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57 Cards in this Set

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Overview of Torts
(1) Hypersensitivity of P is ignored in deciding if that P has satisfied the elements of an intentional tort (i.e. we assume in every case that we’re dealing w/ ordinary person.)

(2) There are no incapacity defenses in the world of intentional torts. So any answer about this is going to be wrong. Drunk, children, mentally ill, etc.
General requirements for prima facie case
-Act by D;
-Intent;
-Causation
Note on intent: In the world of bar exam, a person has intent if he...
-Wants to produce the forbidden consequences; OR
-He knows that those consequences are virtually certain to result.
INTENTIONAL TORTS TO THE PERSON
-Battery
-Assault
-False Imprisonment
-Intentional Infliction of Emotional Distress
Battery Elements
(in addition to intent):

-D has committed harmful or offensive contact...;

-...With the Plaintiff’s person.
1st Battery Element: Harmful or offensive contact...
-most q on offensiveness;
-we should just substitute the word “unpermitted” by person of ordinary sensitivity.
EXAMPLE: NOT if someone taps you on the shoulder as they ask you the time; but maybe if someone says he really likes you and strokes your hair as he says it.
2nd Battery Element: ...With the Plaintiff’s person.
-Includes anything that P is touching or holding—anything connected to P is part of P.
-So if someone grabs your purse, that counts as battery against you; or if you’re walking your dog and someone kicks your dog in the head, that counts as battery against you.
-Battery is like cooties—anything you’re touching is affected.
Assault Elements
(in addition to intent):

-D places P in apprehension....;

-...Of an immediate battery.
1st Assault Element: D places P in apprehension...
-“apprehension” here means “knowledge";
-doesn't matter if D is small and P is big
-Unloaded gun problem: if P knows gun is empty, then he loses any assault claim; if P doesn’t know one way or the other, he thinks gun is loaded.
2nd Assault Element: ...Of an immediate battery.
-Words lack immediacy; naked verbal threat not enough (no reason to assume people will do what they say)
-need conduct (e.g., display of weapon, shaking fist)
-Even if conduct, accompanying words can negate the immediacy
-time lag undermines immediacy (threaten 5 pm battery at 9am)
False Imprisonment Elements
(in addition to intent):

-Act of restraint by D; and

-Confinement of P in a bounded area.
1st False Imprisonment Element: Act of restraint by D
-Threats can be sufficient; limited to threats impacting normal (not crazy) person
-Omission can be act of restraint if pre-existing obligation or duty (e.g., home care)
-P must be aware of restraint or harmed by it.
2nd False Imprisonment Element: Confinement of P in a bounded area.
-P’s movement inhibited in 360 degrees
-being denied entry into a place doesn’t count.
-Area isn’t bounded if there is reasonable means of escape that P can reasonably discover; dangerous, disgusting or humiliating egress doesn't count
Intentional Infliction of Emotional Distress (IIED) Elements:
(in addition to intent OR recklessness; only intentional tort where recklessness is sufficient):
-Outrageous conduct; acting w/ goal of upsetting P
-resulting in Damage (i.e. severe emotional distress)
1st IIED Element: Outrageous conduct
-only intentional tort where recklessness is sufficient for intent
-NOT just messing w/ people’s minds
-“hallmarks” of outrageousness: continuousness of bad conduct; or
D is common carrier or inkeeper; or P is member of fragile class of persons
-If P is eggshell P and you knew about sensitivity, then that's outrageous
2nd IIED Element: Damage, i.e. severe emotional distress.
-need not take any particular form (not nec. to show psychiatrist care, days off from work, or physical manifestation.

-ON TEST: “P was mildly annoyed” won’t count.
NY Distinction: IIED
separate cause of action for mental distress produced by intentional mishandling of corpse
INTENTIONAL TORTS TO PROPERTY
-Trespass to land

-Trespass to chattels

-Conversion
Trespass to Land: Intent Requirement
-D got to the land in question on purpose (e.g. tripping on doesn't count)

-awareness of crossing boundary NOT required
Trespass to Land: Elements
(intent to enter required)

-Act of physical invasion; enter the land OR propel TANGIBLE objects onto land

-Land: includes air above and soil below out to reasonable distance (P owns three dimensional column of space)
Chattel: Definition
item of personal property
Trespass to Chattels: Def'n and Remedy
What it is: Deliberate damage or theft of some article of personal property with relatively SLIGHT harm.

