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33 Cards in this Set

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The plaintiff must make out a "prima facie case” meaning what?
The plaintiff must provide enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor. If not - case will be dismissed and will not go to the jury.
intentional torts includes
battery, assault, false imprisonment, trespass to land, conversion of chattels, trespass to person, and intentional infliction of emotional distress. Sometimes a violation of a person's civil rights will be an actionable tort under federal law.
A Person is subect to liability for Battery when.....
A person is subject to liability for battery when he acts intending to cause a harmful or offensive contact, and when a harmful or offensive contact result.
Must Plaintiff show fault in battery claim?
plaintiff must show fault (error in judgment or conduct) on the part of the defendant there must be a claim of fault, negligence, or wrongdoing by the defendant. Van Camp v. McAfoos.
What is the rule of law in Van Camp v. Mcafoos?
plaintiff must show fault (error in judgment or conduct) on the part of the defendant there must be a claim of fault, negligence, or wrongdoing by the defendant.

This rule in Van Camp, widely accepted today, is different from the common law rule, which held that anyone who acted directly could be held liable for any harm that resulted from his actions, even if there was not fault on the part of the actor. If the harm was caused indirectly, however, proof of fault would be required
Elements of Battery
A battery is an intentional, unconsented-to contact with another. A person is subject to liability for battery when he acts intending to cause a harmful or offensive contact, and a harmful or offensive contact results. Snyder v. Turk.
Is it battery if one is not physicallly harmed?
an offensive touching, though not physically harmful, can result in a battery. (extended instrumentality) Cohen v. Smith.
a. ex: Fisher v. Carrousel Motor Hotel, Inc. offensively snatched a plate from a potential customer's hand (he did so because of the customer's race). an offensive invasion of his person as would be an actual contact with the body."
b. example, consult Leichtman v. WLW Jacor Communications, battery is committed when one person intentionally blows cigar smoke into another's face.
Does one committ a battery if in the presence of a battery but did not participate?
One who is present and encourages or incites the commission of a battery can be held liable for the battery just as the one committing the offensive act will be held liable. Leichtman.
What is Intent?
When one desires the probable consequences of ones actions as distinguished from motive which refers to the reason why he desires.
1. when he acts "intending to cause a harmful or offensive contact . . . ." Snyder. dual intent required. intend to contact and intent contact to be harmful or offensive white v. muniz
2. in some jurisdictions, a battery can occur even when there is no intentional and offensive touching so long as a person has knowledge to a substantial certainty that harmful or offensive contact will result from a certain action and that action is intentionally undertaken. Garratt v. Dailey. (substantial certainty is like doing the laws of physics. The kid new that gravity would cause her to hit the ground.)
Give Example of an instrumentality
The use of instrumentalities to cause a battery
Dickens v. Puryear (clubs)
Mcafoos (classic case) ......tricycle
Garrett......gravity and ground
What is transferred intent?
one who intends a battery is liable for that battery when he unexpectedly makes offensive or harmful contact with another instead of with the intended victim. Davis v. White.
transferred intent applies to most intentional torts: not apply to the tort of intentional infliction of emotional distress
Are Children Liable for their Torts?
children are liable for their torts; tort liability attaches, regardless of age, where the nature of the act is such that children of a like age would realize its injurious consequences.
b. However, where a tort requires a particular state of mind, and a child because of age or mental capacity is incapable of forming that state of mind, he cannot be found guilty of the tort. Walker v. Kelly.
Are Insane Persons liable for their torts?
The insane are generally liable for their torts, and the fact that their intentions to commit a battery are based on irrational beliefs does not absolve them of liability. Polmatier v. Russ.
While insanity is not a defense to an intentional tort, it is a characteristic that may make it more difficult to prove the intent element of battery as the insane must be able to comprehend the offensiveness of their actions before liability can attach. White v. Muniz.
A Basic Definition of "Assault"
a threat of violence, independent of any physical contact, that creates a reasonable apprehension of an imminent offensive or harmful contact in the person being threatened. Intent is required, but actual touching is not.
Intent required for assault?
The intent required for an assault is similar to that required for a battery there can be either an intent to cause an apprehension of imminent harm or a substantial certainty that such an apprehension will result.
What is a major key to an assualt claim?
A major key to an assault claim is immanency; the threat must be of imminent contact, not future harm. Dickens v. Puryear.
What damages are available for either batter or assault?
Depending on the circumstances, a plaintiff suing for assault can recover both punitive and compensatory damages, including damages for mental or emotional distress caused by the assault. The same is true of battery.
What are the elements of intentional infliction of emotional distress?
The following elements are usually required if recovery is to be gained for intentional infliction of emotional distress: (1) the conduct must be intentional or reckless; (2) it must be so extreme or outrageous that it is outside the bounds tolerated by society; (3) there must be demonstrated a causal connection between the actor's actions and the victim's emotional distress; (4) the emotional distress must be severe; and finally, in some jurisdictions, (5) there must be physical manifestations of the emotional distress (simply saying "I'm really distressed" is not enough)
Are Words enough for an assault?
Words and Assault
1. In some cases, words alone, independent of other actions, can constitute an assault. However, any such words must create a reasonable apprehension of imminent harmful contact in order for an assault to be found.
2. In other cases, words might also serve to preclude a case for assault. For example, if a person draws a gun and points it at another, there may not be an assault if the holder of the gun also says the words, "I'd shoot you if this gun was loaded."
What is Trespass to Land?
The Basics of Trespass
a. Trespass is an intentional entry upon the land of another. Trespass can be effected by either personal entry onto another's land or by causing an object such as a rock or a car to enter the land.
(1) A landowner's property extends a reasonable height above ground and a reasonable depth below the ground.
b. Refusal to leave another's property can also be a trespass, regardless of intentional entry.
c. Trespass is technically an invasion of possession of land, not ownership. Thus, it is possible that, when no permanent harm is done to a piece of property, a lessee will be able to sue a third party for trespass while the lessor and owner of the land will not be.
What intent is required for trespass?
Intent and Trespass
a. As is the case with assault and battery, intent to trespass includes either an actual intent to enter or a substantial certainty that entry will take place if a certain action is pursued.
b. The intent required need not be intent to trespass, but it is enough that a person had intent to enter onto a piece of land. There is no escape from liability simply because a person believes he is on his own land or because she believes that she has permission or a right to be where she is.
What damages are available for trespass?
Damages and Trespass
a. Damages for trespass can be recovered even if there is no physical or economic harm to the property or possessor of the property.
b. If physical harm to property does result from a trespass, the trespasser is liable for either the cost or repairing the damage done or the amount by which the value of the premises is diminished, depending on the circumstances.
c. Punitive damages may sometimes be awarded if a trespass is either deliberate or malicious.
Do trespassers have extended liability?
Trespass and Extended Liability
a. Sometimes a trespasser will be held liable for damage caused even if no harm was intended and the harm caused was not directly foreseeable.
b. For example, if a trespasser onto a farmer's land throws a match into a puddle of flammable fuel, thinking that it was water, and the crops are burned to the ground, there might be liability for the value of the crops.
What is conversion?
1. Defining Conversion
a. Under the common law of torts, a conversion occurs when a person takes property belonging to another and converts it to his own use by exercising a substantial degree of dominion over it.
Is it conversion when one mistakenly takes anothers property?
Conversion also occurs when a party takes another's property under a mistaken belief that it is his own, or purchases stolen property with or without knowledge that it is stolen.
Is intent necessary for conversion?
Because conversion is an intentional tort, there must be a showing that the defendant intended to exercise dominion over certain property. However, there is no requirement that the plaintiff prove wrongdoing

