Torts

Is there a tort?

A tort is a civil wrong or injury not arising out of K.

Is it an intentional tort?

Intentional torts are bad deeds done on purpose.

Is it battery?

Battery is the (1) intentional (2) touching (3) that is harmful or offensive.

Is it conversion?

Conversion is the total destruction of chattel.

Was there intent?

Intent can be shown through purpose or substantial certainty.

Was there purpose?

Purpose requires that it was the goal for a specific result to occur.

Was there substantial certainty?

Substantial certainty requires knowledge to a near certainty that the result will occur.

Is it a single intent tort?

Single intent requires intent for the act only.

Is it a dual intent tort?

Dual intent requires intent for the act, plus intent for the harm.

Which is the only split-jurisdiction tort for purposes of intent?

Battery

Is there transferred intent between people?

Intent is transferred between people.

Is there transferred intent between torts?

Intent can be transferred between torts when the tort intended and the resulting harm fall within the scope of the old action of trespass.

What torts are in the old action of trespass?

Battery, assault, false imprisonment, trespass to land, trespass to chattel

Was the act done in good faith?

Good faith does not negate intent.

Was there mistake?

Mistake does not negate intent.

Is the actor a child or mentally ill?

Age or mental illness does not negate liability for intentional torts, but can justify a lack of intent.

Does a defense apply to intentional torts?

Defenses to intentional torts include consent and self-defense.

Is it negligence?

Negligence torts arise out of a breached duty that caused the harm and/or vicarious liability.

Was there a duty?

Individuals have a duty to most people that could be injured physically but not everyone.

Did the breached duty lead to the harm?

The breached duty must be the cause-in-fact and the proximate cause of the harm.

Is it vicarious liability?

Vicarious liability exists when the defendant is responsible for the torts of someone else and is most common in an employer relationship through respondeat superior.

Does a defense apply to negligence?

Defenses for negligence torts include comparative fault and assumption of risk.

Is there comparative fault?

Comparative fault asserts that the plaintiff was also at fault. It allocates fault among parties, potentially reducing the plaintiff's recovery based on their percentage of fault.

Is there assumption of risk?

Assumption of risk asserts that the plaintiff voluntarily exposed themself to significant risk.

Is it a strict liability tort?

Strict liability torts do not require fault at all but only require that something led to the harm of another.

What are the two major types of strict liability torts?

Animals and abnormally dangerous activities

What is the gist of battery?

Touching

What is the gist of assault?

Apprehension

What intentional tort to persons does not require contemporaneous awareness?

Battery

What intentional torts to persons require contemporaneous awareness?

Assault and false imprisonment

How is intent analyzed?

Subjectively from the perspective of the defendant

Was there touching?

Touching can occur by way of touching an item that is “intimately connected with” the plaintiff’s body.

Was it harmful?

Harm requires harm to the physical integrity of one’s body.

Was it offensive?

Offensiveness requires harm to one’s dignity.

What is always considered offensive for purposes of battery?

Touching any sexual part of the body, including kissing

How is harm or offense analyzed?

Objectively

What may be a defense to battery?

Consent

Is it assault?

Assault is (1) the intentional act (2) to cause a harmful or offensive contact with another or imminent apprehension of such contact, and (3) the other experiences such imminent apprehension.

Is assault single-intent or dual-intent?

Dual-intent

Is false imprisonment single-intent or dual-intent?

Single-intent

Is the third element of assault analyzed objectively or subjectively?

Subjectively from the plaintiff’s POV

What is not required for assault?

Fear

What is analyzed closely to determine imminent apprehension?

Proximity

Is mere preparation enough for assault?

No, except perhaps in the presence of a gun

Is a future threat enough for assault?

No, the threat must be imminent.

Are mere words (without action) enough for assault?

No, but mere words with action may be.

What two intentional torts to persons go closely hand-in-hand?

Assault and battery

Does every battery include an assault?

No because someone may not know you are coming.

Does every assault include a battery?

No because there may be no contact.

Do assault and battery merge? Why/why not?

No, because assault is not an attempted battery.

What does false imprisonment protect?

People’s right to freely move

Was there restraint for purposes of false imprisonment?

Restraint requires being kept in place and does not apply to being kept out of an area.

Was there a known or apparent reasonable means of exit available?

If there is a known or apparent reasonable means of exit available, there is no restraint.

When is a means of escape unreasonable?

When it involves (1) exposure of the person; (2) danger of substantial harm; or (3) material harm to clothing.

Was the plaintiff aware of the restraint or harmed by it?

The plaintiff needs either to be aware of the restraint contemporaneously or harmed by it to recover.

Did the plaintiff consent to stay?

One is not restrained if they consent to stay.

