Intentional torts

Battery (3)

harmful or offensive touching to the plaintiff's person, intent, causation

Assault (3)

victim is put in reasonable apprehension of harmful contact or touching

Intentional infliction of emotional distress (4)

act by P amounting to extreme and outrageous conduct; intent or recklessness; causation; damages = severe emotional distress

How does tort law treat P's hypersensitivity in making out intentional tort claim?

It ignores hypersensitivity

Are there incapacity defenses in intentional torts? (minor, drunk)

No

What does harmful mean in the context of battery?

It hurts you.

What does offensive mean in the context of battery?

Unpermitted by a person of ordinary sensitivity

Is tapping on shoulder battery?

NO - because a person of ordinary sensitivity would permit

Is icky stroking of hair battery?

Could be - person of ordinary sensitivity would permit - and it's increasingly litigated as sexual harassment

What is plaintiff's person?

Anything the person is connected to - purse snatching if you're holding your purse - whatever would disappear under the cloak of invisibility or transporter

If guy slaps horse, is there a battery?

Yes, against the rider

Does a battery have to be instantaneous?

No - poisoning sandwich becomes battery later, when guy eats it

If P sets a trap for D to fall into, would that result in a battery?

Yes - indirect conduct

In context of assault, what does apprehensive mean?

Knowledge

Does a person need to be upset/afraid of being touched for an assault to occur?

No. Knowledge that he can protect himself doesn't bar recovery, as long as he knows he will be touched

If D threatens P with a battery but is unable to consummate the battery, is there an assault?

Analyze from P's standpoint. If P knows that D is incapable of committing battery, no assault.

If D says, I'll shoot you, but P knows the gun is unloaded, is there an assault?

No

If D says, I'll shoot you, but P doesn't know whether gun is loaded, is there an assault?

Yes - it's reasonable to assume that the gun is loaded

Are words alone sufficient to create an assault?

No

Is display of weapon sufficient to create an assault?

Yes

If someone says, "if you weren't my best friend, I'd beat the crap out of you" while shaking her fists, is there an assault?

No - words negated the immediacy inherent in the physical gesture.

If someone says, "I'm going to beat the crap out of you tomorrow morning" while shaking her fists at you, is there an assault?

No - words that promise action in the future take away immediacy

False imprisonment

D must commit act of restraint and P must be confined in a bounded area

Can threats constitute an act of restraint?

Yes

If you say, "if you leave this room in the next 30 minutes, I will kill your child" (and you could), is that an act of restraint?

Yes

If you say, "if you leave this room in the next 30 minutes, I'm going to turn you into a kangaroo, "is that an act of restraint?

No

If the airline people leave the person in the plane without getting her a wheelchair, is that false imprisonment?

Yes, having taken her on, they had a duty to help transport her

An act of restraint only counts if… (2)

P knows about it and is harmed by it

If D locks P in a room while P is sleeping, then unlocks it before P wakes up, is there false imprisonment?

No, because P didn't know and wasn't harmed

If D locks P in room while P is sleeping, and keeps nurse from getting in to give P his medicine, then unlocks the door before P wakes up, is there false imprisonment?

Yes, because P is harmed

Does a barricade create an actionable false imprisonment?

No - a bounded area must constrain P in every direction

Bounded area means…

P is constrained in every direction, and there is no reasonable means of escape that P can reasonably discover

If P's way out is dangerous, disgusting, impossible to discover, humiliating, is there false imprisonment?

Yes

How long does false imprisonment need to be?

The time is irrelevant

What is outrageous conduct?

Conduct that exceeds all bounds of decency tolerated in a civilized society

Are insults outrageous conduct?

Not on their own

Hallmarks of outrageousness (3)

Repetitiveness; D is common carrier or an innkeeper (can be liable for "gross insults"); P is a member of a fragile class of persons

What are the fragile classes? (4)

Young children, elderly, pregnant women, supersensitive adults if sensitivities are known to P

What intent is necessary for IIED?

Recklessness suffices

What is the only intentional tort to the person that requires damages?

Intentional Infliction of Emotional Distress

Causation in bystander IIED cases

P may recover by showing either PF elements of IIED, or (1) she was present when injury occurred, (ii) she is a close relative of the injured person, and (iii) D knew both facts

Is taking Rachel to a picnic in a lavender garden IIED?

Yes, because I know of her hypersensitivity to bees

Trespass to land - elements

Physical invasion of plaintiff's land, intent, causation

Is spraying neighbor's flowers with water a trespass?

