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38 Cards in this Set

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Intentional Torts - Prima Facie case
1. Act by D – a volitional movement by D
2. Intent – can be either
a. Specific – the goal in acting is to bring about specific consequences, OR
b. General – actor knows with substantial certainty that these consequences will result
3. Causation – need only D’s conduct that is a substantial factor
Rule on the Hypersensitive P
Hypersensitivity of P is NEVER taken into account in deciding if P has a valid claim.

NOTE: this goes to causation arguement I think.
Are there capacity defenses?
No-common trick.

Every D is capable of intent (D has NO incapacity defenses for intentional torts) – a drunk can commit battery, a 5 year old can commit false imprisonment
7 Intentional Torts
Battery
Assault
False Imprisonment
IIED
Trespass to Land
Trespass to Chattels
Conversion

Memory Tip: I FAB plus the 3 ones involving property.
At break-time Nick asks me for the time. He taps me on shoulder while doing so. I say –Nick don’t touch me!

If I sue Nick for Battery what result?
Case dismissed. RULE: Battery requires (1) Harmful of Offensive Contact (2) To the Plaintiff's Person.
HERE, the contact is not offensive b/c average person would permit it. ITs don't consider the hypersensitive P.
Andrew appraoches me in the library. I hardly know Andrew, but he walks up to me and starts petting my hair while saying in a creepy voice "I really really like you Sarah."

I sue for Battery- what result?
I've got a case. This is (1) offensive contact (2) with P's person.

Offensive b/c average person would find it so. I hardly know this dude and he is petting me!
I'm walking home from Fordham and someone snatches my backpack.

What can I do?
Criminal charge -

Tort Claim - Battery. (1) Harmful/Offensive Contact and (2) TO P'S PERSON.

Rule: Backpack is an extension of my person. Same goes for purse, clothing
I am walking my dog down with the cute new leash I just bought him. X comes along and kicks my dog.

What do I sue X for?
Battery. (1) Harmful or Offensive Contact (2) TO P's PERSON

Here, my dog's leash is the extension fufiling the 2nd element.
My professor has a saying: "Battery is like Cooties, [ ]
It travels through anything you are touching or holding.

He means that the requirement that the harmful or offensive contact be w/ the Plaintiff's PERSON is fulffilled as long as the touching is anything connected to P.
Little Sammy Stern threatens to beat the shit out of "Big" Andrew Barr. Can Andrew sue Sammy for Assault?
No. Assault = (1) D puts P in apprehension (2) Of an immediate battery. HERE, (1) is fulfilled b/c fact that Andrew is bigger and stronger than Sammy doesn't matter. Rule: Apprehension means you know or understand that you could be touched. Fear is irrelevant.

But, no assault b/c (2) not fufilled.

Rule: threatening words sans overt conduct is not enough to put someone in apprehension OF AN IMMEDIATE BATTERY.
Little Sammy Stern threatens to beat the shit out of "Big" Andrew Barr. While threatening Andrew, Sammy is pumping his fists in the air. Can Andrew sue Sammy for Assault?
Yes. Assault requires (1) D put P in apprehension of (2) Immediate Battery. Mere words without over conduct are not enough to cause apprehension of immediate battery. However, pumping fists is overt conduct that, combined with verbal threats, fulfill the second element.

Note: HERE, (1) is fulfilled b/c fact that Andrew is bigger and stronger than Sammy doesn't matter. Rule: Apprehension means you know or understand that you could be touched. Fear is irrelevant.
Little Sammy Stern threatens to beat the shit out of "Big" Andrew Barr. While threatening Andrew, Sammy is pumping his fists in the air. Andrew has known Sammy forever, and knows Sammy is incapable of hitting anyone.

Can Andrew sue Sammy for Assault?
No - when the Plaintiff knows the battery could not occur, the Plaintiff is not actually in apprehension.

Rule: Apprehension = Knowledge (fear irrelevant)
Little Sammy Stern threatens to beat the shit out of "Big" Eddie., Andrew's Older Brother.

While threatening Eddie, Sammy is pumping his fists in the air. Eddie has known Sammy a long time, but does not know what Sammy is capable of.

Can Eddie sue Sammy for Assault?
Yes. Rule: If P doesn't know either way, then P can recover b/c possible he could be touched and this is all the law demands to recover.
Little Sammy Stern threatens to beat the shit out of "Big" Andrew Barr - screaming "If you weren't my oldest friend, I would beat you to a pulp!" While threatening Andrew, Sammy is pumping his fists in the air.

Can Andrew sue Sammy for Assault?
No assault b/c conditional phrase “if you weren’t my BF, I would..” means I' m not going to touch you.

Rule: : words in future tense means no immediate battery
False Imprisonment
(1) D acts w/ INTENT to confine P against P's will within boundaries fixed by D
(2) D's acts directly or indirectly results in the confinement of P (3) P is conscious of confinement OR harmed by confinement.

Note: see PMBR red book Qs 92, 138, 143, 169, 191. Very tricky topic for me.
What is the Shopkeeper's Priv.?
Shopkeeper's have a special defense for false imprisonment. They claim confininga suspected shoplifter is defense of thier property.
On NY Bar Exam Day a Proctor suspects Betty and Veronica of cheating during bathroom breaks. Proctor follows Betty and Veronica into the bathroom and accuses them of cheating, demanding they both come with her to the administrators office. When Betty refuses, Proctor grabs Bettys arm gently but firmly and led her to the office. Veronica then follows them to the office.

