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| Loss of consortium claim |
- loss of services
- loss of society (companionship=emotional)
- loss of sexual intimacy
***MA: govt and charitable immunities |
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Robin Mon, 29 Jun 2009 17:42:56 GMT |
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| Co-defendants |
comparative contribution: P gets back amount reflecting each D's amount of fault
EXCEPT: vicariously liable party entitled to 100% of damages from active tortfeasor (INDEMNIFICATION)
- non-manufacturer held strictly liable for defective product may get full indemnification from manufacturer (up chain of distribution) |
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Robin Mon, 29 Jun 2009 17:42:56 GMT |
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| Vicarious liability |
active tortfeasor D hurts P, who sues D and inactive party based on relationship to D
- employer/employee: NOT incl. intentional torts because outside scope
- IC/hiring party: hiring party NOT liable EXCEPT land possessor for injured invitee
- car owner/driver: NOT liable for torts of people driving w/ permission EXCEPT if driver acting as agent/servant
- parent/child: liability for parent's negligence, child's intentional torts
***MA: $5,000 for intentional tort of child <7
NOTE: may be directly liable for leaving keys out for drunk driver, leaving out loaded gun, etc. |
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Robin Mon, 29 Jun 2009 17:40:48 GMT |
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| Nuisance |
interference w/ someone's ability to use property to an unreasonable degree
- harm, NOT analogous to battery
- may be intentional, negligent, w/o fault
- court balances equities |
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Robin Mon, 29 Jun 2009 13:29:56 GMT |
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| Strict liability torts |
INJURIES BY ANIMALS:
- domesticated: D must be negligent EXCEPT if D has knowledge of viciousness
***MA: dog owner liable for ALL injuries even w/o knowledge unless victim was teasing
- wild: strict liability
ABNORMALLY DANGEROUS ACTIVITY: abnormal risk even w/ reasonable care and NOT common usage where conducted
PRODUCT INJURIES: D is merchant (NOT casual seller or incidental product), product is defective
- no privity req. (all merchants in distribution chain liable)
- defect: manufacturing or design (show alternative design that is safer, economical, practical; incl. warnings, instructions)
- non-alteration req.
- victim must be making foreseeable use
***MA: UCC warranty of merchantability doctrine (same result)
DEFENSES:
- comparative fault |
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Robin Mon, 29 Jun 2009 17:31:53 GMT |
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| Equitable remedies |
for tort, privacy invasion, trespass to land, prospective defamation, etc.
INJUNCTIONS (negative or mandatory)
- preliminary (P shows likelihood of success and likely irreparable injury)
- permanent (at end)
require:
- no adequate remedy at law (non-monetary harm, on-going, etc.)
- tort invaded a protectable interest
- remedy will be enforceable
- court must balance hardships
SPECIFIC DEFENSES:
- unclean hands
- laches (prejudicial delay)
- D has changed position in reliance of P's failure to litigate
AFFIRMATIVE DEFENSES: ***NOT in MA
- contributory negligence
- assumption of risk
- comparative negligence
- partial comparative negligence ***MA rule |
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Robin Mon, 29 Jun 2009 13:18:17 GMT |
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| Damages |
"eggshell skull" principle: take P as found
***MA: damages caps on med mal (ONLY) EXCEPT:
- where death has resulted from med mal
- if a subs. permanent disfigurement
- if loss of a bodily function |
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Robin Mon, 29 Jun 2009 13:06:05 GMT |
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| Causation: proximate cause |
proximate cause: fairness
D is NOT liable for unforeseeable results
foreseeable:
DIRECT cause (liable unless freakish)
INDIRECT cause (intervening cause: outcome may/not be foreseeable)
foreseeable:
--intervening medical negligence
--intervening negligent rescue
--intervening protection/reaction forces
--subsequent disease, accident |
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Robin Mon, 29 Jun 2009 13:02:40 GMT |
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| Causation: factual cause |
factual cause: but-for
special cases:
- merged causes: subs. factor test (if each breach independently capable, then jointly liable)
- unascertainable causes: burden of proof shifted to Ds |
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Robin Mon, 29 Jun 2009 13:02:40 GMT |
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| Breach |
P must identify specific wrongful conduct of D AND give argument about why it's wrongful
EXCEPT: res ipsa loquitor (P lacks info)--P must show that accident is normally associated with negligence and someone in D's position |
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Robin Mon, 29 Jun 2009 13:02:40 GMT |
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| Violation of statute |
criminal/regulatory standard of care, but P may borrow to show negligence per se (MBE) IF P shows:
- P is member of class that statute is trying to protection
- accident is in class of risks that statute was trying to prevent
***MA: merely evidence of negligence, NOT negligence per se
EXCEPTIONS:
- compliance more dangerous than violation
- compliance impossible under circumstances (heart attack) |
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Robin Mon, 29 Jun 2009 03:32:46 GMT |
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| Duty |
CHILD:
- <4: incapable of negligence, never liable
- 4-18: duty of hypothetical child of similar age, experience, intelligence, under similar circumstances (subjective, varies by child) EXCEPT: if D engages in adult activity (car)
PROFESSIONALS: avg member of that profession acting in a similar locality (hypo RPP) (exception: med mal = empirical standard); if specialized: prof. community (not geographic)
***MA: NOT geographic--ALL doctors held to general standard of care
POSSESSORS OF REAL ESTATE to entrants:
- undiscovered trespassers: NO duty of care
- discovered/anticipated trespassers: reasonable prudence; protect against artificial, highly dangerous, concealed, and known conditions (ok to not protect against natural, obvious conditions)
- licensees (enter w/ permission for own purposes--invited guest): RPP; protect against concealed, known conditions
- invitees (enter for business or public): RPP; protect against concealed, knowable (by reasonable inspection) conditions (e.g., traps)
***MA: ALL categories of entrants: NO duty of care EXCEPT to refrain from reckless behavior (same result: duty still owed to discovered trespasser b/c reckless to do nothing about known traps, etc.)
- recreation use: if you open and do not charge fee, entrants only protected from reckless conduct of owner
- firefighters/police: NO recovery for injuries inherent to job risks (***MA: NO rule)
- child trespassers: attractive nuisance, higher standard of care
* duty w/ regard to dangerous condition: owner may repair or give warning
* NO duty to act affirmatively EXCEPT:
- pre-existing relationship (owner/invitee)
- D was cause of peril (then: RPP)
- gratuitous rescuer must rescue as RPP
- trained aid givers insulted from ALL liability if give emergency aid in good faith as volunteer
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:
- no direct bodily trauma req., but P must show that he was in zone of danger and a subsequent physical manifestation of distress
- bystander: must be contemporaneous witness to negligent injury inflict on family member (***MA: P may come upon scene shortly after if victim still present) |
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Robin Mon, 29 Jun 2009 03:32:46 GMT |
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| Negligence |
- duty: to take risk-reducing precautions of RPP (NO allowance for D's personal shortcomings EXCEPT: superior knowledge, physical attributes) under similar circumstances, owed to foreseeable victims
- breach
- causation (factual + proximate)
- damages |
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Robin Mon, 29 Jun 2009 03:15:17 GMT |
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| Judicial torts |
- malicious prosecution
- abuse of process |
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Robin Mon, 29 Jun 2009 03:05:31 GMT |
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| Economic torts |
- fraud
- negligent misrepresentation
- inducing a breach of contract |
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Robin Mon, 29 Jun 2009 03:05:31 GMT |
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| Affirmative defenses to privacy torts |
CONSENT
DEFAMATION PRIVILEGES:
- absolute
- qualified (ONLY is false light, disclosure) |
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Robin Mon, 29 Jun 2009 03:04:47 GMT |
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| Privacy torts |
