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123 Cards in this Set
- Front
- Back
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To est prima facie case of intentional tort, P must prove
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1. act by D
2. intent 3. causation |
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ACT (for purpose of intentional torts) is
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VOLUNTARY muscular movement which is the
CAUSE of the RESULTING HARM |
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Define intent
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May be either (1) specific (DESIRE that certain consequences result form actions) OR (2) general (KNOWLEDGE that those results are substantially certain to occur as a result of actions)
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Transferred intent doctrine
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applies when D intends to commit a tort against one person but instead (1) commits a diff tort against that person (2) commits the same tort as intended but against another person or (3) commits a diff tort against a diff person.
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To what torts can transferred intent be used?
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FI, Trepass to land, Battery, Asault, Trepass to chattel. Does not usually apply when other tort ends up causing IIED.
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Causation element means
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result must have legally been legally caused by D's act or something set in motion by him. Causation is satisfied if it was a SUBSTANTIAL FACTOR.
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Intentional torts to person
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Battery
Assault False Imprisonment (FI) Intentional Infliction of Emotional Distress (IIED) |
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Supersensitive P?
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Ps treated as average person except when D knew about a supersensitivity
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Elements of battery
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1. INTENT to cause a harmful or offensive contact or know w/ substantial certainty harmful or offensive contact will occur
2. CONDUCT: Vol act 3. RESULT: P suffered harmful or offensive contact 4. CAUSATION: D's act CAUSED the harmful or offensive contact 5. Lack of consent |
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P's person includes
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things immediately attached to him--a cane, stick, purse, hat, etc.
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Besides D's intent to physically harm P, what else can satisfy the intent requriement?
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1. D intends the contact to be helpful, a harmless joke, a compliment, etc but harmful or offensive contact results OR
2. D intends an assault but a harmful, offensive contact resutls |
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How can you tell contact is harmful or offensive?
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Contact would harm or offend A REASONABLE PERSON OF ORDINARY SENSIBILITIES
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Defenses to battery
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Self defense, consent, def of others, retaking of land, recapture of chattels, necessity, discipline, detention for investigation (e.g. shoplifting) + legal authority.
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Are proof of damages required for prima facie case of battery?
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No P can recover nominal damages even if actual damages are not proved. P may recover punitive damages for malicious conduct.
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Eggshell skull rule
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Principle that a D is liable for a P's unforeseeable + uncommon reaction to D's intentional (or neg) act. (e.g. scratching a heophilliac)
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Assault
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1. INTENT--to cause reasonable apprehension of a harmful or offensive contact or know w/ substantial certainty such apprehension will occur
2. CONDUCT: Vol act 3. RESULT: P suffered apprehension 4. CAUSATION: D's act CAUSED P's apprehension of harmful or offensive contact w/ D's person 5. Lack of consent |
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Can words along constitute an assault?
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Rarely. More often words can transform an ambiguous act into an assault or prevent it from being one
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Apprehension means
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P has a belief that if P does not take action, a harmful or offensive contact will occur. P does not have to be afraid.
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Assault: Are damages required?
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No. P can recover nominal damages even if actual damages not proved. Malicious conduct may permit recover of punitive damages.
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Distinguish tortious & criminal assault
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Criminal--2 types:
i. Attempted battery: may be committed ever though victim unaware ii. Intent to frighten type: must be actual intention to cause apprehension Tortious--D acts w/ the intention of placing P in apprehension of imminent harmful or offensive contact + P actually placed in such apprehension |
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False imprisonment
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1. INTENT--to cause P to be unlawfully confined against P's will (or know w/ reasonable apprehension such confinement will occur in a bounded area.