For example, conversion occurs when one person, thinking he is taking his own coat from a coat rack, takes a coat belonging to another and exercises dominion over it. A plaintiff would not need to prove that the converter knew he was taking another person's coat, but simply that he intended to exercise dominion over the coat taken.
What is the meaning of dominion?
The Meaning of "Dominion"
a. Dominion over property is exercised when a person either treats certain property as his or her own, or when property is substantially damaged while in the possession of the converter.
b. It is unclear when a temporary taking of property, followed by its return undamaged, constitutes conversion. The Restatement (Second) of Torts 222A (1965) takes into account the following factors in just such a situation: (1) "extent and duration of control;" (2) "the defendant's intent to assert a right to the property;" (3) "the defendant's good faith;" (4) "the harm done;" and (5) "expense or inconvenience caused."
What may be converted?
a. Under the common law, only tangible personal property could be converted. This meant that intangible property such as paper money, stocks, and bonds could not be converted. Land similarly could not be converted under the common law.
b. Today the rules governing conversion are more liberal, as stocks and bonds are considered capable of conversion.
What remedies are available for conversion?
The general remedy for conversion is damages equal to the value of the item taken at the time of its conversion (though a different measurement is used when the value of the good has fluctuated).
b. Another possible remedy is the return of the item taken.
What is Trespass to chattels?
1. Trespass to chattels involves some degree of meddling with another's property, though not to the degree of conversion.
2. Liability for trespass to chattels is imposed only if the owner of the chattel is dispossessed of it, loses an opportunity to use it, or if the chattel or its owner are harmed.
What is a section 1983 claim?
A. Under federal law, a violation of 42 U.S.C. § 1983 is an actionable tort, meaning a tort claim can be filed for a violation of that section of the United States Code. Torts brought under this section are similar to assault, battery, and false imprisonment, each of which deals with invasions of the person.
1. Under § 1983, "[e]very person who, under color of any statute, ordinance, [or] regulation . . . subjects, or causes to be subjected, any . . . persons . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . for redress."
Liability under 42 U.S.C. § 1983 requires proof of two elements:
Liability under 42 U.S.C. § 1983 requires proof of two elements: the conduct complained of (1) "was committed by a person acting under color of state law" and (2) "deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States."
Give an example of a federal section 1983 violation.
For example, an officer who is present and fails to intervene to prevent other law enforcement officers from infringing the constitutional rights of citizens is liable under § 1983 if that officer had reason to know: (1) that excessive force was being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has occurred; and the officer had a realistic opportunity to prevent the harm from occurring. Yang v. Hardin.