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75 Cards in this Set

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Defense of Others Elements
1. Actual/Apparent Necessity A, B, FI to fam members/others
a. actual P is the aggressor and 3rd party D is defending has the privilege of SD under the circumstances
b. apparent: D reasonably believed
1. The 3rd p D is defending/has the prvilege of SD under the circumstances OR
2) intervention by D is nec for the protection of the 3rd p
3) no liab is imposed on D e/i he is mistaken as long as the mistake is reasonable
a) trad test of defense of others: R. belief to person in Other's 3rd person's shoes
b) Modern view: reasonabel belief, R. mistake OK
2. Reasonable force (same as SD): comparable to D;s act, CN use more force than 3rd p WB allowed to use if they asserted SD, D must stop when danger ceases
Young v Warren NC 1989
D went to aid of dr & gch w/gun after Y threw a piece of wood through glass door. D arrived Y began to back away D prodded Y w/gun which went off & Y died D was unaware @ time that Y was drunk & had a gun in his pocket. Held for WD P D's belief WN R b/c unaware R. force trad from standpoint of the other. No evidence dr in peril @ time of shooting. If guilty in crim trail admissible in civil BN conclusive
Defense of others
Note Defense of others
trand can only help another if he WH had SD himself. Split in J over whether D stands in the shoes of the otehr/D's own shoes for purposes of determining whether D R bleieved intervention was nec. Trad D privileged only when other WH had SD. Modern D privileged to defenda 3rd p from H/OC invasion if D correctly R bleieves that a 3rd p had SD privilege intervention nec for 3rd person protection R. mistake Ok
Trad vs modern view Defense of Others
Defense of Arrest
1. nec
a. actual: P committed misdemeanor or public offense D must see P commit offense
b. actual/apparent: P committed a felony A,B,FI to fam member/others (strangers)
c. D has subj & R. belief that force is nec
2. reasonable force
a. CL standpoint of others
b. RS standpoint of the def encourages rescue more D friendly
c. Force must be comprable non violent felony MN use D/SBH Villent may inc death SBH
elements
Katko v Briney IA 71
Spring gun case D asserted defense of arrest P cliam of B. P broke into structure owned by D unoccupied to take antique bottles. Held for P b/;c D DN use R. force. Must prove actual nec if the D is not present vs apparent necessity. Poss to succ defend prop w/spring gun. HW CN prove violent felony b/c D is not present. CN willfully/intentionally injure a T by means of force that inc SBH/D B & E not violent felony. Wanton disregard for human life - felony
Intentional Torts Liab Ins & Bankruptcy
1. Liab ins allows prevailing P to recover damages. If D DN have liab ins then probably not worth suing
a. auto
b. home: accidents anywhere not lmtd to sustained in home
c. minority: specific intent puts a premium on compensatory function
d. Majority: inferred intent consture ins K to exclude coverage for an intentional tort if P proves either P/K test
auto, home, minority/majority rule for coverage
Is there liab coverage?
Purpose
Knowledge
Transferred
Purpose - No
Knowledge - minority yes, majority no
Transferred - yes coverage
Dual definition of intent & liab ins
1. liab ins DN cover intentional torts
2. liab ins lmtd in amt t/f hold as many ps as poss liable
3. recharacterize as neg/sl if u want to make sure ins covers
Social policies re ins coverage
1. DN want to encourage torts want to give incentive to restrain conduct
2. ave p DN want to pay for D's intentional harm to others
3. inferred intent--child abuse, pol.icy consideration operates like SL but alos allows for nondischatgeable intent. SL DN req intent
4. liab ins dn exist to relieve WD for liab for IT
Geraing v Nationwide Ins Co Ohio 96
parents & 3 minor drs filed suit against neigbor for IIED/Sexual B. Inferred intent adopted by majroity to do the act is nec to do the harm if the act is intended so is the harm. Minority appraoch acts of sexual B inc only an inference of intent to injure h/w rebuttable. Minority subj test make it diff to preclude coverage for ITw o/admission of specific inntent to harm/injure. Ohio adopts inferred intetn SAbuse is not accidental leg imposed SL for child molestation. In cases wehre an IT is subst certain to cause injury, determination of an insured's subj intent is not conclusive. DN mena to hurt anyone only relevant where the intentional act @ issues is not substnatially certaint to injury. No ins coverage for sexual abuse
Neigbor abuser
Pachucki v Republic Ins Co WI 1979
Green pinning war game participatnts were aware that injury could happen during game b/c happened before to a lesser extent. D caused harm b knowingly which is an IT no liab ins available for P.
