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Terms in this set (184)
How many intentional torts are there?
What are the seven intentional torts?
-Intentional infliction of emotional distress
-Trespass to land
-Trespass to chattel
What is required to be held liable for intentional torts?
Intent and the act
What is Battery?
Intentional harmful or offensive contact with the plaintiff
What are the elements of battery?
-harmful or offensive
Are damages required for battery?
No, but P can recover for any that occur
What is required of the act for battery?
There must be some contact or touching as a result of D's volitional movement
What is the intent for battery?
Defendant must have the desire or knowledge with substantial certainty that harmful or offensive contact will occur
Do you need to directly touch someone to constitute battery?
What are the two ways to commit battery without directly touching the plaintiff?
-D sets a force in motion which causes the battery
(riding a bike at someone who dives out of the way)
-D harmfully/offensively touches something closely associated with the plaintiff
(Snatching a book or plate out of someone's hand)
What constitutes an offensive touching for battery?
The contact or touching would offend a reasonable person's sense of dignity
For battery, can a touching be offensive if a reasonable person would not be offended, but P is offended?
No, unless D knew of P's sensitivity and did the touching anyway
What constitutes a harmful touching for battery?
It causes injury or inflicts pain
For a battery, is it necessary for Plaintiff to be aware of touching at the time it occurs?
What is assault?
Intentional inducement of plaintiff's reasonable apprehension of a harmful or offensive touching
What are the elements of Assault?
-reasonable apprehension of harmful or offensive contact or touching
What is required for the "act" element of assault?
It must be based on the volitional movement of D
What is the required intent for assault?
D must have the desire or knowledge with substantial certainty that plaintiff will sustain a harmful or offensive touching or will be placed in reasonable apprehension of a harmful or offensive touching
Are words alone sufficient to create reasonable apprehension for an assault?
No, unless coupled with conduct
(Patting a gun in your pocket, showing a knife, etc.)
Are threats of future harm sufficient to create reasonable apprehension for an assault?
Are qualified threats sufficient to create reasonable apprehension for an assault?
Must Plaintiff be aware of an assault at the time occurs?
Yes (otherwise no reasonable apprehension)
What kind of touching is required for Assault?
Harmful or offensive (same as battery)
Are damages required for Assault?
What is False imprisonment?
Intentional confinement of the plaintiff
What are the elements of False imprisonment?
What is required for the act element of false imprisonment?
It must be a volitional movement or a failure to act when you have an obligation to do so
Can you negligently commit false imprisonment?
Yes, if you have a duty to act and fail to act.
(*Note, "negligent" may not be the exact right word here, but it's what I'm going with)
What is the standard to determine if P was confined for the purposes of False Imprisonment?
Overcoming plaintiff's will to leave in a way that will overcome a reasonable person's will to leave
Is force necessary to confine someone for false imprisonment?
Can a verbal threat be sufficient to confine someone for false imprisonment?
Can a person be confined by being inconvenienced to a great degree?
(For false imprisonment)
(Ex: taking car keys, taking clothes while skinny dipping, removing a ladder while on a roof, taking away crutches or a wheelchair, etc.)
Can you be confined for a false imprisonment if there is a reasonable means of escape?
Does P need to search for a means of escape? (regarding false imprisonment)
Does P need to run any risk to person or property in order to escape a false imprisonment?
Does P need to be aware of a false imprisonment at the time it happens?
No, unless the confinement causes injury or damage
(Remember the drunk guy that got left in the desert who remembered nothing)
Are damages required for false imprisonment?
No -- However, P can recover for any injuries suffered while trying to escape
What is intentional infliction of emotional distress?
Extreme and outrageous act by a defendant intended to cause severe emotional distress
What are the elements of IIED?
-Extreme and outrageous act
-Severe emotional distress by P (Damages)
What is required of the act element for IIED?
It must be a volitional act by D
May words alone be sufficient to constitute the act element IIED?
They may be. Remember other elements must be present to conclude IIED
What is the required intent for IIED?
D must have the desire or knowledge with substantial certainty that plaintiff will experience severe emotional distress
Can you have intent for IIED if an act is directed at one person, but causes emotional distress to another?
Yes, but only if D knew the person was there
(Remember the case where the daughter hid and watched her dad get beaten)
Does transferred intent apply to IIED?
What is considered to be an extreme and outrageous act?
Conduct which exceeds all bounds normally tolerated by decent society and extremely likely that mental harm will result.
