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Torts Flashcards
| Question | Answer |
|---|---|
| What are the 3 factors for a Prima Facie Case? | Act by Defendant - Intent - Causation. |
| What is an Act by Defendant? | Act requirement refers to VOLITIONAL MOVEMENT on Defendant's part. Reflexive Movement = Volitional Eplileptic Attack ≠Volitional Being pushed ≠ Volitional |
| What types of Intent are available for Tort liability? | Specific Intent and General Intent |
| What is Specific Intent? | Actor Intends the consequences of his conduct if his GOAL is to bring about these consequences. |
| What is General Intent? | Actor "intends" consequences of conduct if he KNOWS WITH SUBSTANTIAL CERTAINTY that these consequences will result. |
| Does an actor need to intend injury? | Person may be liable even for an unintended injury if he intended to bring about such "BASIS OF THE TORT" consequences. |
| What is "Transferred Intent"? | Defendant intends to commit tort against one person but instead: 1) Commits a different tort against that person. 2) Commits the same tort as intended but against different person. 3) Commits a different tort against a different person. |
| What are the limitation on Use of Transferred Intent? | Transferred Intent may only be invoked where the Tort Intended and Tort that Results or both: 1) Assault 2) Battery 3) False Imprisonment 4) Trespass to Land 5) Trespass to Chattels |
| What is the difference between Motive and Intent? | Motive impels a person to act to achieve a result. Intent denotes the purpose to use a particular means to effect that result. ONLY INTENT IS RELEVANT |
| What is the effect of MALICE? | Malice or ulterior purpose is an essential element of some torts. Malice may negate a privilege that defendant might have. Malice may permit the recovery of punitive damages. |
| What is the Majority View of Minors/Incompetents having Intent? | Both minors and incompetents will be Liable for their intentional torts. |
| What is Causation? | Result giving rise to liability must have been Legally cause by defendant's act OR something set in motion thereby. |
| When will the Causation Requirement be satisfied? | Causation Requirement is satisfied where the conduct of defendant is a SUBSTANTIAL FACTOR in bringing about the injury. |
| What are the 3 elements of a Prima Facie Case for BATTERY? | 1) Act by defendant which brings about HARMFUL or OFFENSIVE CONTACT to the plaintiff's person. 2) INTENT on the part of the defendant to bring about harmful or offensive contact to the plaintiff's person. 3) CAUSATION |
| BATTERY: What is Harmful or Offensive Contact? | Contact considered harmful or offensive by a REASONABLE PERSON of ORDINARY SENSIBILITY. Contact is "Offensive" if plaintiff has not expressly or impliedly consented to it. |
| BATTERY: What is the meaning of "Plaintiff's Person"? | For purposes of Battery, anything CONNECTED to the plaintiff's person is viewed as part of the plaintiff's person. Ex. Grabbing purse from shoulder = Battery |
| BATTERY: What is the standard needed for Causation? | Defendent is liable for Direct and Indirect contact if it will be sufficient if he SETS IN MOTION A FORCE that brings about a harmful or offensive contact to plaintiff's person. Ex. Digging a hole for person to fall in. |
| BATTERY: What is the role of Apprehension of Contact? | Person may recover for battery even though he is not conscious of the harmful or offensive contact when it occurs. Ex. unauthorized surgery performed on unconscious patient. |
| BATTERY: Does the doctrine of transferred intent apply to battery cases? | Yes. Defendant acting with intent to commit an assault who causes harmful or offensive contact to the plaintiff has committed a battery. |
| BATTERY: Are Actual Damages Required? | No. Plaintiff can recover NOMINAL DAMAGES even though he suffered no severe damages. |
| BATTERY: In Majority of Jurisdictions, when may punitive damages be recovered from defendant? | Defendant must have acted with MALICE. |
| What are the 3 elements for a prima facie case of ASSAULT? | 1) Act by defendant creating REASONABLE APPREHENSION in plaintiff of IMMEDIATE HARMFUL or OFFENSIVE CONTACT by plaintiff's person. 2) Intent of defendant 3) Causation |
