torts fixed - Sheet1 Flashcards
What are the 7 intentional torts
(1) Battery (2) Assault (3) IIED (4) False Imprisonment (5) Trespass to land (6) Trespass to chattel (7) Conversion
What are the affirmative defenses to the intentional torts?
(1) Consent (applies to all 7) (2) Defense of… (applies to all 7) -self -other -property (3) Necessity (applies to property torts)
2 General principals regarding tort law.
(1) The P’s hypersensitivity is ignored in determining whether that P has made out an intentional tort claim. (2) There are no incapacity defenses in the world of intentional torts.
Elements of Battery:
”Intent to Cause a Harmful or Offensive Contact with P”s Person.” (1) Intent (desire or purpose to cause the harmful outcome); (2) Causality (3) Harmful or offensive contact -offensive = unpermitted contact as determined by a person of ordinary sensitivity. (4) With the P’s person. -This includes anything connected to the P
Does a battery have to be instantaneous?
NO, the harmful contact may occur later in time E.g., poisoning someone’s food that is consumed later
What are the elements of assault?
”A reasonable apprehension by P of an Immediate harmful or offensive contact with his/her person.” (1) Intent (2) Causation (3) Reasonable apprehension (4) Of an immediate battery
What constitutes “apprehension” for purposes of assault?
-Apprehension = knowledge NOT fear -Lack of fear does not destroy a COA for assault -”Unloaded Gun Hypo” -If P knows that D is incapable of carrying out the battery, then no assault. -If P does NOT know that D is incapable of carrying out the battery, then there is an assault.
Do words alone constitute an “immediate battery” for an assault?
NO -Words alone lack immediacy without overt menacing conduct. -Display of a weapon is overt menacing conduct
How can words negate immediacy?
(1) Conditional words -“if you weren’t my best friend” (2) Words that promise future action -“I’m going to beat the crap out of you tomorrow.”
What are the elements of False Imprisonment?
”An act of Confining the P to a Bounded area.” (1) Act or omission that restrains P w/o consent (2) Intent to confine (3) Causation NOTE: Holding onto someone”s property that causes that person to remain may be false imprisonment (e.g., luggage).
What constitutes an “act of restraint” for false imprisonment?
Act, Failure to Act, or Threat -Actual restraint (physical barrier) OR -Threats can be an act of restraint w/o physical barrier OR -Omission, or failure to act can be an act of restraint (wheelchair) AND P”s knowledge of the restraint OR Harm to P
What must P show to establish that he was confined in a bound area?
(1) P’s movements must be constrained in all areas (360 degrees). (2) There is NO reasonable means of escape that the P can reasonably discovery. -Dangerous, disgusting, humiliating, or hidden means of escape ≠ reasonable means of escape
Elements of Intentional Infliction of Emotional Distress.
”Outrageous conduct causing severe emotional distress.” (1) Intent (2) Causation (3) D must engage in outrageous conduct (4) P must suffer sever distress
What is “outrageous conduct?”
-”Conduct is outrageous if it exceeds all bounds of decency tolerated in a civilized society.” -Not outrageous = mere insults (four letter words) -A Phobia = hypersensitivity and will not be taken into account UNLESS that phobia is known to the D and is exploited (snake on the chair).
What factors help establish outrageousness?
(1) Repetitive or continuous conduct (2) D is a common carrier (transportation) or an innkeeper (hotel) (3) P is a member of a fragile class of persons and D knows it: (a) Young Children (b) Elderly People (c) Pregnant Women (d) Minority IF action targeted minority
Elements of a trespass to land?
”A physical invasion of the P”s land.” (1) Intent to enter (2) Physical invasion (3) Land of another
How to establish a “physical invasion” onto land for purposes of trespass?
- Enter P’s property, intentionally, on foot or in a vehicle - You do not need to know that you entered someone else’s property - Throwing tangible objects onto P’s property counts
For a trespass, must the tangible object touch the surface of P”s land?
NO, P also owns the: (1) Air above out to a reasonable distance (2) Soil below out to a reasonable distance
What are the elements of trespass to chattels and conversions?
”Some (tc) / Great (c) interference with P”s personal property interest.” (1) Interference with (2) P’s personal property/chattel
What constitutes an “interference” for purposes of trespass to chattel or conversion?
(1) Deliberate damage OR (2) Depriving NOTE: A bailee who materially breach the terms of a bailment K may be liable for c or tc, even if she returns the property in tact.
How to determine whether a trespass to chattel or a conversion has occurred?
The magnitude of interference - Slight interference = trespass to chattel - Significant interference = conversion
Why are there different names for trespass to chattel and conversion?
