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146 Cards in this Set

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what's the category of intent?
can be either
a. Specific – the goal in acting is to bring about specific consequences
b. General – actor knows with substantial certainty that these consequences will result
Does reckless suffice intent?
c. Reckless generally does not suffice
except for in the case of intentional infliction of emotion distress
what's Causation?
need only D’s conduct that is a substantial factor
what's the prima facie case in intentional torts?
1. Act by D
2. Intent
3. Causation
4. No requirement on damages, except for intentional infliction of emotional distress (severe distress)
what does Transferred intent doctrine applies to?
battery, assault, false imprisonment, trespass to land, trespass to chattel
what's Transferred intent doctrine?
A tort committed against one person but instead:
a. different tort against that person
b. same tort against different person
c. different tort against different person
does Hypersensitivity of P is taken into account in deciding if P has a valid claim?
no
does D has incapacity defenses for intentional torts?
no
can a drunk can commit battery?
yes
can a 5 year old can commit false imprisonment?
yes
what's Battery?
harmful or offensive contact to P’s person
Does harm need to be shown in Battery?
no
what's offensive?
(Unpermitted) contact – means P has not consented
what does consent mean?
(consent is implied for ordinary contacts of everyday life
what's offense?
) It is offense if average people don’t permit it (hypersensitive people don’t matter, must be avg person).
what's P’s person
(i) Includes everything connected to P (e.g. clothing, carrying a briefcase, kick your dog on a leash)
Does P's person involve D’s touching?
no
Does P's person need to have result in instantaneous harm ?
no
poison lunch at 9pm, you eat it at noon
what's this?
battery
what's assult?
reasonable apprehension of an immediate battery
what's Apprehension ?
(i) Synonymous with knowledge or awareness
(ii) Unloaded gun or D lacks ability to bring attack to function – D threatens but cannot consummate the act
what's the result?
depends on P’s knowledge – put yourself in P’s shoes to decide it is an assault. If P knows he can’t be touched, it is not an assault. If P doesn’t know, it is an assault
what's Immediate battery?
threat must be specific & immediate
Does Mere words have the immediacy?
no
Does Pure verbal threat an assault ?
no
what words can negate the threat?
words in conditional or future tense) (I will beat you up 8 hours from now - is not an assault
what's False Imprisonment?
an act or omission on the part of D that confines or restrains P to a bounded area
what's false imprisonment?
an act or omission on the part of D that confines or restrains P to a bounded area
what's Act for confinement or restraint ?
(i) Physical barriers, physical force, threats of force, invalid use of legal authority, failure to release or omission (in case of preexisting duty to help people move around)
Does P need to be aware of the confinement?
yes.
(ii) P’s awareness of confinement or harm arising from the confinement
what's the result False Imprisonment needed?
b. Result is confinement in bounded area – must be locked in a bounded area
what's the requirement for result in bounded area?
(ii) NO reasonable means of escape reasonably known by P (must be reasonable and reasonably discoverable→cannot be dangerous, hidden, disgusting
does time relevant in false imprisonment?
no
confinement of shoplifter – Does owner is liable?
no, if there is reasonable (i) suspicion, (ii) means of detention, and (iii) amount of time
what's Intentional infliction of emotional distress?
D engages in extreme & outrageous conduct, & P suffers severe distress as a consequence
what's Extreme & outrageous?
exceeds all bounds of decency tolerated in a civilized society;
does insults enough for intentional infliction of emotional distress.
need plus factors (hallmarks of outrageousness):
what's the only intentional tort that require damage?
intentional infliction of emotional distress
what 's the damage requirement for intentional infliction of emotional distress?
Must be Severe emotional distress
does Severe emotional distress require that P sought medical care or is taking medication?
no,determined by jury
what's Trespass to Land ?
intentional physical invasion of P’s real property
what's physical invasion?
(i) Entering the property
(ii) D propels physical objects onto the land
what's the intent requirement for physical invasion?
(a) No requirement that D be aware that he’s on someone else’s land, but intent of entry required
A shoves B onto the land of C, does a committed trespass to land?
yes, if b is physical object.
does a non-physical invasion count as trespass to land?(light, sound, smell )
no,but can be an action for nuisance.
what's Trespass to chattels, & conversion?
civil remedies for damage and theft of personal property
what's the two categories of trespass to chattel?
(i) physical damage, or (ii) deprive owner of possession
when Harm to P’s interests is slight & merely interferes with P’s right of possession, what's the remedy?
actual damages (cost of repair or rental)
when an act by D that interferes with P’s right of possession in a chattel, what's the result?
the interference is so serious that it warrants requiring defendant to pay the chattel’s full value
what's conversion?
You break it, you bought it
is Mistake of ownership is a defense to trespass to chattel?
no
In NY, does a Good Faith Purchaser of stolen merchandise considered a converter?
no
what's Affirmative Defenses to Intentional Torts?
