Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
86 Cards in this Set
- Front
- Back
|
What is a battery?
|
An intentional infliction of a harmful or offensive contact.
|
|
|
What is assault?
|
A volitional act that causes apprehension of an imminent harmful or offensive contact.
|
|
|
What does Conversion provide a remedy for?
|
A deprivation so serious that the tortfeasor is liable for the full value of the property.
|
|
|
When will an actor likely be held liable for Conversion?
|
If the property is stolen, or used for a substantial period of time.
|
|
|
Which intentional torts does the doctrine of transferred intent apply to?
|
Assault, battery, false imprisonment, trespass to land, trespass to chattel. One of these must be originally intended and one of these has to be the result in order for transferred intent to apply.
|
|
|
What is the standard of proof in a torts claim?
|
Preponderance of evidence, or certainty over 50% that the action occurred.
|
|
|
Can you sue for trespass to chattel and conversion simultaneously?
|
Yes, but the court will make it clear that only one or the other can be granted even if both are involved in the situation.
|
|
|
What is a possible issue of conversion?
|
It can result in a forced sale.
|
|
|
What can you do if you sue for conversion but don't want a forced sale?
|
Seek the remedy for replevin.
|
|
|
What is replevin?
|
When one sues for conversion and doesn't want it to result in a forced sale they can seek the remedy replevin and a third party takes the item into possession until the two disputing parties can prove who the rightful owner of the piece of property is.
|
|
|
Restatement §222a definition of Conversion?
|
An intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.
|
|
|
What are some factors to consider in determining whether conversion is the proper remedy?
|
Extent/duration of actor's exercise of dominion/control, actor's good faith, extent/duration of resulting interference with the others right of control, harm done to chattel, inconvenience/expense caused to other, actor's intent to assert a right inconsistent with the others right of control
|
|
|
If conversion is found, what is the actor liable for?
|
The full value of the chattel at the time of conversion.
|
|
|
What does trespass to chattels provide a remedy for?
|
Damage to personal property, or temporary interference with it's use, even though the possessor is not permanently deprived of it.
|
|
|
What are the elements for which an actor COMMITS a trespass to chattels? (§217)
|
1. §8a Intent
2. Dispossessing another of the chattel, or 3. Using or intermeddling with a chattel in the possession of another. |
|
|
What is Restatement (Second) §8a intent?
|
That the act is done purposefully or while knowing with substantial certainty that the wrongful consequence would result.
|
|
|
What are the elements for which an actor is LIABLE for a trespass to chattels? (§218)
|
1. He dispossess the other of the chattel, or
2. The chattel is impaired as to its condition, quality, or value, or 3. The possessor is deprived of the use of the chattel for a substantial time, or 4. Bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. |
|
|
Under trespass to chattels, who is the "possessor"?
|
The "immediate" possessor, so borrowed items count for damages awarded to the borrower.
|
|
|
If trespass to chattels is found, what damages are available?
|
The diminished value of the chattel or damages for the deprivation of its use.
|
|
|
What is trespass to land?
|
An interest in exclusive possession. Recovery is available for interference with the interest that is being protected unlike in other personal property intentional torts.
|
|
|
What are the elements of Trespass to Land?
|
1. §8A intent
2. Enters land in possession of another, or causes a third person or object to do so, or 3. Remains on the land, or 4. Fails to remove from the land a thing that he is under a duty to remove. |
|
|
What is a common defense for trespass to land?
|
Consent.
|
|
|
Consent as it affects a claim for Trespass to Land?
|
Consent to a person's entry defeats their claim for trespass even though the elements are met, however consent to one entry/on one occasion/for one purpose does not extend beyond that. Thus a person may be liable even though they had permission if they acted outside the scope of that permission.
|
|
|
Damage as it affects a claim for Trespass to Land?
|
Damage to property is NOT an element. Restatement (Second) §158: The unauthorized entrant is liable irrespective of whether he causes harm to any legally protected interest of the other.
|
|
|
Nominal damages in the case of trespass to land, trespass to chattels, conversion?
|
You can get nominal damages in trespass to land where you most likely will not get them in trespass to chattels and conversion.
|
|
|
What are the elements of Intentional Infliction of Emotional Distress?
|
1. Outrageous conduct
2.§8a intent (or recklessly if Restatement - not Oregon) 3. Harm |
|
|
IIED: What constitutes "outrageous conduct?"
|
Social norms define it. It is an extraordinary transgression of the bounds of socially tolerable conduct.
|
|
|
What is an important factor in IIED outrageous conduct?
|
Power dynamic. For example: in employee/employer relationships or the same sort of thing, the standard might be lowered for what constitutes "outrageous" conduct.
|
|
|
IIED: Intent element?