2. CONDUCT: Vol act 3. RESULT: P suffered confinement 4. CAUSATION: D's act CAUSED P's confinement. The amount of time of confinement doesn't matter. P must be aware of the confinement. 5. P did not consent |
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FI What is bounded area
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1. freedom of movement must be limited in all directions
2. no reasonable means of escape known to P |
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Sufficient methods of confinement or restraint for FI
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1. physical barriers
2. physical force 3. threats of force 4. failure to release 5. invalid use of legal authority |
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FI: Insufficient methods of confinement or restraint include
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1. moral pressure
2. future threats. |
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Elements of false arrest constituting FI
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1. D asserted legal authority to detain P
2. P believed D had the authority 3. P submitted against P's will 4. D in fact lacked legal authority |
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Shopkeeper's privilege
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1. reasonable grounds to suspect person being detained stole something
2. detention must be in store or in immediate vicinity 3. only reasonably, nondeadly force may be used 4. investigation must be conducted in a reasonable manner 5. for a reasonable period of time |
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To avoid liability for FI, police must show arrest was:
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lawfully made with probable cause (reasonable reliance on report that crime has been or about to be committed)
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FI: are damages required?
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No. P can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if D acted maliciously.
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If a confinement is originally lawful but person is not released promptly when cleared, can that be FI?
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Yes
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IIED--elements?
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1. ACT--Extreme + outrageous conduct by D
2. INTENT D's intent to cause P to suffer severe emotional distres(MIN courts allow recovery for reckelssness if deliberate disregard of a high probablity that emotional distress will follow). 3. CAUSATION actual connection between the wrongful conduct + emotional distress 4. DAMAGES--physical harm is not required but the emotional harm must be severe. |
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For IIED, emotional distress includes
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fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, nausea, etc.
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IIED--can mere words suffice?
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Yes (unlike assault where mere words will rarely suffice). But mere insults are generally not actionable. Words have to be truly OUTRAGEOUS and go beyond the bounds of decency.
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IIED: Conduct that is not normally outrageous can become so if
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1. continuous in nature
2. directed toward of certain type of P: children, elderly, pregnant women 3. committed by certain type of D: (i.e. innkeepers or common carriers may be liable for mere gross insults) |
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3rd person can recover for IIED under what 2 situations?
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1. D knows 3rd person present + is close family of victim (MAJ)
2. D knows 3rd person present + victim's emotional distress is so bad it causes 3rd person bodily harm. (MIN) |
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IIED: Are damages required?
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Yes. Actual damages (severe emotional distress) not nominal damages are required. Proof of physical injury is not required. The more outrageous the conduct, the less proof of damages is required.
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IIED: Under what circumstances is the degree of outrageousness lowered?
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1, When D knows victim is a member of a group w/ heightened sensitivities
2. When D knows of victim's special sensitivities. 3. When D is an innkeeper, common carrier, public utility etc. + victim is a customer--D will be liable for gross insults of indecent language which would not otherwise be IIED. |
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Intentional torts to property are
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trespass to land
trespass to chattels conversion |
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Trespass to land--elements
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1. Vol Act
2. physical invation of P's exclusive possessory interest in real property w/o P's consent 3. Intent to invade 4. Possession--anyone w/ actual or constructive possession |
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Does trepass to land require proof of damages?
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No--P can recover for damages (like digging a hole, building a fire, etc) but even if no actual harm, nominal damages
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Trepass to land--defenses
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consent
necessity-- MISTAKE IS NO DEFENSE |
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Trespass to chattel
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Intentional interfering w/ personal property in someone else's possession. (ACT, INTENT, POSSESSION, DAMAGES)
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Trespass to chattels: are damages required?
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Yes not necessarily to the chattle, but at least a possessory right
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Trespass to chattels: 2 types of interference
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intermeddling or a dispossession
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Conversion
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Intentional interfence
w/ P's personal property that is so substantial that it is fair to require D to pay the property's full value. (DOMINION + CONTROL, INTENT, POSSESSION |
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Difference between trespass to chattel + conversion
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Seriousness. Factors include extent of D's dominion or control, the duration of the loss, ? D had bad faith, degree of harm to chattel, degree of inconvenience + expense to P.
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If the property of another is gained initially through consent, can a conversion occur?
