Torts - General Flashcards
How does the law regard plaintiffs’ super-sensitivities?
Plaintiff’s super-sensitivities are not taken into account unless facts show ∆ knew of them in advance.
What is the test for intent of intentional torts?
A person “intends” the consequences of her action if:
(1) it was her purpose to bring about the consequence, or
(2) if she knows to a degree of substantial certainty that the consequences will occur
What are the elements of battery?
(1) Intent
(2) harmful/offensive contact
(3) with plaintiff’s person
What counts as “offensive” touching, as an element of battery?
offensive = unpermitted
What counts as the “plaintiff’s person” for purposes of battery elements?
Liberally construe; anything connection with the plaintiff will suffice.
What are the elements of assault?
(1) Intent
(2) reasonable apprehension of
(3) immediate unpermitted contact
What is usually necessary to fulfill the “immediacy” element of assault?
(1) Typically, words + conduct
What are the elements of false imprisonment?
(1) Intent
(2) sufficient act of restraint
(3) to a bounded area
(4) π generally must be aware of confinement at the time it is taking place
What counts as a “sufficient act of restraint” for purposes of a false imprisonment claim?
(1) threats can be enough
(2) inaction is enough if there was an understanding that ∆ would act for the π’s benefit
What counts as a “bounded area” for purposes of a false imprisonment claim?
No reasonable means of escape of which the plaintiff is aware. (reasonable, is key)
If no other torts seem to fit, what should you fall back on?
IIED
What are the elements of IIED?
(1) Intent
(2) outrageous conduct
(3) Damages (severe emotional distress)
What are some of the factors that can make regular conduct more “outrageous”?
(1) Continuous conduct
(2) Type of π (child, elderly, pregnant)
(3) Type of ∆ (common carrier, innkeeper- but plaintiff must be passenger/guest)
What are the elements of trespass to land?
(1) Intent (no need to know you’re crossing border)
(2) act of physican invasion
(3) land
For the tort of trespass to land, what about the airspace above the land?
If the landowner can make reasonable use of the space, then invasion of that space = trespass to land
What are the elements of trespass to chattels?
(1) Intent
(2) act of invasion
(3) to personal property
(4) w/ some damage
What are the elements of conversion?
(1) Intent
(2) act of invasion
(3) to personal property
(4) w/ serious interference of possessory rights
What are the defenses to intentional torts?
(1) Consent
(2) self-defense
(3) Defense of others
(4) defense of property
(5) necessity
(6) reasonable discipline
What types of plaintiff’s lack capacity to consent?
(1) children
(2) mentally impairs
(3) πs that were coerced/forced
(4) consent given under fraud
How do courts analyze a defense of implied consent?
(1) Reasonable person standard
(2) look at custom and usage, or
(3) look at π’s own conduct
What is the test for a valid self-defense defense?
Reasonable belief that there is an imminent threat of force against the ∆ (both objective and subjective)
When is the use of deadly force still a valid use of self-defense?
Only if the ∆ reasonably believed she was facing the threat of deadly force herself.
When is defense of others a valid defense?
A person may defend another person in the same manner and under the same conditions as the person attacked would be entitled to defend himself.
How do mistaken beliefs apply to the defense of defense of others?
A ∆ will not be liable if he reasonably believed that another person was endangered (think plainclothes police officer situations)
When is defense of property a valid defense?
A person may use reasonable force to defend his real or personal property, but never deadly force.
When is force allowed to recapture property?
∆ may only use reasonable force to recapture property if in “hot pursuit”
What typically goes along w/ “shoplifter” fact patterns?
False imprisonment claim vs. Defense of Property;
∆ can detain shoplifting using reasonable force for reasonable time
For what types of torts is necessity a potential defense?
Intentional torts to property.
What is the defense of necessity, and what does it protect the ∆ from?
Tort on property to prevent a greater harm.
Public Necessity: unlimited privilege
Private Necessity: qualified privilege, still have to pay for damage caused
When is “discipline” a valid defense to an intentional tort?
Teachers/parents can use reasonable force to discipline a child (spanking)
What are the common law prima facie elements of the tort of defamation?
(1) False and defamatory statement
(2) of and concerning the π
(3) Publication
(4) damages
What counts as a “defamatory statement” for the tort of defamation?
A false statement that injures the plaintiff’s reputation (something fairly serious)
Concerning the tort of defamation, what is a common issue with the element “of and concerning the π”?
If the statement refers to a group, the π’s claim may depend on how large the group is.
For the tort of defamation, what counts as “publication”?
The statement must be communicated to a third person who is capable of understanding the statement. (third person can’t be secret eavesdropper)
What are the two different types of defamation claims?
(1) slander (spoken defamation)
2) libel (written/broadcast defamation
When can a plaintiff recover presumed damages (require no proof of actual damages) for defamation?
Slander per se:
(1) statements that impune π in trade/profession
(2) accusations of a serious crime
(3) statement that π has a loathsome disease
(4) Impute on chastity of a woman
What are the common law defenses to defamation?
(1) Consent
(2) Truth of statement
(3) Absolute privilege (3 categories)
