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What is the checklist for tort questions?
- Who is the plaintiff?
- Who is the defendant/who are the defendants?
- Who are the responsible parties?
- What is the plaintiff’s injury or injuries?
- What legal theory/theories can the plaintiff assert?
Make sure that it is a torts question.
What are the elements of Intentional Torts?
- Voluntary act
- No privilege or defense
What is the definition of a voluntary act?
Conscience and willed
Who is intent established for most intentional torts?
- D desired/intended/purposely sought consequences; OR
- Defendant knew consequences were substantially certain to occur
How is causation defined for intentional torts?
D's act or a force se tin motion by the act must cause the plaintiff's injury
How is harm determined for intentional tort purposes?
- Varies tort-to-tort
- Either harm established by tort or specific injury
What is the definition of battery?
- (1) D voluntarily; and
- (2) Intentionally
- (3) Causes
- (4) Harmful or offensive contact
- (5) to P or something closely connected to P
How is "harmful and offensive" element of battery met?
Contact inflicts pain/impairment of any body function, or if a reasonable person would regard it as offensive.
ANY amount of physical discomfort is sufficient for a prima facie case of battery
How is intent element established for battery?
- P must show that D either: (1) D desired contact; OR (2)
- D was substantially certain that the result would occur
*Hint* Distinguish intent and motive
What is transferred intent?
D acts w/ the necessary intent for certain intentional torts, but injurs different victim, there is transferred intent.
To which torts does "transferred intent" apply?
Transfer intent only applies to assault, battery, false imprisonment or trespass to land or to chattles
What is the effect of incompetency on establishing intent?
The fact that a defendant is mentally incompetent or a minor does not preclude a finding that he or she possessed the intent to commit an intentional tort, but incompetency may affect whether such intent actually existed.
Effect of defendant's knowledge on plaintiff's susceptibility for battery purposes?
Reasonable person standard does not apply if the defendant is aware of the plaintiff's particular susceptibility
What must the defendant establish contact with for purposes of battery?
The plaintiff's person or something close the plaintiff
What is the effect of awareness on prima facie case of battery
Awareness is not necessary (unlike assault)
What is the most common defense to battery?
When has an assault occurred?
- Often, but not always, arises where there is a battery.
- Defendant places plaintiff in reasonable apprehension of battery
Does the merger doctrine apply to assault and battery?
No, the merger does not apply, but both tortious actions can be present.
What are the elements of assault?
- Intent by defendant;
- Plaintiff has reasonable apprehension of battery; AND
- Battery is imminent
What must be shown to establish the intent for assault?
- Show that the defendant had the purpose to create apprehension
- Defendant knew that apprehension was substantially certain to result
- Transferred intent applies, usually from another tort
- Assault intent is established if battery intent is established
What is "reasonable apprehension" for purposes of assault?
- Reasonable knowledge; must be feasible that she could not stop the harmful conduct
- Disturbance of mental tranquility
What is the effect of particular susceptibility on "reasonable apprehension" determination?
Particular susceptibility is relevant if it is known by defendant
What is the definition of imminence?
- Battery must be able to be carried out almost instantly
- Can't be a threat for a later event
When does false imprisonment arise?
When the defendant confines the plaintiff to a bounded area against consent of plaintiff and the plaintiff is aware or harmed
Elements of false imprisonment
- Against plaintiff's will
- Plaintiff has knowledge of confinement or is harmed
How is requisite intent established for false imprisonment?
- Plaintiff must show that defendant desired confinement; or
- Knew that confinement was substantially sure to result
- Motive is irrelevant
How is confinement defined for purposes of false imprisonment?
There must be actual confinement of plaintiff in a bounded area. Not letting them to go where they want to go is not confinement. Doesn't matter quality or quantity of space of confinement are irrelevant.
Is there a duration requirement for confinement?
Length of confinement does not matter. A short period of time is fine as long as the plaintiff is aware of the confinement, there is enough to establish confinement
How does confinement usually occur?
- Force or threat of force.
- Example: threat of physical harm to family members.
When is a plaintiff not confined?
Then there is no confinement; no false imprisionment
What is the requisite harm for false imprisonment?
- If there is knowledge of confinement, then false imprisonment has occurred and she Is entitled to any damages granted by jury
- If there is no knowledge of confinement, plaintiff must have actual damages or harm if unaware of the confinement
What is false arrest?
A form of false imprisonment; same rules apply
Where does IIED arise?
Intentionally or recklessly engages in conduct that amounts to extreme and outrageous conduct that causes the plaintiff severe mental distress
What are the elements of IIED?
- Intent or recklessness (Broader mental state than other intentional torts)
- Extreme and outrageous conduct
- Severe emotional distress
How is intent established for purposes of IIED?
- Defendant desired severe emotional distress; or
- Substantially certainty of emotional distress
How is recklessness established for purposes of IIED?
Conscious disregard of a high degree of probability that the emotional distress will follow
Does transferred intent doctrine apply to IIED claims?
No, but recklessness can take place of transferred intent, but presence is required.
How is the "extreme and outrageous conduct" element of IIED established?
- Conduct that exceeds all bounds tolerated by a civilized society (HIGH THRESHOLD)
- Far beyond mere insults
- Offensive or insulting language is generally not considered outrageous
When is the threshhold for outrageousness lowered?