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Yes, severe misuse, destruction, exceeding authorization which substantial change in prop can result in a conversion even if D initially had permission to use
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Subject matter of conversion
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tangible personal prop & intangibles that have been reduced to physical form
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Potential P in conversion
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anyone w/ possession or the immediate right to possession of the chattle
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Conversion: remedies
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P may recover damages (FMV at time of conversion) or possession (replevin)
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9 major defenses to intentional torts
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Consent
Self Defense Defense of others Defense of land/Chattels Shoplifters--defense to investigate Necessity (public + private) Legal authority Discipline |
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For issue involving self defense, defense of other & defense of property ask what 3 ?x
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1. Is the privilege available? Tort must be now or about to be committed.
2. Is a mistake permissible as the whether the tort being defended against (battery, trespass, etc) is actually being committed? 3. Was the proper force used? |
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2 inquires in consent to intentional tort fact patterns
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1. Was there valid consent?
2. Did D stay w/in bounds of consent? |
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3 types of consent
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express
implied in fact implied in law |
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Implied in fact consent
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P make objective manifestation which D interprets as consent
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Implied in law consent
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Emergency situation in which 1. P unable to consent
2. Reasonable person in P's shoes would have consented + 3. no evidence that P would not consent |
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Consent obtained through mistake
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will undo consent if obtained D knew of & took advantage of the mistake
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Consent obtained through duress
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negates the consent--must involve an immediate + serious threat of harm to P or P's family member
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Consent obtained through fraud
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invalidates consent if it relates to an essential, not collateral matter
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P consents but does not have capacity (young, insane)
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Consent not effective--P's family has to consent for P to make it effective NOTE: everyone has capacity to commit a tort but not everyone (e.g. young child) has capacity to consent to a tort.
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Conduct which exceeds scope of consent
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negates the consent--i.e. continuing contact after game ends, Dr. operating on wrong part of body
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Consenting to criminal act. MAJ & MIN
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MAJ--person cannot consent to a criminal act. MIN do hold consent effective but all make consent invalid if P is a member of a "protected class."
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Self Defense
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Allows P to use reasonable force to prevent threatened harmful/offensive contact or confinement.
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Self Defense: is mistake allowed?
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Yes a reasonable mistake as to the extent of the danger is allowed.
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Deadly force
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force intended or likely to cause death or serious bodily harm
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Self Defense + deadly force
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You can use deadly force only if you reasonably believe the other person is about to kill you or seriously injure you.
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Self defense + duty to retreat
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MAJ--you don't have to retreat under any circumstances. MIN--for deadly force you have to try to escape unless you are in your own home
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Self defense + effect of injuring others
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liable for intentional acts which injure others (i.e. using someone for a shield)
not liable for unintentional injuries to 3rd parties unless neg. |
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Does initial aggressor have the right to self defense?
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Not unless initial aggressor retreats + person comes after him
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Defense of others
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Person can use force in defense of 3rd persons if the individual being defended is permitted to use force in self defense. Force must be reasonable amount of force to defend the 3rd person against imminent threat of bodily harm.
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Defense of others + effect of mistake--MAJ & MIN
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MAJ "step into the victim's shoes"--if not entitled to employ self defense you can't use force on "victim's behalf.
MIN--you are entitled to a reasonable mistake |
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Use of force to defend property only when
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1. intrusion is not privileged
2. you have reasonable belief force is necessary to prevent or terminate the intrusion 3. you demand that the intruder desist before you use force (unless too dangerous or futile) 4. you use only as much force as appears to be reasonably necessary to protect the property |
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Defense of property + effect of mistake
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reasonable mistake is allowed as to whether intrusion has occurred or a request to desist is required. Mistake is NOT allowed as to whether entrant has a privilege (e.g. necessity) that supersedes the def of prop right unless entrant lead D to reasonably believe it is not privileged.
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Defense of property + use of deadly force
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You can never use deadly force just to protect property--ok if coupled w/ reasonable fear of grievous bodily harm
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When can you use force to recapture chattel?
