Torts Midterm Sep 22

What are the elements of battery?

(1) D acts, (2) D intends to cause a contact with P, (3) the intended contact is of a harmful or offensive type, (4) P suffers a harmful or offensive contact

What makes a contact harmful?

It causes physical pain or damage

What makes a contact offensive?

It violates prevailing social standards

What is the extended personality doctrine?

Contact includes anything so connected with the body as to be customarily regarded as part of the other's person (Fisher case)

When can a normally inoffensive contact still have someone be liabile from such as an offensive contact?

When (1) the offender KNOWS the person is unusually averse to being touched in that way, and (2) acts with the primary purpose of causing offense to that person

What are the elements of assault?

(1) D acts, (2) D intends to cause P apprehension of imminent harmful or offensive contact, (3) D's act causes P to actually and reasonably apprehend that contact

What does apprehend mean?

To perceive or become aware of

What are the elements of false imprisonment?

(1) D acts, (2) D intends to confine P, (3) D's act causes P to be confined, which can include confinement by threats (Fojtik), (4) P is aware of the confinement

When are words alone enough for confinement?

When the threat would inspire a reasonable fear of harm to the person, their property, or their reputation; courts may consider relative size, age, experience, and physical appearance of the parties

What is a writ of habeas corpus?

A petition to get a person released when the government is holding them without the right to, such as someone proven innocent who is still in prison

What is transferred intent?

A person is liable if they intend to harm one person but accidentally harm someone else instead

Transferred intent: what is an example of same victim, different tort?

Throw a snowball to land next to a person (assault) and it hits them (battery)

Transferred intent: what is an example of different victim, same tort?

Mean to hit A with a snowball and hit B instead

Transferred intent: what is an example of different victim, different tort?

Mean to throw a snowball near A and it hits B

Does intent transfer from property to a person?

NO; shoot at a car tire and hit a person, or kick at a dog and hit the owner. The claim is negligence, not battery (animals are chattels at common law)

A says he will throw a rock at B, throws it, and hits C. Does C have a battery claim?

Yes; A acted, intended contact with B (shown by his words and act), the contact was harmful, and C suffered it; if B saw it coming and ducked, B has an assault claim

How can intent be proven?

It can be inferred from the act itself, words said, surrounding circumstances, past conversations etc

What kind of defense is consent and who proves it?

An affirmative defense; Defendant pleads it in the answer and must prove there was consent, plaintiff doesn’t need to prove there was no consent

What are the two consent questions?

(1) Was there consent? (2) What was the SCOPE of the consent?

What is express consent?

P states expressly, orally or in writing, that she consents to the contact

Why do surgeons require signed consent?

Surgery satisfies all four battery elements (act, intent to contact, harmful type of contact, P suffers it); the therapeutic purpose does not change that

What makes a signed consent form valid?

(1) It is your signature, (2) no forceful coercion, (3) no fraud or trickery, (4) you were competent (of age and sound mind)

What is implied consent?

P's conduct, and words short of an actual statement of consent, indicate consent; example is voluntarily suiting up to play tackle football

Can objective signs count as consent if the person did not mean them that way?

Yes, objective signs of consent can count even if the person did not intend it to look like consent

What is the standard for implied consent?

D actually and reasonably believed, based on P's actions and the circumstances, that P consented; a reasonable but mistaken inference of consent is enough

What happened in the Koffman case and what is the takeaway?

A 260 pound adult coach tackled a 13 year old player; there was implied consent to football contact, but the tackle exceeded its scope because it was not contact with players of like age and experience, and the coach ordered him to stand still with no warning, leaving him defenseless

Can D argue the contact was in P's best interest and therefore that is consent or no need for consent etc?

No, not if P did not want it and consent to it

Is consent to one touching consent to another?

No; agreeing to the hand slap game does not allow a hit to the face, and agreeing to a kiss is not agreeing to more

Is consent obtained by fraud or coercion valid?

No; this includes subtle coercion through a position of power, such as a therapist using control over a patient

Who lacks capacity to consent?

People who are mentally incompetent, intoxicated, unconscious, or minors (under 18, or 16 in some jurisdictions for sexual contact)

Can minors consent to athletic contact?

Yes, expressly or impliedly; this is an exception to the capacity rule

When is consent inferred in a medical emergency?

When immediate action is necessary, there is no indication P would refuse if conscious, AND a reasonable person would consent under the same circumstances

Can you consent to a crime?

No (majority rule); consent is INEFFECTIVE if the conduct amounts to a crime, so in a criminal bar fistfight either party can sue for battery and the other cannot raise consent

What are the elements of self defense?

(1) Actually and reasonably believes that (2) force is necessary to avoid (3) imminent injury to themselves, such as harmful contact, offensive contact, or confinement, and (4) the force used is proportional to the threat

Does the belief in self defense need to be reasonable?

Yes, it needs an objective reasonable basis or there is no self defense excuse

What does the Restatement say about deadly force in the home?

Restatement (Second) of Torts §65(2) suggests a person may use deadly force whenever she is attacked in her dwelling

What is the safe retreat exception?

If you can safely retreat, you may use reasonable force but not deadly force; if you cannot retreat, deadly force may be allowed

What are the rules for defending someone else?

Same rules as self defense for yourself

How much force can you use to defend property?

Reasonable force, but not deadly force unless there is a deadly threat

Can you use force to take back your stuff?

Yes, reasonable force, but if you are wrong it could be a battery

What is a chattel?

Personal property you own; animals count as chattels at common law

What are the elements of negligence?

Duty, breach, causation, damages

What is the duty in negligence?

Everyone owes others a duty of ordinary care to avoid creating foreseeable risks of physical harm

What is breach in negligence?

Failing to meet the duty of care owed

What is causation in negligence?

A reasonable connection between D's act or omission and the damage P suffered

What is comparative fault?

P's damages may be reduced when P's harm is partly the result of P's own fault

Is comparative fault a defense to intentional torts?

Generally no

What is vicarious liability?

An employer is liable for the torts of an employee committed within the scope of employment

What is the eggshell skull doctrine?

You take the plaintiff as you find them; a wrongdoer is liable even for disproportionate damages; applies differently to intentional torts and negligence

What are punitive damages?

Extra money a court orders D to pay to punish bad behavior and deter others; a penalty, not compensation

Are punitive damages available for negligence?

No, only for intentional torts

What is mitigation of damages?

P has a duty to minimize harm; failure to mitigate can reduce damages

What is an implied license?

Permission nobody said out loud but the circumstances give; a form of implied consent

What is liability?

Being legally at fault and owing damages

affirmative consent line

P cannot recover because under appropriate circumstances she agreed to endure bodily contact or apprehension of such contact or confinement that would otherwise be tortious