Barbri - Torts

To establish a Prima Facie case For any Intentional Tort:

The plaintiff must prove:

- An act by the defendant (volitional movement)

- Intent by the defendant

- Causation of the result to the plaintiff from the defendant's act

Effects of Ps Hypersensitivity

Ignored/disregarded

(assume plaintiff is a reasonable person - recovery is only allowed when a reasonable person would be able to establish the claim)

intentional torts defense - incapacity

no incapacity defenses offered

intent for intentional torts

desire to produce the legally forbidden consequence (intent for the specific injury is not required)

transfered intent

When defendant has intent to commit a tort against one person, but instead:

1) Commits a different tort against that person;

2) Commits the same tort against a different person; OR

3) Commits a different tort against a different person

The intent can transfer to the result

transferred intent can only be invoked if:

both the tort intended and the tort resulting is one of the following:

1. assault

2. battery

3. false imprisonment

4. trespass to land

5. trespass to chattels

Causation for intentional torts

Result must have been legally caused by D's act or something set in motion by D. Satisfied if D's conduct is a substantial factor in bringing about the injury

Battery elements

D must cause:

1. harmful or offensive conduct,

2. with the P's person

(plus intent and causation ofc)

battery: offensive contact

a contact is offensive if it is unpermitted by a person of ordinary sensitivity

battery: subjective offensiveness

If something wouldn't be offensive to a reasonable person but P finds it offensive, D will only be liable if D knew P would find it offensive

Battery: P's person

includes anything that the P is touching or holding at the time of the battery.

Does not have to touch your skin to be a battery

battery and assault and false imprisonment: damages

P can recover nominal damages even if actual damages aren't proved. Malicious conduct will get punitive damages

Battery: timing of contact

it does not need to be instantaneous (indirect contact)

Assault elements

1. D places P in reasonable apprehension,

2. of an immediate battery

- harmful/offensive contact

- to P's person

assault: reasonable apprehension

must have knowledge or awareness of the imminent threat, and the apprehension must be reasonable

(fear not required)

assault: apparent ability

so long as D had the apparent ability to commit the battery, there will be reasonable apprehension

assault: effect of words

words alone are not enough to cause apprehension - conduct must occur as well

however, words CAN negate criminal apprehension

assault: requirement of immediacy

apprehension has to be of an immediate battery

threat of future harm is not immediate

false imprisonment elements

1. D commits an act or omission that confines or restrains and

2. P is confined in a bounded area

false imprisonment: methods of restraint

1. physical barriers

2. physical force directed against P, immediate family, or personal property

3. direct threats of force

4. indirect/implied threats of force

5. failure to release P when under a legal duty to do so

6. invalid use of legal authority

false imprisonment: insufficient acts of restraint

1. moral pressure

2. future threats

false imprisonment: awareness

P must be aware of confinement or harmed if not aware

false imprisonment: bounded area

- does not need a precise layout or definition (can be a general proximate area)

- must be no reasonable means of escape that P knows of, or could reasonably discover

false imprisonment: way out of bounded area cannot be:

1. dangerous

2. disgusting

3. humiliating

4. hidden

Intentional infliction of emotional distress (IIED) elements

1. D engaged in extreme and outrageous conduct and as a result

2. P suffered severe emotional distress

IIED: extreme and outrageous conduct

exceeds all bounds of decency

- mere insults are not considered outrageous

IIED: conduct exceeds all bounds of decency when:

1. continuous/repetitive in nature

2. defendant is a common carrier (transportation company) or innkeeper (hotel), OR

3. plaintiff is member of fragile class (young, elderly, pregnant, supersensitive people if D knows)

4. etc.... (not exhaustive list)

IIED: requisite intent

recklessness as to the effect of the conduct on P satisfies the requisite intent

IIED: damages

actual damages from severe emotional distress are required for IIED (the only intentional tort to require)

physical injury is not generally required

IIED for Ps that are bystanders

P may recover by showing either the prima facie case elements of emotional distress

or that

(1) they were present when the injury occurred;

(2) the distress resulted in bodily harm or the plaintiff is a close relative of the third person; and

(3) the defendant knew these facts.

trespass to land elements

1. Physical invasion

2. of the P's real property

trespass to land: physical invasion

1. by person

2. by object

must be a tangible invasion

trespass to land: whose claim is it?