Q. Veronica sues for False Imprisonment. NY Bar Examiners do not claim that it had privilege to detain her. What result?
Veronica will win if she reasonably believed she would not be able to complete the bar exam unless she followed Proctor and Betty.
Rule: false imprisonment now covers situations where P is compelled to go along with D.

Rule: Many ways to confine P for purposes of False Imprisonment besides D's use of physical force.

Ex: threats of physical force; duress; asserting you have legal authority; physical barriers.
On NY Bar Exam Day a Proctor suspects Betty and Veronica of cheating during bathroom breaks. Proctor follows Betty and Veronica into the bathroom and accuses them of cheating, demanding they both come with her to the administrators office. When Betty refuses, Proctor grabs Bettys arm gently but firmly and led her to the office. Veronica then follows them to the office.

Q. Veronica sues for False Imprisonment. NY Bar Examiners claim that it had privilege to detain her. What result?
Need to find out if Shopkeeper's Priv. would apply here? Ask
Intentional Infliction of Emotional Distress
Prima Facie
D's extreme & outrageous conduct causes severe emotional distress to another either intentionally or recklessly.

1. What is Extreme & Outrageous Conduct?
2. What is SEVERE? proof of physical injury not required, but must prove actual damages (unique)
3. Was there intent or recklessness?
4. Causation
What is "outrageous conduct" for purposes of IIED
Textbook def > “Exceeds all bounds of decency tolerated in a civilized society.”
Concrete def > concrete way to think of it is that mere insults without some other plus factors in fact pattern is NOT outrageous conduct.
Evan tells Brian, "I used to have a shirt like that, but then my Dad got a job." Can Brian sue for emotional distress?
No. No outrageous conduct.

Rule: need insults PLUS
you are having an erotic dream and phone rings waking you up. Its Visa telling you, you gotta pay your bill, or else. Visa threatens to break your legs if you don’t pay (hey, it’s the new Visa).

Do you have a prima facie for IIED?
Maybe, but it would be more clear if conduct happened every night for a month.
you are having an erotic dream and phone rings waking you up. Its Visa telling you, you gotta pay your bill, or else. Visa threatens to break your legs if you don’t pay. You are sick and tired of Visa b/c they have been doing this every night for 2 months!

Do you have a prima facie case for IIED?
For sure.

RULE: Repetitive or Continious > more likely to be outrageous.
(one of hallmarks of outrageous conduct, which is a requirement for IIED)
Other hallmarks indicating outrageous conduct for IIED
1. repetitive or continuous conduct

2. D is a common carrier or an innkeeper has historic obligation to be courteous to patrons ex: transportation company (greyhound, delta, hotel).

3. P is a fragile class of persons (young children - insults only;
the elderly - subjective test;
pregnant women - but only if you know they are pregnent)

*4. Exploitation of known sensitivity. Going for another's emotional achilles heel.
Compare IIED with NIED
Intent /Recklessness is more than negligence

extreme/outrageous conduct is more than negligent
Meridan, who does not like children, dresses up like a monster and runs into a kindergarten classroom shouting: "I'm going to eat all of you little kids!"

What is Adam liable for?
IIED IF children suffer SEVERE distress and prove actual damages.

note: threatening children is a sure way to fulfill the extreme & outrageous conduct requirement of IEED.
Buzzwords indicating Battery of Assault issue >>>?
ADD ON AS I GO THROUGH ?s
-Afraid
-Frightened > but note fear not required; awareness/knowledge is test.
-Knowing
-Aware
Severity requirement of IIED
Must be Severe emotional distress – need not be manifested in physical symptoms, does not require that P sought medical care or is taking medication.

TIP: sometimes fact pattern will negate this element. If P only mildly annoyed, slightly irritated, briefly upset - then P has no claim.
Trespass to Land
i. D's Physical Invasion
ii. of P's Real Property
2 ways D can cause "Physical Invasion" resulting in trespass to land
1. Entering land on foot or vehicle

2. Throwing a tangible object onto the land (even without physically entering yourself)
What if someone shoves someone onto another’s land?
The one who does the shoving is the trespasser, the pushed friend is not the trespasser.
What suffices as P's Real Property for purposes of Trespassing?
rule: A landowners interest includes air above and soil below to a reasonable distance.
Trespass to Chattel
&
Conversion

Prima Facie s
Both are civil remedies for vandalism & theft of personal (moveable) property

1. Intentional Interference w. P's Rights to Personal Property (either physical damage or deprive owner of possession)
- If small amounts of damage or just interfere w/ P's right to possession > trespass to chattel

-if v. extensive damage > conversion

2. Intent

3. Causation

4. Damages

Note: Differences are Remedies + Degree of Injury
What is Personal Property
all property that isnt land
Remedy for Trespass to Chattel
actual damages (cost or repair or rental)
Remedy for Conversion
Full fair market value at time of conversion

OR

Replevin
Plaintiff wins suit for Conversion of his car. Can he demands money to re-buy the car instead of a repair?
Yes. Remedy for conversion is right to full market value OR replevin. So here P can recover for whatever his car was worth acc. to fair market value at time of conversion (to buy a new car)
Is Mistake of Ownership a Defense to Trespass of Chattel or Conversion?
No.