Glossary of Torts I - Midterm Review
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- The 2 kinds of INTENT
- 1) SPECIFIC - actor "intends" the consequence of his conduct if his GOAL in acting is to bring about these consequences
2) GENERAL - actor "intends" the consequence of his conduct if he KNOWS WITH SUBSTANTIAL CERTAINTY these consequences will result.
- Purpose of Tort Law
- A) To provide way to peacefully settle disputes
B) To compensate injured parties for their loses
C) To act as a deterrent (both gen & spec)
D) To promote socially responsible behavior
E) To act as a mechanism for defining socially permissible behavior
- Effects of Negligence
- S - Statute of Limitations different: negligence usually longer (3 yrs v. 1)
W - Worker's Compensation Shield: shield immunity for Negligence, not Torts
I - Insurance for Liability: For neg not intentional torts
P - Punitive Damages: for intentional torts not neg
E - Employer Liability: liability for neg, not torts
C - Causation more or less remote: causation extends further for torts not negligence
- Modern day fault spectrum
- 1. Intentional Torts
3. Strict Liability
- Battery Mnemonic
- Act and Intent of Battery
- Act: voluntary movement by another that causes contact with (1) another body or (2) anything intimately connected with them
Intent: Desire to cause consequence of an act OR knowledge with certainty that consequences will result from that act.
- Assault Mnemonic
- IA IHOC APA:
Apprehension of an
Offensive Contact with an
Ability to carry it out
- False Imprisonment Mnemonic
- Intent - 3 elements
- 1. Subjective ill will: the malicious desire to harm.
2. Knowledge of a substantial certainty that harm will result
3. Transferred intent - the intent to commit any of the five traditional torts
Negligence is not an intentional act.
- Transferred Intent
- The intent to commit an assault or battery or any one of the 5 traditional intentional torts will transfer to satisfy the elements of any one of those 5 traditional Intentaional Torts
- Assault is...
- Assault is...imminent apprehension of the elements of battery + apparent present ability
- Examples of Assault
- a) pointing an unloaded gun
b) pointing a loaded gun may not be an assault IF the victim doesn't notice
c) beating down door with hatchet
d) man reaches for woman across counter
- If way of escape in "false imprisonment" is found...
- There is no false imprisonment. The plaintiff must know about it or it doesn't count. If only means of escape involves harm and PL could remain imprisoned without being hurt, he can't sue for damages for being hurt trying to escape
- Omission in terms of False Imprisonment
- Omission counts (woman trapped on yacht)
Requirement that he provide her with a REASONABLE AND SAFE means of escape.
- Intentional Infliction of Emotional Distress - Mnemonic
- Explain Intent for IIED
- Intent can be:
- Severe Emotional Distress (Under IIED)
- Objective Test:
Would cause severe distress in a REASONABLE person.
Case about man with speech imped. harrassed at work - results in worsened problem - but not proven to be linked with harassment, so not guilty
- Bystander Claims
- Defendant must know of bystander and
Defendant must intend bystander's harm or know that it's substantially certain (Restatement: or bodily harm of bystander may be enough)
- Trespass to Land Mnemonic
- More on Trespass to Land
- Must show INTENT to interfere with the owner's exclusive possession. Entry onto land while mistaken about ownership or permission is sufficient for a trespass, but negligent entry to land is not a trespass.
- Examples of Trespass to Land
- - Defendant floods PL's land
- Defendant throw a rock onto PL's land
- Defendant chases third person onto PL's land
- Stringing wires over land
- Flying a plane at low altitudes over land
- Tunneling under land
- Land includes...
- Land includes...surface, below surface and above surface:
Air space and subsurface space to the height or depth PL can make beneficial use of such space
- Defense for Trespass to Land and more...
- - Mistake IS NOT A DEFENSE!
- Intent to trespass is not required - intent to enter upon land is sufficient
- Distinguish between nuisance and trespass!
- Nominal damages is enough
- No injury necessary: entry alone infers damage b/c tort originally a means to test feudal property rights
- damages awarded for unforeseeable consequences too
- Trespass to Land v. Nuisance
- Nuisance = interference of use and enjoyment, not possession
Trespass to Land = interference with POSSESSION
- Trespass to Chattels Mnemonic
- Defense to Trespass to Chattels, PL must...
- - MISTAKE IS NOT A DEFENSE, such as mistaken belief that D owns the chattel
- PL must prove damages
- Is intent to trespass required for the act of trespass to chattels?
- No. Rather intend to DO THE ACT OF INTERFERENCE with chattel is sufficient
- Dispossession (under Trespass to Chattels) means...
- It means intermeddling coupled with harm OR harm to tangible personal property.
