Torts -- Section 1 (Intentional Torts)

Front 1

4 elements of Battery?

Back 1

1) Offensive or harmful/injurious
2) Contact
3) (that is) Intentional
4) Caused by D's action

Or CHIA (Contact, harmful, intentional, action)

Front 2

What determines "Offensive" in Battery?

Back 2

"Offensive" is determined by the prevailing standards of acceptable touching in that place

Whether "an ordinary person not unduly sensitive as to his dignity" would've been offended

Front 3

If P is oddly sensitive about their hands, and you touch them there, is it Battery?

Back 3

Courts are split, but regardless D must KNOW about P's bizarro obsession to be liable.

Front 4

What constitutes "harmful/injurious" in Battery?

Back 4

Bodily harm/injury OR pain

Front 5

What is the Doctrine of Extended Personality in Battery?

Back 5

Battery may be committed not only by contact with P's body, but also by contact with clothing, object P is holding, or anything else so closely associated with body that touching it is as offensive as body contact. SEE Fisher v. Carrousel Motor Hotel.

Front 6

Fisher v. Carrousel Motor Hotel (1967)(Supreme Court of Texas)

Back 6

Black P had plate ripped out of his hand by employee of hotel that objected to serving blacks. Battery by Doctrine of Extended Personality.

Front 7

What constitutes "Contact" in Battery?

Back 7

Courts look for something of [literal] substance:
* SPLIT: Smoke particles may count [Leichtman], or may not [North Carolina]
* Sound doesn't count, even if your ears are bleeding... Too fuckin' bad, loser.

Front 8

If D thinks he is hitting James, but is hitting Lindsay instead, is there Intent for Battery?

Back 8

Yes. Intent applies to the action, not the target. If D intents to cause harm/offense, that is sufficient.

Front 9

INSANITY: If D thinks she is kissing Chris, but she is actually chewing his bleeding lips off, is there Intent for Battery?

Back 9

No. No intent to cause injury--simply craving for flesh.

Front 10

If Dr. Z goes to perform sex change on Iggy, but chops Lindsay's dong instead, is there Intent for Battery?

Back 10

Yes. Z intended to cause harm, and had consent from Iggy, but not from Lindsay. No consent = Battery. (Everyone throw up now)

Front 11

What is the Eggshell Skull Rule as it pertains to Battery?

Back 11

If D intended to cause minor injury, but causes major injury instead, D is liable for it all. Tough shit.

Front 12

Must D be completely certain that he will cause injury with his Intentional action to constitute Battery?

Back 12

No. Substantial certainty is enough.
* D bombs plane to kill one person -- DUMB. "You'll kill us all!" Each passenger can sue, as it is substantially certain that they would be injured. [Get it? No direct intent, but foreseeable.]

Front 13

Chris can't throw for shit, but chucks a pen at James' face and miraculously rips his eye out. Battery?

Back 13

Yes. No question of certainty if there is clear Intent. Chris intended the throw and the harm.

Front 14

Aaron keeps chloroform in the bar, but forgets that he put it in the bottle of Rye. He serves it to Lindsay, who passes out and busts his ass. Battery?

Back 14

No, because of the Recklessness/Negligence on Aaron's part. He had no intent to injure or offend, and there was no substantial certainty. [Sue in negligence.]

Front 15

If Chris throws the pen at James' face, but hits Judy in the ear, is it still Battery?

Back 15

Yes. This is Transferred Intent. He had intent to cause injury, and that intent transfers to the injured party. Sue Judy Sue.

Front 16

Battery?
1) Guy moves chair to be funny. Causes injury.
2) Sleepwalker hurts someone.
3) James hires Moron, who hurts self with electroshock machine.
4) Iggy stabs Kama, thinking she is his Dirty Whore friend.

Back 16

1) Yes--intended offensive conduct.
2) No--no intent.
3) No--no intent.
4) Yes. Intended to cause harm, even though Kama is actually an UGLY Whore.

Front 17

Is Consent a defense to Battery?

Back 17

Yes. If the act is illegal, a FEW courts may say no, but generally Consent is a full defense. [Make sure it is REAL Consent -- no "Dude! Mental Age of 18!"]