- APPROPRIATION (EXCEPT: newsworthiness)
- INTRUSION (P must not be in semi-public place: expectation to privacy must be reasonable; NO req. of trespass to land--wiretap is intrusion + trespass to land)
- FALSE LIGHT (***NOT in MA): widespread dissemination of major falsehood (unlike defamation), generates social/emotional damages (compare: defamation=economic damages)
* NO FAULT tort: good faith does NOT preclude liability; actionable even if reputation not hurt (that is defamation)
- DISCLOSURE: widespread dissemination of confidential facts; concerns truthful info (EXCEPT: newsworthiness) |
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Robin Mon, 29 Jun 2009 03:04:47 GMT |
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| Defense to defamation |
CONSENT
TRUTH
PRIVILEGES:
- absolute (status: spouse, govt officer)
- qualified (public interest in promoting candor; requires good faith belief that statement was accurate and must confine to matters that are relevant)
EXCEPT where underlying subject matter is of public concern: P must ALSO show falsity and that D did not have a reasonable and good faith basis
***MA: P must ALWAYS raise falsity and that D lacked reasonable and good faith basis in ALL defamation cases (but burden still on D) |
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Robin Mon, 29 Jun 2009 02:36:48 GMT |
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| Defamation |
D makes defamatory statement that specifically identifies P and adversely affects P's reputation
- name-calling NOT incl.; allegation/assertion of fact that reflects negatively on character incl.; may incl. statements of opinion if veiled factual statement
- P must be alive at time statement is made
- D must PUBLISH the statement to 1+ ppl (may be negligent, not req. to be intentional)
DAMAGES:
- libel (written/permanent format)
- slander (spoken): may be per se (about business/profession, that P has committed a crime of moral turpitude, that a woman is unchaste, that P suffers from a loathsome disease) or else P must how special damages (actual economic harm)
- social/emotional harm NOT suff. |
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Robin Mon, 29 Jun 2009 02:36:48 GMT |
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| Affirmative defenses to intentional torts |
CONSENT (express or constructive, may be based on custom/activity or reasonable interpretation of P's objective conduct--reasonableness is jury question); NOTE: scope of consent
"PROTECTIVE PRIVILEGES"
- self-defense
- defense of others
- defense of property
* require: proper timing of response, reasonable belief that threat is imminent; proportional force
NECESSITY
- ONLY defense to trespass to land, trespass to chattels, conversion (e.g., shooting rabid dog to save kids)
- public necessity: D pays NO damages
- private necessity: defense, but D pays damages (but D cannot expel so long as emergency continues) |
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Robin Mon, 29 Jun 2009 02:36:48 GMT |
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| Torts involving intentional interference with personal property (everything but land, buildings) |
- incl. money
trespass to chattels: minor harm
- remedy: cost of repair
vs.
conversion: significant harm
- remedy: FMV |
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Robin Mon, 29 Jun 2009 02:09:36 GMT |
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| Trespass |
D committed a physical invasion of land (incl. throwing object)
- NO intent to trespass req., only intent to enter/throw
- intangible objects NOT incl. (tort: nuisance)
- land incl. reasonable air and soil |
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Robin Mon, 29 Jun 2009 02:09:36 GMT |
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| Intentional infliction of emotional distress |
D engages in outrageous (exceeds all bounds of decency) and P suffers severe emotional distress
- hypersensitivity NOT incl. unless D has knowledge
- reckless conduct suff. for "intent"
- NOT incl. mere insults; typically continuous/repetitive conduct, D is a common carrier/innkeeper, or P is a member of a fragile class (young children, elderly, pregnant women--if D knows)
- "distress" may be of any form so long as severe; manifestation NOT required |
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Robin Mon, 29 Jun 2009 02:09:36 GMT |
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| False imprisonment |
D commits act of restraint and as a result P (of normal sensitivity to threats) is confined in a bounded area
* threats may constitute act of restraint (no physical obstacle req.)
