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49 Cards in this Set

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What is the burden of proof for Summary Judgment?
No dispute of material fact.
Plaintiff hasn't produced sufficient evidence to go to the finder of fact.

P has burden of Production and Burden of Persuasion by a preponderance of the evidence.
Elements of "Alienation of Affection"
1. Existence of affection (loving relationship)
2. Intentional Interference
3. Interference occurs by some malicious or wrongful act
4. Damage (or destruction) of the relationship
Elements of "Criminal Conversation"
1. Existence of a marriage
2. extramarital sexual relations

No defense of "I didn't know he was married"
Alienation of affection and criminal conversation still torts?
In NC yes (wife $1M from lover);
got rid of Criminal Conversation in Idaho (Neal v. Neal) b/c of concern about floodgates of litigation.
Elements of Battery
1. Voluntary act by defendant
2. Intent
3. End Result: Harmful or offensive contact
4. Lack of Consent
Restatement on Consent
1) Consent effective for all consequences of conduct?
2) Two Exceptions?
1) Consent is effective for all consequences of the conduct.

2) Exceptions:
#1: Substantial Mistake AND mistake known to the other
#2: Consent under Duress
Can debts which result from willful or malicious injury be discharged in bankruptcy?
Not in Idaho (Neal v. Neal)
Debts which result from willful or malicious injury can NOT be discharged in bankruptcy.
Restatement on Intent for Batteries:
Two "culpability" possibilities
1) Purpose of causing the contact
-OR-
2) Knowledge on part of actor that's substantially certain to produce the action
Restatement def. of "voluntary act" for battery.
voluntary act is a "non-reflexive muscular movement"
"Harmful or offensive contact" element of battery...
do you have to physically contact the victim?
You can create a "harmful or offensive contact" by simply:
"set the forces in motion"

Is battery:
Like rolling a boulder at someone.
Fisher v. Carrousel Motor Hotel
Held: person snatches plate out of man's hand plate liable for battery


No battery if too indirect:
snatch dog you're holding on a leash
kicking tire of someone's car
Distinguish battery "intent" possibilities:
"purpose" versus
"knowledge to a substantial certainty"
"Purpose"- I throw a shot put, hoping I'll hit people far away, but doubtful I'll get it that far.

"knowledge to a substantial certainty"-
I'm just trying to work out, and don't want to hit 3rd graders, but do my exercise anyways knowing it's very likely someone might get hit.
Can kids commit intentional torts?
Tender Years Doctrine- kids Incapable of determining the consequences of their actions

Rule of 7's (old)
7-14: Rebuttable presumption they're not negligent
14+: Adults

"Child Standard of Care" in most states
Imputed Liability/Fault/Negligence
Who can you be held responsible for?
1) Wife (not anymore)
2) Child (not in GA unless "negligent supervision"; in LA no matter what)
3) "Family Purpose Car Doctrine"
4) Servant
5) Employees
Standard for parents being held vicariously liable for child in Georgia?
Parents must know of specific dangerous activity.

(held: boy's parents not responsible for boy killing girlfriend when girlfriend talked boy into driving her car, and parent's didn't know boy was driving)
Joint & Several Liability
Joint- person partially at fault must pay entire judgment. (Corbett's steel coils case- they paid entire judgment)

Several- person only pays based on their % of fault.
Normal statute of limitations on tort actions?
2 years

GA- 2 years on personal injury (negligent and intentional)

LA- 1
MS- 3
Is contributory negligence a defense in torts?
Contributory Negligence used to bar recovery. P had to be 0% at fault, else no recovery.

Now look at Comparative Fault & apportion judgment. (in some jxn, not for intentional torts)
GA law on respondeat superior?
Respondeat superior is liability by employer for employee's acts.

GA: Act must be within scope of employment.
(ex: Bouncer at club hits someone= w/i his scope of employment)
Do you want to argue that an employee's acts were intentional torts or negligent torts?
Why?
Might want to argue they were negligent so you can get employer's insurance to cover the loss.

