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138 Cards in this Set
- Front
- Back
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Battery (3)
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harmful or offensive touching to the plaintiff's person, intent, causation
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Assault (3)
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victim is put in reasonable apprehension of harmful contact or touching
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Intentional infliction of emotional distress (4)
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act by P amounting to extreme and outrageous conduct; intent or recklessness; causation; damages = severe emotional distress
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How does tort law treat P's hypersensitivity in making out intentional tort claim?
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It ignores hypersensitivity
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Are there incapacity defenses in intentional torts? (minor, drunk)
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No
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What does harmful mean in the context of battery?
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It hurts you.
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What does offensive mean in the context of battery?
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Unpermitted by a person of ordinary sensitivity
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Is tapping on shoulder battery?
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NO - because a person of ordinary sensitivity would permit
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Is icky stroking of hair battery?
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Could be - person of ordinary sensitivity would permit - and it's increasingly litigated as sexual harassment
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What is plaintiff's person?
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Anything the person is connected to - purse snatching if you're holding your purse - whatever would disappear under the cloak of invisibility or transporter
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If guy slaps horse, is there a battery?
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Yes, against the rider
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Does a battery have to be instantaneous?
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No - poisoning sandwich becomes battery later, when guy eats it
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If P sets a trap for D to fall into, would that result in a battery?
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Yes - indirect conduct
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In context of assault, what does apprehensive mean?
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Knowledge
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Does a person need to be upset/afraid of being touched for an assault to occur?
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No. Knowledge that he can protect himself doesn't bar recovery, as long as he knows he will be touched
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If D threatens P with a battery but is unable to consummate the battery, is there an assault?
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Analyze from P's standpoint. If P knows that D is incapable of committing battery, no assault.
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If D says, I'll shoot you, but P knows the gun is unloaded, is there an assault?
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No
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If D says, I'll shoot you, but P doesn't know whether gun is loaded, is there an assault?
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Yes - it's reasonable to assume that the gun is loaded
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Are words alone sufficient to create an assault?
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No
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Is display of weapon sufficient to create an assault?
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Yes
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If someone says, "if you weren't my best friend, I'd beat the crap out of you" while shaking her fists, is there an assault?
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No - words negated the immediacy inherent in the physical gesture.
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If someone says, "I'm going to beat the crap out of you tomorrow morning" while shaking her fists at you, is there an assault?
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No - words that promise action in the future take away immediacy
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False imprisonment
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D must commit act of restraint and P must be confined in a bounded area
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Can threats constitute an act of restraint?
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Yes
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If you say, "if you leave this room in the next 30 minutes, I will kill your child" (and you could), is that an act of restraint?
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Yes
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If you say, "if you leave this room in the next 30 minutes, I'm going to turn you into a kangaroo, "is that an act of restraint?
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No
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If the airline people leave the person in the plane without getting her a wheelchair, is that false imprisonment?
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Yes, having taken her on, they had a duty to help transport her
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An act of restraint only counts if… (2)
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P knows about it and is harmed by it
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If D locks P in a room while P is sleeping, then unlocks it before P wakes up, is there false imprisonment?
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No, because P didn't know and wasn't harmed
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If D locks P in room while P is sleeping, and keeps nurse from getting in to give P his medicine, then unlocks the door before P wakes up, is there false imprisonment?
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Yes, because P is harmed
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Does a barricade create an actionable false imprisonment?
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No - a bounded area must constrain P in every direction
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Bounded area means…
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P is constrained in every direction, and there is no reasonable means of escape that P can reasonably discover
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If P's way out is dangerous, disgusting, impossible to discover, humiliating, is there false imprisonment?
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Yes
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How long does false imprisonment need to be?
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The time is irrelevant
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What is outrageous conduct?
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Conduct that exceeds all bounds of decency tolerated in a civilized society
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Are insults outrageous conduct?
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Not on their own
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Hallmarks of outrageousness (3)
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Repetitiveness; D is common carrier or an innkeeper (can be liable for "gross insults"); P is a member of a fragile class of persons
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What are the fragile classes? (4)
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Young children, elderly, pregnant women, supersensitive adults if sensitivities are known to P
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What intent is necessary for IIED?
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Recklessness suffices
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What is the only intentional tort to the person that requires damages?
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Intentional Infliction of Emotional Distress
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Causation in bystander IIED cases
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P may recover by showing either PF elements of IIED, or (1) she was present when injury occurred, (ii) she is a close relative of the injured person, and (iii) D knew both facts
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Is taking Rachel to a picnic in a lavender garden IIED?
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Yes, because I know of her hypersensitivity to bees
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Trespass to land - elements
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Physical invasion of plaintiff's land, intent, causation
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Is spraying neighbor's flowers with water a trespass?