| ASSAULT - What are the requirements for "Apprehension? | 1) Must be reasonable - normally not exaggerated fear of contact. 2) Apprehension is same as EXPECTATION - may apprehend immediate contact even if belief that person can defend or avoid such contact. |
| ASSAULT - In "Apprehension" was is the "Reasonable Person Test" | 1) Expectation of contact 2) Plaintiff must have been AWARE of defendant's act. 3) Not necessary to know identity of defendant. 4) Defendant's apparent ability to act is sufficient - defendant does not need to be actually capable of act. |
| ASSAULT - What is the Effect of Words? | Overt Act is necessary - Words alone, even if violent, generally do not constitute an assault. Words can however negate an assault. Ex. Person 1 clenches fist and says "If I weren't such a good guy, I'd hit you." |
| ASSAULT - When must the apprehension of contact take place? | Apprehension must be of immediate harmful or offensive contact. Future threats are insufficient. |
| ASSAULT - Does the doctrine of transferred intent apply to assault cases? | Yes. Defendant acting with intent to commit a battery who causes reasonable apprehension of immediate harmful or offensive contact has committed an assault. |
| ASSAULT - What is the requirement for damages? | It is not necessary to prove actual damages to sustain a prima facie case for assault. Punitive damages may be awarded only where defendant's actions have been malicious. |
| What are the 3 elements necessary for a prima facie case for FALSE IMPRISONMENT? | 1) An act or omission to act on the part of the defendant that CONFINES or RESTRAINS the plaintiff in a BOUNDED area 2) INTENT by defendant 3) CAUSATION |
| FALSE IMPRISONMENT: What are sufficient methods of confinement or restraint? | 1)Physical Barriers 2)Physical Force- aimed at P, P's family, or P's property 3)Direct threats of force 4)Indirect threats of force 5)Failure to provide means of escape 6)Invalid use of legal authority |
| FALSE IMPRISONMENT: Can arrests constitute FI? | FI does not lie for an arrest or detention made through the legal process. FI may lie when an arrest made without a warrant is unlawful. |
| FALSE IMPRISONMENT: Which arrests are privileged? | 1)Felony arrests without a warrant by a police officer- reasonable grounds felony has been committed 2)Misdemeanor arrests without a warrant- breach of peace and in presence of arrester 3)Arrests to prevent a crime without a warrant |
| FALSE IMPRISONMENT: Conditions for "shopkeeper's privilege" to apply? | 1)Reasonable belief as to the fact of theft 2)Detained in a reasonable manner w/ only nondeadly force 3)Detention must only be for a reasonable period of time to investigate |
| FALSE IMPRISONMENT: Are moral pressure and future threats enough to restrain? | Remaining in the area in response to moral pressure or future threats is not sufficient confinement for FI claim. |
| FALSE IMPRISONMENT: What is a bounded area? | P's freedom must be limited in ALL directions. Area is not bounded if there is a reasonable means of escape P is aware of. |
| FALSE IMPRISONMENT: Are damages required? | Proof of actual damages is not necessary to sustain a prima facie case of FI. |
| What are the 4 elements needed for a prima facie case of Intentional Infliction of Emotional Distress? | 1) Act by defendant amounting to EXTREME or OUTRAGEOUS CONDUCT. 2) Intent by defendant to cause plaintiff to suffer SEVERE emotional distress, or RECKLESNESS as to the effect of defendant's conduct. 3) Causation 4) Damages - Severe emotional Distress. |
| IIED - Why is there reluctance to recognize this tort in some states? | Because of the difficulty of proving "shock", the speculative nature of the damages, and the fear of a flood of litigation. |
| IIED - What is "Outrageous Conduct"? | Conduct that transcends all bounds of decency tolerated by society. ex. Extreme business (collection) conduct, Misuse of Authority. |
| IIED - When will offensive or insulting language be characterized as "outrageous conduct"? | Generally offensive or insulting language is not outrageous conduct. Only if there is a special relationship between the plaintiff and defendant OR Sensitivity on plaintiff's part of which defendant is aware. |
| IIED - What is a Special Relationship Situation? | Relationship by common carrier or innkeepers who owe patrons special duties that will be a basis for liability even when the act is something less than outrageous. ex. Bus driving insulting passenger. |