* incl. omission of action (e.g., duty owed to help P move around)
* P must know or is harmed by it |
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Robin Mon, 29 Jun 2009 02:01:51 GMT |
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| Assault |
D places P in apprehension of immediate battery (focus on P's state of mind--no defense that D incapable if P reasonably believes D is capable)
* naked verbal threat without more is NOT suff. to constitute assault--requires menacing conduct
* threat must be immediate harm--NOT future
* words may negate menacing conduct |
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Robin Mon, 29 Jun 2009 02:01:51 GMT |
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| Battery |
D commits harmful/offensive touching of P's person (unpermitted by person of ordinary sensitivity) |
0 |
Robin Mon, 29 Jun 2009 02:01:51 GMT |
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| Intentional torts |
NO incapacity defenses (i.e., drunk, mentally ill, young, etc., person still liable)
- battery
- assault
- false imprisonment
- intentional infliction of emotional distress
- trespass
- conversion
- defamation
PRIVACY TORTS:
- appropriation
- intrusion
- false light (***NOT in MA)
- disclosure |
0 |
Robin Mon, 29 Jun 2009 02:01:51 GMT |
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| Torts: vicarious liability |
- respondeat superior (scope of employment: incl. minor detour but NOT intentional torts EXCEPT where force is authorized, friction is generated, employee is furthering the business)
- NO liability for ICs EXCEPT where engaged in inherently dangerous activities or duty is non-delegable under public policy
- partners liable for torts within scope
* distinguish: negligent hiring, negligent entrustment, Dram Shop laws, etc. |
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Robin Thu, 18 Jun 2009 18:33:55 GMT |
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| Defenses to nuisance |
- legislative authority (e.g., zoning)
- conduct of others
- contributory negligence IF theory is negligence
- coming to a nuisance |
0 |
Robin Thu, 18 Jun 2009 18:27:53 GMT |
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| Remedies |
- damages
- injunctive relief (e.g., because nuisance will cause irreparable injury)
--court will consider hardships EXCEPT if conduct was willful
* abatement by self-help permitted after notice to D after D's refusal to act |
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Robin Thu, 18 Jun 2009 18:26:50 GMT |
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| Public nuisance |
act that unreasonably interferes with health, safety, or property rights of the community (e.g., building for prostitution)
* recovery only if P suffered unique damage not suffered by the public |
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Robin Thu, 18 Jun 2009 18:25:29 GMT |
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| Private nuisance |
substantial, unreasonable interference (NO hypersensitivity) with use or enjoyment of P's property that he possesses or has right of immediate possession
* compare: trespass to land--interference with exclusive possession by invasion (private nuisance is about USE or ENJOYMENT) |
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Robin Thu, 18 Jun 2009 18:24:44 GMT |
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| Nuisance |
a type of harm (not a separate tort)
- invasion of private property rights OR public rights by conduct that is tortious (intentional, negligent, strict liability) |
0 |
Robin Thu, 18 Jun 2009 18:21:35 GMT |
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| Products liability: representation theory |
requires justifiable reliance
assumption of risk is NOT a defense |
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Robin Thu, 18 Jun 2009 18:20:49 GMT |
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| Products liability: implied warranties of merchantability and fitness |
- no proof of fault required
- narrow horizontal privity requirement
- damages may be economic (and personal/property)
defenses:
- assumption of risk
- contributory negligence
- failure to give notice of breach (UCC)
disclaimers generally rejected except for economic damages |
0 |
Robin Thu, 18 Jun 2009 18:19:39 GMT |
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| Products liability: strict tort special rule |
strict duty only owed by COMMERCIAL SUPPLIER--NOT casual sellers
* may be imposed on retailers even if they do not have an opportunity to inspect
PHYSICAL INJURY REQUIRED (NO recovery for merely economic damages)
* NO defense of contributory negligence where P merely failed to discover or misuse was reasonably foreseeable
defense: assumption of risk