1. Consent
2. Protective privilege
3. Necessity
do you Need Capacity to consent?
yes.if lack of capacity, you CANNOT consent
what's lack capacity?
drunk, insane, child
what's Express (actual) consent
words in quotation marks giving the D permission to behave in a certain way
when is express consent void ?
if given under circumstances of fraud or duress
what's Implied consent ?
if P participates in an activity where certain invasions are necessary, he’s deemed to consent to those invasions (whether the behavior is typical or customary, subway, sports)
do you consider the subjective thoughts of the Pin implied consent?
no, it must be D’s reasonable interpretation of P’s objective circumstances or conduct
what's the scope of d's consent?
if D exceeds the scope of consent, he’s liable
what's Protective privilege?
includes (i) self-defense, (ii) defense of others, & (iii) defense of property
what's the Requirements for protective privilege?
(i) D has to show proper timing tort (threat you are responding to) must be either in progress or imminent
(ii) D must have a reasonable belief that a tort (threat) is genuine
Does an honest reasonable mistake deprive him of self defense
no
is mistake in recapture of the chattels or enter on the land of another a defense?
no
does No escape required in self defense?
no
does a duty to retreat before using deadly force required?
yes
do you requires a duty to retreat before using deadly force when you are at home
no
in criminal case, does retreat required before using deadly force?what about ny
no,yes
what circumstance arise, D can use necessary force – rule of symmetry & proportionality under the circumstances?
(i) D has to show proper timing
(ii) D must have a reasonable belief that a tort (threat) is genuine
if D uses excessive force in self defense, what is he liable ?
battery
when can deadly force be used?
if necessary to protect human (yourself or 3rd person)
can Deadly force to protect property?
no
can you threaten/pretend to use deadly force to protect property?
yes, the assult is privileged
what 's ny rule regarding Duty to retreat?
Duty to retreat before resorting to deadly force; BUT DOES NOT apply (i) you’re in your own home,
what's Necessity defense?
only a defense to the property torts (trespass to land, trespass to chattel, or conversion)
D invades P’s property in an emergency to protect a significant group of people or the community as a whole,
what's this?
a. Public necessity
what's public necessity?
(i) Absolute defense, & D is immunized from all damage liability
what's Private necessity?
– D invades P’s property in an emergency to protect an interest of his own (his own safety or property
is private necessity a absolute defense?
no
what's the Private necessity 's legal consequences?
(a) D remains liable to harm inflicted on property & must pay for harm inflicted
(b) D is NEVER liable for nominal or punitive damages
(c) As long as the emergency continues, D entitled to remain on P’s landing a position of safety
what's right of sanctuary?
- Can’t be expelled or ejected
what's right of sanctuary?
If D leaves because of P and gets injured,what's the result?
- Can’t be expelled or ejected
P must pay
what's Common Law Defamation requirement?
(i) Defamatory statement of P
(ii) Publication
(iii) Damages to P’s reputation
what's Defamatory statement of P ?
(a) Adverse effect on P’s reputation
which can be written or spoken.
can You defame a dead person?
no
Purported or alleged statement of fact that affects negatively to P’s reputation or character (peacefulness, competence, loyalty, honesty), what's this?
defamation
Statement of opinion is if it appears to be based on facts, what's this?
deformation
Steve M. is an attorney who is embezzling money from client’s fund” what's this?
statement of fact, deformation
Steve M is an awful person” what's this?
not deformation
in my opinion, you would be foolish for Steve M. to handle your escrow money. what's this?
defamation. if a listener would assume that the speaker has a factual basis for the opinion
what does ny court think about opinion?
Opinion can be considered defamatory based on its tone, purpose, and context
what's publication, what's the intent requirement?
(a) D discloses the defamatory statement to one or more persons other than P himself
(b) Can be made either negligently or intentionally
Who may be liable for deformation?
- Primary publishers are liable to the same extent as the author or speaker. One who repeats a defamation is liable on the same general basis as the primary publisher (even if she states the source or makes it clear that she does not believe the defamation.)
does damage required for p 's defamation?
yes
does damage required for p 's defamation?
maybe
what's libel?
– written or captured publication of defamatory language in a permanent format otherwise
do you need to prove damage to libel?
- NO need to prove damages; presumption of damages
what's Slander ?
spoken or oral defamation
what's Slander per se?
oral statements especially devastating to reputation:
→ P’s business or profession
→ crime of moral turpitude
→ unchaste women
→ loathsome disease
what's this? My neighbor is sexually abusing his daughte
slander per se
what's this? (i) leprosy & (ii) venereal disease
loathsome disease
does slander per se need to prove damage?
no
does Slander NOT per se need to prove damage?what damage?
yes.actual economic loss) to get to jury; NOT emotional distress & social harm
do this have to prove special damage in NY?Defamatory on its face & slander per se category? In libel, in slander?
no no
do this have to prove special damage?Defamatory on its face & NOT slander per se category? libel? slander?
no yes
Do this have to prove specific damages?Defamatory only by extrinsic fact & slander per se category.Libel Slander
no yes
do this have to prove special damage in NY?Defamatory only by extrinsic fact & NOT slander per se category?Libel Slander?
