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57 Cards in this Set
- Front
- Back
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Overview of Torts
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(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. |
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General requirements for prima facie case
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-Act by D;
-Intent; -Causation |
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Note on intent: In the world of bar exam, a person has intent if he...
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-Wants to produce the forbidden consequences; OR
-He knows that those consequences are virtually certain to result. |
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INTENTIONAL TORTS TO THE PERSON
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-Battery
-Assault -False Imprisonment -Intentional Infliction of Emotional Distress |
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Battery Elements
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(in addition to intent):
-D has committed harmful or offensive contact...; -...With the Plaintiff’s person. |
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1st Battery Element: Harmful or offensive contact...
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-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. |
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2nd Battery Element: ...With the Plaintiff’s person.
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-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. |
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Assault Elements
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(in addition to intent):
-D places P in apprehension....; -...Of an immediate battery. |
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1st Assault Element: D places P in apprehension...
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-“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. |
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2nd Assault Element: ...Of an immediate battery.
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-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) |
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False Imprisonment Elements
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(in addition to intent):
-Act of restraint by D; and -Confinement of P in a bounded area. |
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1st False Imprisonment Element: Act of restraint by D
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-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. |
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2nd False Imprisonment Element: Confinement of P in a bounded area.
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-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 |
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Intentional Infliction of Emotional Distress (IIED) Elements:
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(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) |
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1st IIED Element: Outrageous conduct
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-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 |
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2nd IIED Element: Damage, i.e. severe emotional distress.
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-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. |
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NY Distinction: IIED
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separate cause of action for mental distress produced by intentional mishandling of corpse
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INTENTIONAL TORTS TO PROPERTY
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-Trespass to land
-Trespass to chattels -Conversion |
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Trespass to Land: Intent Requirement
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-D got to the land in question on purpose (e.g. tripping on doesn't count)
-awareness of crossing boundary NOT required |
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Trespass to Land: Elements
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(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) |
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Chattel: Definition
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item of personal property
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Trespass to Chattels: Def'n and Remedy
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What it is: Deliberate damage or theft of some article of personal property with relatively SLIGHT harm.
Remedy: repair costs to fix the harm. |
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Conversion: Def'n and Remedy
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(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 |
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DEFENSES TO INTENTIONAL TORTS
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(1) Consent
(2) Self-Defense, Defense of Others, and Defense of Property (3) Necessity (only defense to the three property torts) |
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1st Defense to Intential Tort: Consent - FACTORS
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-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 |
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1st Defense to Intential Tort: Consent - TYPES
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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) |
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2nd Defense to Intential Tort: Defense of Self, Others, Property - REQUIRES
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-Timing was appropriate: threat was imminent or in progress
-D must have reasonable belief that threat's genuine; reasonable mistake okay |
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2nd Defense to Intential Tort: Defense of Self, Others, Property - APPROPRIATE USE
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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. |
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3rd Defense to Intential Tort: Necessity (2 types)
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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") |
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HARMS TO ECONOMIC AND DIGNITARY INTERESTS
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-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) |
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Defamation: Elements
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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 |
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Defamation: NY Distinctions
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-opinion can be defamatory, but depends on tone, purpose, and context
-imputation of homosexuality counts as slander per se |
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Defamation: Damages for libel
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Libel(in permanent medium; burned CD counts): don’t have to prove damages (get to jury on basic 2 elements)of expression.
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Defamation: Damages for slander
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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 |
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Defamation: under First Amendment generally
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-if matter is one of public concern, P’s only option is 1st amend. defamation claim.
-hard claim to win |
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Defamation: under First Amendment elements
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-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) |
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Defamation: Defenses
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-Consent
-Truth: D's burden to prove that utterance is factually accurate; not good faith but objective truth -Privilege (absolute or qualified) |
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Defamation: Defense of privilege
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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. |
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PRIVACY TORTS
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-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 |
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Appropriation: Def'n, Remedy, Limitation, NY?
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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 |
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Intrusion: Def'n, Requirements, NY?
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Def'n: invasion of P’s seclusion objectionable to average person (peeping)
Requires: position of legitimate seclusion; trespass not necessary NOT recognized in NY |
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False Light Invasion of Privacy: Def'n, Remedies, liability, NY?
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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 (?) |
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Disclosure of Confidential Facts:
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Def'n: widespread dissemination of conf. info objectionable to ave. person
(TRUTHFUL information) -Exception: Newsworthiness; Dual life (public/private) NOT recognized in NY |
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Privacy Torts: Defenses
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-Consent (defense to all 4)
-Privileges that are exceptions in defamation (truth, privilege) available for false light and disclosure |
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ECONOMIC TORTS (4)
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Fraud
Prima Facie Tort Inducing Breach Theft of trade secrets |
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Fraud: Elements
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-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 |
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Prima Facie Tort
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-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 |
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Inducing a Breach of Contract
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-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) |
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Theft of Trade Secrets
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-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 |
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Negligence: Elements
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Duty
Breach Causation Damage |
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Negligence: To whom duty owed?
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-Foreseeable victims of your carelessness
-NOT unforeseeable: think Palzgraf, "outside zone of danger" -Issue of rescuers (?) |
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Negligence: To whom duty owed? NY distinction
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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 |
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Negligence: How much duty owed?
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-care of reasonably prudent person (RPP) under similar circumstances
-compare to this objective, high standard and DISREGARD D’s personal shortcomings |
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Negligence: How much duty owed? Exceptions to RPP
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-D has superior knowledge, then standard is RPP w/ that knowledge
-D’s PHYSICAL characteristics are taken into account (e.g. RP blind P) |
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Negligence: How much duty owed? Children
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-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 |
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Negligence: How much duty owed? Professionals
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-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 |
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Negligence: How much duty owed? Informed consent requirement for medical professionals
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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 |
