Torts-Intentional

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California Barbri Based

INTENTIONAL TORTS -To establish a prima facie case of intentional tort -Plaintiff must prove:

(1) -Act by Defendant(D), (2) -Intent, (3) -Causation.

ACT by Defendant(D):

The act required is a volitional movement by defendant.

INTENT:

Intent may be either specific or general.

SPECIFIC Intent:

With the goal in acting is to bring about a specific consequences.

GENERAL Intent:

The actor knows with "substantial certainty" that these consequences will result.

To establish a prima facie case of intentional tort -Plaintiff must prove:

(1) -Act by Defendant(D): The act required is a volitional movement by defendant., (2) -Intent: Intent may be either, -i) specific (the goal in acting is to bring about a specific consequences) or, -(ii) general (the actor knows with "substantial certainty" that these consequences will result).

TRANSFERRED INTENT -General Rule:

The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead, (1) -commits a different tort against that person, (2) -commits the same tort as intended but against a different person, or, (3) -commits a different tort against a different person., In such cases, the intent to commit a certain tort against one person is transferred to the tort actually committed or to the person actually injured for purposes of establishing a prima facie case.

TRANSFERRED INTENT -Limitations on use:

Transferred intent may be invoked only if both the tort intended and the tort that results are one of the following:, a) Assault, b) Battery, c) False Imprisonment, d) Trespass to land or, e) Trespass to chattels.

Who is "capable" of intent?

Everyone.

Is Incapacity a good defense?

NO -so young children and persons who are mentally incompetent will be liable for their intentional torts.

CAUSATION:

The result must have been legally caused by defendant's act or something set in motion by him.

Causation is satisfied if

The defendant's conduct was a substantial factor in bringing about the injury.

BATTERY -Elements of the prima facie case:

(1) -Harmful or offensive contact, (2) -To plaintiff's person, (3) -Intent and, (4) -Causation.

BATTERY:

The intentional harmful or offensive contact/conduct to the plaintiff's person or objects connected to it.

Harmful or Offensive Contact:

(1) -Judged by Reasonable Person Standard. (2) -Direct or Indirect Contact.

Reasonable Person Standard:

Harmfulness and offensiveness are judged by a reasonable person standard.

Contact is considered offensive:

Only if It has not been consented to..., However:, consent will be implied for the ordinary contacts of everyday life such as a minor bumping on a crowded bus.

Direct or Indirect Contact:

Contact can be direct or indirect.

Direct Contact -example:

Striking the plaintiff.

Indirect Contact -example:

Setting a trap for plaintiff to fall into.

Plaintiff's Person:

Includes anything connected to the plaintiff...such as clothing or a purse.

ASSAULT -Elements of the prima facie case:

(1) -An act by defendant creating a reasonable apprehension in plaintiff, (2) -Of immediate harmful or offensive contact to plaintiff's person, (3) -Intent and, (4) -Causation.

ASSAULT -Distinguish Fear:

Apprehension should not be confused with fear or intimidation, , Example:, A weakling can cause apprehension and thus assault a bully.

ASSAULT -Apparent Ability sufficient:

If defendant has the apparent ability to commit a battery, this will be enough to cause a reasonable apprehension.

ASSAULT -Effect of Words:

Words alone are not sufficient., For the defendant to be liable"," the words must be coupled with conduct., However"," words can negate reasonable apprehension.,, Example:, -the defendant shakes her fist but states that she is not going to strike the plaintiff.

ASSAULT -Requirement of Immediacy:

Plaintiff must be apprehensive that she is about to become the victim of an immediate battery.

FALSE IMPRISONMENT -Elements of the prima facie case:

(1) -An act or omission on the part of defendant that confines or restrains plaintiff, (2) -To a bounded area, (3) -Intent and, (4) -Causation.

False Imprisonment -Sufficient Method of Confinement or Restraint include:

(1) -physical barriers, (2) -physical force, (3) -threats of force, (4) -failure to release and, (5) -invalid use of legal authority.

False Imprisonment -Insufficient Method of Confinement or Restraint include:

(1) -moral pressure and, (2) -future threats.

False Imprisonment -Time of Confinement:

It is irrelevant how short the period of the confinement is.

False Imprisonment -Awareness of Confinement:

Plaintiff must know of the confinement or harmed by it.

False Imprisonment -What is a Bounded Area?

For an area to be "bounded," freedom of movement must limited in all directions. There must be no reasonable means of escape known to plaintiff.