Because there are different remedies available. i) Conversion remedy = full value of the item (forced sale) ii) Trespass to chattel remedy = cost of repair
What is the defense of “consent?”
-An affirmative defense to ALL intentional torts -P must have the requisite capacity to consent -There are 2 types of consent: (a) Express Consent and (b) Implied Consent - To be a valid defense, D must not exceed the scope of the consent.
What are the 2 types of consent?
(1) Express Consent (words) -However, VOID if given as a result as fraud or duress (2) Implied Consent (a) Custom or Usage (sports; subway) (b) Objective theory (invited over for a drink) -D’s reasonable interpretation of P’s objective conduct -NEVER consider the unexpressed (subjective) thoughts of the P
Elements of defense of self, other, or property affirmative defense?
Reactive, Reasonable, and Proportional (1) Response to Immanent Threat -D must establish that he is responding to a threat that is immanent or in progress (2) D must have a reasonable belief that there is a threat -A reasonable mistake about the threat is allowed (3) D must use Proportional Force -Excessive force destroys this privilege -Deadly force is NEVER allowed to protect property
What are the two types of necessity defenses?
(1) Public Necessity -Arises when a D invades P’s property in an emergency to protect the community as a whole, or a significant group of people (hero) -This a complete and absolute defense. D will not be liable for ANY damages. (2) Private Necessity -D invades P’s property interest in an emergency to protect an interest of his own (not a hero) -A private necessity D is liable to the P for any actual harm (not liability for nominal or punitive damages)
Can a P expel a D from a position of safety if the D is trespassing on P”s property?
NO D cannot be lawfully expelled from a position of safety while the emergency is continuing. “right of sanctuary.”
What are the elements of defamation?
(1) Statement (2) Publication (3) Damage (usually)
What makes a “statement” defamatory?
(1) The D”s statement must specifically identifies the P -The P must be alive (2) Statement must adversely effect the P”s reputation (3) The statement must purport to be a statement of fact -Statements of opinion may be defamatory if a reasonable person listening to the statement would conclude that it conveys factual information.
What is “publication” for purposes of defamation?
Disclosure to at least 1 person. -If no one hears the statement, there is no tort. -The publication can be negligent.
What are the 3 types of Defamation?
a) Libel b) Slander Per Se c) Slander (NOT per se)
When are damages necessary and not necessary for a defamation claim?
(1) Damages Necessary (a) Slander (NOT per se) -Must prove actual economic loss; special damages -Mental distress or social consequences are not enough. (2) Damages NOT required: (a) Libel (b) Slander Per Se Although damages are not needed for some forms of defamation, the P is free to prove them. All it means is that the P will withstand a directed verdict if he does not plead damages.
What are the specific categories of slander per se?
ONLY 4 specific categories: (1) Business or profession (2) Crime of moral turpitude -Hiring a prostitute (3) Imputing unchastity onto a married woman (4) Suffers from a loathsome disease (only 2): -Leprosy -STD
What are the defense to defamation?
1) Consent 2) Truth 3) Privileges 4) “Special Cases” of Public Concern -Public Figure -Non-Public Figure
What are they types of privilege for purposes of defamation?
(1) Absolute Privileges (2) Qualified Privilege
What are the types of absolute privilege?
(1) Between spouses (2) Officers of the 3 branches of government in the course of their duties -Judicial branch privilege extends to the lawyers and witnesses’ statements in open court or within court papers.
What is a qualified privilege?
”A statement that is reasonably publicized to a recipient that has an interest in the statement.” -Candor is required. Examples: (1) Letters of recommendation including weaknesses (2) Statements to PO (3) Statements to a joint account holder NOTE: -Injecting irrelevancies causes D to lose this privilege. -Spreading rumors causes D to lose this privilege.
What are the “Special Cases” of Public Concern in the context of defenses to defamation?
Any case of defamation that concerns matters of public concern is a special case (mayor taking bribes; sports figure taking drugs) Added Burden on P to establish: (1) Falsity (changes the burden) (2) Fault -public figure = reckless or intentional -non-public figure = negligence
What are the 4 types of privacy torts?
(1) Appropriation (2) Intrusion upon Seclusion (3) False Light (4) Disclosure of Private Fact
What is the privacy tort of appropriation?
(1) D uses P’s name or image for commercial purposes -Exception: Newsworthiness
What is the privacy tort of Intrusion upon Seclusion?
(1) An invasion by the D of P’s seclusion in a manner that would be objectionable to the average person. - P must be in a place of privacy to make this claim
What is the privacy tort of false light?
(1) Wide spread dissemination by D of a material falsehood about the P that would be objectionable to the average person -A large number of people must be informed -The material falsehood need not be defamatory. -There is no fault or intent requirement (good faith ≠ defense)
What is the privacy tort of disclosure of private facts?