- Lesser conduct is enough if the defendant is engaged in certain callings (example: inkeeper)
- Reasonably outrageous will then be enough
- Particular susceptibility of which defendant acts to exploit
- Developing exception: A person of authority uses racial or ethnic insults of underlings; particularly hateful form of insult
When do causation issues arise for IIED claims?
- Doesn't come up often, but at least one situation is where the plaintiff was a mental basketcase before the conduct occurs.
- No reason can be shown that the plaintiff was the reason.
What is "severe emotional distress?"
- SEVERE emotional distress must be PROVEN; can't be trivial
- No physical injury required
What is a trespass to land?
Defendant intentional enters or causes something to enter
What are the elements of a prima facie case of trespass to land case?
- Plaintiff's land
How is intent established for purposes of "trespass to land?"
- Defendant desired to enter land; or
- Defendant knew that entry to land was reasonably certain
Is mistake a defense for trespass to land?
Mistake is not a defense as to a trespass action
What damages are defendant's liable for when there is a trespass to land?
Full extent of the harm caused by defendant
What is the definition of entrance for purpose of trespass to land?
- Must have some particulate, even if small, like pesticide. Reasonable amount above or below surface
- Can cross land without touching it
Which plaintiffs can claim trespass for land?
Since it is a tort against possession, anyone in possession of the land can bring an action. Includes owner, tenant, adverse possessor, etc.
What types of legal remedies are available for intentional torts?
- Legal remedies: damages
- Restitutionary: designed to prevent unjust enrichment
- Equitable remedies: usually for nuisance, injunctions
What damages are available for a trespass to land?
- Nominal damages
- Actual damages
- Restitutionary - ejectment
When does trespass to chattels arise?
Where defendant intentionally intermeddles with the personal property of the plaintiff
What are the elements of trespass to chattels?
- Plaintiff's personal property/chattel
How is intent satisfied for trespass to chattels?
- The defendant intent's to act / to intermeddle
- Mistake is not a defense, even where belief is intentional
What harm is required for trespass to chattels?
- Must be actual harm; specific damages
- Prevent use by it's owner
- Accident and immediate return is not sufficiently significant
What are remedies for trespass to chattels?
- Replevin: Get back personal property
When does conversion arise?
Intentional act by defendant that causes the destruction of or a serious and substantial interference with the plaintiff's chattel
What are the elements of conversion?
- Dominion and control
- Substantial interference
Is a bona fide purchaser for value liable for conversion?
Yes, where damages cannot be recovered from initial converter
What are the remedies and damages for conversion?
- Forced sale: Converter is basically required to pay the FMV of the chattel at the time it was converted
- Replevin: Action brought by plaintiff to get personal property returned to the plaintiff
What are the defenses to intentional torts?
What is the effect of consent on an intentional tort claim?
There is no recovery for any damages for any of the intentional torts
How is consent granted by plaintiff?
- Express consent: Plaintiff verbally manifests consent to intentional torts; belief of consent must be reasonable
- Implied consent: conduct manifests a willingness to be exposed to intentional torts
What is the limitation of implied consent?
- Reasonable extent
- Standard: Must be a reasonable interpretation of plaintiff's conduct as evidencing permission to act
What is the effect of mistake on the defense of consent?
It is the product of a mistake of fact or law as to the nature or consequences of the defendant's act; and the defendant is aware of the mistake
Where does self-defense arise?
A defendant honestly and reasonably believes that the force she uses is necessary to prevent imminent harm
What is the standard of force for self-defense?
- Defendant only need be reasonable and must respond with proportionate force
- Limit: Self-defense is no longer a defense when there is no longer a threat
Is retreat required to assert self-defense?
- Some jurisdictions, you must not retreat unless before deadly force, others you never have to retreat
- No requirement to retreat from home in any jursidictions
When is "defense of others" a defense to an intentional tort?
Honestly and reasonably believes she is trying to protect third party has an affirmative defense
When is defense of property a defense to an intentional tort?
A defendant may take reasonable steps to defend real or personal property
What are the limitations on defense of property?
Defendant's may never use deadly force to protect property
*Hint* Look for situations where the situation escalates from defense of property to defense of others such as one's family, etc. This will allow deadly force. Spring guns bad because one must first ask trespasser to leave unless it is futile to do so.
When can reasonable force be used against trespassers?
One may use reasonable force to eject a trespasser from personal property after asking them to leave
Is recapture of chattels a defense?
If you are wrong, and it is not really your personal property, than this is no longer a defense.
When is necessity a defense?
Right think to do was commit intentional tort because it was the lesser of two evils
When types of necessity are there?
- Private: A defendant is permitted to injure a plaintiff's property if this is reasonably ncessary to avoid a substantially greater harm to the public, to himself, or to his property
- Public: Defendant, often government actor, was acting to protect the plaintiff from imminent harm
When is authority a defense?
When there is an arrest in the following circumstances:
- Felony: Police officer reasonably believes the felony was committed by the person
- Misdemeanor: Only for misdemeanor's that are a breach of police
When are private individuals liable for arrest?
We are always in liable if we are wrong about the belief
What is the shopkeepers privilege and when does it apply?
- Allows commercial establishment to detain those suspected of shoplifting
- Reasonable time as long as reasonable belief and reasonable investigation
When is discipline a defense?
Parents/teachers may use reasonable force to discipline children. Not excuse for child abuse and no deadly force permitted