INTENTIONAL INFLECTION of EMOTIONAL DISTRESS (IIED) -Elements of the prima facie case:

(1) -An act by defendant amounting to extreme and outrageous conduct, (2) -Intent or recklessness, (3) -Causation and, (4) -Damages -severe emotional distress.

INTENTIONAL INFLECTION of EMOTIONAL DISTRESS

IIED

IIED -Extreme and Outrageous Conduct:

This is conduct that transcends all bounds of decency. Conduct that is not normally outrageous may become so if:, (1) -It is continuous in nature, (2) -It is directed toward a certain type of plaintiff (children, elderly persons, pregnant women, supersensitive adults if the sensitivities are known to defendant) or, (3) -It is committed by certain type of defendant (common carriers or innkeepers may be liable even for mere "gross insults").

IIED -Requisite Intent:

Unlike for other intentional torts"," recklessness as to the effect of defendant's conduct will satisfy the intent requirement.

IIED -Damages:

(1) -Actual damages (severe emotional distress)"," not nominal damages"," are required., (2) -Proof of physical injury is not required., (3) -The more outrageous the conduct"," the less proof of damages is required., (4) -It is the only intentional tort to the person that requires damages.

IIED -Causation in Bystander Cases:

When the defendant intentionally causes physical harm to a third person and the plaintiff suffers severe emotional distress because of it"," the plaintiff may recover by showing either the prima facie case elements of emotional distress or that:, (1) -she was present when the injury occurred, (2) -she is a close relative of the injured person and, (3) -the defendant knew facts (1) and (2).

IIED -Is a fallback tort position:

Thus"," if another alternative in your exam question is a tort that will also allow plaintiff to recover"," it should be chosen over this alternative.

INTENTIONAL TORTS to PROPERTY (ITP) -PRIMA FACIE CASE:

(1) -TRESPASS to LAND (TL), (2) -TRESPASS to CHATTELS (TC), (3) -CONVERSION.

INTENTIONAL TORTS to PROPERTY

ITP

ITP - TRESPASS to LAND (TL) - Elements of the prima facie case:

(1) -Physical Invasion of plaintiff's real property, (2) -Intent and, (3) -Causation.

TRESPASS to LAND

TL

ITP -TL -Physical Invasion -The invasion may be by:

(1) -a person or, (2) -object

ITP -TL -Physical Invasion -If invasion by intangible matter

The plaintiff may have a case for nuisance.

ITP -TL -Physical Invasion -The invasion may be by a person or object -e.g."

" , Throwing a baseball onto plaintiff's land is a trespass.

ITP -TL -Physical Invasion -The invasion by intangible matter -e.g."

" , Vibrations or odor"," the plaintiff may have a case for nuisance.

ITP -TL -Physical Invasion:

The invasion may be by a person or object (e.g."," throwing a baseball onto plaintiff's land is a trespass)., If intangible matter (e.g."," vibrations or odor) enters"," the plaintiff may have a case for nuisance.

ITP - TL - Real Property:

Real property includes not only the surface"," but also airspace and subterranean space for a reasonable distance.

ITP - TL - Intent:

Defendant need intend only to enter on that particular piece of land (he need not know that the land belonged to another).

ITP - TL - Potential Plaintiffs:

Anyone in actual or constructive possession of the land may maintain this action.

ITP - TRESPASS to CHATTELS (TC) -Elements of the prima facie case:

(1) -An act by defendant that interferes with plaintiff's right of possession in a chattel, (2) -Intent, (3) -Causation and, (4) -Damages.

TRESPASS to CHATTELS

TC

ITP - TC -Two Types of Interference:

The interference may either be an intermeddling or a dispossession.

ITP - TC -Intermeddling:

The act of directly damaging the chattel.

ITP - TC -Dispossession:

The act of depriving the plaintiff of his lawful right of possession of the chattel.

ITP - TC -Two Types of Interference:

(1) -intermeddling, (2) - dispossession.

ITP - TC -Two Types of Interference:

The interference may either be an intermeddling (i.e."," directly damaging the chattel) or a dispossession (i.e."," depriving plaintiff of his lawful right of possession of the chattel).

ITP -CONVERSION (CONV) -Elements of the prima facie case:

(1) -An act by defendant that interferes with plaintiff's right of possession in a chattel, (2) -The interference is so serious that it warrants requiring defendant to pay the chattel's full value, (3) -Intent and, (4) -Causation.

ITP -CONVERSION

CONV

ITP - CONV -Acts of Conversion:

Acts of conversion include:, (1) -wrongful acquisition (theft), (2) -wrongful transfer, (3) -wrongful detention and, (4) -substantially changing, (5) -severely damaging or, (6) -misusing a chattel.

