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Intentional Torts: Intent
- Every intentional tort requires proof of intent – usually obvious - A D intends a tort if he desires to produce the legally forbidden consequence (alternatively, enough if you know the consequence is virtually certain to result) - Note that intent can be transferred intent
Intentional Torts: Capacity
- There is NO INCAPACITY DEFENCE to intentional torts; - Therefore, if D drunk, a child, developmentally disabled, has a mental illness, etc., still liable for intentional tort of other elements are met
Battery: Elements
- D must commit harmful or offensive contact - Conduct must be to P’s person
Battery: Meaning of offensive contact
- Offensive if it would be unpermitted by an ordinary or normal person → a person of reasonable sensibility - Ex. Tap on shoulder to ask the time – not offensive even if you were subjectively offended; if you were stroking the hair of a strange female, that would be offensive
Battery: Contact with P’s Person
- Includes anything P is holding or connected to - Ex.: guy slaps horse while a lady is one the horse → liable for battering the woman
Assault: Elements
1. D must place P in reasonable apprehension 2. Apprehension must be of an immediate battery
Assault Apprehension
- Apprehension does not merely mean fear → it’s KNOWLEDGE - This means that P need not be afraid to have a right of recovery → calm and collected P okay if he KNOWS he’s about to be touched in an offensive way
Assault: Apprehension – D lacks ability to complete offensive touching
- It’s all about knowledge and what P knows: if P knows that a gun, e.g., is unloaded, P has no claim; if P doesn’t know, he has a claim - The standard is REASONABLE APPREHENSION (reason to know) → doesn’t have to be certain knowledge - This rule applies to any situation where D is bluffing
Assault: Immediacy of Battery
- Words alone lack immediacy: a naked verbal threat can’t be an assault, and in order for P to win there MUST BE CONDUCT (“menacing gesture,” usually display of a weapon) - Even if there’s a menacing gesture, words can negate immediacy o In this respect give words their natural effect o Ex. Conditional words (“if you weren’t my best friend, I’d punch you” → no assault), future words (“at 5PM, I’m going to beat you up” and then walk away → no assault)
False Imprisonment: Elements
1. Must commit an act of RESTRAINT 2. P must be confined in a bounded area
False Imprisonment: What constitutes an act of restraint?
- A threat CAN be an act of restraint (doesn’t have to be physical) - Physical restraint is where someone locks you in a room, but if tell someone, “if you leave the room, I will kill your child” or “If you leave I will call the cops.” That’s also an act of restraint o NOTE: the threat must be plausible - An OMISSION can also be an act of restraint IF there was a preexisting duty (e.g., P in a wheelchair and gets no help off the plane and is stuck there) - An act of restraint only “counts” if P KNOWS of it OR is harmed by it (if neither, no harm no foul)
False Imprisonment: Confinement in a bounded area
- An area is not bounded if there is a REASONABLE means of escape that P can reasonably DISCOVER (you’re not locked in if you can get out) - This is all about the word reasonable → if way out is DANGEROUS, DISGUSTING, HUMILIATING, or HIDDEN, no reasonable means of escape
Intentional Infliction of Mental Distress: Elements
- For this intentional tort only, D does not need to behave intentionally; reckless conduct is enough (utter disregard of mental tranquility of another) Elements 1. D engages in outrageous conduct; 2. P suffers severe distress
Intentional Infliction of Mental Distress: Outrageous Conduct
- Conduct “is outrageous if it exceeds all bounds of decency tolerated in a civilized society” - Specifically, this means that insults alone are not outrageous conduct even if deliberately said to create distress - Hallmarks of outrageousness: conduct committed by D is repetitive or continuous in nature (even insults); D is a common carrier or an inn-keeper (they have a common law duty of courtesy) and they deliberately do something to create distress (not the same as negligence); P is a member of a fragile class of persons (children, elderly, pregnant women) - Also, if P is hypersensitive to something, only counts as outrageous conduct if D knows and deliberately targeted someone’s emotional frailty
Intentional Infliction of Mental Distress: Severe emotional distress
- Does not require any particular form of evidence → will be in jury’s discretion - Will appear on test and be tested where throwaway language given that says P was “mildly annoyed” or “slightly irritated”, etc. → that’s not severe emotional distress
Trespass to Land: Elements
1. D must commit a PHYSICAL invasion; 2. There must be land
Trespass to Land: Physical invasion