What policy does pachucki focus on
Deterrence--Intent
Scanlong Case--specific intent compensatory
no specific intent to put out eye t/f ins co will have to cover. Compensation for P. NH adheres to the minority rule
What is the majority/minority rules re: ins coverage in intentional torts
Majority: deterrence/compensatory Pachucki/purpose or knowledge test = no ins coverage
Minority = Scanlon, if P DN have specific intent to cause type of injury then ins will have to cover.
Majority/Minority Card 2
Majority rule = MH intended the act & to cause some kind of bodily injury. Some kind DN nec will specific injury Focus on deterrence
2. Minority rule ins MH specific intent to cause the type of harm actually suffered focuses on compensation
In Re: Holt
Sexually abused P A & B, RIED, IIED. CH proved K but inferred intent is a given, inferred test of intent = SL
Estoppel in Bankruptcy Discharge
1. Issue in the prior action & the issue in the Bankruptcy ct are ID
2. The bankruptcy I MHB actually litigated in the prior proceeding
3. the prior determination of the I MHB a critical & nec part of the judgment in earlier decision
4) the burden of persuasion in the discharge proceeding MNB significantly higher.
Inferred intent in bankruptcy
In child molestation/misconduct involving a minor intent to harm & harm itself MB inferred. Inferred intent applies in bankruptcy. Malice/intent to harm in a sexual intentional tort is self evident b/c TF K his conduct is certain/almost certaint o cause H b/c he SHK & t/f the intent is inferred as a ML. Proof of sexual A & B of minor = intent to harm

Inferred intent
Rule will not apply when the perp of sexual abuse is a minor. Presumption fiction in inferred intent. A --> B advantage: K test creates a Q of fact whereas inferred intent is a given if you have the act
Altena v United Fire & Cas Co. IA 1988
D sexually assaulted P. Claimed that DN intend to cause harm. Ct rules that it can infer intent from acts as a ML b/c circumstances make harm forseeable
Underpleading
Techniques used by P's lawyer to attempt to cause liab ins. Characterize tort as not intentional sue for neg instead of purpose. Ex Pachucki reckless in shooting greening pin as opposed to shooting it w/intent to injure
Chapman v WI Physician Svc WI 94
BB gun Fired BB gun in gen direction wo/intending to hit. 14 yr old. Intended to shoot gun BN specific injury
Providence v Mutual Fire Ins Co v Scanlong NH 94
Compensatory focus, coverage exists under home owner's policy for 16 yr old 15 yr old hitting ea hit b/4 wo/injury. NH req specific intent for particular injury Subj test
Transferred Intent
No justification for inserting legal fiction into ins policies. Transferred intent is used to determine liab & liab ins access would be against purpose of allowing transferred intent
American Ins Co v Saulnier Ct 1965
D child threw glass bottle at 3rd party child to scare her & accidentally hit P child in the head. D is liable for double transferred intent. Liab ins is accessible b/c 2 step legal fiction was used to est liab
act & Puntive damages in transferred intent liability
1. if policy DN allow coverage for punis then honored by the cts
2. if policy is silent the Q is if such coverage is against public policy
3. yes punishment is shifted & deterrence is not effective
4. no freedom to contract & punishment is still felt by D by paying high cost of obtaining such coverage
5. Punitive damages are often needed to get a substantial award when comp amt is small but puni damages are only available when malice is present
Bankruptcy and PUntivie damages: tort judgment for intentional tort purpose/k is not discharged if D files bankruptcy no ruling on transferred intent yet
Provide incentive for P to sue for IT even when insu is not available
Deluca v Bowden Ohio 75
BB both minors, children are not SL Child under 7 incapable opt 2 child of any age MB liable for IT age relevant only for determing whether Child K w/substantional certainty that intentional act would cause h/oc 3rd opt C is SL for T if he actually intended teh physical act which caused injury
Intent & Children
Majority Rule intent & children