trespass claim belongs to the person with the right to possess the property, so not necessarily the owner (can be a tenant, etc)

trespass to land: awareness of boundary

not required, a deliberate act is required

tresspass to land: intent

Defendant need not know that the land belonged to another, only must intend to enter onto that particular piece of land

trespass to land: P's land

includes the airspace, and soil below the land for a reasonable distance

trespass to land: damages

no injury needs to be shown to get damages

Trespass to chattels

intentional interference with P's personal property that warrants D pay damages

use for small harms

Conversion

intentional interference with P's personal property so serious that warrants D pay property's full value

use for big harms

Personal Property

All your stuff other than land and buildings

Trespass to chattels: types of interference

1. intermeddling

- directly damaging

2. dispossession

- depriving P of their lawful right of possession

Trespass to chattels: intent required

- Intent to trespass is not required, only intent to do the act of interference

- Defendant's mistaken belief that they own the chattel is no defense

Trespass to chattels: damages

actual damages to as least possessory right is required

what acts of conversion exist?

wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel.

conversion: intent needed

intent to do the act that interferes with the plaintiff's right of possession.

where's the line between trespass to chattels and conversion?

The longer the withholding period and the more extensive the use, the more likely it is to be conversion

Conversion: remedies

The plaintiff may recover damages (fair market value at the time of conversion) or possession (replevin).

affirmative defense to intentional torts: consent

- defense to all intentional torts

- must have legal capacity

- cannot consent to criminal conduct

1. was there valid consent?

2. did the D stay within the boundaries of the consent?

affirmative defense to intentional torts: express consent

spoken/written words giving permission

affirmative defense to intentional torts: express consent exceptions

1. mistake, if D knew of the mistake and took advantage

2. induced by fraud of an essential matter

3. duress, unless of future event

affirmative defense to intentional torts: implied consent

1. custom and usage

2. P's conduct is ordinary incidental contact (body language consent)

3. implied by law when action:

- necessary to save life or

- save some other important interest in person/property

affirmative defense to intentional torts: consent - scope of consent

exceeding scope will put D back into the realm of liability

affirmative defense to intentional torts: protective privileges

1. self-defense

2. defense of others

3. defense of property

must be:

- a response to a perceived threat

- with proper timing and

- reasonable accuracy

affirmative defense to intentional torts: shopkeeper's privilege

A shopkeeper has a privilege to detain a suspected shoplifter for investigation if the following conditions are satisfied:

1. reasonable belief of the theft

2. detention conducted in a reasonable manner with use of nondeadly force

3. reasonable period of time only for the purpose of making an investigation

affirmative defense to intentional torts: scope of force for protective privileges

- reasonable force of proportionality

- no duty to retreat in majority

- no use of deadly force to protect property (a request to leave must be made first; can use deadly force if threat of bodily harm, but NO traps)

affirmative defense to intentional torts: self defense for the initial aggressor

Self-defense is not available to the initial aggressor unless the other party responds to the aggressor's nondeadly force by using deadly force.

affirmative defense to intentional torts: mistake

A reasonable mistake as to the existence of the danger is allowed for self defense and defense of others

A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is not allowed as to whether the entrant has a privilege (for example, necessity) that supersedes the defense of property right, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged

necessity defenses to property torts

defenses to trespass to land, trespass to chattels, and conversion

necessity defenses to property torts: public necessity

D acts in emergency to protect the community as a whole from an imminent public disaster

- absolute defense

necessity defenses to property torts: private necessity

D acts to prevent serious harm to own interests / a limited number of people

1. D must pay for any injury they cause - compensatory damages

2. not liable for nominal/punitive damages

3. can remain as long as emergency continues

Negligence elements

1. Duty

2. Breach

3. actual + proximate cause

4. damages

Negligence: duty

legally imposed obligation to take risk reducing precautions for the benefit of others

ask:

1. to whom do you owe a duty

2. what is the applicable standard of care

Negligence: to whom do you owe a duty?

duty of care owed to foreseeable Ps

- class of persons who were foreseeably endangered by the D's negligent conduct

- "zone of danger"

Negligence duty of care: rescuers

a rescuer is a foreseeable P when D negligently put themselves or another in peril

Firefighter's Rule

Firefighters and police officers are barred from recovering for injuries caused by the inherent risks of their job.

Negligence duty of care: what is the standard?

the same amount of care that a reasonably prudent person acting under similar circumstances would

- objective standard

- mental deficiencies and inexperience are not considered

negligence: reasonably prudent person standard

1 . hypothetical person

2. no allowance for D's shortcomings

3. objective standard

negligence: reasonably prudent person standard - exception for superior skill/knowledge

defendant who has knowledge or experience superior to that of an average person is required to exercise that experience

negligence: reasonably prudent person standard - exception for physical characteristics where relevant

where relevant, include D's physical characteristics

Negligence standard of care: children

1. under age of 5: no standard

2. 5-18: hypothetical child of similar age, experience, and intelligence acting under similar circumstances