Remedy: repair costs to fix the harm.
Conversion: Def'n and Remedy
(NOTE: tort distinguished by the degree of harm; conversion v. trespass)

What it is: Deliberate damage/theft of some article of personal property with SIGNIFICANT harm.

Special remedy: fair market value of the item, not repair/rental cost
DEFENSES TO INTENTIONAL TORTS
(1) Consent

(2) Self-Defense, Defense of Others, and Defense of Property

(3) Necessity (only defense to the three property torts)
1st Defense to Intential Tort: Consent - FACTORS
-applies to all intentional torts
-always ask if P had legal capacity to consent (e.g. drunk can't consent to battery)
-Mind the scope of consent: not all or nothing
1st Defense to Intential Tort: Consent - TYPES
Two kinds...
-Express (but can't be through fraud or duress), or
-Implied: based on custom or usage (e.g. shoving on on subway, athletic game but doesn’t matter if rules were broken, only if common injury in context); or through D's reasonable interp. of P‘s conduct (apparent consent)
2nd Defense to Intential Tort: Defense of Self, Others, Property - REQUIRES
-Timing was appropriate: threat was imminent or in progress

-D must have reasonable belief that threat's genuine; reasonable mistake okay
2nd Defense to Intential Tort: Defense of Self, Others, Property - APPROPRIATE USE
Force must be necessary under the circumstances and must be proportional.

-You can use deadly force if deadly force is threatened; BUT deadly force never appropriate for defense of property
-no deadly traps allowed.
-NY DISTINCTION on deadly force: Duty to retreat before using deadly force; doesn’t apply in your own home OR if you’re a cop.
3rd Defense to Intential Tort: Necessity (2 types)
Public necessity: D invades P’s property in an emergency in order to protect the community or significant group of people - abs. defense

Private necessity. When D invades P’s property in an emergency in order to preserve an interest of his own - QUALIFIED defense (D must pay for actual harm caused, BUT no nominal or punitive damages; D allowed to remain on P’s land so long as emergency continues; his technical trespass is tolerated a.k.a. “right of refuge")
HARMS TO ECONOMIC AND DIGNITARY INTERESTS
-Defamation (libel and slander; First Amendment Defamation)
-Privacy torts (Appropriation, Intrusion, False Light)
-Economic Torts (Fraud, Prima Facie Tort, Inducing a Breach of Contract, Theft of Trade Secrets)
Defamation: Elements
DEFAMATORY STATEMENT(oral or written) about P w/ I.D clear...must impact reputation (not name-calling; gen. allegation of negative ch. trait; statements can fall in between (e.g. opinion's impact might depend on public assumption of basis)

-WHICH IS PUBLISHED; even accidental; de minimus - satisfied if D makes the statement to one person other than P

NOTE: P must be alive; the more people who encounter the defamation, the more damages
Defamation: NY Distinctions
-opinion can be defamatory, but depends on tone, purpose, and context

-imputation of homosexuality counts as slander per se
Defamation: Damages for libel
Libel(in permanent medium; burned CD counts): don’t have to prove damages (get to jury on basic 2 elements)of expression.
Defamation: Damages for slander
Slander (spoken): may have to prove damages...

Slander per se: proof not required if stmt...
-re: biz or profession
-that P committed crime of moral turpitude.
-impugning woman's chastity
-that P suffers from a loathsome disease

Ordinary slander: P must prove damages, which is actual economic loss; Mental distress insufficient
Defamation: under First Amendment generally
-if matter is one of public concern, P’s only option is 1st amend. defamation claim.
-hard claim to win
Defamation: under First Amendment elements
-REGULAR DEFAMATION: published, defamatory comment, plus...
-FALSITY: P must affirmatively show comment was factually inaccurate
-FAULT: D must have been aware of falsity; requires "good faith" investigation to overcome negligence (private figure) or malice (public figure)
Defamation: Defenses
-Consent
-Truth: D's burden to prove that utterance is factually accurate; not good faith but objective truth
-Privilege (absolute or qualified)
Defamation: Defense of privilege
Absolute: based on identity of the speaker (Married persons communicating; Gov't Officers in official functions
Qualified: when we have socially useful occasion of speech and want to encourage candor. e.g. letters of recommendation, credit report agency.