It is different from Conversion
- Dispossession v. Conversion
- Dispossession means intermeddling coupled with harm OR harm to tangible personal property.
Conversion of chattel is: taken for a complete or very substantial time
- Conversion Mnemonic
- Does mistake about identity of owner of personal property negate intent necessary to establish a CONVERSION claim?
- Conversion general definition
- Intentional exercise of dominion or control over chattel which so seriously interferes with the right to control it that the actor may justly be required to pay the other the full value of the chattel
- Explain INTENT for CONVERSION
- Only intent required for CONVERSION is the intent to PERFORM THE ACT that interferes with the PL's right of possession.
- - must be valid consent
- NO FRAUD (fraud negated consent)
- Consented act must NOT be criminal
- Something to know about CONSENT:
- - A misrepresentation to gain entry to land destroys consent as a defense.
- Entry by consent must not exceed the terms on which consent was granted.
- The defense of consent depends on a showing that the one giving consent had the mental capacity to do so.
- Consent as a defense to a BATTERY claim may be EXPRESS from the statements of the one later objecting to the contact, or may be IMPLIED by the circumstances. The perpetrator's mistake doesn't negate intent
- Acts of Conversion
- Wrongful acquisition - theft, embezzlement
Wrongful Transfer - selling, mis-delivering
Wrong Detention - refusing to return to owner
Misusing the chattel
- Is it a conversion interference with possessory right is insubstantial?
- NO, maybe trespass to chattel
- If trespass to chattel serious enough can it become a conversioni and why?
- Yes it MAY become conversion.
If person refuses to return or alters chattel - may be conversion b/c action so serious that it amounts to a claim of dominion and control by the actor; no specific rule for these claims; the longer the withholding period & the more excessive the use of chattel during that time = more likely that conversion has resulted
- Self Defense definition
- reasonable force to prevent one from battery or false imprisonment/Use of reasonable force to defend another
- Self Defense definition continued
- - must be against an imminent threat (cannot be in response to a past tort)
- reasonable mistake IS permissible
- may NOT use more force than is "reasonably" necessary
- Usually NOT a defense if the initial agressor
- Self defense is permitted when it is a reasonable (not excessive) response to a known risk!
- Defense of Others - Definition
- - No reasonable mistake allowed!!!
- All other self defense elements applicable
- Use of reasonable force to defend another. Courts split on reasonable mistake
- is a defense to personal torts, not to property torts like trespass or conversion
- Defense of Property - Definition
- - reasonable non-deadly force!
- reasonable force may be used to prevent the commission of a tort against property
- defense of property will NOT overcome privilege
- NO DEADLY FORCE EVER
- reasonable mistake of force is allowed
- limited to the use of less force than that which will cause death or GBH
- Recovery of Property Mnemonic
- fresh pursuit
- reasonable force
- wrongful taken
- Recovery of Property definition
- AKA: shopkeeper's privilege:
- hot pursuit
- must ask for return first
- property must be WRONGFULLY taken (fraud, theft, etc.)
NO MISTAKE ALLOWED except for shopkeepers (on reasonable cause or suspicion, a shopkeeper may use reasonable force to stop a resisting customer from leaving the immediate vicinity of the premise, long enough to make reasonable search)
- Necessity: Public & Private
- - harming property interest where it's necessary to prevent a greater harm
Public: for the good of community, not responsible for damages; it is a defense to property torts, not to personal torts like battery or FI.
Private: must pay for damage; people can trespass to save themselves form harm, but must compensate for harm done
- Authority of Law
- Arrest: citizens allowed but take full responsibility for being wrong
- mistake not ok, even with a warrant
- excessive force not ok
- Look for relationship status
- Parent's privilege to exercise reasonable force
- Teacher's privilege: can use force, but not "excessive" (nature of punishment, conduct, age, motive)
- Catch-all where there is a good reason from exculpating D from tort
- Public policy can create a justification (ex: bus driver privileged to falsely imprison vandalizing students)
- The 5 traditional Torts / mnemonic
Trespass to Land/Chattels
- 2 Non-Traditional Intentional Torts / mnemonic
(Intentional Infliction of) Emotional Distress
- Transferred Intent goes to which torts? / mnemonic
Trespass to Land/Chattels
- Which of the 5 traditional torts is the only tort where you MUST PROVE DAMAGES?
- Trespass to Chattels
- SWIPE C
- Statute of Limitions different
Worker's Compensation Shield
Insurance for Liability
Causation more or less remote
- Does insanity negate intent?
- Does age negate intent?
- Does mistake negate intent?
- Intent can be proven by what two things? / mnemonic
Purpose or Knowledge
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