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64 Cards in this Set
- Front
- Back
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HARMS TO THE PERSON
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The torts involving intentional harm to the person are assault, battery, false imprisonment, and intentional infliction of mental distress.
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Assault
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The action for assault lies to redress the intentional invasion of a person’s interest in freedom from apprehension of imminent harmful or offensive contact.
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In an action for assault, plaintiff must prove
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that the defendant intended at the time of the act either to commit the harmful or offensive contact, or to instill apprehension of such contact. Substantial certainty that such consequences will result satisfies the requirement of intent. There is no liability on an assault theory for negligently causing apprehension of contact.
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there would be liability if the defendant inadvertently put a bystander in fear of harm while intending to threaten another specific victim.
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For example, A threatens B while in a crowded theater by brandishing a bottle of nitroglycerin. C, seated in the theater, is put in apprehension of imminent bodily harm. Both B and C have a cause of action for assault against A. C’s recovery in assault is based upon the doctrine of transferred intent.
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To recover against the defendant for assault, the plaintiff must prove
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To recover against the defendant for assault, the plaintiff must prove that he was placed in apprehension of imminent harmful or offensive contact.
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If defendant intends to cause apprehension, does assault result if the plaintiff is unaware of the threat.
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No. For example, if the defendant points a pistol at the plaintiff, but because the plaintiff is blind or believes the pistol is a toy he is not placed in apprehension, the defendant has not committed civil assault. Because apprehension is a mental state requiring awareness of imminent contact, a person may not be assaulted while unconscious or asleep.
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Assault - what is required?
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"Intent to cause apprehension of contact is (all that is) required for the tort of
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There is a privilege to use any assault or reasonable battery in self-defense, defense of others, and to eject trespassers.
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There is a privilege to use any assault or reasonable battery in self-defense, defense of others, and to eject trespassers. These privileges exist as long as the actor reasonably believed the circumstances called for the conduct, even if there was a mistake
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Battery
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"plaintiff must prove defendant wished to bring about a touching which is harmful or offensive, or apprehension of such touching. Thus, liability in battery will not exist for a touching that is brought about by negligence or even willful and wanton conduct. If, however, the defendant
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Battery - Plaintiff must show
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"In order to establish a battery, the plaintiff must show that there has been a harmful or offensive touching of another's person without consent. While the touching in a battery is usually a direct touching of the plaintiff ’s person, the unpermitted touching of something close to her person (e.g., a hat being worn by the
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Defenses to battery
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Consent must be given by one who has the capacity to consent. Consent of a minor or mentally deficient person can still be effective if he is capable of appreciating the nature and consequences of the conduct consented to.
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To recover from battery, the plaintiff must show
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"To recover from battery, the plaintiff must show (1) an intentional and (2) unconsented
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When is there a privilege to use any assault or reasonable battery in self-defense?
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"There is a privilege to use any assault or reasonable battery in self-defense, defense of others, and to eject trespassers. These privileges exist as long as the actor reasonably believed the circumstances called forthe conduct, even if
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False Imprisonment
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"In order to recover for false imprisonment, the plaintiff must establish the following elements. 1. the defendant intentionally confined the plaintiff without his consent. 2. the defendant imposed a restraint upon her freedom of
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False Imprisonment Elements
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The plaintiff need not resist confinement to have an action for false imprisonment. The imprisonment must be (1) intentional and (2) without consent to be actionable. A shopkeeper has a privilege to reasonably detain someone reasonably suspected of shoplifting. The plaintiff must have been aware of the confinement. Any reasonable exit or alternate route from confinement defeats the cause of action. Only a wrongful arrest constitutes false imprisonment. The fact that the plaintiff did not actually commit the crime does not automatically give rise to a cause of action.
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Intentional Infliction Of Mental Distress
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“One who, by extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm results from it, for such bodily harm.”
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What intent is required for Intentional Infliction Of Mental Distress?
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Liability for the tort of intentional infliction of mental or emotional distress may be founded not only on subjective intent or substantial certainty of the result, but also on reckless disregard of the probable consequences of the defendant’s behavior.
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How can a D be held liable for Infliction of Mental Distress?
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The defendant’s conduct must be extreme and outrageous such that it would be substantially certain to cause severe emotional distress in a person of normal sensibilities. However, the defendant can also be held liable if she knows of the victim’s peculiar sensitivities.
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Can a bystander recover from emotional distress?
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Bystanders can recover for emotional distress resulting from an intentional tort to a family member only if the defendant knew the bystander was a witness.