NOTE: Privilege retained to extent that you speak in good faith; limited to relevant material.
PRIVACY TORTS
-Appropriation: uses P’s name or picture for comm. purpose
-Intrusion: invasion of P’s seclusion
-False Light: widespread dissemination of major misrepresentation
-Disclosure of Confidential Facts: widespread dissemination of confidential info

NY Dist.: ONLY apply appropriation, by statute
Appropriation: Def'n, Remedy, Limitation, NY?
Def'n: Use of P’s name or picture in advertising, trademark, or packaging Remedy: $ damages, and probably injunction
-Limitation: broad newsworthiness exception under 1st Amend.
-RECOGNIZED in NY
Intrusion: Def'n, Requirements, NY?
Def'n: invasion of P’s seclusion objectionable to average person (peeping)
Requires: position of legitimate seclusion; trespass not necessary
NOT recognized in NY
False Light Invasion of Privacy: Def'n, Remedies, liability, NY?
Def'n: widespread dissemination of major misrepresentation about P objectionable to ave. person (broader than defamation)
Remedy: you also get “dignitary damages,” emotional suffering damages.
Liability: D liable even if “good faith” belief in stmnt's accuracy
NOT recognized in NY (?)
Disclosure of Confidential Facts:
Def'n: widespread dissemination of conf. info objectionable to ave. person
(TRUTHFUL information)
-Exception: Newsworthiness; Dual life (public/private)
NOT recognized in NY
Privacy Torts: Defenses
-Consent (defense to all 4)
-Privileges that are exceptions in defamation (truth, privilege) available for false light and disclosure
ECONOMIC TORTS (4)
Fraud
Prima Facie Tort
Inducing Breach
Theft of trade secrets
Fraud: Elements
-affirm. misrepresentation by D (silence not enough)
-Fault (“scienter”) required: D must know falsity or be reckless
-D intends to induce reliance
-P relies on the statement (Opinions go either way)
-Suffer economic damages: item must be worth less than you paid
Prima Facie Tort
-NY only catchall category
-Elements: Intent to harm, resulting in harm (usually $)
-E.g.: Maliciously selling products below cost to drive a rival out of biz
Inducing a Breach of Contract
-valid K not terminable at will b/t P and 3d party
-D knows of K.
-D persuades 3d party not to perform (better deal, coercion, smack-talking P)
-Persuasion works; 3d party breaches

NOTE: P likely has claim against 3d party for K breach; sometimes priv. based on counseling relationship to 3d party (e.g., pastor)
Theft of Trade Secrets
-P has valid trade secret (info providing biz advantage; not generally known; and P takes reasonable efforts to keep secret)
-D takes by improper means (“Traitorous insider” or “Industrial spy”)

NOTE: Reverse engineering is never improper
Negligence: Elements
Duty
Breach
Causation
Damage
Negligence: To whom duty owed?
-Foreseeable victims of your carelessness
-NOT unforeseeable: think Palzgraf, "outside zone of danger"
-Issue of rescuers (?)
Negligence: To whom duty owed? NY distinction
Injures to babies in utero, three scenarios:

-Impact, due to pregger ma's carelessness: born w/ injuries then cause of action; stillborn then fetus has no claim but Mother has claim for her injuries
-doc fails to diagnose birth defects; recovery allowed for enhanced care costs, NOT emotional distress costs
-doc botches sterilization, then NO recovery
Negligence: How much duty owed?
-care of reasonably prudent person (RPP) under similar circumstances
-compare to this objective, high standard and DISREGARD D’s personal shortcomings
Negligence: How much duty owed? Exceptions to RPP
-D has superior knowledge, then standard is RPP w/ that knowledge

-D’s PHYSICAL characteristics are taken into account (e.g. RP blind P)
Negligence: How much duty owed? Children
-Kids < 4 incapable of neg.
-Kids twixt 4 & 18 owe standard of child of “similar age, experience, and intelligence, acting under similar circumstances" - flexible, difficult to win for P

Exception: If child is engaged in adult activity, e.g. driving, then RPP rule
Negligence: How much duty owed? Professionals
-Def'n: pros are those who render services to the public, have special training, likely licensed
-Standard is of an “average member of that profession practicing in a similar community”; smalltown doc to smalltown doc
-in situation of professional malpractice, custom of the profession sets standard
Negligence: How much duty owed? Informed consent requirement for medical professionals
ADDITIONAL duty to explain risks of a procedure prior to getting patient consent to go forward

Exceptions:
-If risk is commonly known
-If patient declines info
-If patient is incompetent
-If disclosure would be harmful to patient