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Yes, the water is a physical invasion
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Is projecting lights, sound, smells onto neighbor's property a trespass?
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No, sight, sound, smell is not a physical invasion
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Is sending smoke onto neighbor's land a trespass?
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Maybe, if dark, sooty, smoke. Probably not if wispy white smoke
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If kid throws ball over yard, is that a trespass?
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Yes
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Trespass to chattels - elements
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Act by D that interferes with P's right to possession in a chattel, intent, causation, damages
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Chattel
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All property except land/buildings
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What kind of interference can be a trespass to chattels? (2)
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Deliberate damage, or depriving P of possession
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What damages are required for trespass to chattels?
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Actual damages - to chattel or possessory right
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What are causes of action for vandalism or theft?
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Trespass to chattels or conversion
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How to distinguish between conversion and trespass to chattels?
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Small harm - trespass to chattels; big harm - conversion
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Conversion - elements
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Act by D that interferes with P's right of possession in a chattel; interference is so serious that it warrants requiring D to pay the chattel's full value
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What are the acts of conversion (4)
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Wrongful acquisition (theft), wrongful transfer, wrongful detention, substantially changing/severely damaging/misusing a chattel
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What can be subject matter of conversion?
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Tangible personal property, intangibles that have been reduced to physical form (e.g., promissory note, deed)
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Who can sue for conversion?
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Anyone with possession or the immediate right to possession
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What are the remedies for conversion?
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Damages (FMV at time of conversion) or possession (replevin)
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Which intentional tort can be summarized by "You break it, you bought it"
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Conversion
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Can one consent to a criminal act?
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No
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Do you need capacity to consent to an intentional tort?
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Yes
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When can children consent?
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To age-appropriate invasions (e.g., wrestling among 11-year-olds)
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Exceptions to express consent (3)
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Mistake, if D knew of and took advantage of the mistake; fraud, if goes to an essential matter, duress (unless duress is only threats of future action/future economic deprivation)
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What are the two forms of implied consent?
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Apparent - which a reasonable person would infer from custom/usage/plaintiff's conduct; consent implied by law (action necessary to save person's life or some important interest in person/property)
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What type of consent is involved in getting on the NY subway at rush hour, or playing football?
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Apparent consent
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What type of consent is involved in kissing woman who leans in with closed eyes and tilted head.
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Apparent consent - reasonably inferred from plaintiff's conduct
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How do P's unexpressed thoughts play into the question of apparent consent?
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They don't - irrelevant
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Is consent like a sliding scale or a light switch?
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Sliding scale.
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What's wrong if doctor adds on a nose job to the sinus surgery?
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Doctor has exceeded the scope of consent
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Do you need capacity to commit an intentional tort, or to consent to one, or both?
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Only for consent
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What must D show to assert self-defense?
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Real time, reasonable belief of a threat, proper amount of force
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What if D fails to show self-defense?
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D has committed a tort
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When is there a duty to retreat?
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Before using deadly force in self defense (modern trend)
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Can an initial aggressor use self defense?
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Not usually
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Can a D claim self-defense for injuries to 3d parties, caused while D was defending herself?
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Maybe, but if D deliberately injures 3d parties while trying to protect herself, she may be liable
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When may a person defend another?
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When the person reasonably believes the other person could have used force to defend himself
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Can you use deadly force to protect property?
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No
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Can you use deadly traps to protect property?
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No
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Does a person have to make a request to desist or leave before using reasonable force to prevent the commission of a tort against real/personal property?
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Yes
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Can you use force in hot pursuit of another who has taken property?
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Yes, because the tort is still viewed as being committed
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What is the defense of public necessity?
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A complete and absolute defense, in which D invades P's property in an emergency to protect community as a whole or a significant group of people
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When do defenses of necessity apply?
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Only in property claims
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When is there no duty to retreat before using deadly force? (2)
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When actor is in her home, or when retreat cannot be done safely
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May deadly force be used to protect one's home?
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No - never to protect property.
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What is the defense of private necessity?
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D invades P's property in an emergency to protect an interest of his own.
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Is private necessity defendant liable for actual harm?
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Yes
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Is private necessity D liable for nominal or punitive damages?
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No
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May private necessity D be lawfully expelled from a position of safety?
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No, as long as emergency continues
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Defamation (4)
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Defamatory language, of/concerning P, publication by D to 3d person, damage to p's reputation
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Is name-calling defamatory?
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No - it doesn't harm reputation
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What is the test for whether statements of opinions are defamatory?
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Would a reasonable person conclude that it conveys factual information (and, if matter of public concern, Constitution requires - Falsity of the defamatory language, Fault on part of D)
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Is falsity an element of common law defamation?