Many insurance policies exclude "willful or intentional acts by the insured".
What do Workers Compensation statutes cover?
Is WC an Exclusive Remedy or just a choice?
Exceptions?
"in the course of employment and arising out of employment"
No Fault system

In Georgia, exclusive for physical injuries.
WC "excludes all other rights and remedies"

Exceptions: 1) emotional or mental injury
2) close cases: hit by coworker during lunch
Defense of mistake
Killing dog you thought was a wolf: mistake is irrelevant to the conversion because you intended to Kill.

Touching someone who you thought was your girlfriend. Maybe no battery because of "intent"- no knowledge or substantial certainty the contact would be offensive.
Is Insanity a defense to intentional torts?
Insanity is not a defense IF the person can form the intent required.

(may have a defense if you thought people LIKE to be hit... maybe no intent: no knowledge, no substantial certainty it would be offensive)
Is "fear of contracting aids" a battery?
1) Intent is needed (hospital in Funeral Services by Gregory didn't have intent)
2) Must prove ACTUAL EXPOSURE
Can you state of Georgia for torts?
GA has Sovereign Immunity statute.
GA usually waives it.
Claims it in Intentional Tort cases.
Can you transfer intent between persons?

Can you transfer intent between torts?

Exceptions?
Intent is transferrable between persons (farmer throws stick at one boy on his barn; hits a different boy)

Intent is transferrable between torts.
Intent -> Commit
Assault -> Battery
Assault -> False Imprisonment -> Battery

Exception: Trouble if
Property Tort -> Personal Tort

Stray exception:
LA ct no trx intent when man assault coworker by scaring w/ gun & ends up shooting him.
"Offensiveness" in battery- what default perspective do you take?
Judge "offensiveness" from the Ordinary Person's sense of dignity.
"Offensiveness" in battery- what if person touched had made it known they would be offended by the contact?
What perspective then?
That person, or the reasonable person?
No case law, so no Restatement position.

I would personally argue the reasonableness of the notice.
If it was made to people on a crowded Marta train where contact was almost inevitable, the notice might not be relevant.
If the person told their girlfriend they have severe sunburn so don't hug me, but she hugged anyway, then maybe that WILL count.
Extended liability principle
For intentional torts only
You are liable for the full extent no matter how unforseeable or surprising.

(Held: Dow vicariously liable to victim of battery for future wages because he was fired as a result of the fight)
Eggshell Skull Plaintiff Recovery Rule
For Intentional Torts
"You take your plaintiff as you find them"
Vosburg case- Held: boy who kicked another in the leg liable where the kick exacerbates victim's infection.

Held: Law prof who touched student on shoulder liable for her counseling needed because of Preexisting mental condition.
Elements of Assault
1) P placed in reasonable apprehension of an imminent harmful or offensive contact [D must have had the apparent present ability to carry out the contact]
2) Intent to make the contact
OR
Intent to cause the apprehension
Can words alone cause an assault?
VERY rarely can words alone cause an assault.
Words are relevant because the words might negate the assault.
For "apprehension" of imminent contact in Assault, must the P "fear" the contact?
No. Personal dignity/ Invasion of Person issue- Goliaths have right not to be kicked by Davids.

Apprehension is "cognizance or perception of a contact"
"expectation"
False Imprisonment - define
GA: "the unlawful detention of the person or another, for ANY LENGTH of time, whereby such person is deprived of his personal liberty"
What is a remittitur?
Procedural device a court can use.
If court thinks a jury verdict is too high, it offers to D to remit a portion of it in exchange for court not ordering a new trial.
What is False Arrest?
Form of False imprisonment where someone uses purported authority in order to restrain.
Elements of False Imprisonment
1) Voluntary Act
2) Intent to confine or restrain
(purpose or knowledge to a substantial certainty to confine)
OR
Transferred Intent from another tort
ex: I swing at you w/ pitchfork so you stay in a corner
2b) False = no authority to imprison
3) Complete confinement
ex: no FI if free way out
exception: Parvi held: drunk at golf course imprisoned
4) P conscious of confinement or actual injury
What constitutes "confinement within specific boundaries" for False Imprisonment?
Complete if the person has no known and safe means of escape.

