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?: No
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? (three): (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?: Yes
private necessity: D invades P's property in an emergency to protect an interest of D's own
Is the private necessity defense absolute?: No
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?: negligence
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?: no
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?: newsworthiness
What are some examples of the "commercial purposes" required for appropriation?: packaging

advertising

trademark
Intrusion: invasion by D of P's seclusion, objectionable to an average person
Must there be a trespass in intrusion?: No
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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Deck Info

Number of cards 55