Evaluate the conduct in the totality of the situation
Are mere profanity, insults, indignities sufficient to be considered extreme and outrageous?
Who are common carriers?
A person or company that transports goods or people for any person or company and that is responsible for any possible loss of the goods during transport.
(Think UPS, FedEx, US Postal Service, etc)
Does the identity of the P matter when analyzing IIED?
Yes. You must consider the totality of the situation. Are they a child, pregnant, elderly, have a known sensitivity, etc.?
Can conduct which is not in of itself outrageous become outrageous?
Yes, if it continues for too long
What standard are common carries and innkeepers held to regarding IIED?
Common carriers/innkeepers have a higher obligation and can be held liable for gross insults which would otherwise not be actionable
What is required for damages in IIED?
D's conduct must result in severe emotional distress.
Is a physical manifestation of the severe emotional distress required for IIED?
In some jurisdictions, although modernly, it is not.
Note: simply "feeling badly" is insufficient for a physical manifestation if it is required
What is trespass to land?
Intentional unauthorized entry onto plaintiff's realty
What are the elements of trespass to land?
What is required for the act in a trespass to land?
It must be a volitional movement
Does the D have to personally set foot on another's land for trespass to land?
No. They may set a force in motion
(For example, pushing a rock down a hill onto another's property)
What is the required intent for trespass to land?
D must have the desire or knowledge with substantial certainty that defendant is entering onto a particular piece of land
Can one be liable for trespass to land if he is acting in good faith and reasonably believes he is the owner of the land?
Can throwing something constitute an unauthorized entry for a trespass to land?
Can pushing someone constitute an unauthorized entry for a trespass to land?
Can arranging for something or someone to go onto the property of another constitute an unauthorized entry for a trespass to land?
Can remaining on land after the right to be present is terminated constitute an unauthorized entry for a trespass to land?
Are light, sound, and smell sufficient to constitute unauthorized entry?
No (though they may constitute nuisance)
Can particulate matter be sufficient to constitute an unauthorized entry for a trespass to land?
Yes, but only if there is actual damage
What are 5 ways to show that a piece of land is P's realty for the purposes of a trespass to land?
-Air space (extends to immediate reaches)
-Right to immediate possession
(L.A.S.A.R. - Think "laser")
Are damages required for trespass to land?
No, but P can recover for any that occur
What is trespass to chattel?
Intentional interference with plaintiff's chattel resulting in damage; disposition or damage to chattel
What is a chattel?
An item of property other than real estate
What are the elements of trespass to chattel?
What is required for the act element of trespass to chattel?
Either a volitional act, or failure to do something (typically return property)
What is the required intent for trespass to chattel?
D must have the desire or knowledge with substantial certainty that a chattel will be affected by defendant's conduct
Is the honest and good faith belief that you own the chattel a defense to trespass to chattel?
No. D's good faith is immaterial
What constitutes interference for the purpose of trespass to chattel?
Damage or interfering with possessory rights
Is physical damage required for trespass to chattel?
No. Interfering with possessory rights is sufficient
What constitutes P's chattel (for trespass to chattel)?
Any chattel in P's present or future possessory interest
What can constitute damages for trespass to chattel?
Cost of repair and value of loss of use
What is conversion?
Intentional interference with plaintiff's chattel resulting in damage.
What are the elements of conversion?
What is required for the act of conversion?
It must be a volitional act of D
What is the required intent for conversion?
D must have the desire or knowledge with substantial certainty that a chattel will be affected by defendant's conduct.
If you have good faith that you own a chattel, does it defeat the intent element of conversion?
What constitutes interference for the purpose of conversion?
Damage or interfering with possessory rights
What constitutes P's chattel (for conversion)?
Any chattel in P's present or future possessory interest
What kinds of damages are recoverable for conversion?
Forced sale which equals the market value at the time of the conversion.
Can D mitigate the damages they must pay for conversion?
Yes, with an offer to return the chattel in question
What is the difference between trespass to chattel and conversion?
Conversion is more serious than trespass to chattel.
Basically, if it can be fixed, it's TTC. If it can't it's conversion
To which torts is consent a valid defense?
Any intentional tort
How can consent be expressed?
Express (willingness stated in words or actions) or implied
How is implied consent determined?
Custom and usage, but the question becomes whether defendant stayed within the boundaries of custom and usage
(Think of the fights in hockey/football games. Mostly just look at the circumstances and use your common sense. May be a gray area and a factual debate)
When can a physician have consent of a patient implied by law?
