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Torts Bar Outline

Law Outlines > Torts - Bar Exam Outlines

This is an extract of our Torts Bar Outline document, which we sell as part of our Torts - Bar Exam Outlines collection written by the top tier of Thomas Jefferson School Of Law students.

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1. INTENTIONAL TORTS a. 3 General Rules i. The extreme sensitivity of a victim is ignored - we assume the P is a normal plaintiff ii. NO incapacity defenses (Mentally ill, intoxicated, minor) iii. All intentional torts require intent. b. Prima Facie Case i. Act by defendant - The act requires a Volitional Movement by the defendant. ii. Intent - The intent may be either:

1. Specific - desires to produce the specific legally forbidden consequences

2. General - knows with substantial certainty that these consequences will result

3. Transferred Intent - If you intend any forbidden consequence, intent will be transferred to the injured victim. (Try to punch one person and hit another) a. Only applies to assault, battery, FI, Trespass to land and chattel. iii. Causation

1. The result must be legally caused by the defendants act or something set in motion by him. Causation is satisfied if defendants conduct was a substantial factor in bringing about the injury. (Injury DOES NOT need to be foreseeable) c. Intentional Torts to the PERSON i. BATTERY

1. Harmful or offensive contact a. Offensive - Reasonable person standard - Not permitted by an reasonable person (Sexual contact, spitting vs. tapping on shoulder for the time) b. Contact is NOT offensive if the plaintiff consented to it. c. There is implied consent for ordinary contacts of everyday life. d. Direct or Indirect - Can strike plaintiff (direct) or set a trap for the defendant to fall into later (indirect) (i.e. poisioning.

2. With the plaintiffs person a. Anything plaintiff is holding, touching or connected to. (Cane, horse)

3. Intent / Causation ii. ASSAULT

1. An act by the defendant creating a reasonable apprehension in the plaintiff a. Apprehension is defined as knowledge and should not be confused with fear or intimidation (e.g. a weakling can cause apprehension in a bully) b. Apparent ability - If the plaintiff reasonably believes that defendant has the apparent ability to commit the battery it is sufficient. (unloaded gun)

2. Of immediate harmful or offensive contact to plaintiff's person a. Words alone lack immediacy - For the defendant to be liable the words must be coupled with conduct. b. Words can negate a reasonable apprehension / immediacy - i.e. the defendant shakes her fist and says "I will get you tonight at 5 pm" OR the defendant shakes her fist and says "I'm not going to hit you". c. Remember the requirement of immediacy.

3. Intent / Causation iii. FALSE IMPRISONMENT

1. An act or omission on the part of defendant that confines or restrains the plaintiff a. Sufficient acts of confinement or restraint i. Physical barriers 1

ii. Physical force / Threats of force

1. Not merely moral pressure or future threats iii. Failure to release (omission) - Pre-existing duty of D to help P move about (i.e. Ex: Disabled person left on plane by aircrew iv. Invalid use of legal authority (wrongful arrest) b. It is irrelevant how short the period of confinement is.

2. To a bounded area a. Freedom of movement must be limited in all directions - i.e. blocking path of travel in a single direction is not false imprisonment b. There must be NO reasonable means of escape known to the plaintiff. i. Hidden, humiliating, dangerous, or disgusting means of escape are NOT reasonable.

3. Plaintiff was either aware of the confinement or harmed by it

4. Intent / Causation a. Shopkeepers Privilege - Shopkeeper may reasonably detain a theft suspect for a reasonable time. iv. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED)

1. Extreme and outrageous conduct a. Definition - Conduct that transcends all bounds of decency tolerated in a civilized society. i.e. NOT mere isolated insults. (Objective Standard) i. It is continuous or repetitive in nature ii. Fragile plaintiff - i.e. children, elderly, pregnant women, supersensitive adults (phobia) and the sensitivity is known by D. iii. Common carriers and innkeepers may be liable for even mere isolated "gross insults"

2. Intent or Recklessness - Recklessness satisfies this cause of action a. Must intend the conduct or commit a reckless act - Merely not doing something will not raise to IIED. i.e. failing to wash the sheets

3. Causation - Conduct must cause severe emotional distress. a. 3rd Party Causation - 3rd party may recover when: i. The elements of emotional distress (prima facie case), OR ii. The defendant knew she was present when the injury occurred, AND the defendant knew that she is a close relative of the injured person.

