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43 Cards in this Set
- Front
- Back
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What types of intentional torts will we be tested on?
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Assault, batter, intentional infliction of emotional distress, and trespass to land
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What are the elements of battery?
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1. Act
2. Intent 3. Harmful/Offensive 4. Contact/Causation |
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If a person acts intending to cause harmful or offensive contact with the person of another and harmful or offensive contact indirectly or directly results, what has occurred?
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A battery.
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Does assault include battery?
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Sometimes, but battery always includes assault.
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Does intent transfer for battery?
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Yes.
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For which intentional torts does intent transfer?
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Assault, battery, trespass to chattel, trespass to land
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Battery can be the knowing or intentional touching of one person by another in rude, insolent, or angry manner
What is an example of this? |
Fire alarm case
Wallace v. Rosen, Indiana (2002) |
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Are you more likely to be held liable for contact that is offensive or harmful?
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Harmful
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From where do we get the rule: In a “crowded world” certain amount of personal contact is inevitable and must be acceptable.
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Fire alarm case
Wallace v. Rosen, Indiana (2002) |
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Do you have to touch the actual person or just something connected to them?
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Just something connected to them.
Racial disc. case -- Fisher v. Carrousel Motor Hotel, TX S. Ct. (1967) |
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Are minors or incompetents generally held liable for intentional torts?
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Yes. Standards are not generally subectified for insane, incompetent or infant persons.
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What are the elements of assault?
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1. Offer
2. To touch 3. Causes apprehension or anticipation 4. Of Battery 5. Objectively apparent, present ability to effectuate (question for jury) |
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In assault, a person must be apprehensive of battery and ...
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the apprehension must be reasonable and well-founded coupled with apparent ability to effectuate
ex: Western Union Telegraph Co. v. Hill -- he was too short to reach across the counter, but she reasonably thought he could ex: someone lunges at you from behind glass, not reasonable, not able to actually effectuate |
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What are the elements of IIED?
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1. Intent
2. Act (extrem & outrageous) in unauthorized way no reasonable person could be expected endure 3. Causal connection 4. Severe emotional distress *physical manifestations can help demonstrate, but not necessary |
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Does intent transfer for IIED?
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No. However, third-parties who are present can sometimes recover.
The Restatement allows recover for third-parties who the D knows are there IF actual physical harm occurs or if the person is a family member |
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Is physical injury required for IIED?
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No. However, physical manifestations of IIED are helpful and ordinary hurt feelings, slight embarrassment, and wounded dignity are not enough.
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Is there generally recovery for negligent infliction of emotional distress if there is no physical injury too?
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No.
However, there are exceptions for transmission of messages (ex: telegraph company delivers notice of death to wrong person) or mishandling of corpses |
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If physical injury and emotional distress result from negligent infliction of emotional distress, is recover allowed?
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Generally yes.
However, if the physical harm is not immediate, no recovery is generally allowed. |
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Can third-parties recover for negligent infliction of emotional distress?
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Generally no.
"Zone of danger" exception. D responsible for the physical harm that occurs because of severe emotional distress (i.e. illness or shock, etc.) |
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What are the elements of trespass to land?
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1. Intent
2. Enter the land of another 3. Unauthorized 4. Damages -- presumed (against the will of the possessor) |
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Can emotional distress damages be sought for trespass?
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Yes if trespass was deliberate and accompanied by aggravating circumstances.
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How far does one's possession of land extend?
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Both above and below the land.
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What privileges exist for trespass?
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Consent, public and private necessity.
However, defendant will probably still be liable for the damage done. Ex: ruin dock to save your own ship, you have to pay for the dock |
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What privileges exist for intentional torts?
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Consent, self-defense, defense of others, defense of property, necessity, authority of law, justification, discipline
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How is consent determined?
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Through objective manifestations
O'Brien v. Cunard -- vaccination case, used what she said, what she did, the surroundings, etc. to determine consent |
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Explicit consent is needed in medical procedures except when:
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1. The patient is unable to given consent (unconscious, intoxicated, mentally ill, incompetent)
2. Risk of serious harm if treatment is delayed 3) Reasonable person would consent to treatment under the circumstances 4) Physician has not reason to believe patient would refuse under circumstances MUST obtain consent if at all possible |
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What if consent is obtained under fraud?
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Consent given under fraud is still consent if it deals with a collateral matter, not the essential character or matter or act itself.
DeMay v. Roberts -- woman assaulted by non-physician during childbirth |
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If person is incompetent or infants effective?
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Not usually.
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Would a person be liable if they exceed the scope of consent given?
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Yes.
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Can deadly force be used in self-defense?
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Yes, but only if it's reasonable. Deadly force is never allowed for defense of property only.
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Reasonable mistake can be made in which kind of defense?
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Defense of others.
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When defending your property, can you use a mean dog?
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Yes, but you have to put up signs.
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Is provocation enough to justify self-defense?
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No.
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Is a person required to retreat before they are allowed the self-defense privilege?
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Courts are split on this but none require that a person have to retreat in their own home.
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When is defense of others allowed?
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If the person would have had that privilege themselves and the intervention is necessary.
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What are some of the factors of public necessity?
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a) imminence
b) public interest c) apparent (not actual) necessity d) clearly shown that act was in good faith e) does not have to be a public official |
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Is public necessity generally a complete privilege?
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Yes.
City doesn't have to pay for blown up house to prevent fire from spreading. Surucco v. Geary -- blow up house case |
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Is private necessity generally a complete privilege?
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No. Private parties will generally be held responsible for the damage done.
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When is an arrest warrant a privilege?
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When the actor reasonably believes the person arrested to be one in the warrant or the person has knowingly cause the actor to believe that.
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Authority of law can be a defense when:
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The person is authorized by the law.
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Arrest without a warrant may occur when:
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1) Done to prevent a felony
2) An officer has reasonable grounds for thinking a felony has been committed and he has the right person. (Private person can do so if felony has been committed, but takes a risk if gets it wrong) 3) For past breach of peace committed in officer's presence if officer is in hot pursuit 4) If misdemeanor is committed in presence of officer Even if lawful police officer may be subject to liability if uses excessive force |
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Factors used in determining if discipline is an appropriate defense:
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Age, sex, and condition of child
Nature of offense and apparent motive Influence of child's conduct as example on other children in same family Whether force or confinement is reasonably necessary and appropriate to compel obedience Proportionality Teachers cannot use excessive force |
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Elements of justification:
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1. Reasonable under the circumstances
2. Act in a reasonble manner 3. Prevent interference with persons and property Burden of proof is on defendant Sindle v. NY Transit -- school bus/false imprisonment case |