| IIED - What is known sensitivity? | Defendants's conduct is directed at individuals in certain groups who he knows to be more sensitive and susceptible to emotional distress. Ex. Children, Pregnant Women, Elderly People |
| IIED - What level of intent does the defendant need to be held liable? | Defendant is liable for both INTENTIONAL CONDUCT and RECKLESS conduct. Reckless Conduct = acting in reckless disregard of a high probability that emotional distress will result. |
| IIED - What is the causation requirement? | Defendant's conduct must have PROXIMATELY caused the plaintiff's emotional distress. |
| IIED - What is the causation requirement with a Bystander? | D' intends physical harm to 3rd person and P' suffers severe emotional distress because of his relation to third person. Must Show: 1) Plaintiff was Present 2) Plaintiff was close relative 3) Defendant knew plaintiff was present and close relative. |
| IIED - How is liability evaluated for Mishandled Corpses? | Majority of courts allow recovery where mental distress resulted from intentional or reckless handling of relative's corpse. **Special category of liability for such conduct. |
| IIED - Is Actual Damage required? | Actual damages are required, but need not prove physical injuries. Must show SEVERE emotional distress (more than reasonable person expected to endure) Punitive damages allowed when defendant is improperly motivated. |
| TRESPASS TO LAND: What are the elements of a prima facie case for trespass to land? | 1)An act of physical invasion of P's real property by D 2)Intent on D's part to bring about physical invasion of P's real property 3)Causation |
| TRESPASS TO LAND: What constitutes "physical invasion"? | Interest is in exclusive possession of realty: Physical invasion is necessary: 1) Defendant need not enter: Throwing rocks, flood 2) Trespass when lawful right of entry expires 3) if no physical objects enter; courts usually treat it as a nuisance. |
| TRESPASS TO LAND: What constitutes "Land"? | On the surface, below the surface, or above it. (Wires over land, Flying an Airplane) |
| TRESPASS TO LAND: What is the Intent Requirement? | Mistake is no defense so long as defendant intended to enter. Intent to enter is required, not intent to trespass. |
| TRESPASS TO LAND: Who may bring action for trespass? | Anyone in actual or constructive possession. If no one is in possession than true owner is presumed. Lessee may recover only to the extent that the trespass damages the leasehold interest. |
| TRESPASS TO LAND: Does the doctrine of transferred intent apply? | Yes. The doctrine of transferred intent applies to trespass to land. |
| TRESPASS TO LAND: What is the requirement of damages? | Damage is presumed - actual injury to land is not an essential element to the cause of action. |
| TRESPASS TO CHATTELS: What 4 elements are necessary to establish a prima facie case? | 1) Act of D that interferes with P's right of possession in the chattel 2) Intent to perform the act bringing about the interference with P's right of possession 3) Causation 4) Damages |
| TRESPASS TO CHATTELS: What type of intent is required? | Mistaken belief that defendant owns the chattel is NO defense - intent to do the act of interference with the chattel is sufficient. |
| TRESPASS TO CHATTELS: Who may bring the action? | Anyone with possession or immediate right to possession may maintain an action for trespass to chattels. |
| TRESPASS TO CHATTELS: What type of damage is required? | General rule is that nominal damages will NOT be awarded. If trespass amounts to dispossession, loss of possession itself is deemed to be an actual harm. |
| TRESPASS TO CHATTELS: Does the doctrine of transferred intent apply? | The doctrine of transferred intent applies to trespass to chattels. |
| TRESPASS TO CHATTELS: What is the difference between trespass to chattels and conversion? | Conversion requires interference so serious in nature and consequence as to warrant requiring the defendant to pay its full value in damages. |
| CONVERSION: What are the 3 elements to establish a prima facie case? | 1) Act by D interfering with P's right of possession in chattel which is serious enough in nature or consequence to warrant that D pay full value of chattel. 2) Intent 3) Causation. |