- Can be either (a) where D goes on land, enters, walks around, rides, etc., OR (b) where D throws something on the land (picking up a rock and throwing it through P’s window) o NOTE that this type of invasion (b) doesn’t have to be malicious (e.g., watering neighbors shrubs without going on his land is enough) - With respect to throwing something, what you throw must be PHYSICAL → projecting intangible sources (light, noise, odor) NOT trespass (nuisance) - Smoke is a grey area: if thick black smoke and coats furniture, prob. trespass; if white and wispy, prob. Not
Trespass to Chattels & Conversion: Commonality
- Both of these torts involve an intentional interference with personal property (which includes any and everything you own except for real property) - These two torts are essentially private civil remedies for vandalism and theft
Trespass to Chattels & Conversion: How to interfere
- Interfering can be through (a) deliberately damaging the item, or (b) stealing it
Trespass to Chattels & Conversion: Difference between the two
- The difference depends on the amount of interference - Slight or modest interference = trespass to chattels - Significant or extensive interference = conversion
Trespass to Chattels & Conversion: Right of recovery
- In a conversion case, P is entitled to recover the FULL MARKET VALUE of the item (in other words, P is not limited to the cost of repairs) → you break it, you buy it - In a trespass to chattels case, the remedy is the cost of repair
Affirmative Defenses to Intentional Torts: Types
1. Consent 2. Protective privilege 3. Necessity
Consent as an affirmative defense to intentional torts: Requirements
- For P to give a valid consent and for D to raise it, P must have LEGAL CAPACITY → only a P with capacity can give a valid consent - With respect to children, they don’t lack all capacity → they can consent to age appropriate activities (two 11 year-olds can consent to wrestle each other, e.g.); as they get older, they can consent to more and more
Consent as an affirmative defense to intentional torts: Varieties of Consent (generally)
- EXPRESS consent - IMPLIED consent
Consent as an affirmative defense to intentional torts: Express Intent
- Express intent is a declaration in express words granting D permission to behave in the challenged fashion - EXCEPTION: express consent is void if obtained through fraud or duress (Ex. P consents to sex and D knows but does not disclose that he has an STD: this is fraud and the consent is not good)
Consent as an affirmative defense to intentional torts: Implied Consent
2 kinds of implied consent: 1. Consent implied from custom: arises when P goes to a place or engages in an activity where certain invasions are part of that activity (e.g., the doctor, playing sports) 2. Consent arising from D’s reasonable interpretation of P’s objective conduct: essentially reading body language (leading case is woman on ship in vaccination line with her sleeve up and said nothing → impliedly consented to the vaccination)
Consent as an affirmative defense to intentional torts: Scope of consent
- All consent has a scope: if D exceeds scope of consent, D is liable in tort - This is tested in the medical context: permission to operate on body part A and doctor operates on body part B → battery (courts, however, sometimes allow operation an adjoining body parts)
Protected Privilege as a Defense to Intentional Torts: Types
1. Self defense 2. Defense of others 3. Defense of property
Protective privilege as a defense to intentional torts: Elements
1. Proper timing 2. Person invoking privilege must have a reasonable belief that the threat is genuine 3. Proper degree of force
Protective privilege as a defense to intentional torts: Proper timing
- D must be acting when the tort threatened against him (or a third party) is in progress or imminent - Improper timing means threat is over and done with → no recovery in that situation
Protective privilege as a defense to intentional torts: Reasonable belief that threat is genuine
- The person invoking the privilege (D) must have a reasonable belief that the threat is genuine - A reasonable mistake DOES NOT destroy the privilege (e.g., you mistakenly believe someone is making off with your bad at the airport baggage claim) → still can claim a reasonable belief that the threat is genuine
Protective privilege as a defense to intentional torts: Degree of force
- A D is entitled to act only through necessary and appropriate force → excess force subjects D to tort liability - If the threat is deadly, you can respond using deadly force (even if deadly threat is aimed at third person) - In MARYLAND, however, there is a duty to RETREAT → if you have the ability to retreat, you can’t use deadly force (UNLESS you’re in your home → no duty to retreat in one’s home) - NOTE: deadly force is NEVER allowed in the protection of property (no mechanical devices either) → always disproportionate
