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65 Cards in this Set

  • Front
  • Back
Prima Facie Case for an Intentional Tort
Three Elements: Act (volitional movement), Intent (specific, general/substantial certainty, transferred) & Causation (substantial factor)
Transferred Intent for an Intentional Tort
Intent to commit an intentional tort against one person but instead committed against another AND/OR intend to commit one of the following torts but instead commits another: Assault, Battery, False Imprisonment, Trespass to land or Trespass to Chattels
Capacity for an Intentional Tort
Everyone is capable of intent for an intentional tort, tehrefore incapacity is not a good defense. Children and mentally incompetent will be liable for their torts.
Elements of Battery
1) Harmful or offensive Contact (Reasonable person standard)
2) To the Plaintiff's person (or anything connected to P)

Note: Damages are not required - P can recover nominal or punitive damages.
Elements of Assault
1) An act by D that creates reasonable apprehension in P (not fear, just apparent ability to batter)
2) of immediate harmful or offensive contact to P's person

Damages not required - nominal or punitive ok.
Effect of Words on Assault
Words alone are not sufficient for assault. However, words can negate reasonable apprehension.
Elements of False Imprisonment
1) Act or ommission that confines or restrains
2) to a bounded area (no reasonable means of escape known to P)

P must be aware of confinement or be harmed by it.
Damages NOT required - can recover nominal or punitives.
Methods of Confinement for False Imprisonment
1) Physical barriers
2) Physical force
3) Threats of Physical Force
4) Failure to release
5) Invalid use of legal authority

Not enough to have moral pressure or future threats.
Intentional Infliction of Emotional Distress - Elements
1) Act that is extreme and outrageous 2) Intent or recklesness 3) Causation and 4) Damages - severe emotional distress (no physical injury)

This is the only intentional tort that requireds damages
For IIED - when conduct is extreme and outrageous
1) continuous in nature 2) directed to certain types of plaintiffs 3) committed by certain types of defendants (innkeepers/common carriers)
IIED in bystander cases
Bystander can recover through the prima facie case or by showing
1) presence
2) close relative
3) defendant knew 1 and 2.
Elements of Trespass to Land
1) physical invation of real property - can be by a person or object. If an intangible (light, etc.) bring COA for nuisance.
2) Intent to enter land/not intent to trespass
No requirement of demonstrating damages
Trespass to Chattels
Interferes with P's right of posession in a chattel.

Can be damaging the chattel or depriving P of posession of the chattel.
Conversion - Elements
Interferes with P's right of posesssion in a chattel. The interference is so serious it warrants requireing D to pay full value.

Damages can include FMV or replevin
List defenses to intentional torts
1) Consent (Express and Implied)
2) Self Defense
3) Defense of Others
4) Defense of property
5) Recapture of Chattels
6) Privilege of arrest
7) Necessity
8) Discipline
Lack of Express Consent (Intentional Tort)
1) π lacked capacity
2) Δ knew of π’s mistake + took advantage of it
3) Consent induced by fraud/duress unless duress = threats of future action/econ
Implied Consent (Intentional Tort)
1) Custom or usage
2) Δ’s rsnbl interpretation of π’s obj conduct
3) by law - to save someone's life
1) Reasonable belief of attack only use reasonable force to protect.
2) Δ - proper timing, i.e. no revenge
3) Duty to escape before DF unless actor in home
4) Rsnbl mistake of danger ok
5) Generally not available to the initial aggressor
Defense of others
1) Rsnbl belief threat was genuine
2) reasonable mistake
3) reasonable force
Defense of Property
1) Request desist/leave unless dangerous/futile before using force, hot pursuit
2) Reasonable mistake allowed UNLESS the entrant has a privilege (ex: necessity) that supersedes defense of property.
3) No deadly force or serious bodily harm unless the invasion also entails such a threat.
Recapture of Chattels
1) Timely demand to return item 1st required unless clearly futile or dangerous
2) Recapture tortfeasor/3P who K or SK prop was stolen
3) Entry onto Land – owner priv to enter land to reclaim them at rsnbl time in rsnbl manner after making 1st demand for return
4) Innocent Party = must give notice of the presence of the chattel + refusal tor eturn it + chattel owner liable for any actual damage caused by entry
5) If chattel on land b/c of owner’s fault = no priv to enter land
6) No defense allowed BUT shopkeepers = priv to detain ppl for rsnbl time that they rsnbly believe to be in possession of shoplifted stuff
7) Rsnbl force. No deadly force or serious bodily harm.
Privilege of Arrest
1) Invasion of land for purpose of effecting arrest
2) Actor still liable for subsequent misconduct
3) Mistake = Misd = breach of peace + Δ sees action - NEVER deadly force.
4) Mistake = Felony = citizens can make mistake regarding identity of felon but felony must be in fact.
5) Officers must reasonably believe feony has been committed and the person he arrests committed it.
1) Public = Δ invades π’s property in emergency to protect community/signif group as whole. No liability.
2) Private = Δ invades to protect own interest, liable only for actual dmgs, π cannot remove Δ until emergency ends