|
§8A intent, OR acting "recklessly" according to the Restatement. Oregon requires §8a intent. Reckless = "very grave risk" and it is less of a proof of conduct.
|
|
|
IIED: Harm?
|
Must be severe emotional distress.
|
|
|
What is a common claim in creditor-debtor situations?
|
IIED: Intentional Infliction of Emotional Distress
|
|
|
Can you recover for IIED in addition to other intentional torts?
|
Usually if you get claim for another tort IIED that resulted from that will be included. But in some cases it is possible they will be separate. E.g. what if IIED occurred after? False imprisonment less likely. When it is not covered under pain and suffering damages.
|
|
|
What is recklessness?
|
A very grave risk, a deliberate disregard of a high degree of probability.
|
|
|
Does Oregon allow recovery for IIED in employer situations?
|
Yes, but it goes back and forth.
|
|
|
IIED: What constitutes severe emotional distress?
|
So severe that no reasonable person could be expected to endure.
|
|
|
What is bystander IIED?
|
If a person suffers emotional distress after witnessing it on someone else they can recover damages. E.g. loss of consortium. Can only recover if original harmed party's claim is granted also.
|
|
|
What are the elements of False Imprisonment?
|
1. Intent
2. Confinement 3. Harm |
|
|
False Imprisonment: Intent?
|
§8a. Act intending to confine another within boundaries fixed by act.
|
|
|
False Imprisonment: Confinement definition?
|
Restraint by means of...
- Physical barriers - Threat of physical force - Confiscation of significant items of personal property - Assertion of false authority |
|
|
False Imprisonment: When is there no confinement?
|
When a reasonable means of leaving/getting out remains and it is known by the victim.
|
|
|
False Imprisonment: Harm?
|
Harm occurs when victim is conscious of the confinement or harmed by it.
|
|
|
False Imprisonment: Does the length of time for which one is confined matter?
|
Not for satisfying the element of confinement, no. Damages will be less if shorter amount of time probably.
|
|
|
False Imprisonment: When does retention of a person's property suffice to satisfy the element of confinement?
|
When there is an intent to hold a legally protected interest or property right from the victim. E.g. reputation, car
|
|
|
False Imprisonment: Does your job satisfy the element of confinement if one is holding that from you?
|
No. Employment is not enough. Employment is not a legally protected interest.
|
|
|
What are the burdens in false imprisonment?
|
Plaintiff has to show that they were confined. Defendant has to show that the confinement was valid.
|
|
|
What is a battery?
|
The intentional infliction of a harmful or offensive contact.
|
|
|
What are the elements of battery?
|
1. Intent (§8a)
2. Contact 3. Harm |
|
|
Battery: What constitutes a contact?
|
- Any objects/instruments that the actor uses to cause harm constitutes liability.
- Contact includes with items intimately associated with the victims body |
|
|
Battery: What constitutes harm?
|
Act must be harmful or offensive to the defendant or a reasonable person in the circumstances of the victim.
|
|
|
What is the restatement's definition of harm?
|
Any physical impairment of the condition of another's body, or physical pain or illness.
|
|
|
What is the restatement's definition of offensive?
|
An act is offensive if it offends a reasonable sense of personal dignity.
|
|
|
Are minors liable for torts?
|
Yes.
|
|
|
What is an assault?
|
A volitional act that causes apprehension of an imminent harmful or offensive contact.
|
|
|
What are the elements of Assault?
|
1. Intent (§8a)
2. Apprehension 3. Harm |
|
|
Assault: what constitutes apprehension?
|
Perception/anticipation of a harm, more expansive than fear. Must be "reasonable". Also must be apprehension of an IMMINENT harmful/offensive contact.
|
|
|
What is the definition of Imminent?
|
No significant delay, fear of some future contact is not enough, doesn't need to be instantaneous.
|
|
|
If apprehension of an assault occurs and one can avoid the contact are they required to?
|
Not if they don't have an obligation to do so. If someone threatens you to get off the public sidewalk, it is your right to stay there so you can stay there even if it means it will result in a battery, etc and still hold the offender liable.
|
|
|
Assault: what constitutes harm?
|
- Restatement: words alone do not suffice unless together with other acts or circumstances
- Oregon: mere words alone do not suffice, b/c we are more protective of speech there has to be some conduct in addition to the words. |
|
|
How do conditional threats work into assault?
|
- Not an assault if conditional threats negate imminence (e.g. I'd kill you if it was march 3rd)
- But is an assault if corresponding action is imminent (e.g. move right now or I'll punch your face) - However, in OR words are not enough so something else would have to be going on. |
|
|
What is self defense?
|
A limited privilege that authorizes the use of force to prevent an impending battery or to stop one which is in progress.
|
|
|
What is self defense for?
|
To prevent a further intrusion that cannot be avoided by waiting for legal redress.
|
|
|
When is there a duty to retreat?
|
In some cases before one uses deadly force to defend oneself, the law may require them to first try to run away if he reasonably believes that there is any chance that retreat can safely be made.