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1. you are in fact entitled to immediate possession of prop
2. you have made timely demand (or demand futile) 3, you acted promptly 4. person w/ your prop is at fault (recovery only from wrongdoer) |
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Issue entry onto wrongdoer's land to remove wrongfully taken chattel
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Owner is privileged to enter onto the land & reclaim them at a reasonable time and in a reasonable manner after 1st making demand for their return.
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Issue: entry onto land of innocent party to remove wrongfully taken chattel
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Owner may enter & reclaim her chattel at a reasonable time & in peaceful manner when the landowner has been given notice of the presence of chattel & refuses to return it. However, chattel owner will be liable for any actual damage caused by the entry.
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Issue: If chattels are on land of another through the owner's fault, is there a privilege to enter onto the land?
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No, they may be recovered only through the legal process.
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What if you are mistaken about 3rd person being in wrongful possession of your chattel when you use force to go after it?
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You take the risk of mistake--even a reasonable one--& no mistake regarding D's right to recapture the chattels or enter land is allowed.
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Public necessity defense to property torts
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actions taken to avert a public disaster--complete defense--not liable for any damage to property
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Private necessity defense to property torts
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action taken to protect any person from death or serious harm or to protect specific land or chattels from injury. Reasonable mistake does not negate priv. but lasts only as long as danger. Must pay for resulting damage.
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Rules for legal authority or privilege of arrest as a defense to intentional tort--felony in D's presence
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D may make arrest whether police or not
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Rules for legal authority or privilege of arrest as a defense to intentional tort--felony outside of D's presence
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If police, D can make arrest as long as he reasonably believes that felony has been committed + reasonably believes P is criminal. If D is private citizen, he takes the risk of even a reasonable mistake as to whether the felong has really been committed.
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Rules for legal authority or privilege of arrest as a defense to intentional tort--breach of peace
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If crime not a felony, D cannot arrest whether police or private citizen unless committed in D's presence + D is in fresh pursuit
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Rules for use of legal authority or privilege of arrest as defense to intentional tort--misdemeanor not involving breach of peace
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CL rule is that neither an officer nor a private citizen may arrest w/o a warrant (but some states now allow police to arrest for misdemeanor committed in police's presence).
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Disciple as a defense to intentional tort?
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You can use REASONABLE force to preserve order if you are a parent, techer, military supervisor. EXCESSIVE force will negate.
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Torts which harm economic, dignitary & reputation interests
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1. defamation
2. invasion of right to privacy 3. misrepresentation 4. interference w/ business relations 5. wrongful institution of legal processes. |
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5 requirements for defamation tort--CL
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1. Defamatory stmt
2. about P 3. Publication 4. Fault 5. special harm |
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Defamatory stmt of fact v stmt of opinion
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Would reasonable person interpret the stmt as factual + could the stmt be proven false. If so, the stmt is defmatory. If mix of fact + opinion, look at the specificity of language.
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2 general types of defamation
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libel--written or more permanent
slander--spoken or temp |
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Significance of difference between slander + libel
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Except for slander per se, P has to prove special damages for slander--so likely that non-slander per se cases will not have recovery at all
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Defamation--meaning of publication
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Communication to a 3rd party who understand the stmt. Publication does not need to be deliberate. It can be neg,
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4 categories of slander per se
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1. stmt reflecting badly on P's business or profession
2. imputes a loathsome disease to P 3. imputes a moral turpitude crime 4. serious sexual misconduct |
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Inducement + colloquium
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refer to additional facts necessaru for aprima facie defamation claim if not defamatory on its face.
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Inducement + defamation
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additional facts necessary to show why stmt defamatory
(John McQueen just got married. inducement is: John McQueen is a Catholic priest) |
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Colloquium + defamation
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offer of extrinsic evidence to show stmr referred to P even though P not mentioned by name.
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Libel per se
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Libel stmt defamatory on its face
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Libel per quod
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requires extrinsic facts to make it defamatory
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2 approaches to libel per quod
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1. special (pecuniary) damages must be proven OR
2. Special (pecuniary) damages must be proven unless the libel falls into one of the 4 slander per se categories |
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Special damages in defamation suit
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Pecuniary losses caused by harm to P's reputation, for instanc loss of a job, loss of a gift, loss of business.