4. Severe emotional distress results (NOT mild irritation, slightly annoyed) a. Actual damages, not minimal damages, ARE required. (Ridicule, embarrassment in front of numerous people) b. Proof of physical injury is NOT required. d. Intentional Torts to PROPERTY i. TRESPASS TO LAND

1. Physical Invasion of the plaintiff's Real Property a. The invasion may be by a person or object. (i.e. walking onto the property or throwing a baseball onto the property) b. If intangible matter (i.e. vibrations, odor, or light) sue in nuisance. c. Real property includes land, air, and soil to a useable / reasonable distance. i. i.e. kid throwing a ball over your land and landing on the street

2. Intent a. Defendant need intend only to enter on that particular piece of land. i. i.e. mistake is no defense 2

b. Non negligent entry - No liability - i.e. hitting a ball that deflects off a tree landing in another's land. c. Trespass may occur by refusing to leave.

3. Causation a. Potential Plaintiffs - Anyone in actual or constructive possession of the land may maintain this action. (Lessee's can bring an action) b. Damages - Nominal Damages will suffice ii. TRESPASS TO CHATTELS

1. Intentional Interference with plaintiff's right of possession a. Two types of interference - The interference may either be intermeddling (i.e. damaging) or dispossession (i.e. stealing)

2. Causation

3. Damages - Actual damages to a possessory right are required. (damages are not necessary to chattel) - Will usually recover reasonable rental value. iii. CONVERSION

1. Intentional Interference with plaintiff's right of possession a. Only tangible personal property and intangibles that have been reduced to physical form (promissory note) are subject to conversion. b. Potential Plaintiffs - Anyone with an immediate right to possession.

2. The interference is so serious that it warrants payment of the chattels full value. a. Matter of degree - The longer the withholding period and the more extensive the use / destruction, the more likely it is to be a conversion. A less serious interference is trespass to chattels.

3. Causation a. Subsequent purchasers (even in good faith) are liable for conversion, but the plaintiff may only collect once.

4. Damages - Plaintiff may recover damages (fair market value at the time of conversion) or possession (replevin) e. DEFENSES to Intentional Torts i. CONSENT - P's consent to D's conduct is a defense, BUT one cannot consent to a criminal act.

1. Express Consent - Exceptions: a. Mistake if defendant knew and took advantage of the mistake (STD) b. Consent induced by fraud or duress

2. Implied Consent - Apparent consent is that which what a reasonable person would (1) infer from the usage or (2) infer from plaintiffs conduct. a. Infer from usage - i.e. inherent contacts in a contact sport (what normally happens in the game - Foul vs. punch in face), being touched by doctor in a physical exam, bumped on a public bus. b. Infer from plaintiffs conduct - i.e. kiss at the end of a date. i. Test - Must look at the objective conduct of the plaintiff, NOT the plaintiff's subjective interpretation.

3. Consent Implied by Law - arises when action is needed to save a person's life or some other important interest in person or property. a. i.e. if operating in stomach the Dr. can remove a cyst that he sees.

4. Capacity required - Individuals without capacity are deemed incapable of consent. (i.e. incompetents, drunk persons, and young children)

5. Exceeding the scope of Consent - may be liable. 3

ii. SELF DEFENSE (Defense of others / defense of property)

1. Self Defense a. Must act with proper timing - The threat must be imminent or in progress. i. i.e. already committed torts do not qualify b. The Defendant must have a good faith, reasonable belief in the genuineness of the threat. (ex. Burglar alarm) i. i.e. A reasonable mistake as to the existence of the danger is allowed. c. Degree of Force - Can only use force necessary to prevent the harm. If excessive force is used, the defense is lost. d. Retreat - One need NOT attempt to retreat, but there is a duty to retreat before using deadly force if it can be done safely, unless in her home.

2. Defense of Others a. One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself b. Mistake - A reasonable mistake as to whether the other person is being attacked or has a right to defend himself is permitted. c. Force - Can use the same force that he could have used if the force were directed upon him.

