Torts 1 MidTerm
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- The 7 intentional torts
- Battery, Assault, False Imprisonment, IIED, Trespass to Land, Trespass to Chattels, Conversion
- Are small children regularly held liable for intentional torts?
- Yes
- Are Parents generally held liable for the intentional torts of their children?
- No, unless they are negligent in failing to supervise.
- Are individuals of diminished mental capacity held liable for intentional torts?
- Yes: as long as they are capable of formulating in their mind intent to make contact, regardless of their misguided motives.
- Definition of Single Intent
- intent to contact that would be offensive to a reasonable person (majority rule)
- Definition of Dual Intent
- intent to contact in an offensive manner (minority rule)
- Definition of General Intent
- substantial certainty that consequences will follow from acts
- Definition of Specific Intent
- desiring consequences that will follow from acts
- Is someone liable for a tort committed in good faith?
- Yes. See Ranson v. Kitner
- Definition of Transferred Intent
- Intent to commit any one of the five transferable torts will suffice to make out the intent for any of the others. When an actor has the requisite intent to commit one of the five transferable torts and harm results to another's person or property.
- The 5 Transferable Torts
- Battery, Assault, False Imprisonment, Trespass to Land, Trespass to Chattels
- Elements of Battery: Harmful Contact(according to Rs. 2d Torts Sect. 13)
- (a) act intended to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact AND (b) a harmful contact with the person of the other directly or indirectly results
- Elements of Battery: Offensive Contact (according to Rs. 2d Torts Sect. 18)
- (1,a) act intended to cause a harmful or offensive contact with theprson of the other or a third person, or an imminent apprehension of such contact AND (1,b) an offensive contact with the person of the other directly or indirectly results (2) an act which is not done with the intention stated in subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm
- Definition of Battery: Offending a Reasonable Sense of Dignity (according to Rs. 2d Torts Sect. 19)
- In order that a contact be offensive to a reasonable sense of personal dignity it must be one which would offend the ordinary person and as such, one not unduly sensitive as to his personal dignity. It must, therefore, be a contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted.
- The 4 Factors of Respondeat Superior
- (a) the principle authorized the doing and the manner of the act OR (b) the agent was unfit and the principal was reckless in employing him OR (c) the agent was employed in a managerial capacity and was acting in the scope of employment OR (d) the employer or a manager of the employer ratified or approved the act
- Is an employer generally liable for the tortuous conduct of its employee that is within the scope of employment?
- Yes. See Respondeat Superior
- Definition of Assault (according Rs. 2d Torts Sect. 21)
- (a) an act intended to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact AND (b) the other is thereby put in such imminent apprehension
- Are conditional threats, "Your money or your life" assault?
- yes
- Are threats of future action assault?
- No. Only imminent or conditional threats are assault.
- The 4 Elements of False Imprisonment
- (a) intentional, unlawful confinement of plaintiff without consent (b) by force or threat of force (c) within boundaries established by defendant with no reasonable means of escape (d) awareness of confinement
- What most frequently precipitates litigation for false imprisonment?
- Customer and employees being detained for questioning because they are suspected of shoplifting.
- What is the Shopkeeper's Privilege?
- A defense to False Imprisonment. 3 elements: (1) a reasonable belief a person has/is attempting to steal (2) detention for a reasonable time (15 - 20 mins) (3) detention in a reasonable manner
- Can employees generally allege false imprisonment when they are threatened with being fired for not staying and answering questions?
- No. But when an employee is brought into a closed room with security police present and the atmosphere becomes sufficiently coercive such that the employee thinks they cannot leave, the court treats these cases as fact sensitive and a question for the jury arises.
- 4 Elements of Intentional Infliction of Emotional Distress
- (a) the conduct must be intentional or reckless AND (b) the conduct must be extreme AND outrageous AND (c) there must be a causal connection between the wrongful conduct and the emotional distress AND (d) the emotional distress must be severe
- Do abusive language and threats usually qualify as extreme and outrageous? (Element 2 of IIED)
- No
- Do racial slurs and sexual harassment in the work place generally qualify as extreme and outrageous? (Element 2 of IIED)
- Yes
- Is IIED recognized within the confines of marriage?