Front 18

If Starbucks knows that 1 in 50,000 coffees cause anal herpes, is it Battery if they keep serving them and Fryman wins the ass lottery?

Back 18

No. In most jurisdictions, you have to look at the individual sale of coffee. No aggregating allowed.

A few courts say that this MAY be substantial certainty.

Front 19

Can Professor Lee get out of a Battery charge by proving he is insane or a tard?

Back 19

No. Insanity or diminished capacity is no defense to the Intent element if Lee was capable of forming an intent to commit the act which caused the harm.

Front 20

Does Reidenberg need to know he was raped during the camping trip while he was sleeping to sue for battery?

Back 20

No. Iggy is still guilty of battery (and rape).

Front 21

Can Contributory Negligence/Comparative Fault be used as a defense for Intentional Torts?

Back 21

Nope. If you intend to hurt someone, you can't say "hey--they shouldn't have been so damn stupid!"

Front 22

What are the 3 elements of Assault?

Back 22

1) D ACTS
2) with INTENT to cause *apprehension* of imminent contact that is harmful/offensive and
3) CAUSES that apprehension

The C.I.A.

Front 23

Beach v. Hancock

Back 23

D pointed unloaded gun at P, and argues that there was no intent to harm. Court says that for ASSAULT, apprehension of harm is more important than actual risk of harm.

Front 24

Can D Assault an unconscious person?

Back 24

No. Think. If P is asleep, how can they feel apprehension?

Front 25

Does the feeling of apprehension have to be reasonable to count as Assault?

Back 25

SPLIT: Most courts say apprehension must be reasonable, but Restatement says intent to cause apprehension is enough.

Front 26

Does Mr. T need to be afraid of Caroline to claim apprehension?

Back 26

No. Apprehension is not the same as fear. If Mr. T KNOWS Caroline is threatening him, that is enough. Pretend that apprehension means "is aware of."

Front 27

If James calls Lindsay in Italy and threatens him, is that Assault?

Back 27

No. The threat/words must be of imminent contact. SEE Brooker.

Front 28

Brooker -- what happened?

Back 28

Customer threatens phone operator. Court finds that, generally, words alone cannot constitute Assault.

Front 29

Can a Peacenik claim Assault if a quadriplegic veteran threatens to kick his hippie ass?

Back 29

No. P cannot recover for Assault if D had no present ability to carry out the threatened contact. "I'll bite your legs off!"

Front 30

If D stands outside P's car and threatens her, is that Assault?

Back 30

Probably. Words alone CAN be Assault if taken together with circumstances. SEE Vetter v. Morgan

Front 31

Vetter v. Morgan

Back 31

Lady gets shit from kids in a van. She's alone, it is nighttime, and they seem pretty serious. They threatened her ass, and she felt reasonably apprehensive. Counts as Assault.

Front 32

If Lindsay threatens James, but he can just walk away (and does), is it still Assault?

Back 32

Yes. If James is a pathetic loser, he can bring a suit for Assault: Lindsay acted, intending to cause apprehension of harmful contact, and James felt apprehensive. What a pussy.

Front 33

Dr. Z helps Iggy to rape Reidy in his sleep on a camping trip. Dr. Z then passes out in the tent next to him, buzzing softly. Reidy wakes up, and is afraid that she'll touch him. Assault?

Back 33

Yes. Z aided and abetted, but that doesn't matter. What counts is that she helped create a circumstance where Reidy would be apprehensive of her touching him. Yes to ACT (creating situation and laying next to him), yes to INTENT (same) and yes to CAUSE.

Front 34

Chris throws a pen at James' face, intending to hit him, but he dodges it with lightning ninja skill. Tort?

Back 34

The intended Battery converts to Assault under the Transferred Intent Doctrine.

Front 35

The Transferred Intent Doctrine allows for transfer between which personal torts?

Back 35

Assault, Battery and False Imprisonment.

Front 36

The Transferred Intent Doctrine allows for transfer between which property torts?

Back 36

Trespass to land and trespass to chattel

Front 37

Lindsay intends to stab a certain byatch from behind, but she turns around and sees the knife as it comes at her. Tort?

