Glossary of MBE: torts

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What are the two elements for battery?
(1) harmful or offensive contact

(2) with P's person
What constitures "offensive" touching?
unmpermitted touching
In battery, does D's person have to be involved?
In battery, must the contact be immediate?
No; may be indirect
What are the two elements of assault?
(1) D places P in reasonable apprehension

(2) of an immediate battery
What is "reasonable apprehension"?
knowledge that P may be touched impermissibly
What if D is acting threateningly bat can't carry out a battery? Is it still assault?
Look at it from P's POV
What are the two elements of false imprisonment?
(1) act of restraint

(2) confinment in a bounded area
Can threats or omissions constitute an act of restraint?
Yes; omission can be if there's a pre-existing duty to act.
What about escape from a bounded area?
If it is a reasonable means of escape, it's not "bounded"
What are the two elements of IIED?
(1) D must achieve goal by engaging in outrageous conduct

(2) P must suffer severe resulting distress
What is "outrageous" conduct?
it exceeds all bounds of decency tolderated in a civilized society?
What are some "plus" factors that may make conduct outrageous?

(1) D's behavior is repeated

(2) common carrier/inkeeper

(3) P is a member of a fragile class (child, elderly, pregnant women)
If P is hypersensitive, can conduct against him be considered outrageous?
Only if D know about a certain emotional weakness: exploitation of known sensitivity
What is the intent required for trespass?
getting to the challenged land on purpose

no intent to cross a property line is necessary
What are the two elements for trespass to land?
(1) physical invasion

(2) on land
What is "land" for purposes of trespass?
air above and soil below at a reasonable distance
What constitutes "physical invasion" for purposes of trespass on land?
enter land or throw/propel tangible objects
What are the elements of trespass to chattels and conversion?
deliberate damage/theft to personal property that is NOT house or land
What is the difference between trespass to chattels and conversion?
small harm = chattels

large harm = conversion
What is the difference in remedies for trespass to chattels and conversion?
chattels = P gets cost of fixing

conversation = P gets full market value of the item
What is the exception to the defense of expres consent?
obtained throgh duress or fraud
What are the two types of implied consent?
(1) useage/custom (e.g., sports activities)

(2) apparent
What is apparent implied consent based on?
D's reasonable interpretation of objective conduct
For defense of persons and property, when must the threat take place?
imminent/in progress
Will a reasonable mistake destroy a protective privilege (defense of self/others/property)?
No - need only a reasonable belief to have the privilege, so a reasonable mistake won't destroy it.
shopkeeper's privilege
may retain a shoplifter to get back goods, but can only use the amount of reasonable force necessary under the circumstances
When is the use of force okay in a defense situation?
only in life-threatning situation, but NOT for property

Note: can't use mechanical traps w/ excessive use of force on property
public necessity
D invades P's property in an emergency to protect the community or a significant group of people
Is the public necessity defense absolute?
private necessity
D invades P's property in an emergency to protect an interest of D's own
Is the private necessity defense absolute?
What are the three possible legal consequences for asserting the private necessity defense?
(1) pay for actual harm inflicted

(2) not liable for nominal/punitive damages

(3) as long as emergency continues, D can remain on O's land
In a private necessity defense case, may P violate D's right of sanctuary?
No -- if he does, he is liable for a subsequent tort against D b/c of the emergency
In a defamation claim, what constitures a defamatory statement?
adversely affects P's reputation

need an allegation of fact

P must be living
In a defamation claim, what is the standard for publication?
a single third person
In a defamation claim, what is the level of intent necessary?
What are the four categories of slander per se?
(1) about P's business/profession

(2) that P has committed a crime of moral turpitude

(3) imputing unchastity on a woman

(4) that P suffers from a loathsome disease (leprosy and VD)
What must be shown by the P in a case that is slander not per se?
economic harm

not enough to show emotional/social harm
In a defense of truth against defamation, is a good faith belief that the statement was true enough?
In a defamation case, what are the two types of absolute privilege defenses?
(1) married couple

(2) officers of three branches of government (in jud, this includes lawyers, parties, witnesses)
What is the qualified privilege in defamation cases?
occasions where speech is socially useful and we want to encourage candor
What are some examples of the qualified privilege?
letter of recommendation

police investigations

creditor saying something to prospective creditor
What are the two things an individual must have or have done in order to assert a qualified privilege defense in a defamation case?
(1) easonable basis for anything said

(2) speech must have been limited to relevant information
What's up with Massachusetts and public concern?
It follows the public concern approach in almost all cases, even in private cases; it treats every case like a matter of public concern
Appropriation/Right of Publicity
use of P's name/picture for commercial purposes w/o P's permission
What is the exception to appropriation?
What are some examples of the "commercial purposes" required for appropriation?


invasion by D of P's seclusion, objectionable to an average person
Must there be a trespass in intrusion?
False Light
widespread dissemination of a major misrepresntation about P, objectionable to the average person
Disclosure of Private Facts
widespreadh dissemination of private information about P, objectionable to the average person
Which privacy torts is consent a defense to?
All of 'em
Which privacy torts is the absolute/qualified privilege a defense to?
false light and disclosure of private facts
In the context of disclosure of private facts, what is the dual life limitation?
If P operates publicly in two spheres and wants to keep them separate, his claim is not actionable if the underlying facts aren't private

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