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First rule of Mack's exams
First sentence is "who's suing who for what"
Second rule of Mack's exams
The rule of law is your second sentence of analysis.
What is required for all intentional torts?
Volitional conduct - there must be some sort of choice.
Is language conduct?
Generally not, unless you can infer the conduct from the facts. (Eg "I'm going to slap you" and he's a known slapper).
To establish a cause of action for any intentional tort, what must we establish?
Intent must be established.
Must someone intend damages?
No; they must intend the conduct. Any resulting damages do not need to be intended.
Three ways to prove intent
- Knowledge to a substantial certainty
- Transferred Intent
What is purpose?
- It is a subjective test to the actor.
- The purpose of the defendant is to engage in the conduct.
How do you prove intent to a substantial certainty?
- It is a subjective test
- You must show that the actor had knowledge to a substantial certainty that the conduct would happen, even if it was not his intent.
Rule of Law for Transfer of Intent
(1) a forceable tort is intended and (2) a forceable tort occurs that is (3) direct and (4) immediate.
What types of torts can you transfer intent with?
Forceable torts only.
Assault, battery, false imprisonment, trespass to land, trespass to chattel/conversion.
What prevents you from being able to transfer intent?
If a forceable tort is privileged it cannot be used as the first tort to transfer intent.
Does a good faith, reasonable and honest mistake of fact a defense to intent?
Mistake of fact is not a defense to intent.
(It can form the basis of a privilege).
Is age a factor when determining intent?
Age does not affect intent; however, for policy reasons, some courts have ruled that infants cannot intend an act.
Is mental illness/disability a defense to intent?
(1) Conduct (2) Intended to cause and causing (3) a touching of a harmful or offensive nature (4) without consent (5) without privilege
For battery, what do you need to prove?
Prove the touching.
What is unique when proving intent for assault and battery?
- If you intended an assault, this suffices for proving intent for battery.
- If you intended a battery, this suffices proving intent for assault.
Does touching involve just the other person's body?
No; it can also be anything considered to be a part of a person. Eg - clothing, object in hand.
Must the touching be done by the defendant's body?
No; this can also be indirect. Eg. cooking rat poop in deli roll, poison
Must the person be aware of the touching at the time it is occurring?
No; the plaintiff can be asleep or unconscious.
Harmful touching is...
Required by the law to prove a battery. This is physical harm as well as pain and suffering. Needs to be actual damage.
How do we determine what an offensive touching is?
- A reasonable person test
- Based upon custom and circumstances
Cause of action for assault
(1) conduct (2) intended to cause and causing (3) reasonable apprehension of an imminent battery (4) without consent and (5) without privilege
What do you need to prove for assault?
To put someone in the apprehension of the touching.
Is not fear, but the awareness of danger.
Can be arguable
This is a battery which is to happen imminently. If there is a lengthy enough period of time between a threat and the battery, it is not an assault and the plaintiff should have used self-help to avoid the threatened battery.
Can language negate intent for assault?
Language is able to negate intent (if you weren't a torts professor I'd hit you), but circumstances can also create reasonable apprehension (defendant had smacked three torts professors after making the same declaration).
Must apprehension created by direct action of the defendant?
No. A defendant can order another to hit the plaintiff, or the defendant could leave a snake in the plaintiff's bed.
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