- Previously no, but courts are beginning to recognize the tort within marriage.
- Is Dual Intent requisite in IIED claims?
- The common law would say yes. See Rabideau v. City of Racine
- Are common carriers and innkeepers held to a lower threshold of extreme and outrageous behavior (Element 2) in IIED claims?
- Yes. Common carriers and Innkeepers have traditionally been held to higher standards of care.
- Definition of Trespass to Land
- For a trespass to land to be actionable, the tortfeasor must (a) voluntarily enter another’s land or (b) cause another person or chattel to enter another’s land or (c) allow, with substantial certainty, an animal to enter another’s land and (d) need not be aware that he has entered/allowed entry to the property of another
- Trespass to Land (Hypo) D is driving far past the speed limit. He loses control and spills into P's property. Trespass?
- No. Recklessness does not qualify as intent in trespass cases.
- Trespass to Land (case law). Smith v Smith and Rogers v Kent
- Smith - Owner of property owns what's under and over that land (to an extent.. overhanging shed case) Rogers - Consent to trespass can be limited to time, date, and area. Restatement includes a "Failure to Remove" clause
- Trespass to Chattels. Definition and remedy.
- Def - Intentional interference with the right of possession or use of personal property causing damage. Remedy- Value of harm done
- Conversion - Definition and remedy
- Def- Intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another. (Theft is a blatant example of conversion) Remedy- Full market value of the chattel
- 3 Privileges/Defenses of intentional torts
- 1. Consent (implied or apparent) 2. Self Defense 3. Necessity (public and private)
- Consent
- -Apparent (verbally consenting) -Implied (leading D to believe he/she has consented) -Consent can be limited -NOT VALID if procured by fraud or deceit -NOT VALID if P lacks the capacity to consent
- Consent (case law) from Hackbart and Christman
- Hackbart - Outside of the customs of what is to be expected is NOT consent. Christman - Doctor choosing a less-invasive procedure has consent to do so.
- Can a trespass be committed by leaving a something on another's property?
- Yes. (Rs. 1 Torts Sect. 160) A trespass...may be committed by the continued presence on the land of a structure, chattel or other thing which the actor or his predecessor in legal interest therein has placed thereon. (a) with the consent of the person then in possession of the land, if the actor fails to remove it after the consent has been effectively terminated, or (b) pursuant to a privilege conferred on the actor irrespective of the possessor's consent, if the actor fails to remove it after the privilege has been terminated, bu the accomplishment of its purpose or otherwise.
- 6 Factor of Conversion
- (a) the extent and duration of the actor's exercise of dominion or control (b) the actor's intent to assert a right in fact inconsistent with the other's right of control (c) the actor's good faith (d) the extent and duration of the resulting interference with the other's right of control (e) the harm done to the chattel (f) the inconvenience and expense caused to the other
- Definition of Trespass to Chattels (according to Rs. 2d Torts Sect. 217)
- Intentionally...dispossessing another of the chattel, or using or intermeddling with a chattel in the possession of another.
- 4 causes of liability in Trespass to Chattels (according to Rs. 2d Torts Sect. 218)
- One who commits a trespass to a chattel is subject to liability to the possessor if (a) he dispossesses the other of the chattel, or (b) the chattel is impaired as to its condition, quality, or value, or (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest
- Who has the burden of proving self defense?
- Defendant
- Definition of self defense
- The privilege to use reasonable force to defend against a threatened, imminent battery. Reasonable mistake will protect one who has a valid self defense privilege in most cases.
- Self defense. How much force can one use?
- That which is reasonable under the circumstances.
- Self defense. When can on use deadly force?
- Only when the actor is threatened with imminent death or serious bodily harm. EXCEPTION: Intruder in home
- Self defense. Retaliation, and retreat.