Only a defense to property torts.
Parent/teacher = rsnbl force
Elements of Defamation
1) Defamatory Language
2) Of or concerning the P
3) Publication
4) Damage to the P's reputation.

If it is a matter of public concern the Constituon requires
5) Falsity of the defamatory language
6) Fault on the part of the D.
Defamatory language
1) Adversely affecting π’s reputation, opinion actionable if rsnbly appears fact based
2) π can plead additional facts to est. innuendo
3) π must be alive
4) Not mere insults
Of or concerning π
1) π est. that rsnbl listener would understand statement referred to π
2) Colloquium = π pleads that rsnbl reader would understand statement referred to π
3) Groups = only small group qualifies. If some members of small group then only if resbl person would view statement as ref. to P.
Publication by Δ to 3P
1) Intent to publish negligently or recklessly
2) Each repetition is separate publication
3) Primary publishers liable to same extent as speaker, repeaters liable, someone selling tapes/papers liable if he Knows or Should know of defamatory content
Damage to π’s reputation
- Libel =no special damages, gen dmgs presumed (Paper/Radio/TV = libel)
- Slander (spoken) = special damages must be proven UNLESS
1) Business or profession
2) Loathsome disease
3) Crimes of morality
4) Chastity of a woman
Matter of public concern, π must also prove:
1) Falsity of the statement
2) Fault on part of Δ
2a) Public figure = knowing/reckless disregard. Damages under CL rules and possible punitives.
2b) Private Figure = negligence must be shown to recover actual injury. But if malice is shown, damages may be presumed and punitives are allowed.
Defenses to Defamation
1) Consent
2) Truth
3) Absolute Privilege
4) Qualified Privilege
5) Mitigation
Absolute Privilege Defense to Defamation
Based on status -

1) Remarks during judicial proceedings
2) By legislators during proceedings
3) Federal executive officials
4) Compelled broadcasts
5) Btw spouses
Qualified Privilege
Policy to encourage candor

1) Reports of official proceedings
2) References + recommendations
3) Statements made to police

Revoked if Δ shows (1) stmnt not w/in scope of priv or (2) speaker acted w/malice
Mitigation of Defamation
retraction, no malice, π provoked Δ - these can be considered by jury, but are not defenses
Invasion of Right to Privacy
1) Appropriation of Ps name/picture
2) Instrusion on P's affairs or seclusion
3) Publication of Facts placing P in false light
4) Public Disclosure of Private Facts
Elements of Right to Privacy Action
1) One of the four invasions
2) Causation - invasion must be caused by D's conduct
3) No proof of special damages
4) Defenses - consent and defmation privilege defenses. The following are not defenses: truth, inadvertence, good faith, lack of malice

* Personal Cause of Action - not assignable.
Δ uses π’s name or image for a commercial advantage, unless Δ can show a newsworthiness exception, D doesn't have to actually make money.
Invasion of π’s physical seclusion in a way that would be highly offensive to the average person
False Light
Widespread dissemination of a material falsehood about π that would be highly offensive to a rsnbl person
Pub Disclosure of Private Facts
widespread dissem of confidential info about π that is highly offensive to a rsnbl person
Intentional Misrepresentation (Fraud, Deceit) - Elements
1) Affirmative misrep of a material fact
2) Knew or believed it was false
3) Intent to induce P to act or refrain
4) Causation/Actual Reliance
5) Justifiable reliance
6) Damages
Negligent Misrepresentation
1) Misrep by a D in a business or professional capacity.
2) Breachof duty
3) Causation
4) Justifiable reliance
5) Damages
Interference with Business Relations
1) Valid K between P and 3rd P or valid business expectancy
2) D had knowledge of the relationship or expectancy
3) intentional interference
4) Damages