Back 37

He intended Battery, but she sees the knife and feels apprehensive -- Assault. (Roll again Lindsay -- need 1D20 for Critical Strike)

Front 38

What are the elements of False Imprisonment (Restatement)?

Back 38

1) D ACTS
2) Intending to confine P w/o consent or authority of law
3) D CAUSES P to be confined
4) P is aware of the confinement at the time (SPLIT)

Front 39

Is awareness of confinement necessary for False Imprisonment?

Back 39

SPLIT: Some courts say awareness is unnecessary, some say that P must prove awareness OR harm as a result.

Front 40

Does False Imprisonment require intent to confine?

Back 40

Yes. If D unintentionally confines individual, different tort (negligent confinement, which requires physical harm).

Front 41

Judy places Lindsay in the Torts room, and blocks one of the doors. False Imprisonment?

Back 41

No. Go out the other door!

Front 42

Judy places Lindsay in the Torts room, and blocks both of the doors. False imprisonment?

Back 42

Probably. The only other way out is the window. Lindsay simply must prove that leaving by the window is either dangerous or offensive to his dignity.

Front 43

Judy puts a blind woman in the Torts room, tells her there is only one door, and claims that there is no other exit. False imprisonment?

Back 43

Yes. If the woman doesn't know about the other door, she can claim imprisonment.

Front 44

Iggy places Dr. Z in his closet, and threatens to hurt her if she tries to leave. False Imprisonment?

Back 44

Yes. Threats of immediate harm suffice, as well as threats to Z's family or Property.

Front 45

Aaron tells a customer that he'll call the police if the guy tries to leave the bar. False imprisonment?

Back 45

No. Threats to call police is not sufficient. SEE Fojtik v. Charter Medical Corp.

Front 46

Fojtik v. Charter Medical Corp. (1999) (TX Court of Appeals)

Back 46

P was not "allowed" to leave rehab, but was given daypasses. When P asked to leave, rehab threatened to call the police. Don't be a baby--that isn't enough to count as False Imprisonment.

Front 47

James pulls out his EMS badge, and says that he is using his super-secret police powers to arrest Kama and places her in shackles. False Imprisonment?

Back 47

Yes. This is an unlawful assertion of legal authority. EMS CAN detain sometimes, but this particular way is not legal.

[Ed. Note - this last bit is a) a fact and b) about CPR School. Do not mention on exam - Lindsay]

Front 48

Elements of Malicious Prosecution

Back 48

1) Instigator acted without Probable Cause to believe allegation
2) Malice or Ill Will toward P

[Plus, 3) P. must have been found innocent
4) D. must've been the but-for cause of the prosecution happening]

Front 49

Chris claims that Lindsay sexually assaulted him, though he knows it is totally false and disgusting. Malicious Prosecution?

Back 49

Yes, so long as Lindsay can prove that Chris acted without probable cause AND that he had malice or ill will toward Lindsay.
PLUS Lindsay must show that, but for Chris' action, no case would have been brought against him AND the case in question terminated in a way that declared him Innocent.

Front 50

Elements of Intentional Infliction of Emotional Distress

Back 50

1) D ACTS outrageously
2) With INTENT (or Recklessness) to cause extreme emotional distress
3) and CAUSES extreme emotional distress

Front 51

What defines "outrageous conduct" in IIED?

Back 51

"Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim 'Outrageous!'"

Front 52

What are three aggravating factors for IIED?

Back 52

1) D is in a position of power over P (boss, professor, caretaker)
2) P is known to be unusually susceptible to that conduct
3) One act is not outrageous, but act is done so many times that it becomes outrageous

Front 53

Do courts require a physical manifestion in order to prove Extreme Emotional Distress?

Back 53

SPLIT: Some courts require P to provide evidence of physical manifestations of EED (nursing mother stops lactating).

Restatement does not require evidence of physical manifestation, but is otherwise pro-boob.

Front 54

Dickens v. Puryear

Back 54

Lindsay's dad quietly smokes a cigar and watches while his cousin ties a guy to a tree and beat the livin' shit out of him. Then they threaten kill his ass if he doesn't move in 30 days. Too late for Battery (SOL therefore SOL), too much time for Assault. BUT IIED works just right, but only for threat for death 30 days later.