Necessity Defenses to intentional torts: Where applies
- Necessity defenses ONLY apply to claims of PROPERTY torts (trespass to land, trespass to chattels, conversion)
Necessity Defenses to Intentional Torts: Kinds
2 kinds: 1. Public necessity; and 2. Private necessity
Necessity Defenses to Intentional Torts: Public necessity (definition and legal consequences)
- Where D invades P’s property in an emergency to protect the community as a whole or a significant number of people - This is an ABSOLUTE defense for D because D is acting out of altruistic motives to protect lots of people
Necessity Defenses to Intentional Torts: Private necessity (definition and legal consequences)
- Involves D who interferes with P’s property in an emergency to protect an interest of his own or a single other person (or a very small number of people) - Legal consequences: o D must pay for actual harm caused to the property (in other words, you remain liable for compensatory damages) o D is not liable for nominal or punitive damages o As long as the emergency continues, P can’t throw D off of his property (a right of sanctuary)
Defamation: Elements
1. D must make a defamatory statement that specifically identifies P 2. Publication In MD, P must also prove FALSITY and FAULT (D had no reasonable belief that statement was true or was reckless (P a public figure) or negligent (P a private figure))
Defamation: What constitutes a defamatory statement
- Defamation tends to adversely affect reputation - Normally requires an assertion of fact that reflects negatively on a trait of character - Merely name-calling is not defamatory
Defamation: Specifically identify P
- Usually mentioned by name, but could be by job title or position - Necessary that P is ALIVE – if statement about a dead person, no defamation
Defamation: Publication
- Statement must be said to someone other than P → it’s de minimis - The statement doesn’t even have to be intentionally made to someone else → could be negligent (letter sent to wrong address, e.g.)
Defamation: How to determine damages
- First separate into libel and slander - For LIBEL (defamation written down, permanently embodied or record), damages are PRESUMED - For SLANDER (spoken defamation), damages are presumed if it’s SLANDER PE SE - For slander, if not slander per se, D must prove damages (which usually means an ECONOMIC harm)
Defamation: Slander per se: types 1. Statement relating to P’s business or profession 2. Statement that P has committed a crime of moral turpitude (any serious crime) 3. Statement imputing on chastity (=VIRGINITY) of women 4. Statement that P suffers from a loathsome disease (only leprosy and venereal disease) - For slander per se, damages are PRESUMED
Defenses to Defamation: Types/Kinds
1. Consent 2. Truth 3. Privileges
Defenses to Defamation: Consent
- The same rules that apply to consent of other intentional torts
Defenses to Defamation: Truth
- D in a defamation case can come to court and prove that statement is factually accurate → if he can prove it, he wins - D bears the burden of proof
Defenses to Defamation: Privileges (categories)
1. Absolute 2. Qualified
Defenses to Defamation: Absolute privileges
- Statements between spouses - Officers of the government speaking as part of their official duties (most importantly, judicial: covers judge, lawyers, and witnesses; also applies to legislative and executive branch officials) - Fair reporting privilege: broadcasts or other reports of public proceedings don’t subject broadcaster, reporter, etc. to liability
Defenses to Defamation: Qualified Privileges (generally; requirements)
- Apply in any situation where there’s a public interest in encouraging candor (e.g., letters of recommendation; statement made to police during investigation of crime; statements made in application for a search warrant (MD)) - Requirements: (a) reasonable belief that what you said was TRUE (spoken in good faith; you can’t deliberately spread lies); and (b) must confine yourself to relevant material (privilege doesn’t extend to irrelevant material)
Defamation: Statements Dealing with a Matter of Public Concern
- We’re nervous people will be reluctant to engage in candid conversation about public concerns, so Ps are forced to prove 2 extra elements: 1. P must prove FALSITY of the statement (truth is essentially presumed and P must show it’s false); and 2. FAULT – P must show that D did not have a reasonable belief that the statement was true a. If P a public figure, must show he knew it was false or that it was reckless b. If P a private figure, sufficient to prove that statement was made negligently
Defamation in MD Elements
- In addition to the regular elements (defamatory statement specifically identifying P and publication), P must prove FALSITY and FAULT
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