agree w/Deluca dissent. Jury should determine if C has capacity to understand & appreciate the consequences of his act
CL
below 7 incapable 7-14 rebuttable presumption not capable 14-21 rebuttable presumption of consent
Intent & Children
Anello v Savignac WI 1983
Parents liable up to $1k for willful/malicious/wanton acts of child h/w immature minors generally not liable for punis generally not liable for punis unless minor K act was wrong
Intent & Children
Majority rule, deluca dissent
jury age relevant for determing whether child knew w/substantial certainty that intentional act would cause harmful or offensive battery
Anello v Savignac WI 1983
Parents liable up to $1 for willful/wanton/malicious acts of child h/w immature minors generally not liable for punis unles minor knew act was wrong
intent/children
Am Ins Co v Saulnier 65
13 yr old threw bottle in wading pool. Burden on insurer to prove exception DN intend to hit girl when threw bottle Act done for the purpose of cuasing injury w/knowledge that injury is substantially certain to follow. If D intentds to commit A/B to 3rd p but causes h/oc w/P P may recover as though the act were intended to affect him. TI to the V Ins co. will cover b/c 2 fictional steps 1) minors intent to frighten = injure 2) injury to girl transferred to boy punis not recoverable
children
Intentional torts, punis, liab ins
if ins dn cover it then no punis
if ins covers it ex in transferred intent e/t must determine whether covers punis for TI
1) expressly excludes punis?
2) statutory prohibtion on ins coverage for punis
3) against public policy?
in ia can bargain for ins that covers punis
intent incompetnecy and liab ins
minority rule: children are capable to commit it but oftne judges will fidn that the c dn have the ability to form intent in order to allow the P to recover for hte harm sustained & perhaps b/c sympathize w/D child
minority rule re ins coverage for IT committed by children
Am ins co v haht ia 92
D child threw bb @ P's child @ death resulted. D claims that he DN intend to cause SBH only to hurt OC liab ins is allowed b/c D child DN intend to cause death of child and ins policy only req the actor to inflict injury that he expected/intended
child ins wd coverage
secual abuse by minors liab ins
liab ins is accessible b/c minor dn understand nature of sexual acts & thus cn form the intent req for intentioanl sexual battery
insanity
insane D cb held liable for it h/w cts often rule that mental incap should allow liab ins to be accessed
cooperative fire ins assn v combs vt 94
while insane D can be found liable b/c his/her acts were intentional the ability of the insane D to form the actual intent allows liab ins to be accessed insane D can'mt really distinguish b/w right and worng inability to overcome diseased mind's control of will
insane ins coverage
vol intoxication
vol intox not a defense to intent
am fam mutual ins co v peterson mn 87
while voluntary intox D struck P in the head w/a hammer ct held that D had cap to form the intent as inferred from the circumstances D's action was not a reaction/reflex t/f ins coverage is not available to p
ins coverage intoxicated
social policy vol intox
dn want vol intox to be an excuse more drunk sn = more exucse, policy holders dn want to pay for drunk's actions
Watson v Dilts IA 1902
P sued for IIED P snuck into P's home late @ night P saw D assaulting her husband and P b/c terrified P exp physical manifestations of her terror nervous sys shut down & confined to her bed for 6 wks. Held for P
IIED
Barnett v Collection Svcs Co IA 1932
D sent P several letters harassing her for debt D knew P was a widow w/children & sm income. Letters threatened to harass her employer as well until she lost her job D con to send letters after they knew they greatly upset her. Ct held P could rover for IIED when D acted willfully/maliciously
IIED
Current v Wolf IA 1953
P was discharged by D P secured employment elsewhere @ business similar to D's radio station P also filed suit against D to recover $ from term employment K D harassed by phone Constant worry entitled P to recovery
IIED
Elements of IIED-Direct P
1. Act by D