Front 55

WTF is Third-Party IIED?

Back 55

"It wasn't directed at me, but I felt distress too!" Usually no good, but one exception: if an undertaker intentionaly mishandles a corpse

Front 56

Does Doctrine of Transferred Intent apply to IIED?

Back 56

No way, José. We'd all be suing Iggy for his skeezy ways. Causes too much litigation.

Front 57

When Consent is used as a defense to an intentional tort, by what standard is it determined?

Back 57

It is determined objectively, by the reasonable person standard. In O'Brien v. Cunard S.S., Irish dumb ass gets an injection and claims she did not consent. BUT she raised her arm to the doctor, so there you go.

Front 58

Can one consent to illegal activity that would otherwise be an intentional tort?

Back 58

SPLIT: Majority says P can still recover. Minority says no way--you consented, so tough luck.

Front 59

If Peyton Manning gets punched in the face on the field, can he sue for Battery?

Back 59

Yes. Most courts say that athletes can recover for injuries that result from willful, intentional acts to injure (must be more than simply a violation of the rules).

Front 60

Iggy doesn't know he got anal herpes from Starbucks, and gives it to Lee while consensually catching. Battery?

Back 60

No. He doesn't know, so no intent.

Front 61

Iggy doesn't know he got anal herpes from Starbucks, and gives it to Lee while consensually catching. Lee says "no consent--I didn't know!" True?

Back 61

Consent is still good, because it was a mutual mistake. SEE Doe v. Johnson.

Front 62

Doe v. Johnson (CA, 1993)

Back 62

P and D have sex. D has AIDS, but doesn't know it. P becomes HIV+, and sues. D claims consent. Consent is valid--mutual mistake.

Front 63

P gets surgery for appendix; Dr. also decides to perform sex change. Ok?

Back 63

Not ok. Medical consent is limited, unless the document specifically expands it. Sue to get the wiener back. SEE Kennedy v. Parrott.

Front 64

Marcus has a heart attack, and Judy does proper CPR, saves her, but breaks two ribs. Ok?

Back 64

Yes. Consent was implied, Judy acted within proper scope, etc. We'll talk about Good Samaritan later.

Front 65

What is the main counter to a defense of Consent?

Back 65

Duress. If duress was due to an imminent threat, the consent is invalid.

Front 66

Kennedy v. Parrott (1956)(NC)

Back 66

Lady needs to get a basic surgery, but doctor does additional work that was not consented to originally. Consent only applies to particular area of planned surgery, unless major emergency arises (then implied consent).

Front 67

In re Conroy

Back 67

RIGHT TO DIE
1) There is a right to refuse life-saving or life-sustaining medical treatment
2) There is a right to die of natural causes
3) There is NO right to kill yourself

Front 68

3 levels of proof to withdraw treatment from incompetent patients (In re Conroy)

Back 68

1) Clear proof (DNR, etc.)
2) SOME evidence + burden of life > benefits
* Testimony from others; old letters
3) NO evidence + burden of life > benefits AND keeping them alive is inhumane

Front 69

At trial, which party has the burden of proof for self-defense?

Back 69

The defendant.

Front 70

Chris sees Lindsay being roughed up by two midgets. He steps on them to defend Lindsay, but they were super-secret Government NatSec agents. Defense?

Back 70

SPLIT: Majority says Chris "steps into the shoes" of Lindsay, so no defense for mistake of fact.
Minority says if the use of force was reasonable, Chris has a defense.

Front 71

Lindsay is getting gang-raped by triple amputees. Chris shoots at them to protect him, but misses and hits the Pope. Defense?

Back 71

Yes. If Chris was privileged to use force, the privilege will shield him from liability to the Emperor.

Front 72

James sets up a tripwire-triggered laser to kill intruders on his abandoned banana plantation. Permissible?

Back 72

No. Must only use reasonable force to protect real property. (We all know the crim law domicile exception).

Front 73

James puts up a sign saying "If on my plantation you trespass, you'll get a ray-gun up the ass." Iggy wants the bananas, and gets turned to ash. Defense?