(1) Wide spread dissemination of (2) confidential information about the P that would be objectionable to the average person. -Newsworthiness Exception
What are the Affirmative Privacy Tort Defenses?
(1) Consent (2) Defamation Privileges - These only apply to False light and Disclosure of Private Fact
What are the 2 preliminary questions you must ask when assessing duty for a negligence issue?
(1) To whom do you owe a duty of care? (2) How much care should you exercise?
To whom do you owe a duty of care?
(1) To all foreseeable victims. (2) We do not owe a duty to unforeseeable victims -Unforeseeable victims will always lose negligence claims -Unforeseeable victims are those outside the zone of danger -Exception: Rescuers are foreseeable
How much care should you exercise?
The reasonably prudent person acting under similar circumstances. -Objective standard: Do not make any allowances; do not change the reasonable person to fit the D -Exceptions: (1) If D had superior knowledge, skill, or fact then the standard is raised to incorporate the superior knowledge or skill (2) Take into account relevant physical characteristics (Left handed; Short; Blind; Paraplegic)
What are the 3 categories of people that have a modified “reasonable person standard?”
(1) Children (2) Professionals (3) Possessors of land
What duty of care does a child owe?
(1) Under the age of 4 = NO DUTY OWED (2) 4-18 = similar age, experience, and intelligence acting under similar circumstances (completely subjective standard) EXCEPTION: If a child (4-18) is engaged in an “adult activity” (operating a vehicle) use the objective reasonably prudent person standard, NOT the child standard of care. NOTE: It does not matter that children routinely engage in the adult activity, the adult standard will still apply.
What duty of care does a professional owe?
A professional owes clients or patients a duty of care of an average member of that profession acting in a similar community (empirical data)
How do you determine what “member of the community” to use for the professional standard?
(1) Primary care physician: The community that the Dr. practices in -small town Dr. compared to small town Dr. (2) Specialists: community of other specialists -brain surgeons to brain surgeons
What are the two preliminary question that must be asked when determine the standard of care a possessor of land owes an entrant?
(1) How the entrant was injured (2) What type of entrant was it
What are the two categories of ways an entrant can be injured?
(1) By Activities -Injured by an activity that is being conducted on the land by the owner or agent; OR (2) By a Condition -Encountering a dangerous condition
What are the 6 classes of entrants that can enter a possessor”s land?
(i) Undiscovered Trespassers (ii) Discovered or Anticipated Trespassers (iii) Child Trespassers (iv) Licensees (v) Invitees (vi) Firefighters and Police Officers
What level of duty does a possessor of real estate owed an Undiscovered Trespasser?
- Activities: No duty of care owed 2. Conditions: No duty of care owed *They always lose negligence claims because they are unforeseeable.
What level of duty does a possessor of real estate owed an Anticipated Trespasser?
- Activities: Reasonable Person Standard 2. Conditions: Possessor owes a known trespasser a duty to protect from “all known manmade deathtraps on the land:” a. Artificial; and b. Highly dangerous; and c. Concealed from the trespasser; and d. Possessor knew about the condition. *To determine if it is an anticipated trespassers, look for a repeated pattern of trespassing.
What level of duty does a possessor of real estate owed a Licensee?
- Activities: Reasonable person standard 2. Conditions: Possessor owes a licensee a duty to protect from “all known traps on the land:” a. Concealed from the licensee; and b. Possessor knew about the condition. *Licensees enter land with permission, but do not confer any economic benefit on the possessor.
What level of duty does a possessor of real estate owe an Invitee?
(1) Activities: -Reasonable Person Standard (2) Conditions: Possessor owes an invitee a duty to protect from “all known or reasonably discoverable traps on the land” -Concealed from the invitee; AND -Possessor knew about the condition OR Could have discovered it through a reasonable inspection. *Invitees enter the land to confer an economic benefit on the possessor OR because the land is held open to the public at large NOTE: An invitee can lose this status if he wanders into an area not reasonably believed to be within the scope of the invitation (exceeds the scope of the invitation).
Can a firefighter or police officer who, as part of his official duties, enters a land possessor”s land recover for injuries they sustained on that person”s land?
NO. 1. They may never recover for the inherent risks of their job. -Based on the notion of assumption of risk and they are paid to assume that risk
What level of duty does a possessor of real estate owed a Child Trespasser?
- Entitled to reasonably prudent person care with regard to artificial conditions on the land 2. Land owner must ask: a. How foreseeable would it be that children would trespass? b. Are there any attractive nuisances on my property? c. Can the child appreciate the danger?