YES YES
you read a draft of an article about you and they publish it verbatim, What's this?
consent
what about truth defense in defamation?
where P does not need to prove falsity, D may prove truth as a complete defense
In Common defamation (private matters), what does plaintiff has to prove, what does defendant?
P need not prove falsity, D can assert truth as a defense
what's defamation's element?
(i) Defamatory statement of P
(ii) Publication
(iii) Damages to P’s reputation
(b) Constitutional defamation (public matter) , does P have to prove falsity?
yes
what's Absolute privilege in defamation?
- Spouses – if a husband makes a statement to his wife, libeling someone else ⇒ can’t be sued. Rationale is to protect privacy between husband and wife
- Members of the three branches of the government in the conduct of their duties
- Lawyers are considered members of the judicial branch (consider prosecutors, what would happen to them if they don’t have this privilege)
what's Qualified privilege in defamation?
based on purpose of the speech.
- socially valuable or useful;
- relevant; and
- made in good faith (reasonable mistake of fact)
what's First Amendment Defamation?
applicable in matters of public concern
if material disseminated/spoken/written is something the general public would have interest, what can p sue?
P can only sue for FAD, NOT for common law defamation
what's the Elements on first amendment defamation?
(i) Defamatory statement (same as for common law)
(ii) Publication (same as for common law)
(iii) Damages (same as for common law)
(iv) P must prove Falsity – the statement is factually inaccurate - the burden is shifted from D to P
(v) P must prove Fault on D’s part – relates to D’s awareness of the falsity
what's the fault for public figures?what's the damage?
intentional or recklessness) – if P can show that D had actual malice (i.e., knew the falsity or had reckless disregard as to truth or falsity – made no effort to investigate truth
punitive damages allowed
what's Private figures with public concern? what plaintiff has to sue?what damage?
negligence at least):
- Damages for only actual injury
falsity & fault are prima facie case elements in what defamation case?
only in a FAD cases, NOT in a common law defamation case
what's Appropriation?
unauthorized use of P’s name or picture for D’s commercial advantage (right of publicity)
Is economic benefit to D by itself sufficient for appropriation?
no,the appropriation must be connected with promoting a product or service.
when a newspaper to run a picture in a newspaper, is this actionable for appropriation?
no
what's the ONLY privacy cause of action recognized in NY?
Appropriation.
what's Intrusion?
invasion of P’s secluded space(solitude) in a way that would be objectionable to the average person
eavesdropper at a party photographs taken in public places. are these actionable for intrusion?
no.No claim unless truly in a private space & expectation of privacy (
is physical trespass required in intrusion?peep an apartment with a telescope from another high-rise
no
does intrusion against the government?
no.c. Only against private individuals
wiretapping, surveillance, & any other form of low-tech or high-tech spying, what's this?
Intrusion
what's Publication of facts placing plaintiff in false light
widespread dissemination of a major misrepresentation about the P that would be objectionable to an average (reasonable) person.
a picture of P taken at a public place that depicting P as a extremely obese person, what's this ?
Publication of facts placing plaintiff in false light
what's the requirement for Publication of facts placing plaintiff in false light?
a. Widespread dissemination
b. A major misrepresentation
does defamation need widespread dissemination?
no
does misrepresentation in false light need to be defamatory?
no
Dave tells everyone in town that Pete is embezzling money. what's the claim?
False light claim. Also claim for defamation
why do you claim defamation and false light at the same time?
defamation → money damages; false light → more emotional damages
Does D have to be aware that the statement is false in order to have false light claim?
no.You run your mouth at your own peril
what's Public disclosure of private facts about plaintiff?
the widespread dissemination of confidential information about the P that would be objectionable to an average person
what's Public disclosure of private facts about plaintiff distinguish from false light?
a. This tort deals with truthful information
b. The deal is that the info is SENSITIVE/confidential and the D is disclosing it to the world: academic info, financial info, medical info
persons in positions of power try to conceal various behaviors that they don’t want the public to know of, is that public disclosure of private facts?
no.The media is going to be protected if they find out confidential information in the news
how is Newsworthiness is interpreted
very broadly.
gay works in insurance company, does not want company to know; D discloses to company,is it a tort?
no. Dual life fact pattern, not a Public disclosure of private facts about plaintiff:
what's the defense to all privacy tort?
a. Consent can be express or implied
what's the defense to false light and disclosure?
Privilege
what's Misrepresentation?
An intentional affirmative misrepresentation (fraud, deceit
what's the prima facie case for misrepresentation?
a. Misrepresentation of a material fact
b. Scienter
c. Intent to induce P to act or refrain from acting in reliance on the misrepresentation
d. Causation
e. Justifiable reliance
f. Damages