Back 73

No. Posting a warning does not change the standard for use of force.

Front 74

James owns a house, and trains murderous rats to attack intruders. Dr. Z trespasses and gets killed. What is the FIRST question about the house?

Back 74

Was the house occupied? If Z was a burglar in a domicile, lethal force permissible if there is no other option. In general, no duty to retreat. SEE Katko v. Briney.

Front 75

Katko v. Briney

Back 75

The Spring Gun Case. Owner placed spring gun in house to shoot intruders. Claims it was only to scare them. No good in the hood, as the house was abandoned.

Front 76

Chris takes James' watch, and James' begins pursuit. May he wring Chris' scrawny little neck?

Back 76

Yes. If the force is reasonable (not deadly), and James is in "hot pursuit," he may use force to recover chattels. BUT, if he is wrong about Chris stealing, he has no Mistake of Fact defense. Ha ha... SEE Jones v. Fisher -- not in these cards

Front 77

In order for an arrest with a warrant to be legal, what 3 things must the police officer prove?

Back 77

1) The warrant is directed at the specific cop/official
2) The warrant describes the person to be arrested
3) The person actually arrested is the correct person

Front 78

Chris sees Lindsay beat Kama in the face with a baseball bat. He steps in to make an arrest. Legal?

Back 78

Yes. If the felony was actually committed, Chris is permitted to effect an arrest.

Front 79

Chris sees Lindsay commit a misdemeanor against Kama. May he effect an arrest?

Back 79

Yes. If Chris saw the minor crime occur, he may arrest Lindsay. However, if he is incorrect, Mistake of Fact will not be a defense.

Front 80

Lindsay owns a porn store in Brooklyn, and suspects that James is trying to shoplift the Choco-Donkey Choade Patented Butt-Plug. May he detain James?

Back 80

Yes. The "Shopkeeper's Privilege" says that he may detain a person who has stolen or is trying to steal property if:
1) It is a reasonable belief that James is doing so
2) He only detains for a reasonable time
3) He detains in a reasonable manner

Front 81

What two factors are balanced to determine the standard for public or private necessity?

Back 81

The property interest of P is balanced with the potential harm to D, the Public, or a third-party.

Front 82

In order to prevent a meteor from hitting Manhattan, Chris hacks NASA and puts the vacant International Space Station into its path first. Defense?

Back 82

Public necessity. He was acting to protect the public as a whole.

Front 83

Is Chris' destruction of the International Space Station to save Manhattan a complete privilege?

Back 83

Yes. He does not need to pay for it.

Front 84

Chris moves the International Space Station into the path of a meteor to save Manhattan, but he miscalculates and both are destroyed. Defense?

Back 84

Yes. Chris will not be held liable, even if he made a mistake, provided the necessity of the circumstances made the course of action seem reasonable. SEE Surocco v. Geary

Front 85

Surocco v. Geary (1853) (Supreme Court of CA)

Back 85

Fire Marshal Bill orders Surocco's house blown up to stop the spread of fire. Psych! Didn't help at all! He is not liable, though, because he has complete privilege under the doctrine of public necessity.

Front 86

James' space shuttle is failing, so he lands it on the Fordham Atrium, causing damage. Must he pay for it?

Back 86

Yes. Under private necessity, James is exercising an Incomplete Privilege. If he causes damage, he must pay for it.

Front 87

James' space shuttle is failing AGAIN, so he lands it on Lindsay's upstate property but causes no damage. May Lindsay sue for trespass?

Back 87

No. Private necessity is a defense if James causes no property damage. SEE Vincent v. Lake Erie Transportation Co.

Front 88

Vincent v. Lake Erie Transportation Co. (1910)(Supreme Court of MN)

Back 88

Big storm comes, so D ties his boat to P's dock without permission. Causes damage, but that is ok. No trespass under Private Necessity, but he must pay for the damage.

Front 89

Chris' computer is about to crash, ruining his Skyrates game, so he rips a power cable out of the Fordham wall, causing $10,000 in damage. Defense?

Back 89

No. Even private necessity fails, as there is a cost-benefit analysis.