comparative negligence may be available
* disclaimers are irrelevant |
0 |
Robin Thu, 18 Jun 2009 18:16:11 GMT |
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| Products liability: types of defect |
- manufacturing
- design
- inadequate warnings (danger must be unapparent)
* product may be unavoidably dangerous
* D not liable for unforeseeable dangers
* D must est. safer economic alternative to prove design defect
ANY foreseeable P can sue: NO contractual privity req. |
0 |
Robin Thu, 18 Jun 2009 18:12:00 GMT |
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| Products liability: elements |
- defect
- existence of the defect when product left D's control |
0 |
Robin Thu, 18 Jun 2009 18:09:19 GMT |
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| Products liability: theories of liability |
- intent
- negligence
- strict liability
- implied warranties of merchantability and fitness for a particular purpose
- representation theories (warranty and misrepresentation) |
0 |
Robin Thu, 18 Jun 2009 18:08:14 GMT |
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| Abnormally dangerous activities |
- activity creates foreseeable risk of serious harm even when reasonable care taken
- activity is not a matter of common usage
REASONABLE CARE DOES NOT RELIEVE D OF LIABILITY IN STRICT LIABILITY |
0 |
Robin Thu, 18 Jun 2009 18:05:31 GMT |
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| Liability for animals |
- owner is liable for reasonably foreseeable damage by trespass of his animals
- personal injuries:
--strict liability for wild animals
--NO strict liability for domestic animals unless dangerous propensity known
trespassers:
- NO strict liability imposed without landowner's negligence
- BUT landowner may be liable for injuries from vicious watchdogs under intentional tort |
0 |
Robin Thu, 18 Jun 2009 18:04:19 GMT |
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| Strict liability |
- absolute duty to make safe
- breach
- actual and proximate cause
- damage to person/property |
0 |
Robin Thu, 18 Jun 2009 18:04:19 GMT |
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| Defenses to negligence |
CONTRIBUTORY negligence: to violation of statute, NOT to intentional torts -- BARS recovery
- may be imputed (employer, partner, but NOT parent, car owner)
- exception: last clear chance (P's counter)
ASSUMPTION OF RISK: known + voluntary
- implied (must be alternatives)
(common carriers may NOT limit liability by disclaimer; protected class cannot assume risk)
- express
* NO defense to intentional torts; may be defense to wanton and willful misconduct
COMPARATIVE negligence:
- partial: recovery barred if P's negligence > or = D's
- pure: regardless of P's negligence
* last clear chance inapplicable
* implied assumption of risk disallowed |
0 |
Robin Thu, 18 Jun 2009 18:01:09 GMT |
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| Damages |
- personal: foreseeability irrelevant
- property: cost of repair
- punitive: ONLY if wanton and willful, reckless, malicious
- nonrecoverable: interest, attorneys' fees
- NO reduction even if P receives insurance
* DUTY TO MITIGATE |
0 |
Robin Thu, 18 Jun 2009 17:48:33 GMT |
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| Causation |
actual cause:
- but-for
- joint causes: substantial factor test (both liable)
- alternative causes (burden on D to avoid negligence: Summers v. Tice)
proximate cause (legal causation):
- foreseeability test (D still liable for foreseeable results caused by foreseeable intervening forces, incl. medical malpractice, negligence of rescuers, efforts to protect person/property, injuries caused by reactions, subsequent diseases and accidents)
- independent intervening forces (D NOT liable: negligent third party acts, crimes and intentional torts of third parties, acts of God)
* D MAY be liable for foreseeable results caused by unforeseeable intervening forces
* D NOT liable for unforeseeable results caused by foreseeable intervening forces
* D NOT liable for superseding causes (unforeseeable results caused by unforeseeable intervening forces)
EGGSHELL-SKULL PLAINTIFF RULE |
0 |
Robin Thu, 18 Jun 2009 17:48:33 GMT |
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| Breach of duty |
theories available to P:
- custom / usage
- violation of statute (negligence per se)
- res ipsa loquitor (P must show that accident causing injury is a type that would not normally occur without negligence + D was negligent) |
0 |
Robin Thu, 18 Jun 2009 17:33:45 GMT |
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| Duty to act |
- NO duty to act
- Good Samaritan statutes may excuse doctors, etc., from liability for ordinary (NOT gross) negligence
- duty to assist someone D has negligently/innocently placed in peril