What are the types of restraint?

(1) Actual or apparent physical barriers;

(2) Overpowering physical force or submission to physical force;

(3) Submission to threats of physical force where force may or may not actually be used;

(4) Other duress, such as threats to a family member; and

(5) Asserted legal authority, such as false arrest.

Is it false arrest?

Where there is no good reason to restrain someone, it may be false imprisonment.

Was the false arrest by a shopkeeper?

Shopkeepers’ privilege allows shopkeepers to restrain customers to prevent shoplifting.

Was the person convicted for the same crime for which they were arrested?

If so, it is a complete defense against false imprisonment.

Was the restraint unjustified?

Justified is typically determined by a jury.

What are two examples of justified restraint?

Where a person is lawfully arrested and in jail, or lawfully in a mental institution and restrained for their safety.

Was there moral persuasion (false imprisonment)?

Courts generally hold that moral persuasion does not constitute restraint.

Was there fear of losing one’s job (false imprisonment)?

Fear of losing one’s job does not render one’s actions involuntary.

Did the person honestly believe they were going to be touched?

Where the other elements of assault are made out, the subjective feeling is all that is necessary, not reasonableness.

Is it IIED?

IIED is the intentional (or reckless) extreme and outrageous conduct that causes severe emotional distress.

Is IIED a single- or dual-intent tort?

Dual-intent

Was there recklessness?

Recklessness is conduct that shows disregard for, or indifference to, consequences, under circumstances involving danger to life or safety to others, although no harm was intended.

Was there extreme and outrageous conduct?

Extreme and outrageous conduct “exceeds all possible bounds of decency” and is determined by a court’s examination of several factors.

What factors does a court examine to determine if conduct is extreme and outrageous?

(1) relationship of the parties;

(2) abuse of a position of power;

(3) known vulnerability of the plaintiff;

(4) motivation of the defendant; and

(5) repeated or prolonged conduct.

Does the IID involve and employer/employee relationship?

Some courts don’t want to involve IIED in the employment context because they are concerned with the employer’s need to control the business and keep things running smoothly.

Does the IIED involve mere insults, indignities, threats, annoyances, petty oppressions, and other trivialities?

Slurs, by themselves, are not enough.

Is the IIED based on a mere solicitation of intercourse?

Such, by itself, is not enough without aggravating circumstances.

Is there a causal connection between the conduct and the distress?

The conduct must be linked to the severe emotional distress.

Could other things have caused the distress?

Courts look to the timing of the distress and any other reasonable explanations.

Did the plaintiff suffer severe emotional distress?

The emotional distress must be “severely disabling.”

What do courts require to prove severe emotional distress?

Some courts require expert testimony, while others require objective evidence, and others require holistic evidence.

Was there a preexisting condition (IIED)?

Preexisting conditions do not preclude liability for IIED but require showing that the condition worsened as a direct result of the conduct.

Was the plaintiff a bystander (IIED)?

The conduct must have been directed at the bystander or at a member of the bystander’s immediate family, while the actor knew that the family member was present.

Is it trespass to land?

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally: (1) enters land in possession of the other, or causes a thing or a third person to do so, or (2) remains on the land, or (3) fails to remove from the land a thing which he is under a duty to remove.

Is trespass to land a single- or dual-intent tort?

Single-intent

Did the actor reasonably and mistakenly enter the land?

So long as the movement was volitional, there remains liability.

Did the actor enter land in possession of the other or cause a thing or third person to do so?

The possessor has the exclusive right to possession to the heavens above and to the depths below the land, to the extent of usable space, under the ad coelum doctrine.

Is this adverse possession?

Where one enters the land of another and stays there for a certain amount of time, as proscribed by relevant statutes, they receive an ownership in the land.

Who has the claim for trespass to land?

The possessor, whether or not the owner

When does the owner (if not the possessor) have a claim for trespass to land?

Only for reversionary damages (damage done to the property)

Is it trespass to chattels?

One who, without consensual or other privilege to do so, uses or otherwise intentionally intermeddles with a chattel that is in the possession of another is liable for trespass to such person if: (1) he dispossesses the other of the chattel; (2) the chattel is impaired as to its condition, quality, or value; (3) the possessor is deprived of the use of the chattel for a substantial time; or (4) bodily harm is thereby caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.

Is trespass to chattels a single- or dual-intent tort?

Single-intent

Did the actor dispossess the other of the chattel?

The actor must have taken the property away from the possessor.

Was the possessor deprived of the use of the chattel for a substantial time?

Such would be the case if someone were to steal a cellphone and change its passcode.

Does economic harm suffice for harm to the possessor or harm caused to some person or thing in which the possessor has a legally protected interest?

Yes, economic harm suffices.