| CONVERSION: What are examples of act which are serious enough to warrant a conversion? | 1) Wrongful Acquisition (Theft, Embezzlement) 2) Wrongful transfer (Selling) 3) Wrongful detention (Refuse to Return) 4) Substantially changing or misusing |
| CONVERSION: What intent is required? | Intent to perform act that interferes with P's right of possession - Even conduct wholly innocent may include liability. |
| CONVERSION: May a bona fide purchaser of chattel be liable? | Bona fide purchaser of chattel may become a converter if the chattel had been stolen from the true owner. |
| CONVERSION: What if the conduct is accidental? | Accidentally causing damage to or loss of another's chattel does NOT amount to conversion UNLESS the actor was using the chattel without permission when the accident occurred. **Actor may be liable in negligence for accidental damage. |
| CONVERSION: What is required for serious of interference or consequence? | The longer the withholding period and the more extensive the use of the chattel the more likely it is that conversion has resulted. |
| CONVERSION: What subject matter (types of chattel) are included? | Property is limited to tangible personal property and intangible property that has been reduced to physical form (promissory note) - Intangibles such as bakery route, customer list, and goodwill of a business may not be the subject of conversion. |
| CONVERSION: Who may bring an action for Conversion? | Anyone with possession or the immediate right of possession If person is not true owner, he is accountable to the true owner for any recovery to the extent of the owner's interest. |
| CONVERSION: What are the remedies for Conversion? | 1) Damages including fair market value of chattel. Computed as the time and place of conversion - Defendant receives title (forced sale) --If D wishes to return, P is not obligated to take back. 2) Replevin - P may wish to have chattel returned |
| DEFENSES TO INTENTIONAL TORTS: Consent. How can consent be given? | Consent may be given expressly; it may also be implied from custom, conduct, or words, or by law. |
| DEFENSES TO INTENTIONAL TORTS: When is consent not a valid defense? | 1)consent induced by fraud is not valid if the fraud goes to an essential matter. 2)consent obtained by duress may be invalid. future threats do not invalidate express consent. 3)consent by mistake IS a valid defense unless D knew mistake. |
| DEFENSES TO INTENTIONAL TORTS: What are the types of implied consent? | 1)Apparent consent- reasonable person would infer from P's conduct or ordinary usage/custom. 2)implied by law-necessary, like in emergency situation |
| DEFENSES TO INTENTIONAL TORTS: What capacity is required to consent to tortious conduct? | incompetents, drunken persons, and very young children cannot consent to tortious acts |
| DEFENSES TO INTENTIONAL TORTS: Can you consent to a criminal act? | Majority-cannot consent to criminal act some differentiate for breach of peace acts (consent ineffective) member of protected class cannot consent(stat. rape) |
| DEFENSES TO INTENTIONAL TORTS: Self-defense. When is self-defense available? | when person has reasonable grounds to believe he is being, or is about to be, attacked-may use such force as is reasonably necessary for protection |
| DEFENSES TO INTENTIONAL TORTS: Self-defense. Is retreat necessary? | majority of courts say retreat is not necessary |
| Is self-defense available for the aggressor? | not unless the victim uses deadly force when aggressor only used nondeadly force- agressor may then defend himself |
| How much force may be used in self-defense? | only that force that reasonably appears to be necessary to prevent the harm |
| DEFENSES TO INTENTIONAL TORTS: Defense of others. When is this defense available? | actor need only have a reasonable belief that person being aided would have right of self-defense. defender can use amount of force that could have been used in self-defense. |
| DEFENSE OF PROPERTY: When is defense available? | 1)limited to preventing the commission of a tort against property 2)after request to desist 3) only reasonable (not deadly) force |
| RECAPTURE OF CHATTELS: When is defense available? | Force used to recapture a chattel only in "hot pursuit" of one who took chattel -innocent party cuts off privilege |
Created by:
stevelancer
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