This is the restatement approach, but the majority of jurisdictions reject it and say that one is privileged to use deadly force in the appropriate situation when faced with the decision between that or retreat. In all cases one threatened with deadly force in her home need not retreat. |
|
|
When can an actor use deadly force in self defense?
|
Only when she reasonably believes that she is threatened with deadly force which an be prevented only by the immediate use of such deadly force.
|
|
|
What is the majority test when it comes to mistake in the form of false imprisonment as it relates to false arrest?
|
Strict liability when the police arrest the wrong person.
|
|
|
What is the minority/OREGON test when it comes to mistake in the form of false imprisonment as it relates to false arrest?
|
The Pierson Test
|
|
|
What are the elements of the Pierson Test?
|
1. Must act with a reasonable belief that they are arresting the right person.
2. Must act with a good faith believe that they are arresting the right person. 3. Must act with due diligence in investigating whether they have the right person or not. |
|
|
Outcome of claims with the privilege of mistake?
|
Reasonable mistake might prevent from liability (third part defense if not shoe stepping), but it can be a toss up (didnt fly in Ranson v. Kitner even though defendant had good intent), when unjust enrichment occurs that is a reason to allow it to void liability.
|
|
|
What is unjust enrichment?
|
When the defendant is unjustly enriched at the expensive of the plaintiff.
|
|
|
What is not privileged under self-defense?
|
- Use of unreasonable force.
- Retaliation - Once the battery is no longer threatened, the privilege terminates and the original victim because liable for battery. |
|
|
What is the privilege allowed for defense of property?
|
Reasonable force under the circumstances can be used to protect property, but serious or deadly force is never allowed. If they take your chattel probably not reasonable to use force until you at least ask for it back.
|
|
|
General rule for the mistake in the taking of property?
|
Defendant is not privileged and is liable.
|
|
|
Shopkeeper's Privilege: When is a merchant/merchant's employee privileged to detain? (LONG)
|
1. Has probable cause to belief that actor tortiously took chattel upon premises.
2. Detain on premises for a reasonable amount of time. 3. In a reasonable manner. (Reasonable investigation of the facts). |
|
|
Shopkeeper's Privilege: SHORT
|
Merchant or merchant's employee has a privilege to detain a person in a reasonable manner for a reasonable amount of time if they have probable cause to believe that that person stole chattel on their premises.
|
|
|
Common defense against shopkeeper's privilege?
|
They did not have probable cause!
|
|
|
What is probable cause anyway??
|
Some statute (131.015) says its:
Substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested as committed it. Restatement says equivalent to "reasonable belief" I think. |
|
|
What is consent?
|
A defense to intentional tort liability. If plaintiff gives permission, what otherwise would be considered tortious is instead privileged.
|
|
|
How do you know when someone has consented?
|
We rely on words or objective manifestations in their actions. Actions are held higher. Consent is implied when under the circumstances the conduct of the individual reasonably conveys consent.
|
|
|
When is consent implied for medical reasons?
|
Consent to emergency medical treatment by health professionals when a victim is unconscious and unable to provide consent.
|
|
|
When is consent invalid?
|
1. Beyond the scope of consent that was manifested.
2. Fraud 3. Duress 4. Illegal 5. Incapacity |
|
|
Does illegality void the defense of consent?
|
Majority rule: Person CANNOT consent to an illegal act - consent is always invalid.
Minority/Restatement rule: Can consent to criminal act for tort liability, except where law is specifically designed to protect certain members (e.g. statutory rape). |
|
|
Elements for self-defense?
|
- The threat they are defending themselves against must be immediate.
- Their reaction must be reasonable (amount of force) - Duty to retreat (not there if in home, minority opinion that it is there when faced with deadly force before using deadly force, if reason to believe it can be done safely). |
|
|
Defense of others majority rule? (Restatement §76)
|
There is a privilege to use reasonable force to protect a third party when that person reasonably believes that the third party would be privileged to use self defense to defend themselves.
|
|
|
Mechanical devices in defense OK?
|
Deadly force: Not privileged unless such force was justified to defend or another from deadly force.
|
|
|
Mistake in pursuit of personal property or T to C?
|
Actor is liable even if mistake was reasonable.
|
|
|
What is trespass to land?
|
A §8a intentional interference with another's right to exclusive possession of land
|
|
|
Mistaken trespass to land?
|
usually not a defense, maybe "meandering" unknowingly into darkness would not be.
|