When ALL of the following criteria are met
-Patient is without capacity to give consent
-Any delay would involve health risk
-A reasonable patient would have consented
-There is no reason to believe patient would not have consented
In what circumstances is consent not a valid defense to intentional torts?
-When the act goes beyond the consent (injury in a football game between plays)
-When the person is incapable of giving valid consent (minor, mentally incompetent, intoxicated, etc.)
-When consent is given through fraud, duress, or mistake
When is it permissable for a person to to attempt to prevent a tort by use of reasonable force?
Self-defense, defense of others, and defense of property
What kinds of intentional torts apply to self-defense, defense of others, and defense of property?
-Intentional infliction of emotional distress.
(All torts against the person)
What are the elements of self-defense, defense of others, and defense of property?
1) prevent a tort by use of force
2) force must be reasonable
3) act must not be one of retaliation
What kind of force used for self-defense, defense of others, and defense of property, is reasonable?
Force that appears necessary to a reasonable person in defendant's shoes
When is lethal or deadly force considered reasonable (for self defense)?
When used to defend against lethal or deadly force
Can you use lethal/deadly force in defense of property?
No (but if you are on the property, you can defend yourself, and if defending against deadly force, you may use deadly force in defense)
What force may be used in the defense of others?
Only the force that the person you are defending could use
What is the effect of unintentionally injuring a 3rd person while defending oneself?
It may be negligence -- use a negligence analysis
When invoking the defense of self-defense, do you have a duty to retreat?
Majority: No duty to retreat
Minority: Duty to retreat
Can an act of retaliation be self-defense?
What defense is applicable if you are trying to recover property or recapture chattel?
You have a privilege to use force to recapture a chattel which has been taken from your possession.
The recovery of property/recapture of chattel is a valid defense to which intentional torts?
(This refers to using force to reclaim property, like tackling the guy who stole the furniture. Entering land to reclaim property is a separate thing)
What are the elements to the defense of recovery of property/recapture of chattel?
-Wrongful possession by person who actually took the property or knows of taking
-Prompt action/fresh pursuit
If a person made a reasonable mistake in taking property, does that defeat the "wrongful dispossession" element of the recovery of property defense?
No. Still a valid defense
What kind of force is reasonable to be considered reasonable regarding recovery of property/recapture of chattel?
Force that appeared necessary to a person who knows the truth.
Can you use deadly force to recover property/recapture chattel?
What is shopkeeper privilege?
A shopkeeper is allowed to detain a suspected shoplifter on store property for a reasonable period of time, so long as the shopkeeper has cause to believe that the person detained in fact committed, or attempted to commit, theft of store property.
When invoking shopkeeper's privilege, what is required of the shopkeeper's mental state?
They must have a reasonable belief something was stolen
What is shopkeeper's privilege a defense to?
How long may you be detained by someone invoking shopkeeper's privilege?
A reasonable amount of time for investigative purpose
What kind of force can a shopkeeper use to detain someone suspected of stealing?
Reasonable non-deadly force
Where must the investigation take place, regarding a suspected shoplifter?
Investigation must be on or near store premises.
What is the Majority view of force allowed for the defense of land?
Cannot use force and instead must use judicial proceedings.
What is the Minority view of force allowed for the defense of land?
Reasonable non-deadly force is acceptable.
What is Necessity a defense to?
-Trespass to land
-Trespass to chattel
(All intentional property torts)
What is the defense of necessity?
Privilege to reasonably invade the property rights of another in an emergency not caused by the defendant
What are the elements of the necessity defense?
-Invasion must be reasonable
What is public necessity?
When a defendant interferes with a plaintiff's property in an emergency situation to protect the community or society as a whole from a greater harm that would have occurred if the defendant had not committed trespass.
(Blowing up a house to stop the fire from spreading through the neighborhood)
What is private necessity?
When a defendant interferes with a plaintiff's property in an emergency to protect an interest of his own. Private necessity does not serve as an absolute defense to liability for trespass.
(Running from a robber)
When one trespasses because of an emergency for private necessity, what kinds of damages would one be liable for?
Must pay for actual damages
Can authority of law be a defense to intentional torts?
Can discipline by parents and teachers be a defense to intentional torts?
Yes, if it is reasonably necessary for the proper control, training, and education of the children
Can "justification in general" be a defense to intentional torts?