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Trespass To Land (Quare Clausum Fregit) Prima Facie Case
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"In order for the plaintiff to establish a prima facie case in an action of trespass to land, he must establish that he had possession or the right to possession of the land in question, and that the defendant interfered with that possessory interest either intentionally or by some abnormally dangerous activity. Unlike the action of trespass to person, in trespass to land cases, the matter of
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Trespass To Land - is casting objects enough?
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A trespass may be committed not only by the defendant’s entry upon the plaintiff ’s land, but also by his casting objects upon the plaintiff ’s land.
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Does an unintended intrusion upon the P's land constitute Trespass?
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"Except where the defendant is engaged in an ultrahazardous activity, an unintended
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nuisance distinguished from trespass
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"The line separating the action of trespass from the action of nuisance has in recent years become blurred. The distinction between the two actions has traditionally been important because, unlike nuisance, the action of trespass did not involve a balancing of the harm to the plaintiff against the social desirability or necessity of the defendant’s conduct. The court stated that if the character of the instrumentality that makes the intrusion must be
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Damages for Trespass
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Damages in trespass to land may be recovered for mere interference with possession, even though no actual harm is done to the land. A trespass to land subjects the trespasser to liability for any harm to the person or property of the possessor of the land, or the members of the possessor’s family, resulting from the trespass. A showing of negligence is not required.
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Consent as defense for Trespass
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"The actual consent of the plaintiff, express or implied, is a defense to an action of trespass to land. Unlike actions of trespass to person, the defendant has the burden of proof on the issue of consent. If actual consent is lacking, the plaintiff can recover unless plaintiff ’s conduct
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Privilege as defense for Trespass - Emergency - Private
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A person may be privileged under emergency circumstances to enter upon or use the property of another to protect her own person or property. An entry under such circumstances will not constitute a trespass, although the person using the property is required to pay the owner or possessor for any damage done to the property.
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Privilege as Defense for Trespass - Public Necessity
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"Where the person using or even destroying the
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Trespass To Chattels
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"Trespass to chattels involves an interference with the plaintiff ’s possessory interest in personal property. Where the defendant’s conduct does not amount to a substantial interference (exercise of dominion) with the plaintiff ’s possessory interest in the property, but rather consists of intermeddling with, or use of or damage to the personal property, the owner or possessor has an action for trespass to the chattel. Unlike a trespass to land, the plaintiff must show actual damage or actual interference with the plaintiff ’s possessory rights. In addition, proof of intent to perform the act of interference is required. Intent to trespass, however, is not required. Therefore, a mistake as to the lawfulness of the defendant’s actions, e.g., a mistaken belief of ownership of the chattel in question, will not serve as a defense to an action of trespass to chattels. The measure of damages is the actual amount suffered by reason of the impairment of
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Measure of Damages for Trespass to Chattels?
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The measure of damages is the actual amount suffered by reason of the impairment of the property or the loss of its use.
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Conversion
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"Where the defendant’s conduct constitutes such a substantial interference with the plaintiff ’s possessory interest as to amount to an act of dominion over the property, the plaintiff may recover the fair market value of the property in an action for conversion. Id. If the defendant has exercised dominion over the plaintiff ’s property, a conversion has been committed even though
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Trespass to Chattels vs. Conversion
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"Both trespass to chattels and conversion require an intentional interference with the personal property of another. However, like trespass to land, the defendant
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Requirements for Conversion
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"Only a substantial interference with personal property can be the basis for an action of conversion. If the defendant has substantially damaged or lost the personal property or if the defendant refuses to return it after demand has
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DEFENSES TO CLAIMS FOR PHYSICAL HARMS - Privilege - Self-Defense
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"A privilege is a justification for the defendant’s conduct which actually negates its tortious quality; where a privilege existed, no tort occurred. The burden of proof on the issue of privilege lies upon the defendant. He must prove not only the circumstances giving rise to a privilege, but also that his exercise of the privilege was
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Self-Defense
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"A person who is threatened with bodily harm may meet her aggressor’s force with force sufficient to repel the attack. Unless the defendant was attacked with force
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Is a mistake ok for self defense?
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"Where the defendant has a reasonable belief that self-defense is necessary to repel an attack upon her, most jurisdictions hold that the privilege of self-defense exists
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use of deadly force – obligation to retreat
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A person who has a reasonable belief that he is being attacked with deadly force has a right to use deadly force in self-defense. However, where a person’s means of selfdefense would involve the use of force likely to cause death or serious bodily harm, the law generally requires that he first attempt to take any reasonable exit or escape. [The privilege to use deadly force does not normally exist “if the actor correctly or reasonably believes that he can with complete safety avoid the necessity of so defending himself by . . . retreating . . ..”