2. intent to cause ED no TI
a. mere knolwedge that P's feelings may be hurt is Not enough
b. SED must be intended/substantially certain to result
c. D's act - extreme & outrageous conduct
beyond all poss bounds of decency, people are expected to be hard enough to handle rough language & inconsiderate/unkind behavior
abuse by an actor in authroity is E & O unless the actor is insistingupon his legal rights in a permissible way
CF
PC yes to all tests see neg
SED
IIED obj/subj test
Objective test
1. no reasonable person would be expected to endure it
2. P must prove physical ailment & med evidence of the cause of ailments/clear showing of a notably distressful mental reaction
Subj test
1. what a person in the shoes of the P wuld likely experience attribute P's characteristics to the test of R. Person
2. D must be aware that P is suceptible to ED Eggshell P
3. If D is not aware then use obj test
White v Monsanto Co La 1991
P employee was scolded along w/grp of workers by D sup for @ 1 min D used profane la & threatened to show her the door P began to experience chest pain, pounding in her head & diff breathing P went to see Dr. Dr sd panic attack P sued for IIED held for D D's language while crude ewas not E & O P's reaction was more than ave person WH she is more sensitive D is not liable b/c he was not aware P was a sensitive person
IIED
Damages for IIED
Comp, punitive if malice can be shown
Elements of IIED for indirect P
Act by D
Intent to cause SED to Indirect P
D K that P was present when acted toward Direct V
3. intentionally/k/recklessly substantial certainty or high probability taht SED would result
3. Act by D E & O Condcut
4. CF
5. PC
6. SED to indirect P
7. $ Comp/Puni
Presence req iied
1. some jurisdcitions apply loosely ex children who hear physical abuse of a parent might meet
2. parents were in the house while guest molested children close proximity of the incident satisfies req
3. exceptions to the req have also been made for
a. fam who witnessed aftermath of assisted suicide by overdose allowed to go to trial a/t not present
b. husband allowed to recover after discovery of rape of wife
c. P discovers bloody body of suicide in their kitchen allowed to recover b/c D sicidal actor k that it was substantially certain to cause P SED
HLO v LEO v Hossle IA 86
P children were sexually abused by D P was unaware of the abuse Y even encouraged relationship until police notified P & showed them nude pics of their children taken by D P experienced SED Held SJ for D b/c P was not present @ the time of the abuse
IIED indirect P
PC IIED Indirect P
1. if p was present & is a fam member of direct P then PC
2. if non fam member P was present & shows physical manifestations of ED yes
IIED & Discrim conduct
implied civil ca by violation of a crim statute
evidence that statute to prtect a class of persons to which the P belongs against the harm P suffered
2. evidence leg would look favorably upon civil remedy for comp to P and punishment for D
Crim statute defines the situation in which D's conduct is reg
1. under civil rights statute public behavior is reg while behavior in private sector is not
Crim statute that defines the D's duty of care
1. breach of duty of care is evidence that D's act was E & O wo/violation statute E & O conduct would be hard to prove
Crim statute also significes what grp of people are not protected
discrim based on race solid IIED exception to 1 outburst of racial slur sex solid IIED esp when repeated harassment harder to recover for one incident sexual orienation not oslid unlikely that many jurisdictions will consider discrim to be E & O
Fraudulent Misrep of STDS
1. act by D liked/misrep where D knew of STD or D has reckless indiferrence to truth to impute himself w/k & D failed to disclose where D k @ having the STD & D & P have close confidential relationship that imposes a duty to speak
2. intent to defraud p/k
3. P reasonably relied on D where P asked D & sd No If D wH told P then P WN have had sex w/D
4. CF
5. harm to P, ED, dr
6. damages comp, malice if purpose to defraud
Kathleen K v Robert B Ca 84