- special relationship duties: common carriers, innkeepers, shopkeepers, parent-child |
0 |
Robin Thu, 18 Jun 2009 12:05:08 GMT |
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| Duty regarding negligent infliction of emotional distress |
- zone of danger requirement
- may incl. bystander that is closely related and present
- physical symptoms requirement
--EXCEPTIONS: erroneous report of a relative's death, mishandling a relative's corpse |
0 |
Robin Thu, 18 Jun 2009 12:05:08 GMT |
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| Negligence: standard of care |
reasonable person with D's physical characteristics
- mental deficiencies, experience NOT taken into account
- professionals: standard of member
- medical specialists: national standard (duty to disclose risks of treatment)
- children: like age, education, intelligence (subjective); <4: w/o capacity to be negligent; MAY apply adult standard to adult activities
- common carriers & innkeepers: high standard for passengers and guests
- bailment duties: gratuitous-known defects in chattel, for hire-defects he should be aware of
- owners/occupiers of land: duty to protect one OFF premises from artificial (not NOT natural) conditions (incl. falling branches in urban area); duty to protect one ON premises:
--trespassers: NO duty to undiscovered trespasser; duty to warn/make safe known risky artificial (NOT natural) conditions to discovered/anticipated trespassers
--easement/license holders owe duty of reasonable care to trespassers
--attractive nuisance: duty to avoid reasonably foreseeable risk to children caused by artificial conditions (req. knowledge of children + low expense of remedying the situation)
--licensees (enter for own purpose): duty to warn of ALL known dangerous conditions but NO duty to inspect or repair
--invitees (incl. public): same duties as to licensees PLUS duty to make reasonable inspections and make nonovious dangerous conditions safe
--recreational users: NO liability except for maliciously failing to guard/warn
***modern rule: no distinctions, reasonable person standard to dangerous conditions on land
-lessor/lessee: lessee has general duty to maintain, lessor must warn of reasonably known defects upon inspection |
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Robin Thu, 18 Jun 2009 12:00:56 GMT |
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| Negligence: duty of care |
owed to all foreseeable victims
Cardozo: all in the foreseeable zone of danger
minority: everyone is foreseeable
- incl. rescuers where D negligently put self or others in peril (danger invites rescue); limit: "firefighter's rule"
- incl. fetus (incl. wrongful birth, but NOT life, for misdiagnosis) |
0 |
Robin Thu, 18 Jun 2009 12:00:56 GMT |
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| Negligence: prima facie case |
- duty to conform to a specific standard of conduct
- breach
- actual and proximate cause of injury
- damages |
0 |
Robin Thu, 18 Jun 2009 12:00:55 GMT |
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| Interference with business relations |
- valid contractual relationship OR valid business expectancy
- knowledge of relationship/expectancy
- intentional interference
- damages |
0 |
Robin Thu, 18 Jun 2009 02:52:28 GMT |
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| Wrongful institution of legal proceedings |
MALICIOUS PROSECUTION: institution of criminal proceedings, termination in P's favor, absence of probable cause, improper purpose, damages
* prosecutors are immune
ABUSE OF PROCESS: wrongful use of process + act/threat |
0 |
Robin Thu, 18 Jun 2009 02:47:19 GMT |
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| Misrepresentation |
INTENTIONAL (fraud, deceit): misrepresentation of a material fact, scienter, intent to induce reliance, causation (actual reliance), justifiable reliance, damages (actual pecuniary loss)
* no defenses
NEGLIGENT: misrepresentation in a business/professional capacity, breach of duty, causation, justifiable reliance, damages
* generally limited to commercial setting
* liability if PARTICULAR P's reliance contemplated |
0 |
Robin Thu, 18 Jun 2009 02:45:28 GMT |
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| Invasion of right to privacy |
- appropriation of picture or name (for commercial advantage, NOT mere economic benefit)
- intrusion upon affairs or seclusion
- publication of facts placing P in false light (must be reasonably objectionable; if matter is of public interest, P must prove malice)
- public disclosure of private facts about P
DAMAGES:
- NO requirement of proof of special damages
- emotional distress, mental anguish sufficient
DEFENSES:
- consent
- defamation privileges
