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18 Cards in this Set
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Intentional Torts - ABC FITT
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There are 7 Intentional Torts: Assault, Battery, False Imprisonment, Intentional Infliction of Emotional Distress, Trespass to Land, Trespass to Chattel, and Conversion.
Intentional, acts are acts done deliberately to cause the tortuous result or with knowledge that the results are substantially certain to cause the tortuous results. |
Remember mistake not a defense to intentional tort.
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Assault
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An intentional act done to cause a reasonable apprehension of imminent harmful or offensive bodily contact.
Elements: voluntary act, intent to create apprehension, causation, Damages Apprehension must be to plaintiff's own person. Threats to home, property, 3rd party, including family member not sufficient. Threat alone not sufficient, must be accompanied by some overt act. Plaintiff must be aware of the apprehension at the time. |
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Battery
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A voluntary and intentional act to cause a harmful or offensive touching of the person of the plaintiff.
Elements: Voluntary act. intent, harmful or offensive touchings of victim's person, and causation. Offense of contact is bodily contact that would be offensive to a reasonable person. Requires positive and affirmative action, near passive obstruction not sufficient. |
Most commonly tested on MBE - remember transfer of intent, if someone intends an assault, i.e. scare someone, but ends up touching the P then its battery
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False Imprisonment
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Intentional act to confine plaintiff,, within boundaries set by the defendant, with no reasonably apparent escape and where the plaintiff is aware of the confinement or is harmed by the confinement.
Confinement can be by physical force (against plaintiff or immediate family) actual or apparent physical barrier, arrest. Intense economic pressure not a means of confinement. Note: Threat of future harm not sufficient. Shopkeepers privilege - reasonable grounds, manner and time. |
Privileges; consent, shopkeepers privilege and arrest (by police based on warrant or reasonable suspicion that plaintiff committed a crime.
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Intentional Infliction of Emotional Stress - IIED
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An Intentionally committed extreme and outrageous act which caused the plaintiff to suffer extreme emotional distress.
Extreme and outrageous conduct is conduct that a reasonable person would view as highly inappropriate, socially unacceptable, or extremely vulgar within the context in which it was committed. Only intentional tort that requires plaintiff to suffer actual damages. Examples of severe emotional distress include: hysteria, neurosis, withdrawal, paranoia, insomnia, etc. Physical manifestation is sufficient by not necessary. If P suffers emotional distress as a result of conducted directed at a third person P may recover if 1) P is a member of the 3rd parties family, 2) P was present at time of D's act and 3) D knew P was present. Note: Basically no privilege because while all of the common law privileges to intentional torts should apply, they don't because of the requirement for extreme and outrageous conduct. |
Note: Difference between Negligent infliction of emotional stress and IIED is that NIED requires accompanying physical damages (refer to cards on negligence).
NIED involves a breach of duty where the D creates a foreseeable risk of injury to the P either by 1) causing a threat of physical impact that leads to emotional distress, or 2) directly causes severe emotional distress that by itself is likely to result in physical symptoms Not caused by fear of plaintiff's own safety, but from witnessing injury to another. Exception if plaintiff is in zone of danger and is threatened with injury may recover. |
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Trespass to Land
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Trespass to land is an intentional act causing an unauthorized entry of a person or thing onto, over or under the land in the possession of another.
Requires intent to enter land, not intent to trespass. D may intrude by either entering the plaintiff's property or remaining on it after a right of entry has lapsed. No actual damages required for trespass to land. Private or public necessity is a defense to trespass to land. |
Possession of another = occupancy of the land with intent to control it and exclude others (actual possession, right to immediate possession)
Intrusion caused something to cross onto land, people, objects, dust, dirt, etc. Not energy or smells (refer to nuisance). |
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Trespass to Chattel
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Trespass to Chattel is the intentional dispossessing or intermeddling with a chattel in the possession of another.
Intermeddling: Conduct by the defendant that serves to directly damage plaintiff's chattels (Denting P's car, hitting P's dog, etc) Dispossession: Conduct by defendant that serves to dispossess plaintiff of his lawful right to possession (stealing) Damages - D is liable for the actual damages or the diminished value of the chattel. |
Consent most common privilege.
As with trespass to land, intent to trespass is NOT required. It is only required that the defendant intended to do the act of interference with the chattel. Intermeddling: Conduct by the defendant that serves to directly damage plaintiff's chattels (Denting P's car, hitting P's dog, etc) Dispossession: Conduct by defendant that serves to dispossess plaintiff of his lawful right to possession (stealing) |
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Conversion
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Conversion is intentionally exercising dominion or control over the chattel and seriously interfering with the rights of the owner.
The proscribed legal remedy is forced purchase by the defendant. Substantial interference = taking and barring possessor's access, destroying the chattel, buying stolen property, selling or disposing of stolen property, mis-delivering chattel, refusing to return chattel on demand, and unauthorized use by bailee. Only tangible or intangible personal property can be converted, real property, i.e. land cannot. |
Substantial interference = taking and barring possessor's access, destroying the chattel, buying stolen property, selling or disposing of stolen property, mis-delivering chattel, refusing to return chattel on demand, and unauthorized use by bailee.