- Privilege does not extend to retaliation. Deadly force not allowed if one can safely retreat. (EXCEPTION: No duty to retreat in your own home).
- Necessity (private)
- An incomplete privilege where one can impinge on another's property if there is no reasonable alternative (an emergency) BUT: That person must pay for any damages incurred on the property. (Unlike cases of public necessity).
- Negligence. 4 Elements.
- 1. Duty 2. Breach 3. Causation (both cause-in-fact and proximate cause) 4. Damages
- Negligence. Who decides each of the elements of negligence?
- Judge determines if there was a duty. Jury typically decides breach, causation, and damages.
- Negligence. What are the two competing theories that judges look at?
- 1. Corrective Justice Theory- The moral approach. Focuses on compensation for the specific victim and punishment for the wrongdoer. 2. Economic Theory- More concerned with efficiency. Uses Hand's formula to promote wealth by deterrence and the use of cost-efficiency. Looks at the impact to the world as a whole.
- Negligence. What is the standard of conduct?
- What a reasonably prudent person would do under the same or similar circumstances. In most cases, a reasonable person of NORMAL intelligence, judgment, and rationality
- Negligence. How does a court view people of superior knowledge?
- It is factored into the CIRCUMSTANCES part of the standard of conduct. The reasonable person does not change.
- Negligence. What is the standard of conduct in emergency situations?
- How a reasonable person would act in similar emergency circumstances.
- Negligence. How does "custom" or "industry custom" fit into the standard of conduct?
- Custom is prima facie evidence on the standard of care, but it is not conclusive*. Noncompliance with custom is strong evidence of negligence. Compliance with custom is helpful (not as strong) evidence of reasonableness. *Usually conclusive in medical negligence cases.
- Negligence. Where do physical disabilities factor into the standard of conduct?
- In the circumstances. e.g.,How a reasonable person would act while being in a wheelchair..
- How is mental illness or incapacity factored into the standard of conduct?
- It isn't.
- What is the standard of conduct regarding a children? (Majority state view)
- How a reasonable person of the same age, intelligence, and experience would act under the same or similar circumstances. DOES NOT APPLY TO ADULT ACTIVITIES.
- Negligence. In medical negligence cases, what is needed for the case to go the jury?
- Medical Expert Testimony
- Negligence. What is the PROFESSIONAL standard of care (i.e. lawyer, physicial, accountant, etc.)?
- The degree of care that a reasonably prudent (applicable professional) would exercise under the same or similar circumstances.
- INFORMED CONSENT PLACEHOLDER
- INFORMED CONSENT PLACEHOLDER
- Negligence per se. What the fuck is it?
- It provides a shortcut for duty by using a statute to set the standard of care. P must prove that the violation of the statute (breach) was the cause (causation) of the injury (damage).
- Negligence per se. When P is trying to establish negligence per se, what is the 3 prong test the judge uses to see if it applies?
- 1. Is the HARM the type that the statute is designed to protect against? 2. Is the PLAINTIFF within the class of people the statute is trying to protect? 3. Is the statute otherwise appropriate for adoption as the standard of care?
- Definition of a Trespass to Land
- For a trespass to land to be actionable, the tortfeasor must (a) voluntarily enter another’s land or (b) cause another person or chattel to enter another’s land or (c) allow, with substantial certainty, an animal to enter another’s land and (d) need not be aware that he has entered/caused/allowed entry to the property of another
- Res ipsa loquitur. What is it and what are the elements needed to use it?
- "The thing speaks for itself." Used when P cannot find out exactly what happened. Elements: 1. Accident is one that does not ordinarily occur in the absence of negligence. 2. D had exclusive control over the thing that caused the accident. 3. (some states)Negligence of P did not cause or contribute to accident.
- Negligence per se. 5 Excusable Situations
- 1. Actor's incapacity 2. Neither knows nor should know of the occasion for compliance 3. Unable after reasonable diligence or care to comply 4. Emergency not due to his own misconduct 5. Compliance would involve a greater risk of harm