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injury to a third party - Self Defense
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Suppose that, in the reasonable exercise of self-defense, the defendant accidentally injures a third party. Absent negligence, the privilege of self-defense protects the defendant from liability; in other words, the doctrine of transferred privilege applies
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Defense Of A Third Person
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A person is privileged to use reasonable force in defense of a third person. The actor need only have a reasonable belief that the victim would have the right of self-defense. The standard of liability for an actor who mistakenly goes to the defense of a third person is the same as when he makes a mistake in believing that self-defense is necessary. The defender is not liable as long as he reasonably believed that the person being helped could have used force to protect himself. Therefore, a reasonable mistake precludes liability.
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Defense Of A Third Person if wrong are you liable?
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"Note that the rule in criminal cases is the same as the rule in torts, a person who defends another is not criminally liable if the person reasonably believed that the other person had a right of self-defense, even if that belief was mistaken. Thus, a person who reasonably but
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Defense Of Property
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It is generally recognized that reasonable force may, under some circumstances, be used to protect property or to recover property wrongfully taken. However, there is no privilege to use any force calculated to cause death or serious bodily injury to repel a threat to land or chattels, unless there is also a threat to the defendant’s personal safety such as to justify the use of deadly force in self-defense.
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recapture of chattels
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Reasonable force may be used to recapture a chattel, provided that the original taking was wrongful (e.g., by fraud or force), and provided that there is fresh pursuit.
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demand requirement for recapture of chattel
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"Even when force is permitted in the defense or recapture of property, the generally accepted view is that a request for the return of the property must precede any resort to
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To establish a prima facie case for an intentional tort such as battery, the plaintiff must prove
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To establish a prima facie case for an intentional tort such as battery, the plaintiff must prove (i) an act by the defendant, (ii) intent, and (iii) causation. The intent of the actor that is relevant for purposes of intentional torts is the intent to bring about the consequences that are the basis of the tort. An actor “intends” these consequences when his goal is to bring them about or when he knows with substantial certainty that they will result from his actions. The intent required for battery is an intent to bring about harmful or offensive contact to the plaintiff’s person.
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self-defense is only available when a person has
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self-defense is only available when a person has reasonable grounds to believe that he is being attacked or is about to be attacked. This is an objective test—how the situation would have looked to a reasonable person under the circumstances.
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To establish a prima facie case for battery, the plaintiff must establish
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"To establish a prima facie case for battery, the plaintiff must establish (i) an act by the defendant that brings about harmful or offensive contact to the plaintiff’s person, (ii) intent on the part of the defendant to bring about harmful or offensive contact to the plaintiff’s person, and (iii) causation. The
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A conversion is
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" A conversion is an interference with the plaintiff’s possessory rights in a chattel that is so serious as to warrant that the
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When a chattel is located on the land of a wrongdoer,
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When a chattel is located on the land of a wrongdoer, the owner is privileged to enter on the land and reclaim it in a reasonable manner. Unlike an entry onto the land of an innocent party, reasonable entry onto the land of a wrongdoer is completely privileged; i.e., the chattel owner does not have to pay for any actual damage caused by the entry.
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An action for negligent infliction of emotional distress requires the plaintiff to show
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An action for negligent infliction of emotional distress requires the plaintiff to show that the defendant’s conduct created a foreseeable risk of physical injury to the plaintiff, such as by threat of physical impact, and, in most cases, that the emotional distress caused by this conduct also manifests itself in physical symptoms.
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If adherence to industry standards does not prevent an unreasonable risk of harm, the defendant may
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"If adherence to industry standards does not prevent an unreasonable risk of harm, the defendant may be in breach of its duty of ordinary care, which is a question for
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in an ordinary negligence claim can a plaintiff recover even though he suffered only economic loss (i.e., property damage)?
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YES, in an ordinary negligence claim a plaintiff can recover even though he suffered only economic loss (i.e., property damage).
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What duty of care does an owner or occupier of land owe to invitees?
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An owner or occupier of land owes a duty of care to make the premises reasonably safe for its invitees. For an owner of a place of public accommodation who gathers the public for profit, the duty extends to protecting its patrons from injury from third persons where the owner knew or should have known of the danger.
