plaintiffs. Following community customs and statutory requirements may be relevant as to what conduct is reasonable, but are NOT dispositive. The reasonable person standard also applies to business entities


Standard of Care: Children

• Children are capable of negligence, but are held to a different standard than adults. Children are held to the standard of care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances.
• If a child is engaged in an adult activity, the child has a duty to act as a reasonable adult would under the circumstances with respect to that activity. The following are deemed adult activities: driving a car, tractor, motorcycle, or other motorized vehicle (such as motorbikes/scooters and snowmobiles)


Standard of Care: Medical Doctors

• A medical doctor is held to the degree of care and skill of the average qualified practitioner. Most courts analyze the doctor’s conduct under national standards rather than those in the doctor’s locality or community.
• A doctor has a duty to obtain informed consent from his patient before treatment, which requires the doctor to disclose risks of treatment that a reasonable patient would want to know


Standard of Care: Professionals & Attorneys

• A professional (lawyers, accountants, engineers, architects, psychologist/psychotherapist, nurses) owes a duty to act with the knowledge and skill as an average member of that profession practicing in a similar community. Expert testimony is generally required to show that the professional complied or breached the standard of care.
• One holding himself out as a specialist should be held to the standard of care and skill of the average member of the profession practicing the specialty, taking into account the advances in the profession


Standard of Care: Land Owner/Possessor’s Duty to Entrants

• Some states require landowners to exercise reasonable care to ALL entrants upon his land to take appropriate measures to avoid foreseeable risks.
• Other states still determine what duty of care is owed by a landowner by considering the type of person (trespasser, licensee, or invitee) is on the property. o Undiscovered Trespasser (one who enters the land of another without permission): In most jurisdictions, no duty is owed by the landowner. o Anticipated Trespasser (one who enters the land of another without permission, but which may be expected by the landowner): The landowner must: (1) use reasonable care in operations on the property; AND (2) warn of (or make safe) highly dangerous artificial conditions that the landowner knows of.
o Licensee (invited on the owner’s property as social guests): The landowner must: (1) exercise reasonable care in operations on the property; AND (2) warn of (or make safe) dangerous conditions that are known to the landowner, but are not apparent to a guest. A person is a licensee if he reasonably believed, based on the owner’s conduct or words, that he was permitted to enter the owner’s land. o Invitee (invited onto the property for the owner’s benefit, such as a business): The landowner owes all the duties he would to a licensee. In addition, the landowner has a duty to make reasonable inspections of the property to find and make safe non-obvious dangerous conditions. A landowner is liable for failing to warn of dangerous conditions that would have been discovered upon reasonable inspection.
• The same rules apply to a possessor of land (i.e. a tenant or tenant business owner


Attractive Nuisance Doctrine

• Under the Attractive Nuisance Doctrine, a land owner/possessor owes a duty to child trespassers to make the premises reasonably safe or warn of hidden dangers on his land.
• A land owner/possessor is labile for the harm to a trespassing child if: (1) he knows (or should know) of a dangerous artificial condition on his land that is likely to cause death or serious bodily injury; (2) he knows (or should know) that children are likely to frequent the area; (3) children are unlikely to discover the condition or appreciate the risks involved; (4) the risk of harm outweighs the expense of making the condition safe; AND (5) he fails to exercise reasonable care in eliminating the danger or protecting children from it. The attractive nuisance doctrine is less likely to apply if the child engages in an adult activity


Negligence Per Se

• Under the doctrine of negligence per se, a statute may be used to substitute the duty of care. If applicable, the duty and breach elements are established when the defendant breaches the statute. Then the plaintiff need only prove causation and damages.
• To use negligence per se, plaintiff must show: (1) that the statute’s purpose is to prevent the type of harm that the plaintiff has suffered; AND (2) that the plaintiff is in the class of persons the statute seeks to protect.
• There are two exceptions when the standard of care will NOT be substituted for the statute even when the above test is met. The first is when the defendant’s compliance with statute would have been more dangerous than the violation of it. The second is when compliance with the statute is impossible


