Torts - Intentional

Front 1

Intentional Torts - Prima Facie case

Back 1

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

Front 2

Rule on the Hypersensitive P

Back 2

Hypersensitivity of P is NEVER taken into account in deciding if P has a valid claim.

NOTE: this goes to causation arguement I think.

Front 3

Are there capacity defenses?

Back 3

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

Front 4

7 Intentional Torts

Back 4

Battery
Assault
False Imprisonment
IIED
Trespass to Land
Trespass to Chattels
Conversion

Memory Tip: I FAB plus the 3 ones involving property.

Front 5

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?

Back 5

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.

Front 6

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?

Back 6

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!

Front 7

I'm walking home from Fordham and someone snatches my backpack.

What can I do?

Back 7

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

Front 8

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?

Back 8

Battery. (1) Harmful or Offensive Contact (2) TO P's PERSON

Here, my dog's leash is the extension fufiling the 2nd element.

Front 9

My professor has a saying: "Battery is like Cooties, [ ]

Back 9

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.

Front 10

Little Sammy Stern threatens to beat the shit out of "Big" Andrew Barr. Can Andrew sue Sammy for Assault?

Back 10

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.

Front 11

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?

Back 11

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.

Front 12

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?

Back 12

No - when the Plaintiff knows the battery could not occur, the Plaintiff is not actually in apprehension.

Rule: Apprehension = Knowledge (fear irrelevant)

Front 13

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?

Back 13

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.

Front 14

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?

Back 14

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

Front 15

False Imprisonment

Back 15

(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.

Front 16

What is the Shopkeeper's Priv.?

Back 16

Shopkeeper's have a special defense for false imprisonment. They claim confininga suspected shoplifter is defense of thier property.

Front 17

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?

Back 17

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.

Front 18

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?

Back 18

Need to find out if Shopkeeper's Priv. would apply here? Ask

Front 19

Intentional Infliction of Emotional Distress
Prima Facie

Back 19

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

Front 20

What is "outrageous conduct" for purposes of IIED

Back 20

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.

Front 21

Evan tells Brian, "I used to have a shirt like that, but then my Dad got a job." Can Brian sue for emotional distress?

Back 21

No. No outrageous conduct.

Rule: need insults PLUS

Front 22

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?

Back 22

Maybe, but it would be more clear if conduct happened every night for a month.

Front 23

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?

Back 23

For sure.

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

Front 24

Other hallmarks indicating outrageous conduct for IIED

Back 24

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.

Front 25

Compare IIED with NIED

Back 25

Intent /Recklessness is more than negligence

extreme/outrageous conduct is more than negligent

Front 26

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?

Back 26

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.

Front 27

Buzzwords indicating Battery of Assault issue >>>?

Back 27

ADD ON AS I GO THROUGH ?s
-Afraid
-Frightened > but note fear not required; awareness/knowledge is test.
-Knowing
-Aware

Front 28

Severity requirement of IIED

Back 28

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.

Front 29

Trespass to Land

Back 29

i. D's Physical Invasion
ii. of P's Real Property

Front 30

2 ways D can cause "Physical Invasion" resulting in trespass to land

Back 30

1. Entering land on foot or vehicle

2. Throwing a tangible object onto the land (even without physically entering yourself)

Front 31

What if someone shoves someone onto another’s land?

Back 31

The one who does the shoving is the trespasser, the pushed friend is not the trespasser.

Front 32

What suffices as P's Real Property for purposes of Trespassing?

Back 32

rule: A landowners interest includes air above and soil below to a reasonable distance.

Front 33

Trespass to Chattel
&
Conversion

Prima Facie s

Back 33

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

Front 34

What is Personal Property

Back 34

all property that isnt land

Front 35

Remedy for Trespass to Chattel

Back 35

actual damages (cost or repair or rental)

Front 36

Remedy for Conversion

Back 36

Full fair market value at time of conversion

OR

Replevin

Front 37

Plaintiff wins suit for Conversion of his car. Can he demands money to re-buy the car instead of a repair?

Back 37

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)

Front 38

Is Mistake of Ownership a Defense to Trespass of Chattel or Conversion?

Back 38

No.