Torts Flashcards

What are the Intentional Torts? (ie., Battery, IIED, . . . )

The intentional torts are: Battery, Assault, Intentional Infliction of Emotional Distress, False Imprisonment, Trespass to Land, Trespass to Chattels, and Conversions of Chattels.

Every Intentional Tort includes what two elements?

An voluntary act & intent

What is intent?

The person acts with the purpose of producing that consequence; or
The person acts knowing that the consequence is substantially certain to result

What is a voluntary act?

Means one must act willfully or consciously

Is it a voluntary act when one does something just as they are waking up?

No because they’re betwixed

What are the elements for harmful battery?

Harmful : he acts intending to cause a harmful or offensive contact with the person of the other or a third person, and a harmful contact with the person of the other directly or indirectly results.

What are the elements for Offensive Battery?

Offensive: He acts intending to cause a harmful or offensive contact with the person of the other or a third person, and an offensive contact with the person of the other directly or indirectly results

What are the elements of Assault?

Someone is liable for an assault if he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact; and the other is thereby put in such imminent apprehension.

Can mere words give rise to an assault?

Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person.

What are the elements for Intentional Infliction of Emotional Distress?

The intentional tort of intentional infliction of  emotional distress (IIED) consists of intentionally or recklessly causing severe emotional distress to another person.  As with all intentional torts, there must be a voluntary act that gives rise to the emotional distress.

What conduct counts as outrageous or extreme?

The conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” and the distress from the plaintiff be “so severe that no reasonable man could be expected to endure it.”

What is recklessness?

Being substantially certain that your actions will cause the plaintiff/complaintant distress, and yet you do it anyway.

What are the elements for False Imprisonment?

he acts intending to confine the other or a third person within boundaries fixed by the actor, and (b) his act directly or indirectly results in such a confinement of the other, and (c) the other is conscious of the confinement or is harmed by it.

False imprisonment requires restraint against one’s own will and that such restraint be unlawful

What constitutes confinement?

To make the actor liable for false imprisonment, the other’s confinement within the boundaries fixed by the actor must be complete. The confinement is complete although there is a reasonable means of escape, unless the other knows of it.

Confinement need not be the result of physical force on the part of the defendant. Confinement can result from physical barriers, physical force, threat of physical force, duress, or the false assertion of legal authority.

Bonus : The actor, HOWEVER does not become liable for false imprisonment by intentionally preventing another from going in a particular direction in which he has a right or privilege to go. This includes being prevented from entering an area.

What are the elements for Trespass to Land?

if he intentionally enters land in the possession of the other, or intentionally causes a thing or a third person to do so; or (b) remains on the land; or ( c) fails to remove from the land a thing which he is under a duty to remove.

What are the elements of Trespass to Chattel?

trespass to a chattel may be committed by intentionally dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another."

(Remember, intent is more like the intent to physically doing something with the chattel that’s not yours. Even if it’s a reasonable mistake.)

What are the elements of conversions of chattel?

Conversion requires significant interference with one’s property such that the damages are typically the chattel’s full value.

What constitutes significant interference? What are the factors?

In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:

1. the extent and duration of the actor's exercise of dominion or control;

2. the actor's intent to assert a right in fact inconsistent with the other's right of control;

3. the actor's good faith;

4. the extent and duration of the resulting interference with the other's right of control;

5. the harm done to the chattel;

6. the inconvenience and expense caused to the other.

What is consent?

Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor.

Do words or conduct count as consent?

If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.

What is self defense?

“If an actor is privileged to use reasonable force, not intended or likely to cause death or seriously bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.”

What are the elements needed to prove a defense of self defense?

1. A person CAN act to prevent bodily harm or confinement, but there are LIMITS to how far this privilege will extend. For a defendant to be successful in asserting the affirmative defense of self-defense, they must have:

   1. Acted with a reasonable belief that harm was imminent;

   2. Used reasonable force -- that is, the amount necessary to protect herself under the circumstances; and

   3. Only used deadly force if she was confronted with deadly force.

Do you have a duty to retreat if somone attacks you?

You have no duty to retreat. You can stand your ground and match the force of the other. If they’re attacking you, you dont have to retreat. The only exception is if the only way to stop them is to kill or maim them; then you MUST retreat if you can reasonably do so safely.

Exception: If you’re in your own home, even if the only way to stop them is with deadly force or retreat. I don’t have a duty to retreat in my own home

What is defense of others?

A person may also justify tortious conduct if it was intended to protect another person from harm at the hands of the plaintiff

Under these circumstances, the defendant must be acting as a good samaritan-- so that they inherit the privilege the original victim could have asserted had she been able to protect herself.

Reasonable mistake is not allowed for defense of others, except when…

the circumstances are such as to give the third person a privilege of self-defense, and his intervention is necessary for the protection of the third person.

What are the elements to prove Defense of Property?

In order to successfully assert the affirmative defense of defense of property, a defendant would have the burden of proving that she used reasonable force (NEVER deadly force) AND (b) she asked the plaintiff to cease and desist, if such a request was practicable

A person, in protecting their property, may not use force calculated to cause death of serious bodily injury, except . . . (Hint: Gun and Farmhouse case)

if there is also a threat to personal safety that justifies self-defense

(See, Katko v. Briney)

Is Reasonable mistake allowed in Defense of Property claim?

No, the defendant CANNOT make a mistake as to the existence of the privilege

What are the elements to prove Recapture of Chattels?

1. In order to successfully assert the affirmative defense of recapture of chattels, a defendant would have the burden of proving that:

   1.  She took prompt action to recover the chattel

   2. She used reasonable, NON-DEADLY force; and

   3. She demanded that the property be returned before using force.

What is the Merchant exception for Recapture of Chattels?

That a merchant has the privilege to detain a person within the immediate vicinity of his premises for reasonable investigation if he believes the person has unlawfully taken chattel

What is a necessity defense?

The affirmative defense of necessity can give a person the right to trespass onto another person’s property, or to commit conversion, in situations where a person faces serious boldly harm or loss of substantial property due to a threat not caused by the plaintiff.

What are the two types of necessity (short answer)

Public and Private Necessity

What are the definition and rules for Public Necessity? (including about damages)

Public necessity requires that the defendant acted in the best interests of the community. Like if the town burned your house down to stop a natural disaster to save people. If it were the towns people that burned it there would be no liability for damages as long as its reasonable. If it were the government, it would HAVE to be a natural disaster for there to be no liability for government agents. If it is not a natural disaster then government will be held liable under “taking” and have to compensate.

What are the definition and rules for Public Necessity? (including about damages)

Private necessity can be asserted if the defendant reasonably acts to protect her own interests or the interests of a small group. In these cases, the defendant is still held liable for the damages.

What is transferred intent, and how does it work?

An actor may intend to commit an intentional tort against one person. However, through mistake or happenstance, the actor may wind up committing a different intentional tort against the same person, the same intentional tort against a different person, or a different intentional tort against a different person.

T/F: one may use indirect deadly force such as a trap, spring gun, or vicious dog against a mere trespasser

False! One may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force could not lawfully be directly used, e.g., against a mere trespasser