Res Ipsa Loquitor

• When the breach element of negligence is very difficult to prove, the court may allow a plaintiff to use the doctrine of “res ipsa loquitur” (which means the thing speaks for itself) to prove the breach element.
• To be applicable, a plaintiff must show: (1) that her injury is of a sort that typically does not occur in the absence of negligence; (2) the thing/object which caused her injury was in the defendant’s exclusive control; (3) the negligence is within the scope of duty defendant owed to plaintiff; AND (4) that the plaintiff DID NOT cause or contribute to the injury – in most jurisdictions


Actual and Proximate Cause

• A plaintiff must show that the defendant’s conduct was BOTH the actual and proximate cause of the injury. Actual cause is the “but for” cause – but for defendant’s negligence, plaintiff would not have been injured. Under the Substantial Factor Test, something that is a substantial factor in bringing about the injury is an actual cause (even if the injury had multiple causes). Proximate cause is the legal cause, which means that the injury must have been a foreseeable result of the breach. A defendant is NOT liable for harms that are too remote from the defendant’s conduct


Intervening Causes

• Any act that occurs after the defendant’s breach that contributes to the harm is an intervening cause. Intervening causes that are dependent on (a natural reaction to) the defendant’s wrongful acts are usually foreseeable. If the intervening cause resulted in an unexpected injury to the plaintiff, it is usually deemed unforeseeable and will absolve the defendant of liability to the plaintiff.
• Intervening medical malpractice is ALWAYS deemed foreseeable. Intervening criminal acts are usually not foreseeable UNLESS: (a) the defendant should have anticipated the criminal act; OR (b) if the defendant’s conduct makes the criminal act more likely to occur. Courts have held that injuries sustained from a plaintiff running from the danger are foreseeable. Similarly, an injured rescuer’s injuries have been deemed foreseeable under the “danger invites rescue” doctrine


Eggshell Plaintiff Rule

• The Eggshell Plaintiff Rule means that a tortfeasor takes his victim as he finds him. Thus, a defendant is liable for ALL harm a plaintiff suffers as a result of his conduct, even if the plaintiff suffered from a preexisting mental or physical condition that made the harm different or greater than what a normal person might suffer


Comparative Negligence & Contributory Negligence

• Under pure comparative negligence, the plaintiff’s negligence or assumption of risk will NOT bar recovery. However, it is a factor in determining the percentage of fault of each party, and will reduce the plaintiff’s recoverable damages by the percentage of his own fault.
• In a partial comparative negligence jurisdiction, if a plaintiff contributed less than 50% to his own injury, then his damages are reduced by the percentage of fault that is attributable to him. However, if the plaintiff contributed more than 50%, then the plaintiff’s claim is barred.
• In a contributory negligence jurisdiction, a plaintiff CANNOT recover damages if he contributed to his own injury. However, two exceptions to this rule exist: (a) when the defendant had the last opportunity to avoid the accident; OR (b) if the defendant was reckless. Contributory negligence is only applied in a few states


Assumption of Risk

• Assumption of risk is a defense to negligence, and applies if the plaintiff (1) voluntarily assumed (2) a known risk. The assumption of risk may be: (a) express – by agreement; OR (b) implied – where an average person would appreciate the risks involved.
• Under the Professional Rescuer/Fireman’s Rule, a professional rescuer or firefighter CANNOT bring a cause of action against someone whose negligence caused injuries to the rescuer (i.e. a fire). The professional rescuer assumes the risk of injury related to the job. This rule also extends to police officers


Negligent Infliction of Emotional Distress

• Generally, there are three scenarios where a plaintiff may recover for negligent infliction of emotional distress: (a) a near miss case; (b) a bystander claim; or (c) in certain situations where a pre-existing relationship exists.
• In order to recover in a near miss case: (1) there must be negligence by the defendant, (2) which creates a foreseeable risk of physical injury, (3) the plaintiff must be in the zone of danger, AND (4) the plaintiff must manifest physical symptoms.
• In order to recover in a bystander claim: (1) there must be negligence by the defendant; (2) the plaintiff must be a contemporaneous witness to a negligent bodily injury inflicted on a close family member (i.e. parent, child, spouse); AND (3) the plaintiff must manifest physical symptoms (some jurisdictions do not require this). A few jurisdictions require that the plaintiff be in the zone of danger to recover.
• The last scenario where a plaintiff can recover is where: (1) there is a pre-existing relationship between the plaintiff and defendant; AND (2) the negligent act can foreseeably cause distress. Recovery is rare, and is usually only available in egregious situations