(Think of the school bus driver taking the delinquent kids to the police station)
Can you enter someone's land to reclaim your chattel if it's your fault it's there?
Can you enter someone's land to reclaim your chattel if it is the fault of neither you nor the landowner ?
Yes, but you must pay for any damages to the land
Can you enter someone's land to reclaim your chattel if it's their fault it's there?
Yes, but only if you ask for your chattel back first, unless the demand is "deemed to be fruitless"
What are the three kinds of transferred intent?
Same person, different tort
Different person, same tort,
Different person, different tort
To which torts can transferred intent apply?
All intentional torts except conversion and IIED
General definition (not elements) of negligence
Failure to exercise that degree of care and caution which a reasonable and prudent person would exercise under like conditions and circumstances.
Elements of Negligence
What is the difference between negligence and actionable negligence?
You can be negligent (duty + breach) but no harm may result. For negligence to be actionable, P must have been injured, and D must be the proximate and actual cause of the damages. Only then can P recover
What duty does everyone have?
The duty of due care -- acting like a reasonable and prudent person
What are the three kinds of special duties? (for negligence)
Special duties may be based on
Does a duty exist if D's actions do not create a foreseeable risk?
What case do the two main rules on duty come from?
What were the two rules to come out of Palsgraf, and who wrote them?
Cardozo - duty is owed to those in the zone of danger.
Andrews - if duty is owed to one it is owed to all.
How to remember:
Andrews = All (both start with A)
When do the rules of Cardozo/Andrews apply?
For establishing duty. May also be used in proximate cause discussion
What is a breach?
You had a duty to act a certain way, and failed to do so
What is the Learned Hand Balancing Test?
When determining if there was a breach, you must weigh the frequency and severity of potential harm vs. the ability to cure or make safe.
Thus, the greater the risk of harm the great the amount of care required.
What is the standard applied to a person with a physical disability? (when determining breach of duty for negligence)
Held to the standard of a reasonable person with that same disability
Therefore, a disabled person can be liable for doing something a reasonable disabled person would not attempt
What standard are you held to if intoxicated? (when determining breach of duty for negligence)
If the intoxication was voluntary or negligent, you are held to the standard as a sober person
What standard are adults of a lower mental capacity held to? (when determining breach of duty for negligence)
An adult's intelligence is not taken into consideration when determining if the conduct was reasonable
What standard children held to? (when determining breach of duty for negligence)
Depends on the conduct
If "adult" conduct, then standard is reasonable/prudent adult
If "child" conduct, the standard is a child of like age, intelligence and experience
At what age can you not be held liable for negligence?
Under the general rule, children under 4 cannot be liable for negligence.
Depending on the state though, it can range anywhere from 7-14
What standard are you held to if acting during an emergency? (when determining breach of duty for negligence)
the standard of care is the reasonable person under an emergency situation
What standard are you held to if you have superior knowledge, skill, or intelligence? (when determining breach of duty for negligence)
The law demands conduct consistent with that superior skill or knowledge
What standard are you held to if you are a professional acting in the capacity of your profession? (when determining breach of duty for negligence)
The standard is a reasonable member of that profession
Can customs/usage prove a standard of care?
They may if the custom/usage is reasonable.
Community customs are evidence for such a standard but are never conclusive.
What are the three situations where a doctor is not required to get informed consent from a patient?
Emergency and the patient is unconscious
Therapeutic meaning the patient is too distraught to require the doctor to explain the situation
Doctor does not have to disclose that this is his first surgery
Are medical providers liable for negligence?
Generally not unless conduct is grossly negligence (depends on state statute)
What are the four things required to show when using the violation of a statute to prove negligence?
-Statute must be relevant to the issue of due care.
-The statute must provide a clear standard of conduct.
-The statue must be designed to protect a particular goup of people of which plaintiff is a member.
-The standard must be designed to protect against the type of injury sustained by plaintiff
What are the effects of violating a statute if no excuse is given (for negligence)?
(1) Majority = negligence per se.
(2) Minority = rebuttable presumption of negligence
(3) Minority = evidence only.
What are the three views of how to handle violating a statute if an excuse is given (for negligence)?
(1) Majority = trial judges determines validity of excuse.
(2) Minority = rebuttable presumption of negligence
(3) Minority 2 = evidence only
Can circumstantial evidence prove breach of duty for negligence?
What is Res Ipsa Loquitur (RIL)?
A theory you can use to prove negligence if you don't know exactly how the negligent act happened
What are the three things required to prove Res Ipsa Loquitur?