Yes, the water is a physical invasion

Is projecting lights, sound, smells onto neighbor's property a trespass?

No, sight, sound, smell is not a physical invasion

Is sending smoke onto neighbor's land a trespass?

Maybe, if dark, sooty, smoke. Probably not if wispy white smoke

If kid throws ball over yard, is that a trespass?

Yes

Trespass to chattels - elements

Act by D that interferes with P's right to possession in a chattel, intent, causation, damages

Chattel

All property except land/buildings

What kind of interference can be a trespass to chattels? (2)

Deliberate damage, or depriving P of possession

What damages are required for trespass to chattels?

Actual damages - to chattel or possessory right

What are causes of action for vandalism or theft?

Trespass to chattels or conversion

How to distinguish between conversion and trespass to chattels?

Small harm - trespass to chattels; big harm - conversion

Conversion - elements

Act by D that interferes with P's right of possession in a chattel; interference is so serious that it warrants requiring D to pay the chattel's full value

What are the acts of conversion (4)

Wrongful acquisition (theft), wrongful transfer, wrongful detention, substantially changing/severely damaging/misusing a chattel

What can be subject matter of conversion?

Tangible personal property, intangibles that have been reduced to physical form (e.g., promissory note, deed)

Who can sue for conversion?

Anyone with possession or the immediate right to possession

What are the remedies for conversion?

Damages (FMV at time of conversion) or possession (replevin)

Which intentional tort can be summarized by "You break it, you bought it"

Conversion

Can one consent to a criminal act?

No

Do you need capacity to consent to an intentional tort?

Yes

When can children consent?

To age-appropriate invasions (e.g., wrestling among 11-year-olds)

Exceptions to express consent (3)

Mistake, if D knew of and took advantage of the mistake; fraud, if goes to an essential matter, duress (unless duress is only threats of future action/future economic deprivation)

What are the two forms of implied consent?

Apparent - which a reasonable person would infer from custom/usage/plaintiff's conduct; consent implied by law (action necessary to save person's life or some important interest in person/property)

What type of consent is involved in getting on the NY subway at rush hour, or playing football?

Apparent consent

What type of consent is involved in kissing woman who leans in with closed eyes and tilted head.

Apparent consent - reasonably inferred from plaintiff's conduct

How do P's unexpressed thoughts play into the question of apparent consent?

They don't - irrelevant

Is consent like a sliding scale or a light switch?

Sliding scale.

What's wrong if doctor adds on a nose job to the sinus surgery?

Doctor has exceeded the scope of consent

Do you need capacity to commit an intentional tort, or to consent to one, or both?

Only for consent

What must D show to assert self-defense?

Real time, reasonable belief of a threat, proper amount of force

What if D fails to show self-defense?

D has committed a tort

When is there a duty to retreat?

Before using deadly force in self defense (modern trend)

Can an initial aggressor use self defense?

Not usually

Can a D claim self-defense for injuries to 3d parties, caused while D was defending herself?

Maybe, but if D deliberately injures 3d parties while trying to protect herself, she may be liable

When may a person defend another?

When the person reasonably believes the other person could have used force to defend himself

Can you use deadly force to protect property?

No

Can you use deadly traps to protect property?

No

Does a person have to make a request to desist or leave before using reasonable force to prevent the commission of a tort against real/personal property?

Yes

Can you use force in hot pursuit of another who has taken property?

Yes, because the tort is still viewed as being committed

What is the defense of public necessity?

A complete and absolute defense, in which D invades P's property in an emergency to protect community as a whole or a significant group of people

When do defenses of necessity apply?

Only in property claims

When is there no duty to retreat before using deadly force? (2)

When actor is in her home, or when retreat cannot be done safely

May deadly force be used to protect one's home?

No - never to protect property.

What is the defense of private necessity?

D invades P's property in an emergency to protect an interest of his own.

Is private necessity defendant liable for actual harm?

Yes

Is private necessity D liable for nominal or punitive damages?

No

May private necessity D be lawfully expelled from a position of safety?

No, as long as emergency continues

Defamation (4)

Defamatory language, of/concerning P, publication by D to 3d person, damage to p's reputation

Is name-calling defamatory?

No - it doesn't harm reputation

What is the test for whether statements of opinions are defamatory?

Would a reasonable person conclude that it conveys factual information (and, if matter of public concern, Constitution requires - Falsity of the defamatory language, Fault on part of D)

Is falsity an element of common law defamation?