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Under vicarious liability rules, a principal will be liable for the tortious acts of an independent contractor if
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"Under vicarious liability rules, a principal will be liable for the tortious acts of an independent contractor if the duty is nondelegable on public policy grounds;
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When may the tortious conduct of one person be imputed to another?
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"Under principles of vicarious liability, the tortious conduct of one person may be imputed to another person when a special relationship exists between the tortfeasor and the other person. However, a parent is not vicariously liable at common law for the tortious conduct of her child. While many states have statutes making parents liable
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While breach of duty is ordinarily a question for the trier of fact, a plaintiff’s failure to offer any evidence on that element of the prima facie case will permit a
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While breach of duty is ordinarily a question for the trier of fact, a plaintiff’s failure to offer any evidence on that element of the prima facie case will permit a directed verdict for the defendant.
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For the doctrine of Res Ipsa Loquitur to apply, the plaintiff must show that
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Under certain circumstances, the fact that a particular injury occurred may itself establish or tend to establish a breach of duty owed, permitting the trier of fact to infer the defendant’s liability. This is the doctrine of res ipsa loquitur (“the thing speaks for itself”). However, for the doctrine to apply, the plaintiff must show that (i) the accident causing his injury is the type that would not normally occur unless someone was negligent; (ii) the negligence was attributable to the defendant; and (iii) the injury was not attributable to the plaintiff. The second requirement can often be satisfied by showing that the instrumentality causing the injury was in the exclusive control of the defendant.
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When is a commercial supplier liable for a defective product?
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"A commercial supplier of a product may be liable to any foreseeable plaintiff who was injured by a product that was in a defective condition unreasonably dangerous to users. In making this determination in case of a design defect, courts evaluate whether a less dangerous design or alternative was economically feasible. In making
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the doctrine of respondeat superior.
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This doctrine imposes liability on an employer for the tortious conduct of its employee occurring within the scope of the employment relationship.
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res ipsa loquitur elements required?
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A commercial supplier of a product may be liable to any foreseeable plaintiff who was injured by a product that was in a defective condition unreasonably dangerous to users. In making this determination in case of a design defect, courts evaluate whether a less dangerous design or alternative was economically feasible. In making this determination in the case of a manufacturing defect, courts evaluate whether the product was dangerous beyond the expectation of the ordinary consumer.
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In a strict liability action based on a defective product, a plaintiff must prove that
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In a strict liability action based on a defective product, a plaintiff must prove that (i) the defendant was a commercial supplier, (ii) the defendant supplied a product in a defective condition unreasonably dangerous to users, (iii) the defect was the actual and proximate cause of the plaintiff’s injuries, and (iv) the plaintiff suffered damages.
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When would a strict liability standard apply for engaging in an abnormally dangerous activity?
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Nuisances may be based on intent, negligence, or strict liability. A strict liability standard for engaging in an abnormally dangerous activity would apply where the activity (i) creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (ii) is not a matter of common usage in the community. Whether an activity is abnormally dangerous is a question of law that the court can decide on a motion for a directed verdict.
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Comparative negligence jurisdictions allow a plaintiff to recover
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"Comparative negligence jurisdictions allow a plaintiff to recover some percentage of his damages even though he was contributorily negligent in causing the accident. Pure comparative negligence allows a plaintiff some recovery no matter how great his negligence was. Many comparative negligence jurisdictions retain the doctrine of joint and several liability to some extent, which makes each of several tortfeasors liable to the plaintiff for the entire amount of damages to which the plaintiff is entitled. However, if one tortfeasor does have to pay the plaintiff the entire judgment, the rule of contribution allows the paying tortfeasor to recover the excess over his share from the nonpaying tortfeasor. If contribution is based on comparative fault, the nonpaying tortfeasor is required to contribute an amount in proportion to his relative fault."
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If contribution is based on comparative fault, the nonpaying tortfeasor is required to
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If contribution is based on comparative fault, the nonpaying tortfeasor is required to contribute an amount in proportion to his relative fault.
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Joint and several liability
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Joint and several liability makes each of several negligent actors liable to the plaintiff for the entire amount of damages to which plaintiff is entitled.
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What must a P show to prove defamation involving matter of public concern
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"Supreme Court decisions based on the First Amendment now impose a fault requirement in defamation cases involving public figures or matters of public concern. Where the defamation involves a matter of public concern but the plaintiff is not a public figure, the plaintiff must show that the defendant permitted the false statement to appear, if not through malice, at least through negligence as to its truth or falsity."
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