- NOT truth, inadvertence, good faith, lack of malice
* it is a PERSONAL right, does not survive or extend to others to exercise, non-assignable |
0 |
Robin Thu, 18 Jun 2009 02:42:45 GMT |
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| Defamation |
common law elements:
- defamatory language (not mere opinion or name-calling)
- of or concerning P (must be alive)
- publication to third person (intentional OR negligent publication; not just to P)
- damage to P's reputation
* D may offer truth as defense
constitutional elements: if a matter of public concern--
- P must prove falsity
- P must prove fault
* if P is a public person, P must prove malice regarding falsity: knowledge statement was false + reckless disregard)--damages presumed, punitive damages allowed
* if P is a private person, P must only prove negligence regarding falsity if not a matter of public concern (no constitutional restrictions)--only actual damages recoverable
LIBEL: written/printed (incl. radio, tv) -- general damages presumed
SLANDER: spoken -- P must prove special damages UNLESS it is per se:
- adversely reflect on conduct in profession
- one has a loathsome disease
- one is/was guilty of a crime involving moral turpitude
- a woman is unchaste
defenses:
- consent
- truth (where P does not need to prove falsity b/c a private matter)
- absolute or qualified privilege
* mitigating factors (anger, no malice, retraction) are NOT defenses |
0 |
Robin Thu, 18 Jun 2009 02:35:46 GMT |
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| Defenses to intentional torts |
- consent (valid; check scope, capacity) - express, implied, or by law (emergency)
- self-defense, defense of others, defense of property (reasonable mistake and force allowed; NOT allowed against person w/ privilege; allowed in hot pursuit but NOT after completed torts)
- necessity
NO self-help (but may reasonably reclaim); only force in hot pursuit; may be duty to retreat (but not in home)
recovery: only from tortfeasor or someone who should know of wrong
NO mistake (except shopkeepers: privilege to detain)
** incapacity is a defense to consent, but NOT to intent to commit |
0 |
Robin Thu, 18 Jun 2009 02:00:15 GMT |
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| Intentional torts to property |
TRESPASS TO LAND: physical invasion (person or object) of real property (incl. air and subterranean), intent (NO knowledge requirement), causation
TRESPASS TO CHATTELS: act that interferes with right of possession in a chattel, intent, causation, **DAMAGES (to chattel or possessory right)
CONVERSION: act that interferes with right of possession in a (tangible) chattel, so SERIOUS that full value payment required, intent, causation
- theft, wrongful transfer/detention, substantially changing/damaging/misusing a chattel
- P may recover damages (FMV) or possession (replevin)
***FOR ALL: P may not be owner; sufficient to have actual/constructive possession |
1 |
Robin Thu, 18 Jun 2009 01:30:47 GMT |
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| Intentional torts to the person |
BATTERY: harmful/offensive contact, to person, intent, causation (consent may be implied; contact may be in/direct)
ASSAULT: act (NOT mere words) creating reasonable apprehension of immediate harmful/offensive contact, intent, causation
FALSE IMPRISONMENT: act/omission (physical force, failure to release, invalid authority, or PRESENT threats) that reasonably confines P (for any period) to a bounded area, intent, causation (P is aware of confinement and harmed)
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: extreme/outrageous conduct (may depend on type of P or D), intent or recklessness, causation, **DAMAGES (severe distress--but NO physical injury required)
- P may be BYSTANDER if D knew P was a relative and P was present |
0 |
Robin Thu, 18 Jun 2009 01:17:54 GMT |
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| Capability of intent |
even children and mentally incompetent persons are liable for intentional torts |
0 |
Robin Thu, 18 Jun 2009 01:17:54 GMT |
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| Transferred intent |
D actually commits
- different tort against same person
- intended tort against other person
- different tort against different person
LIMITATION on transferred intent: intended and actual tort must BOTH be any of
- assault
- battery
- false imprisonment
- trespass to land
- trespass to chattels |
0 |
Robin Thu, 18 Jun 2009 01:17:54 GMT |
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| Prima facie tort case |
- act (volitional)
- intent (specific (goal) or general (substantial certainty))
- cause (may be substantial factor) |
0 |
Robin Thu, 18 Jun 2009 01:17:54 GMT |
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