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General damages in defamation action
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Harm of a non-pecuniary nature--humiliation, mental anguish, harm to reputation w/ no $ repercussions.
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Standard of proof in defamation suit when P is public official
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New York Times v. Sullivan--for public official to recover, must show actual malice--that D knew stmt false or acted w/ reckless disregard for its truth
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Public official is
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1. Ind who has achieved pervasive fame or notoriety (i.e. movie star or sports figure) OR
2. Ind who has voluntarily injucted himself into a public controvery |
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Standard of proof in defamation suit when P is private individual + matter is of public concern
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P must show neg
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Standard of proof in defamation suit when P is private ind + matter is of private concern
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P must show publication only
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Defenses + privileges available for defamation
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1. Consent
2. Truth 3. Retraction 4. Absolute privileges 5. Qualified privileges 6. New youk Times privilege |
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Truth as a defense to defamation with media D + a matter of public concern
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P has to prove stmt is false. (if not media D, P only has to allege falsity + D has to prove truth as an affirmative defense)
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Retraction can be a defense to defamation
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only if made immediately after the defamation
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Absolute privileges as defense to defamation (cannot be abrogated)
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governmental + spousal
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Qualified privileges (can be abrogated by malice, abuse, etc)
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1. D must believe stmt true
2. Stmt must be infurtherance of the interest to be protected 3. Stmt cannot be excessively published |
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New York Times privilege
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protects media from liabiity for publishing false stmts about public figures as long as D does not act w/ actual malice
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Actual malice
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knowledge of falsity or reckless disregard for the truth
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Parties liable for defamation
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primary publisher
republisher secondary publisher (bookstores, libraries, newspaper delivery people) liability depends of due care--no liability if no knowledge of defamatory content. (but does not apply to broadcasters) |
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4 torts under invasion of the right to privacy
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1. appropriation of P's name or likeness for D's own commercial advantage
2. D's intrusion on P's affairs or seclusion 3. Publication of facs which place P in a false light 4. Public disclosure of private facts about P |
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Available damages for invasion of privacy
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1. harm to privacy interest
2. emotional distress (if it would normally flow from the kind of invasion in ?) 3. Special damages (any pecuniary losses) |
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Elements of appropriation
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1, unauthorized use (appropriate) of P's name or likeness
2. for D's own commerical or business purposes |
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Defenses to apprpriation
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1. newsworthiness--so if P is newsworth his name or likeness may be used by the media as long as it's not used for advertising purposes
2. consent |
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Elements of prima facie case for intrusion upon P's affairs or seclusion
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1. D's INTENTIONAL prying or intruding upon P's affairs or seclusion
2. which would be objectionalbe to a reasonable person + 3. the intrusion must be into a private place or matter (to which P would have a reasonable expectation of privacy) |
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Defenses to invasion of privacy
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Consent (but D can exceed scope)
absolute + conditional privileges apply |
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Prima facie case for false light
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1. D's publication of an untrue stmt about P, placing P in a false light in the eyes of the public
2. Whcih would be highly offensive to a reasonable person in the same circumstances + 3. If P is a public figure D acted w/ actual malice |
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Damages for false light
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harm to reputation, emotional distress + any special (pecuniary) damages.
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3 elements in prima facie case public disclosure of private facts
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1. D's public disclosure of private info about P
2. public disclosure of which would be objectionable to a reasonable person or ordinary sensibilities + 3. info is not a matter of legitimate public concern. |
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Defense to public disclosure of private facts
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newsworthiness--if so D can't be liable unless it knew what it published was false or recklessly disregarded its true or falsity.
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If story is newsworthy at one time, can the infor remain newsworthy years later?
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Probably--"once public prop always public prop. MIN--some courts stress P's right to solitude especially where harmful disclosures are concerned.
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