ITP - CONV -Acts of Conversion -wrongful acquisition:

Theft

ITP - CONV -Seriousness of Interference:

(1) -The longer the withholding period and, (2) -the more extensive the use, the more likely it is to be conversion., A less serious interference is trespass to chattels.

ITP - CONV -Subject Matter of Conversion -Only:

(1) -tangible personal property and, (2) -intangibles, that have been reduced to physical form are subject to conversion.

ITP - CONV -Subject Matter of Conversion -Only tangible personal property and intangibles that have been reduced to physical form are subject to conversion. e.g.

A Promissory

ITP - CONV -Subject Matter of Conversion:

Only tangible personal property and intangibles that have been reduced to physical form (e.g., a promissory note) are subject to conversion.

ITP - CONV -Potential Plaintiffs:

(1) -Anyone with possession or, (2) -the immediate right to possession of the chattel, may maintain an action for conversion.

ITP - CONV -Remedies - damages:

The fair market value at the time of conversion.

ITP - CONV -Remedies:

Plaintiff may recover damage (fair market value at the time of conversion) or possession (replevin).

ITP - CONV -Remedies - Replevin:

Possession.

ITP - TC -ACT by Defendant:

An interference with plaintiff's right of possession of chattel (either intermeddling or dispossession).

ITP - TC -INTENT by Defendant:

Intent to do the act that brings about the interference.

ITP - TC -REMEDY by Defendant:

Recovery of actual damages from harm to chattel or loss of use (if dispossession, damages based on rental value).

ITP - CONV -ACT by Defendant:

An interference with plaintiff's right of possession so SERIOUS as to warrant that defendant pay the chattel's full value.

ITP - CONV -INTENT by Defendant:

Intent to do the act that brings about the interference.

ITP - CONV -REMEDY by Defendant:

Damage award of fair market value of chattel at time of conversion (i.e., forced sale of chattel). May instead recover chattel (replevin).

DEFENSES TO INTENTIONAL TORTS (DIT):

(1) -CONSENT, (2) -SELF-DEFENSE, DEFENSE OF OTHERS, and DEFENSE OF PROPERTY.

DEFENSES TO INTENTIONAL TORTS

DIT

DIT -CONSENT (CONS):

Plaintiff's consent to defendant's conduct is a defense"," but the majority view is that one CANNOT consent to a CRIMINAL ACT., Any consent fact pattern raises two inquires:, (1) -Was there a valid consent (e.g."," no fraud)?, (2) -Did the defendant stay within the boundaries of the consent (e.g."," not use a gun in a boxing match)?

DIT -CONSENT

CONS

DIT - CONS -Express (Actual) Consent:

Defendant is not liable if plaintiff expressly consents to defendant's conduct.,, EXECPTIONS:, (1) -mistake will undo express consent IF defendant knew of and took advantage of the mistake, (2) -consent induced by fraud will be invalidated if it goes to an essential matter"," but not a collateral matter; and, (3) -consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.

DIT - CONS -Implied Consent:

Apparent Consent is that which a reasonable person would infer from custom and usage or plaintiff's conduct,, e.g."," normal contacts inherent in body contact sports"," ordinary incidental contact"," etc., CONSENT IMPLIED BY LAW arises when action is necessary to save a person's life or some other important interest in person or property.

DIT - CONS -Capacity Required:

Individuals without capacity are deemed incapable of consent,, e.g.",", (1) -incompetents, (2) -drunken persons and, (3) -very young children.,, This requirement of capacity differs from the rule for the intent element of intentional torts, where incapacity is no defense,, i.e."," Everyone (even a young child) has the capacity to COMMIT a tort, but not everyone has the capacity to CONSENT to a tort.

DIT - CONS -Exceeding Consent Given:

If defendant exceeds the scope of consent and does something substantially different"," he may be liable.

DIT -Self-Defense"

" Defense of Others"," and Defense of Property (SD/DO/DP) -When a question involves the defense of self"," others"," or property"," ask the following 3 questions: , , (1) -Is the privilege available? (The tort must now be or about to be committed. Already committed torts do not qualify)., (2) -Is a mistake permissible as to whether the tort being defended against (battery"," trespass"," etc.) is actually being committed?, (3) -Was a proper amount of force used?,, Keep your parties clear., In questions involving these defenses"," the conduct of the defendant was prompted by:, (1) -the commission or, (2) -apparent commission of a tort by the plaintiff (usually battery"," trespass to land"," or trespass to chattels) or, (3) -instead was privileged by one of these defenses.