- subjective standard

- pro-D standard

Negligence standard of care: child exception

when a child is engaged in an adult activity the standard becomes that of a reasonably prudent person

- most common: operating motorized vehicle

Negligence standard of care: professionals

same care and skill as an average member of the same profession providing similar professional services

doctors have a national standard

Negligence standard of care: doctor duty to disclose treatment

doctors have a duty to disclose the risks of a treatment so that a patient can give informed consent

breach if an undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld consent

Negligence standard of care: possessors of land

- premises liability

- possessor not always owner

- establishes rules for duty to protect conditions

-- activities conducted on land use ordinary reasonable person standard of care

Negligence standard of care: duty to undiscovered trespassers

no duty

Negligence standard of care: duty to discovered or anticipated trespassers

possessor must warn or make safe conditions that are:

1. artificial (not naturally occurring),

2. highly dangerous,

3. concealed, AND

4. known to the possessor in advance

- known, man-made death traps on the land

Negligence standard of care: duty to licensees

possessor has a duty to warn/make safe dangerous conditions that are:

1. concealed, and

2. known to the land possessor in advance

- all known traps

licensee

enters land with express or implied permission without financial benefit to possessor

- social guests

- business maybe?

- firefighters and police

invitee

enters the land with permission for financial benefit of possessor

- includes when open to public at large

- invitee status revoked when invitee exceeds the scope of the invitation

Negligence standard of care: duty to a invitee

possessor owes a duty to invitees for dangerous conditions that are:

1. concealed from invitee, and

2. know to possessor OR could have been discovered through a reasonable inspection

- all reasonably knowable traps on the land

Negligence standard of care: land possessors duty to all land entrants (short version)

unknown trespasser: no duty

known trespasser: known, man-made death traps

licensee: all known traps

invitee: all reasonably known

how to satisfy premises liability duty

eliminate the condition:

1. repair

2. replace

3. remove

Warn about the condition

1. verbal warning

2. a warning sign

premises liability: firefighters and police

no duty owed for risks inherent to the job

firefighters rule

Trespassing Children: Attractive nuisance doctrine

A landowner has a special duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on the property.

the child does not have to be attracted onto the land by the dangerous condition, nor is the attraction alone enough for liability.

Example of an attractive nuisance = playground

Attractive Nuisance Elements

1. dangerous artificial condition on the land that owner is or should be aware of,

2. that the owner knows or should know that children might trespass, and

3. the condition is likely to cause injury

4. and the expense of remedying the situation is slight compared to the magnitude of the risk

statutory standards of care

negligence per se

specific duty imposed by statutes providing for criminal penalties, including regulatory offenses and ordinances

duty if:

1. P within the protected class

2. statute was designed to prevent the type of harm suffered

exceptions for violating negligence per se

1. where compliance would cause more danger than violation, or

2. where compliance would be beyond the D's control (impossible)

establishing negligence per se requires:

1. legal: statute is legally appropriate

2. factual: defendant violated statutory command

criminal statute may replace duty of care if:

1. P is a protected class

2. harm suffered is within risks statute is trying to prevent

Class of person/class of risk

affirmative duties to act

generally no duty to act affirmatively or rescue

if you choose to act, must do so as a reasonably prudent person under the circumstances

duty to act exceptions: relationship between the parties

1. family member/family member

2. innkeeper/guest

3. common carrier/passenger

4. employer/employee

5. business owner/customer

not a duty to rescue, only act reasonably under the circumstances

duty to act exceptions: D caused the peril

D has a duty to assist someone they have negligently or innocently placed in peril

not a duty to rescue, only act reasonably under the circumstances

assumption of duty by acting

assumes the duty to act once acting

good samaritan statutes: exempts docs and nurses, and others from liability for ordinary negligence, but not gross negligence

(Assume there is no good samaritan law on exam)

duty to prevent harm from third persons

affirmative duty may be imposed if one has actual ability and authority to control a person's actions and knows or should know that the person is likely to commit acts that would require exercise of this control

other particular standards of conduct: innkeepers and common carriers

liable for slight negligence to passengers or guests

other particular standards of conduct: automobile driver to guest

duty of ordinary care

guest statute states: liable to nonpaying passengers for reckless tortious conduct

bailee

a person or entity that temporarily holds someone else's property

bailor

The owner of the property who hands it over temporarily

other particular standards of conduct: bailee duties

1. sole benefit of the bailor: low standard of care

2. sole benefit of the bailee: high standard of care

3. mutual benefit: ordinary care

other particular standards of conduct: bailor duties

1. sole benefit of bailee: bailor must inform bailee of known, dangerous defects

2. bailment for hire: bailor must inform bailee of chattel defects of which they are or should be aware