No - but it can be a defense

Can a dead person be defamed?

No

How many other people have to hear the statement for it to be defamatory?

One

Can a famous person be defamed?

Yes, any living person can be defamed

Need publication be intentional for defamation?

No

What is slander per se? (4)

Adversely reflect on one's conduct in a business or profession, one has a loathsome disease (leprosy, VD), one is or was guilty of a crime involving moral turpitude, a woman is unchaste

What type of defamation is involved in radio/TV broadcasts?

Libel (generally by most courts)

Who can be defamed, if a statement refers to all members of a small group?

Each member may establish that the statement is "of and concerning" him by alleging he is a group member.

Who can be defamed, if a statement refers to all members of a large group?

No member

Who can be defamed, if a statement only refers to some members of a small group?

P can recover if a reasonable person would view the statement as referring to P

What is unchastity?

Any sexual activity by a(n unmarried?) woman

When must P prove damages for slander, and what kind of damages count??

When the harm is not slander per se, P must show economic loss

What are the defenses to defamation? (3)

Consent, truth, privileges

When is truth a defense to defamation?

Always

What are absolute privileges against defamation?

Statements between spouses, officers of the three branches of government conduct of their official duties (legislatures in debate, federal executive officials, during judicial proceedings)

What are qualified privileges?

Reports of official proceedings, statements in the interest of the publisher or recipient, or statements in common interest of public and recipient

What privilege protects letters of recommendation or other professional references?

Qualified privilege

What privilege protects statements to police defectives?

Qualified privilege

What is the rationale for qualified privilege?

To encourage candor

How to lose a qualified privilege (defamation)?

D had no reasonable belief that challenged information is accurate; D injects irrelevancies into the statement

What changes if defamation involves a matter of public concern?

The First Amendment requires that P prove both falsity and D's fault

What are alternate causes of action if a statement of public concern is true?

P may have a cause of action for IIED or invasion of right to privacy (unless P is a public figure)

What types of fault may plaintiff have to prove?

Re defamation of public official or figure, must prove malice (knowledge or reckless disregard for a truth); re private figure need only show negligence

What is appropriation?

D uses P's name/image for commercial purposes

What is the tort of intrusion

An invasion by D of P's seclusion, in a fashion that would be objectionable to a reasonable person

What is the exception to appropriation torts?

Newsworthiness

What is the standard for publication of facts placing P in false light?

Widespread dissemination by D of a material falsehood about P that would be objectionable to an average person; malice on part of D when the published matter is in the public interest

Is there an expectation of privacy in public?

No

Do intrusion and trespass go hand in hand? Always/sometimes/never

Sometimes

Dave tells Pete is a devout roman catholic, when Pete is Jewish. What tort/s?

False light, but not defamation

What is the intent/fault requirement for the tort of false light?

None

Can D be liable for tort of false light if he had a good faith belief that what he said was accurate?

Yes - there is no intent/fault requirement

Disclosure of private fact

Widespread dissemination of confidential information about P that would be objectionable to an average person

What exception to disclosure of private fact?

Newsworthiness - interpreted very broadly

How private must the underlying facts be for disclosure of private fact?

Truly and genuinely private

If someone is "out" in gay community, but not at work, is it a tort of disclosure of private fact to let coworkers know?

No

What provides a defense to all privacy torts

Consent

What are defenses to false light and disclosure of private fact only?

Defamation privileges

Does testing rocket engines for eventual military use qualify as a public necessity defense?

No - a public necessity defense must avoid impending injury to the public good

When does transferred intent apply?

A person intends to commit a tort against one person but either commits a different tort against that person, commits the same tort as intended bt against a different person, or commits a different tort against a different person.

For transferred intent to apply both the intended and actual tort must be among which torts: (5)

Assault, battery, false imprisonment, trespass to land, trespass to chattels.

Which torts cannot be involved for transferred intent to apply?

Conversion, defamation, privacy torts, nuisance, IIED

Can you assault or commit battery on a dog?

No - must be a person (unless it's like a horse and rider, etc.)

When is a trespass privileged?

When you go on to another's land to reclaim your own property, or because the other is a wrongdoer

If I chase you out of my yard and I know with substantial certainty that you will enter my neighbor's yard, have I committed trespass against my neighbor?

Yes, because the elements of trespass are satisfied.

Do actions for battery expire upon patient's death?

No

What are the elements of intentional misrepresentation?

Misrepresentation, scienter, intent to induce p's reliance, causation (i.e., actual reliance), justifiable reliance, damages