Card Set Information

2011-06-21 12:47:47
torts intentional

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  1. Overview Propositions (Every Intentional Tort)
    • 1. Extreme sensitivity of P is ignored in deciding if P has a COA.
    • --When you determine that a P has satisfied a COA, assume you’re dealing with a
    • reasonable/normal person.

    • 2. There are no incapacity defenses (infancy,
    • illness, drunkenness, mental handicap) in intentional torts.

    • 3. Intent is an element of every intentional tort.
    • --"Intent” means the D desires to produce the legally forbidden consequence, not mere
    • volitional intent.

    --Transferred intent: So long as a D desires to produce any forbidden consequence, he is liable for actually producing any other forbidden consequence.
  2. Intentional Torts
    • Overview propositions
    • Battery
    • Assault
    • False Imprisonment
    • IIED
    • Trespass to Land
    • Trespass to Chattels & Conversion
    • Affirmative Defenses for Intentional Torts
  3. Battery
    • 1. D must commit offensive or harmful
    • contact.

    • Offensiveness=unpermitted
    • by a person of ordinary sensitivity.

    Tapping person on shoulder (nonoffensive as a matter of law) vs. stroking hand (sexual aspect likely to make offensive).

    2. The contact must be with the P’s person.

    “Person” includes what P is holding/touching/connected to.

    No immediacy requirement, and

    No requirement that D use own body to effectuate contact. Need only set in motion.

    Spiking lunch that won’t be eaten for several hours.
  4. Assault
    1. D must intentionally place P in [reasonable] apprehension.

    “Apprehension” means knowledge of an impending battery, not fear.

    David and Goliath trick question.

    Unloaded gun problem.

    2. The apprehension must be of an immediate battery.

    • Words alone lack immediacy. There must
    • be conduct (a menacing gesture).

    • Accompanying words can negate apprehension or immediacy (conditional
    • words; promises of future action).
  5. False Imprisonment
    1. D must commit an act of restraint.

    Threats sufficient (subject to reasonableness).

    Most common: Mall cop: “If you leave, I’ll call the police.”

    Detaining traveler's property and suggesting he won't be able to retrieve if he doesn't stay.

    Omission=restraint only if there was a preexisting obligation to help the P move around.

    Restraint only counts if P (i) knows about it, or (ii) is harmed by it.

    2. P must, as consequence, be confined in a bounded area.

    • Bounded=area of movement is limited in all directions (even if bounded only by terms
    • of a threat).

    Area is not bounded if there is a reasonable means of escape that the P can reasonably discover (not dangerous/disgusting/humiliating/hidden).
  6. Intentional Infliction of Emotional Distress
    Only intentional tort where D can be held liable even though he was acting recklessly instead of deliberately (intentionally).

    1. D must engage in outrageous conduct.

    “Outrageous” = “conduct exceeds all bounds of decency tolerated in a civilized society.”

    --Mere insults are not outrageous (but can make a bad case worse).

    • --Common hallmarks of outrageousness:
    • Conduct in question is continuous or repetitive;
    • D is common carrier/inn keeper;
    • P is member of fragile class of persons (young children, elderly, pregnant, [hate speech involving abuse of power?]).

    2. P must suffer severe distress.

    No particular showing (i.e. no requirement of physical harm, medical evidence, antidepressants). Usually negated in problem (i.e. “P was ‘mildly annoyed,’ so she sued D”).
  7. Trespass to Land
    1. D must commit act of physical invasion.

    a. Physical invasion in person.

    Only volitional intent required. D need not know he’s crossing a property line, etc.

    b. Physical invasion by throwing a tangible object onto the land.

    Classic case is malicious (throwing a brick), but innocuous/benign throwings (spraying water) count too.

    • Intangible forces are not trespass (light, noise, odor).
    • --Smoke? Close. May turn on thickness of smoke.

    2. P must be a possessor of land.

    =lawful possession at time invasion takes place. (E.g. Renter, not LL, has COA).

    • Land interests include air above and soil below, out to a reasonable distance.
    • (Commercial airliner flying over vs. neighbor’s kid throwing ball over).
  8. Trespass to Chattels & Conversion
    Personal property (chattels)=everything you own other than land and buildings. Includes cars/vehicles; electronics; garments; currency; etc.

    Two ways to interfere with property: (i) deliberately damage it, or (ii) steal it.

    Difference b/t trespass and conversion is degree of interference. Will be clear—either trivial or major interference.

    Separate torts to give an enhanced remedy in cases of conversion: P may recover FMV of the chattel, not just rental or repair cost.

    A bona fide purchaser of stolen goods is not a converter.

    When a chattel is located on the land of a wrongdoer, the owner has a privilege to enter the land and reclaim it in a reasonable manner.

    A bailee is liable for conversion if the bailee uses the chattel in a way that would materially breach the bailment agreement. (S5Q12, woman loans car to neighbor who re-loans to other after own car repaired).
  9. Affirmative Defenses for Intentional Torts
    • Consent
    • Protective Privileges (self-defense, defense of property, defense of third persons)
    • Necessity
  10. Affirmative Defense for Intentional Torts
    Capacity Requirement

    Only a person with legal capacity can give a valid consent.

    Children can consent to age-appropriate invasions (11yo boys consenting to wrestle vs. consenting to sex).

    Express Consent

    Valid, unless there has been fraud or duress. Negates express consent.

    • Implied Consent
    • Consent implied from customary practice (P goes to places where invasions are routine; impliedly consents) (doctor’s office).

    • Implied consent based on D’s reasonable interpretation of P’s objective conduct.
    • --P’s own internal thoughts not part of this.

    • Scope of Consent
    • If D exceeds scope of the consent, D
    • voids that consent.

    Medical procedures (expanding procedure to adjacent vs. totally separate body parts).
  11. Affirmative Defenses for Intentional Torts
    Protective Privileges
    • -Self-Defense
    • -Defense of Third-Persons
    • -Defense of Property

    D must establish:

    • 1. Timing
    • D must act when threat is in progress
    • or imminent. IOW, no retaliation.

    • 2. Reasonable Belief
    • D must show reasonable belief that threat is genuine.

    Reasonable=don’t lose privilege for reasonable mistake (shopkeeper’s privilege).

    • 3. Amount of Force
    • Amount of force necessary under the circumstances.

    Rule of proportionality and necessity. Meet slap with slap. Meet deadly force with deadly force.

    • Rule of retreat before resorting to deadly force. Must retreat if it is safe/feasible to do so.
    • --Does not apply to own home; police officers.

    Deadly force is never allowed in defense of property. (Also can’t use deadly mechanical devices like spring guns).
  12. Affirmative Defenses for Intentional Torts
    Property torts only (trespass to land, trespass to chattels, conversion).

    • Public Necessity
    • D invades P’s property in an emergency to protect community as a whole or a significant group of people.

    **Absolute defense.

    • Private Necessity
    • D invades property in emergency to protect own interest. Less generous defense.

    D liable only for actual/compensatory damages.

    Not liable for nominal or punitive damages.

    D has right to remain on P’s property in position of safety as long as emergency continues (i.e. the P could be liable for battery for ejecting D).

    Special Rule Where Defense of P's Own Property

    No liability. Essentially an implied consent justification for this position.