Cloned from: MBE Torts 2



keywords:
Bookmark and Share



Front Back
PFC for all Intentional Torts
1. Volitional act by D 2. Intent (Specific, general, or transferred. Incapacity NOT a defense) 3. Causation
Battery
1. Intentional harm or offensive contact 2. To P's person/anything closely connected to it 3. Causation
Assault
1. Intentional Act by D creating reasonable apprehension in P 2. Of immediate harm or offensive contact to P's person 3. Causation.
False imprisonment
1. Act or ommission by D that confines or restrains P 2. to bounded area 3. Intent 4 Causation
IIED
1. Extreme and outrageous conduct 2. intent or recklessness 3. Causation 4. Damages (must be severe emotional distress)
Trespass
1. Physical invasion of P's real property 2. Intent 3. Causation
Trespass to Chattels
D's act interferes with P's right of possession 2. Intent 3. Causation 4. Damages
Conversion
1. D's act substantially interferes with P's right of possession in a chattel 2. Interference is so serious it warrants requiring D to pay full value 3. Intent 4. Causation
Remedies for conversion
1. FMV
2. Possession
3. replevin
Defenses to Intentional Torts
1. Consent
2. Self Defense
3. Defense of others
4. Defense of property
5. Recapture of chattels
6. Privilege to arrest
7. Necessity
Consent
D's actions must stay within the scope of valid consent.

Exceptions to express or actual consent: 1) D knew of and took advantage of mistake 2) Induced by fraud if goes to an essential matter 3) Obtained by threats of present harm

Implied
1) apparent (inferred from custom and usage, P's conduct)
2) Implied by law (when necessary to save a person's life, other imp interest in pers/prop) -

Capacity required
Elements of Self Defense
Person reasonably believed she is being or is about to be attacked.
May use such force as reasonably necessary to protect
When is Self Defense available?
1. Need not attempt to escape unless Deadly Force.
2. Duty to retreat before using Deadly Force if it can be done safely, actor not in home)
3. Not available to initial aggressor
4. May extend to 3P injuries caused unless deliberate
5. Reasonable mistake to existence of danger allowed
Defense of Others
May defend other if reasonably believe other person could have used Self Defense.

Reasonable mistake re: whether other is being attacked or has right to Self Defense
Defense of Property
Request to desist unless futile -


Mistake NOT allowed re: privilege

No Deadly Force unless invasion = serious threat of bodily harm
Recapture of chattels
May only use peaceful means to recover a chattle unless hot pursuit

Must demand to return unless futile, dangerous

Recap only from 3P who knows or should have known tortiously obtained

No mistake allowed

Reasonable force but not Deadly Force
Recovery of Chattels with entry on land to recover chattels
- within reasonable time and in a reasonable manner.

- must demand return first
Recovery of Chattels on land of innocent party
- Chattel owner may enter and reclaim at reasonable time, in peaceful manner after landowner gets notice and refuses to return.

- Chattel owner liable for damages caused by entry
Privilege to Arrest
May enter another's land to effect the arrest. Arrestor liable for subsequent misconduct
Mistake with Privilege to Arrest
In misdemeanor, privileged only if arrestor witnesses breach of peace.

In felony, a police officer may make a reasonable mistake. Citizens can make reasonable mistake re:identity, but not whether felony occurred.
How much force with Privilege to Arrest
Misdemeanor, No Deadly Force. Just what's necessary

Felony - Force necessary, Deadly Force only when suspect threatens serious harm.
Necessity
Person may interfere with real or personal property of another when
1) reasonably and apparently necessary to avoid threatened injury and
2) threatened injury is substantiall more serious than invasion
2 Types of Necessity
1. Public: Do not have to pay for damages to burdened property.

2. Private: actor must pay for damages to burdened property
Elements of Defamation
1. Defamatory language 2. Of or concerning P
3. Publication
4. Damage to P's reputation
Defamatory Language
- Tending to adversely affect one's reputation
- Inducement and innuendo
- if no defamation on its face, P may plead additional facts to establish defamatory meaning by innuendo
Defamation "of or concerning P"
Reasonable person would understand statement referred to P.
Groups: 
if all members of a small group = liability.

- If re: large group, no member can recover. -

As to publication, who's liable?
Primary publishers, speaker/author and repeaters

- Secondary publishers = one selling papers or playing tapes only if knows/should know of defamatory content.
Damage to P's reputation in defamation cases
Libel = No special damages req

Slander = Special damages unless slander per se
Slander Per Se
1. Reflect's one's conduct in biz or professions
2. Loathesome disease
3. Guilty of crime of moral turpitude 4. Woman is unchaste
Libel
Permanent, wide distribution, deliberate.
Defamation re: matter of public concern
Must also have - Falsity - Fault on D's part.
difference between public and private figure in defamation
Public = P must show malice
Private = P must show negligence
Defenses to Defamation
1. Consent 2. Truth 3. Absolute privilege 4. Qualified privilege
Absolute privilege
1. Court proceedings 2. Legislators in debate 3. Federal executive officials 4. Compelled broadcasts 5. Between spouses
Qualified privilege
1. Reports of official proceedings 2. Statements in publisher's interest 3. Statements in recipient's interest 4. Statements in common interest of recipient & publisher YOU LOSE PRIVILEGE IF the statement is not within scope, or if speaker acted with malice.
Invasion of Right to Privacy
1. One of the following: A. Appropriation of P's name or likeness for Defendant's commercial advantage

B. Intrusion upon Plaintiff's private affairs/seclusion C. False light publicatoin D. Public disclosure of private fact

2. Causation (D conduct proximate cause of invasion)

3. Damages (Emotional Distress enough)
Intrusion upon P's private affairs/seclusion AND Public disclosure of private facts,
Must be objectionable to reasonable person
False light publication
Attributes to P views he does not hold/actions he did not take - False light is objectionable to reasonable person - If matter of public concern, must show D had malice
Defenses to Invasion of Right to Privacy
Consent and defamation privileges - Truth, Good Faith, inadvertence and lack of malice are NOT defenses
Intentional misrepresentation
- Affirmative misrepresentation of material fact - Scienter - Intent to induce D to act or abstain in reliance upon misrepresentation - Causation (actual justifiable reliance) - Damages (MUST BE PECUNIARY) NO DEFENSES!
Duty of care
Foreseeable. Reasonable Person would have foreseen a risk of injury to P under the circumstances

Intended benificiaries of economic transaxn are foreseeable Ps
Duty of Care: Rescuers,
Foreseeable P if D negligently put himself or 3P in peril
Duty of Care: Prenatal Injuries
- Duty to fetus at viability - Child may NOT recover for wrongful life (??) - Parents may recover for wrongful birth/pregnancy, additional medical expenses, pain and suffering from labor
Basic Standard of Care
- D's conduct measured by what a reasonable person would do - Mental deficiencies and inexperience NOT considered - But, Reasonable Person considered to have same physical characteristics as D
Standard of Care: Professionals
Knowledge and skill of a member of the profession in good standing in similar communities
Standard of Care: Kids
Child of like age, education, intelligence, and experience
Standard of Care: Common Carriers and Innkeepers,
Very high standard; liable for slightest negligence,
Standard of Care: Car driver to guest
Ordinary duty of care
Bailment Duties Owed by Bailor
- For gratuitous bailment, bailor must inform of know, dangerous defects in chattel

- For bailment for hire, bailor must inform of chattel defects of which he should be aware.
x of y cards Next > >|