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No - but it can be a defense
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Can a dead person be defamed?
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No
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How many other people have to hear the statement for it to be defamatory?
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One
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Can a famous person be defamed?
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Yes, any living person can be defamed
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Need publication be intentional for defamation?
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No
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What is slander per se? (4)
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Adversely reflect on one's conduct in a business or profession, one has a loathsome disease (leprosy, VD), one is or was guilty of a crime involving moral turpitude, a woman is unchaste
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What type of defamation is involved in radio/TV broadcasts?
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Libel (generally by most courts)
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Who can be defamed, if a statement refers to all members of a small group?
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Each member may establish that the statement is "of and concerning" him by alleging he is a group member.
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Who can be defamed, if a statement refers to all members of a large group?
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No member
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Who can be defamed, if a statement only refers to some members of a small group?
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P can recover if a reasonable person would view the statement as referring to P
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What is unchastity?
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Any sexual activity by a(n unmarried?) woman
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When must P prove damages for slander, and what kind of damages count??
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When the harm is not slander per se, P must show economic loss
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What are the defenses to defamation? (3)
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Consent, truth, privileges
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When is truth a defense to defamation?
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Always
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What are absolute privileges against defamation?
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Statements between spouses, officers of the three branches of government conduct of their official duties (legislatures in debate, federal executive officials, during judicial proceedings)
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What are qualified privileges?
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Reports of official proceedings, statements in the interest of the publisher or recipient, or statements in common interest of public and recipient
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What privilege protects letters of recommendation or other professional references?
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Qualified privilege
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What privilege protects statements to police defectives?
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Qualified privilege
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What is the rationale for qualified privilege?
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To encourage candor
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How to lose a qualified privilege (defamation)?
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D had no reasonable belief that challenged information is accurate; D injects irrelevancies into the statement
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What changes if defamation involves a matter of public concern?
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The First Amendment requires that P prove both falsity and D's fault
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What are alternate causes of action if a statement of public concern is true?
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P may have a cause of action for IIED or invasion of right to privacy (unless P is a public figure)
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What types of fault may plaintiff have to prove?
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Re defamation of public official or figure, must prove malice (knowledge or reckless disregard for a truth); re private figure need only show negligence
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What is appropriation?
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D uses P's name/image for commercial purposes
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What is the tort of intrusion
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An invasion by D of P's seclusion, in a fashion that would be objectionable to a reasonable person
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What is the exception to appropriation torts?
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Newsworthiness
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What is the standard for publication of facts placing P in false light?
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Widespread dissemination by D of a material falsehood about P that would be objectionable to an average person; malice on part of D when the published matter is in the public interest
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Is there an expectation of privacy in public?
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No
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Do intrusion and trespass go hand in hand? Always/sometimes/never
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Sometimes
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Dave tells Pete is a devout roman catholic, when Pete is Jewish. What tort/s?
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False light, but not defamation
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What is the intent/fault requirement for the tort of false light?
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None
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Can D be liable for tort of false light if he had a good faith belief that what he said was accurate?
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Yes - there is no intent/fault requirement
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Disclosure of private fact
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Widespread dissemination of confidential information about P that would be objectionable to an average person
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What exception to disclosure of private fact?
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Newsworthiness - interpreted very broadly
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How private must the underlying facts be for disclosure of private fact?
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Truly and genuinely private
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If someone is "out" in gay community, but not at work, is it a tort of disclosure of private fact to let coworkers know?
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No
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What provides a defense to all privacy torts
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Consent
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What are defenses to false light and disclosure of private fact only?
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Defamation privileges
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Does testing rocket engines for eventual military use qualify as a public necessity defense?
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No - a public necessity defense must avoid impending injury to the public good
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When does transferred intent apply?
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A person intends to commit a tort against one person but either commits a different tort against that person, commits the same tort as intended bt against a different person, or commits a different tort against a different person.
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For transferred intent to apply both the intended and actual tort must be among which torts: (5)
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Assault, battery, false imprisonment, trespass to land, trespass to chattels.
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Which torts cannot be involved for transferred intent to apply?
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Conversion, defamation, privacy torts, nuisance, IIED
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Can you assault or commit battery on a dog?
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No - must be a person (unless it's like a horse and rider, etc.)
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When is a trespass privileged?
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When you go on to another's land to reclaim your own property, or because the other is a wrongdoer
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If I chase you out of my yard and I know with substantial certainty that you will enter my neighbor's yard, have I committed trespass against my neighbor?
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Yes, because the elements of trespass are satisfied.
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Do actions for battery expire upon patient's death?
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No
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What are the elements of intentional misrepresentation?
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Misrepresentation, scienter, intent to induce p's reliance, causation (i.e., actual reliance), justifiable reliance, damages
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