-Does not ordinarily happen in the absence of negligence.
-Instrumentality is within the control of the defendant and the accident is of a type that the defendant had a duty to guard against. But the better view is that control is only one way of proving defendants responsibility.
-Injury is not due to a voluntary act on the part of the plaintiff or a third person.
What are the three different views on the effect of establishing Res Ipsa Loquitur?
-Majority = inference of negligence which the jury may or may not accept.
-Minority = rebuttable presumption of negligence.
-Minority = disappearing presumption
What is actual cause?
It asks the question of whether or not D actually caused the injuries to P
What are the three basic tests for actual cause?
-"But for" test
-"Substantial Factors" test
-"Concurrent Factors" test
What is the "but for" test?
If the plaintiff would not have been damaged "but for" the defendant's act, that act is a cause in fact of the injury
What is the "Substantial Factor" test?
If plaintiff sustains damage as the result of the negligent conduct of two or more tortfeasors, and it appears that the conduct of either one alone would have been suffcient to cause the injury, both are liable if each of their acts was a "substantial factor" in causing the injury
What is the Concurrent Causes test?
Separate acts of negligence of defendant and third party cause a single injury and plaintiff would not have been injured but for the concurrence. In this situation both the defendant and the third party are actual causes
If it is unclear which party caused harm, who is liable?
(Think two people negligently shoot a person, unclear which person's shot hit P)
Burden of proof shifts to Ds to prove that they were not the ones liable
If in cases of prescription drugs, etc, negligence can be based on the market share of Ds at the time
What is Proximate Cause?
Asks if D should be held liable for their negligent actions as a matter of public policy.
Main question: was the harm foreseeable?
What are the main 4 things to consider when determining proximate cause?
Was the plaintiff foreseeable?
Was the harm foreseeable?
Were there any intervening forces?
-If so, were they foreseeable or unforeseeable?
Were there any superseding causes?
In a negligence analysis, what happens if there are no intervening forces, and the harm is foreseeable?
D is the proximate cause. However, liability may be cut off as a matter of public policy
What is the egg shell plaintiff doctrine?
D must take P as he finds him. He need not know of any special sensitivities, etc. of P to be liable
What are the three views of what happens when one kind of harm is foreseeable, but a different kind happens? (For negligence)
Wagon Mound #1 Majority — hold defendant liable for only foreseeable consequences.
Wagon Mound #2 — Balancing test weighing risk against the diffculty of curing it.
Polemis — Minority - hold defendant liable for all direct consequences.
How do you determine if the plaintiff was foreseeable?
Use the Cardozo/Andrews test to see if a duty was owed to P. If yes, then foreseeable P. If not, then no
What happens if not a foreseeable plaintiff?
No duty, and therefore no negligence
What are the four restrictive factors to Andrews' Palsgraf dissent?
Directness of connection between the act and harm.
Natural and continuous sequence between the act and the harm.
Whether the harm could have been reasonably foreseen.
Remoteness in time and space
Is the negligence of others foreseeable?
Is the criminal conduct of others foreseeable?
Not necessarily, but it may be depending on the circumstances
What is a dependent intervening force?
A force that comes into play only because of the negligent act of the defendant
Do dependent intervening forces cut off D's liability?
No, D is still liable
What happens if the dependent intervening force is not foreseeable?
The courts will say it is not a dependent intervening force
What is an independent intervening force?
A force that comes into play but is not in response to the negligence of defendant #1
What happens if the independent intervening force is foreseeable?
D is still liable, even if the independent intervening force was a criminal act
What happens if D's negligent conduct threatens a particular kind of harm, and an unforeseeable intervening force produces the same result?
Both Ds are liable. However, if the intervening act was criminal or tortuous, D's liability may depend on how culpable the intervener is
What happens if there are unforeseeable results with foreseeable intervening forces?
Broad view — the first defendant is liable;
narrow view, first defendant escapes liability
Example: restaurant serves bad food, patron vomits and plaintiff slips and falls due to vomit
What happens in a negligence analysis if there are unforeseeable results with unforeseeable intervening forces?
The original D is not liable
Example: accident causes vehicle to detour and plane falls out of sky hitting a vehicle that is present at that spot only due to the detour
What is the requisite intent for false imprisonment?
Desire or knowledge with substantial certainty that P will be confined
If you lock a door without knowing P was inside, is it false imprisonment?
No. No intent
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