DIT -SD/DO/DP -Self-Defense (SD):

When a person REASONABLY BELIEVES that she is being or is about to be attacked"," she may use such force as is reasonably necessary to protect against injury.

DIT -SD/DO/DP -SD -When is Defense Available?

(1) -One need not attempt to escape"," but the modern trend imposes a duty to retreat before using deadly force if this can be done safely"," unless the actor is in her home., (2) -Self-defense is generally not available to the initial aggressor., (3) -Self-defense may extend to third party injuries (caused while the actor was defending herself). An actor might be liable to a third person if she deliberately injured him in trying to protect herself.

DIT - SD/DO/DP -SD -Is Mistake Allowed?

A reasonable mistake as to the existence of the danger is allowed.

DIT -SD -How much Force May Be Used?

One may use only that force that reasonably appears to be necessary to prevent the harm (including deadly force)., If more force than is reasonably necessary is used"," the defense is lost.

DIT -SD/DO/DP -Defense of Other (DO) -ASK:

(1) -When is Defense Available?, (2) -Is Mistake Allowed?, (3) -How Much Force May Be Used?

DIT -SD/DO/DP -DO -When is Defense Available?

One may use force to defend another when the actor REASONABLY BELIEVES that the other person could have used force to defend himself.

DIT -SD/DO/DP -DO -Is Mistake Allowed?

A reasonable mistake as to whether the other person is:, (1) -being attacked or, (2) -has a right, to defend himself is permitted.

DIT -SD/DO/DP -DO -How Much Force May Be Used?

The defender may use as much force as he could have used in self-defense if the injury were threatened to him.

DIT -SD/DO/DP -Defense of Property (DP) Think:

(1) -When is Defense Available?, (2) -Is Mistake Allowed?, (3) -How Much Force May Be Used?

DIT -SD/DO/DP -DP -When is Defense Available?

One may use reasonable force to prevent the commission of a tort against her real or personal property., A request to desist or leave must first be made unless it clearly would be futile or dangerous., The defense does not apply once the tort has been committed; however"," one may use force in HOT PURSUIT of another who has tortiously dispossessed the owner of her chattels because the tort is viewed as still being committed. This defense is NOT AVAILABLE AGAINST ONE WITH A PRIVILEGE., Whenever an actor has a privilege to enter on the land of another because of necessity"," recapture of chattels"," etc."," that privilege will SUPERSEDE the privilege of the land possessor to defend her property.

DIT -SD/DO/DP -DP -Is Mistake Allowed?

A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is NOT allowed as to whether the entrant has a privilege (e.g."," necessity) that supersedes the defense of property right"," unless the entrant conducts the entry so as to lead defendant to reasonably believe it is not privileged (such as by refusing to say what the necessity is).

DIT -SD/DO/DP -DP -How Much Force May Be Used?

Reasonable force may be used. However"," one may NOT use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm., Note: There is a common misperception that deadly force may be used to protect one's home. This is not strictly true. Many of the "home defense" case are really self-defense cases. Thus"," deadly force can only be used when a person"," not just property"," is threatened.

DIT -SD/DO/DP -Reentry onto Land:

At common law:, -one could use force to reenter land only when the other came into possession tortiously., Under modern law -there are summary procedures for recovering possession of real property., Hence"," resort to self-help is no longer allowed.

DIT -SD/DO/DP -Recapture of Chattels (RC):

The basic rule is the same as that for reentry of land at common law:, (1) -When another's possession began lawfully (e.g."," a conditional sale)",", (2) -One may use only peaceful means to recover the chattel., (3) -Force may be used to recapture a chattel only when in hot pursuit of one who has obtained possession wrongfully"," e.g."," by theft.

DIT -SD/DO/DP -RC -When is Defense Available?

(1) -Timely Demand Required, (2) -Recovery Only from Wrongdoer and, (3) -Entry on Land to Remove Chattel.

DIT -SD/DO/DP -RC -When is Defense Available? -Timely Demand Required:

A timely demand to return the chattel is first required unless clearly futile or dangerous.

DIT - SD/DO/DP - RC - When is Defense Available? -Recovery Only from Wrongdoer:

(1) -The recapture may be only from a tortfeasor or, (2) -some third person who knows or, (3) - should know, that the chattels were tortiously obtained., One may not use force to recapture chattels in the hands of innocent party.

DIT -SD/DO/DP -RC -When is Defense Available?