3. Defense of Property / Recapture of Chattel a. Reasonable Force - May use reasonable force to prevent the commission of a tort against her real or personal property. b. Demand - A request to desist or leave must first be made UNLESS it would clearly be futile or dangerous. c. The defense does NOT apply once the tort has been committed but MAY use reasonable force while in hot pursuit. d. Mistake - A reasonable mistake IS allowed as to whether the intrusion has occurred or whether a demand to desist is required but NOT as to whether an entrant has a privilege (i.e. necessity) e. Force - Reasonable force may be used but NOT deadly force or force that entails a serious threat of bodily harm (NO vicious guard dog) i. Deadly force can only be used when a person is threatened. f. Entry on Land to Remove Chattel - The owner is privileged to enter another's land to reclaim his chattel at a reasonable time and in a reasonable manner, after first making a demand for their return UNLESS the chattel is on the land through the owner's fault (i.e. wandering cattle). i. Must pay for actual damages when entering innocent party's land. iii. PRIVILEGE OF ARREST

1. The privilege of arrest carries with it the privilege to enter another's land for the purpose of effectuating the arrest.

2. Subsequent Misconduct - The actor may still be liable for subsequent misconduct after the arrest. (Unduly detaining the property, failing to bring to the jail)

3. Misdemeanor - Privileged only for a breach of peace AND if the action takes place in the arresting party's presence.

4. Felony - Police officer must reasonably believe that a felony has been committed and that the person be arrests has committed it. (May make a reasonable mistake) a. Citizens may make a reasonable mistake regarding the identity of the felon, but not regarding whether the felony occurred.

5. Force - Reasonable force. No deadly force in misdemeanor arrests. Deadly force allowed in felony arrests if the suspect possesses a threat of serious harm. 4

iv. NECESSITY - The defendant MAY interfere with the plaintiff's real or personal property when it is reasonably and apparently necessary to avoid threatened injury to:

1. Public - When the defendant acts for the community as a whole or a significant group of people it is a complete defense. (Batman)

2. Private - When the defendant acts solely to benefit any person or property from destruction or serious injury, the actor must pay for any injury he causes but is NOT liable for nominal or punitive damages. a. Only a defense to property torts. b. So long as the emergency continues the private property owner must let the defendant remain on the property until the threat has passed. Owners of property can be held liable for the additional damages to the person or property if they wrongfully eject defendants in an emergency. v. DISCIPLINE - A parent or teacher may use reasonable force in disciplining children.

2. HARM TO ECONOMIC & DIGNITARY INTERESTS a. DEFAMATION i. Defamatory Language - Language tending to adversely affect the plaintiffs reputation.

1. Statement of opinion is NOT actionable unless it is based on specific facts.

2. Mere insults or name calling are NOT actionable.

3. If the statement is not defamatory on its face, plaintiff may plead additional facts to establish defamatory meaning by "innuendo".

4. Any living person may be defamed. a. Defamation of a deceased person is NOT actionable. b. Corporations or partnerships MAY be defamed. ii. "Of or Concerning" the Plaintiff

1. Plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff.

2. If the statement does not refer to the plaintiff on its face, extrinsic evidence may be offered to establish that the statement refers to the plaintiff.

3. Group defamation a. If the statement refers to ALL members of a small group - Must prove you are a member of the group to recover. (i.e. everyone wins) b. If the statement refers to only SOME members of a small group, P can recover if a reasonable person would view the statement as referring to P. c. If it is a large group, NO member can prove that the statement is "of or concerning him. (i.e. nobody wins) iii. Publication - Communication to at least one person OTHER than the plaintiff.

1. The publication can be made either intentionally or negligently.

2. It is the intent to publish, NOT the intent to defame that is the requisite intent.

3. Each repetition is a subsequent publication. However, multiple copies of newspapers or magazines are considered a "single publication."

4. Subsequent publishers are liable if they know or should know of the defamatory content even if they state the source or state that they don't believe it. iv. Damages to the Plaintiffs Reputation - Depends on the type of defamation.

1. Libel - Written or printed defamatory language (Including radio and television broadcasts) - Plaintiff does NOT need to prove special damages and general damages are presumed.

2. Slander - Spoken defamation - Plaintiff must prove special damages (economic damages - Not feelings hurt) UNLESS defamation falls within slander per se: 5

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