Per the restatement:
City or state is small enough it might constitute a confinement.

Exclusion FROM something probably not FI (e.g. exclusion from stadium) because you're excluded TO "the rest of the world"
Do you have to be aware of the confinement if it actually causes you damages?
No.
Parvi Held: where drunk was 'confined' to golf course, and got hit by a car trying to leave, he need not be aware of confinement.
Is consent a defense to False Imprisonment?
Of course.

Hardy v. LaBelle's Distributing
Held: Where P took lie detector in back room because she "wanted to stay and clear her name" she was not falsely imprisoned because of consent.
Can you have False Imprisonment because of Duress of Goods?
Yes.
=confinement through possession of someone's goods.

Alabama case
Held: Used car dealer who refused to return purchaser's keys for 2 hours was falsely imprisoned because of Duress of Goods.
Can you have False Imprisonment because boss tells you to "come in to my office"?
Split in courts.

Some say implicit threat of loss of job is substantial threat.

Some say person is free to leave & boss is free to fire.
Elements of Defense of FI for shopkeeper's priveledge?
1) Reasonable Cause
- look at what was observed
- shoplifting alarm is automatic OK
2) reasonable manner of detention
- GA: no gratuitous and unnecessary indignities
3) reasonable length of time
Georgia "citizens arrest" statute
GA: within citizen's immediate knowledge
1) if it's a felony
2) AND person is fleeing
3) AND citizen has reasonable cause to believe they did it
FI if you're not let off an airplane on a runway?

FI if you're not let off a boat?

FI if you're not let out of a car?

FI if you're forcibly removed from a cult?
Airplane: No FI b/c consented to be on the plane & not safe to withdraw consent. Plus federal law controls.

Boat: FI b/c use of dingy like key to the door.

Car: Can withdraw consent to be in the car.

Cult: No right for others to handcuff & remove you from where you want to be.
Elements of Intentional Infliction of Emotional Distress
1) Voluntary Act
2) Intent or Recklesness (PKR)
3) Extreme and outrageous conduct
-exceeds the "limits of social toleration"
4) Severe Emotional Distress
5) Causation
Can you sue for IIED for mere insults?
Yes if Duty of Courtesy:
1) Common Carriers
(no options/choices- can't jump off train)
2) Public Utilities
3) Inn Keepers
4) Maybe other situations with special relationship

No, usually:

Slocum v. Food Fair Stores of FL
held: disallow claim by woman who has heart attack after grocery employee says "you stink to me"
(can choose Publix over Kroger)

Harris v. Jones
held: When man's stuttering problem worsens, insults of coworkers not Outrageous conduct, and no Severe ED. Causation problem.
Usual losing element in IIED?

stuttering?

sexual harrasment?

family disputes?

fired from job?

employer run at employees & run shop like army?
Outrageous conduct.

Harris v. Jones - stuttering case
held: supervisor making fun of stuttering guy not outrageous enough (1977)

Jones v. Clinton - sexual propositioning
held: "there's no harm in asking" Dismissed on S.J.

Courts don't like to get into family disputes

No IIED usually when fired b/c would hurt Employment at Will.

TX Sgt. ran office like military & ran at employees: Outrageous Conduct
What are the characteristics of Outrageous Behavior for IIED?
[not dispositive]
1) Repetition
2) Escalating Severity
Samms v. Eccles
held: man's conduct which got more & more explicit in propositining women --> Outrageous
3) Abuse of Power by a superior
(held: LA prof calls girl "you little slut" = outrageous)
4) Vulnerable or Susceptible Plaintiff
(something in front of pregnant woman who then miscarries = outrageous)
(held: telling a small child your mother is going to hell = outrageous)
5) violation of law like anti-discrimination or sex-discrimination statute: evidence of outrageous
6) mismanagement of corpses
(maybe not. held: cemetary moving corpse to correct grave NOT outrageous)
Can you have transferred intent for IIED?
Usually not. Different kind of intent than battery.

Taylor
held: when daughter watches her dad get beat up, and agressor doesn't know daughter is there, no IIED because no intent.