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)
- 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
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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