Certain amt of trust & confidence exists in an yintimate relationship misrep of free from disease violates that basic trust consent undermiend by fraud/concealment of risk of infection. P argue WN have had sex w/D if had known, D r to privacy, & not close relationship
STD/fraud
BN v KK Ma 88
P alleges fraud based on D nondisclusure of herpes. The P & D were not married Held for D alllowing action to proceed intimate relationships have level of confidence when likelihood of physical harm is present duty. RElationsihp reliance
STD/fraud
Majority rule, deluca dissent
jury age relevant for determing whether child knew w/substantial certainty that intentional act would cause harmful or offensive battery
Anello v Savignac WI 1983
Parents liable up to $1 for willful/wanton/malicious acts of child h/w immature minors generally not liable for punis unles minor knew act was wrong
intent/children
Am Ins Co v Saulnier 65
13 yr old threw bottle in wading pool. Burden on insurer to prove exception DN intend to hit girl when threw bottle Act done for the purpose of cuasing injury w/knowledge that injury is substantially certain to follow. If D intentds to commit A/B to 3rd p but causes h/oc w/P P may recover as though the act were intended to affect him. TI to the V Ins co. will cover b/c 2 fictional steps 1) minors intent to frighten = injure 2) injury to girl transferred to boy punis not recoverable
children
Intentional torts, punis, liab ins
if ins dn cover it then no punis
if ins covers it ex in transferred intent e/t must determine whether covers punis for TI
1) expressly excludes punis?
2) statutory prohibtion on ins coverage for punis
3) against public policy?
in ia can bargain for ins that covers punis
intent incompetnecy and liab ins
minority rule: children are capable to commit it but oftne judges will fidn that the c dn have the ability to form intent in order to allow the P to recover for hte harm sustained & perhaps b/c sympathize w/D child
minority rule re ins coverage for IT committed by children
Am ins co v haht ia 92
D child threw bb @ P's child @ death resulted. D claims that he DN intend to cause SBH only to hurt OC liab ins is allowed b/c D child DN intend to cause death of child and ins policy only req the actor to inflict injury that he expected/intended
child ins wd coverage
secual abuse by minors liab ins
liab ins is accessible b/c minor dn understand nature of sexual acts & thus cn form the intent req for intentioanl sexual battery
insanity
insane D cb held liable for it h/w cts often rule that mental incap should allow liab ins to be accessed
cooperative fire ins assn v combs vt 94
while insane D can be found liable b/c his/her acts were intentional the ability of the insane D to form the actual intent allows liab ins to be accessed insane D can'mt really distinguish b/w right and worng inability to overcome diseased mind's control of will
insane ins coverage
vol intoxication
vol intox not a defense to intent
am fam mutual ins co v peterson mn 87
while voluntary intox D struck P in the head w/a hammer ct held that D had cap to form the intent as inferred from the circumstances D's action was not a reaction/reflex t/f ins coverage is not available to p
ins coverage intoxicated
social policy vol intox
dn want vol intox to be an excuse more drunk sn = more exucse, policy holders dn want to pay for drunk's actions
Watson v Dilts IA 1902
P sued for IIED P snuck into P's home late @ night P saw D assaulting her husband and P b/c terrified P exp physical manifestations of her terror nervous sys shut down & confined to her bed for 6 wks. Held for P
IIED
Barnett v Collection Svcs Co IA 1932
D sent P several letters harassing her for debt D knew P was a widow w/children & sm income. Letters threatened to harass her employer as well until she lost her job D con to send letters after they knew they greatly upset her. Ct held P could rover for IIED when D acted willfully/maliciously
IIED
Current v Wolf IA 1953
P was discharged by D P secured employment elsewhere @ business similar to D's radio station P also filed suit against D to recover $ from term employment K D harassed by phone Constant worry entitled P to recovery
IIED