Entry on Land to Remove Chattel.

DIT -SD/DO/DP -RC -When is Defense Available? -Entry on Land to Remove Chattel:

(1) -On Wrongdoer's Land, (2) -On Land of Innocent Party, (3) -On Land Through Owner's Fault.

DIT -SD/DO/DP -RC -When is Defense Available? -Entry on Land to Remove Chattel:

(1) -On Wrongdoer's Land, (2) -On Land of Innocent Party, (3) -On Land Through Owner's Fault.

DIT -SD/DO/DP -RC -When is Defense Available? -Entry on Land to Remove Chattel -On Wrongdoer's Land.

When chattels are located on the land of the wrongdoer, (1) -the owner is privileged to enter on the land and, (2) -reclaim them at a reasonable time and, (3) -in a reasonable manner, (4) -after first making a demand for their return.

DIT -SD/DO/DP -RC -When is Defense Available? -Entry on Land to Remove Chattel -On Land of Innocent Party.

Similarly"," when the chattels are on the land of an innocent party:, (1) -the owner may enter and",", (2) -reclaim her chattel at a reasonable time and",", (3) -in a peaceful manner",", (4) -when the landowner has been given notice of the presence of the chattel and",", (5) -refuses to return it.,, As noted above, the chattel owner's right of recapture supersedes the landowner's right to defend his property. ,, However, the chattel owner will be liable for any actual damage caused by the entry.

DIT -SD/DO/DP - RC -When is Defense Available? -Entry on Land to Remove Chattel -On Land Through Owner's Fault.

If the chattels are on the land of another through the owner's fault (e.g., negligently letting cattle wander):, (1) -there is no privilege to enter on the land., (2) -They may be recovered only through legal process.

DIT -SD/DO/DP -RC -Is Mistake Allowed?

Generally:, (1) -no mistake regarding defendant's right to recapture the chattels or, (2) -enter on the land is allowed.,, However"," SHOPKEEPERS may have a privilege to detain for (1) -a reasonable period of time individuals, (2) -whom they reasonably believe to be, (3) -in possession of shoplifted goods.

DIT -SD/DO/DP -RC -How Much Force May Be Used?

Reasonable force:, (1) -not including force sufficient to cause death or, (2) -serious bodily harm, may be used to recapture chattels.

DIT -Privilege of Arrest (PA):

Depending on the facts, the actor may have a privilege to make an arrest of a third person.

DIT -Privilege of Arrest (PA) involves

(1) -Invasion of Land., (2) -Subsequent Misconduct., (3) -Mistake - Misdemeanor., (4) -Mistake - Felony.

DIT -PA -Invasion of Land:

The privilege of arrest carries with it the privilege to enter another's land for the purpose of effecting the arrest.

DIT -PA -Subsequent Misconduct

Although the arrest itself may be privileged"," the actor may still be liable for subsequent misconduct.,, e.g."," , (1) -failing to bring the arrested party before a magistrate., (2) -unduly detaining the party in jail.

DIT - PA -Mistake (M) -Two Situations:

(1) -Misdemeanor. (2) -Felony.

DIT - PA -M -Misdemeanor -If the arrest is for a misdemeanor"

" it is privileged only:, (1) -if for a breach of peace and, (2) -if the action takes place in front of defendant.

DIT -PA -M -Felony -For a felony arrest:

(1) -A POLICE OFFICER may make a reasonable mistake., (2) -Citizens may make a reasonable mistake regarding the identity of the felon,, BUT not regarding whether the felony occurred.

Arrest Without A Warrant -When Privileged -Felony Arrest by Police Officer:

The officer must reasonably believe that a felony has been committed and that the person he arrests has committed it.

Arrest Without A Warrant -When Privileged - Felony Arrest by Private Citizen:

The felony in fact must have been committed and the citizen must reasonably believe that the person he arrests has committed it

Arrest Without A Warrant -When Privileged - Misdemeanor Arrests:

The misdemeanor must be a breach of peace and committed in the arresting party's presence.

Arrest Without A Warrant -Force Allow -Felony Arrest by Police Officer:

That degree of force reasonably necessary to make the arrest; deadly force only when the suspect poses a threat of serious harm

Arrest Without A Warrant - Force Allow - Felony Arrest by Private Citizen:

That degree of force reasonably necessary to make the arrest; deadly force only when the suspect poses a threat of serious harm

Arrest Without A Warrant - Force Allow - Misdemeanor Arrests:

That degree of force reasonably necessary to make the arrest, but never deadly force.

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