Factors for determining conversion include (1) the extent and duration of the actor's exercise of dominion or control, (2) the actors intent to assert a right in fact inconsistent with the other's right of control; (3) the actor's good faith, (4) the extent and duration of the resulting interference with the other's right of control, (5) the harm done to the chattel, (6) the inconvenience and expense caused to the other. |
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Transfer of Intent
Commonly = BAIT Modernly = FAB |
If the defendant intended to harm one party but harmed the plaintiff instead, courts will transfer the wrongful intent from that one party to the plaintiff.
Common law - BAIT - Battery, Assault, Imprisonment, and Trespass (to Land and to Chattel). Modernly - FAB - False Imprisonment, Assault and Battery. |
This doctrine applies from person to person, tort to tort.
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Intentional Torts Defenses - DARN COPS
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Discipline cases, Arrest cases, Recapture of Chattel, Necessity, Consent, Others, Defense of, Property, Defense of, Self defense
Mistake, but only where duty to act as with police mistakenly arresting wrong felon or when acting in self defense of others, and mistaken about plaintiff's intention. |
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Discipline
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A person with a recognized authority (parent, bus driver, airplane pilot, policeman, school teacher, etc.) is privileged to act reasonably given the the circumstances in a manner that otherwise might constitute battery or false imprisonment.
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Arrest
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A person is privileged to act reasonably to prevent or stop a felony from being committed in their presence.
Police may arrest for misdemeanors committed in their presence and for felonies otherwise if based upon reasonable suspicion. Police may also arrest under a warrant as long as the warrant was fair on its face. Private citizen cannot arrest for misdemeanor unless it involves a breach of the peace MPC only allows police to use deadly force in instances where the felony involved deadly force or where the conduct of the perpetrator posed a substantial risk of bodily harm to others if apprehension was delayed. Common law allows use of deadly force by private citizen or police in a valid arrest for any felony if such force is reasonably necessary to make the arrest. |
Private citizen cannot arrest for misdemeanor unless it involves a breach of the peace
MPC only allows police to use deadly force in instances where the felony involved deadly force or where the conduct of the perpetrator posed a substantial risk of bodily harm to others if apprehension was delayed. Common law allows use of deadly force by private citizen or police in a valid arrest for any felony if such force is reasonably necessary to make the arrest. |
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Recapture of Chattel
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A person has a qualified privilege to use reasonable force to recapture their own chattel if 1) they have asked for and have been refused return of the chattel, 2) they are in fresh pursuit of wrongfully taken chattel, and 3) the lost possession of the chattel through no fault of their own.
Cannot use deadly force. |
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Necessity
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A person is privileged to act reasonably as necessary to protect their own safety, the safety of others, and the safety of property.
For defense of property to be reasonable the value of the property being protected must exceed the damages caused by the efforts to protect it. Reasonable acts done to protect the property of others is a public necessity and absolutely privileged. Reasonable acts done to protect the D's own property are a private necessity and only a qualified privilege and the D remains liable for actual damages to the plaintiff. |
Public necessity - fire chief burns down structure to prevent spread of a fire.
Private necessity - during a blizzard D breaks into empty cabin to survive. |
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Consent
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Consent from a person with legal capacity to an invasion of her person or property is a complete defense, but is not a defense to a battery that causes foreseeable great bodily injury.
Consent may be 1) expressed, 2) apparent, or 3) implied by law Consent under duress not valid. Informed consent, (i.e. to surgical procedure is a valid defense). Consent by incapacitated individual, i.e. youth, incompetency, or intoxication not valid. |
Consent by mistake is valid unless defendant knew or took advantage of the mistake.
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Others, Defense of
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A person is privileged to defend others from harm, under the same conditions and by the same means as those under and which he is privileged to defend himself, provided the circumstances are such as to give the 3rd party a privilege of self-defense and intervention is necessary for the protection of the 3rd party.
A reasonable mistake by the D as to the belief that self-defense was necessary would not be a valid defense. |
Courts split when a D unknowingly enters in a fracas to defend an agressor. Under one view the D step's into the shoes of the aggressor and has no privilege because the aggressor could not claim self-defense. In the other view, the D is privileged to defend an aggressor in a fracas if they acted with a reasonable belief that they are acting to defend an innocent victim of aggression.
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Property, Defense of
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Defendant's are privileged to use non-deadly force to protect their property or the property of others.
To use non-deadly force: 1) the intrusion was not privileged, 2) reasonable believe that force was necessary, and 3) demand made for intruder to desist and intruder ignored demand. Spring guns not allowed, as they are considered deadly force. However, mechanical devices may be used if; 1) reasonable, necessary and customary, 2) there is adequate warning, and 3) the intrusion must actually pose a threat. |
The use of deadly force merely to protect property is never legal.
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Self, Defense of
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A person may act reasonably if necessary to protect their own safety.
A D may use non-leathal force provided that the D had reasonable apprehension of bodily contact and had no duty to retreat. A D may only use deadly force if he reasonably believes that the plaintiff was about to inflict harmful contact that would result in either death or serious harm. Retreat - Majority rule - no duty; minority rule duty to retreat when it can be done safely. Castle rule, need not retreat in own home. Limitation on Self-defense: If the danger is terminated no more privilege; not privileged to use excessive force (force that exceeds the amount necessary to protect himself). |
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