D is priviledged when it is a proper attempt to obtain business for itself. - look for no contract, no threats, mere persuasion, outside inquiry
Malicious Prosecution
1) instituion of crim proceedings
2) termination in P's favor
3) Absence of probable cause
4) improper purpose
5) Damages

Prosecutors are immune
Abuse of Process
1) wrongful use of process for ulterior purpose
2) act or threat in order to accomplish ulterior purpose
Vicarious Liability Scenarios
1) Respondeat Superior
2) Independent Contractor
3) Partners and Joint Ventures
4) Autombile Owner and Driver
5) Bailor/Bailee
6) Parent/ Child
7) Tavernkeepers

** keep in mind that even if someone isn't vicariousle liable, they may still be liable for their own negligence - negligent entrustment, supervision, etc.
Respondeat Superior
Rule: Principle liable for tortiuous acts agent commits within the scope of the employment rltnshp (including frolic)

Not liable for Intentional Torts unless (1) force authorized (2) friction generated by job type (3) Agent furthering P’s business

Negligent supervision is a separate theory. Not vicarious liability.
Indp Contractor
No VL unless (1) IC engaged in inherently dangerous act (2) pub policy duty ≠ delegable (3) IC hurts invitee
Partners/Joint Ventures
all members VL for tortuous conduct of another member committed in scope + course of affairs
Auto Owner/Driver
Owner not liable, unless Ag doing P1 favor

1) Family car doctrine = immediate/household members w/permission (express or implied)
2) Permissive use statutes create this liability
3) Neg Entrustment = owner liable for own neg, distinction if owner was in car @ time of harm + could prevent it - this is not VL.
Parent /Child
not VL, but some states have statutes imposing liability for willful/IT up to $ amount.

1) Child acting as agent
2) Parent negligent in allowing her child to do something - Not Vic. Liab.
At CL, No VL. Modern Law, Dramshop acts. Liable for torts when they over serve.
Bailor is not VL for conduct of his bailee. But, may be liable for her own negligence in entrusting the bailed object (this is not VL).
Not a separate tort, a type of harm. Can be intentional, negligent or strict liability. Two types of nusiance: private and public.
Private Nuisance
1) Substantial Interference - one that is offensive, inconvenient or annoying to the average person. No hypersensivity or specialized use of property.
2) Unreasonable interference - severity of the harm must outweigh the utility of d's conduct. Balancing test.
Public Nuisance
Unreasonably interferes with the health, safety, or property rights of the community (brothel, etc.)
Remedies for Nusance
Damages, Injunctive Relief, Abatement by Self help - but only when D has been notified and refuses to act. Only necessary force.
Nuisance Defenses
1) Zoning is persuasive but not an absolute defense 2) Others may also be liable for their portion of the damage (pollution) 3) Contributory negligence if suit is based in negligence 4) Coming to the nusance is generally not a defense unless the P came with the intent of bringing the lawsuit.
Defendants that act in concert
Are always jointly and severally liable for the entire injuiry, even if the injury is divisible.
Opportunities for indemnity
1) contractually 2) vicarious liability 3) strict product s liability 4) joint/several liability 5) degree of fault - negligent products liability
Survival of Tort Actions
Only for torts that result in personal injury. However personal intangible interests expire with the death of the P. (defamation, etc.)
Wrongful Death
Recovery is allowed only to the extent the deceased could have recovered. Contributory negligence can reduce wrongful death recovery. The beneficiary's contributory negligence can also reduce her recovery.
Tortious Interference with Family Relationships
1) Husband/Wife - consortium, and services caused by intentional or negligent torts against other spouse
2) Parent/Child -parent can bring action for loss of services

** Any defense that prevents recovery by the injured family member also prevents recovery for the family interference.
Tort Immunities
1) Intra Family - largely abolished. Those that retain immunitydo not apply it when there is intentional tortious conduct or an automobile accident for the purpose of insurance coverage.
2) Governmental Immunity
3) Charitable immunity - mostly eliminated
Governmental Tort Immunity
1) Federal Government - FTCA - waived immunity for tortious acts. Immunity will still attach for assault, battery, false imipsonment, false arrest, malicious prosectuion, abuse of process, libel and saltnder, mispresentaiton and deceit and interference with contract rights. Immunity still attaches for acts that are discretionary.

2) States - When immunity has been abolished "public duty" rule provides that a duty owed the the public at large is not owed to a particular citizen. Also, proprietary functions don't have immunity (functions that could have been provided privately)

3) Public OFficials- immunie from tort liability for discretionary acts done without malice or imporpoer purpose. Liability for ministerial acts.