Final Review Outline: Torts, intentional torts and defenses

Intentional Torts Involving Personal Injury

General Principles of Tortious Conduct

Themis Bar Review FINAL REVIEW OUTLINE: TORTS I. Intentional Torts Involving Personal Injury A. In general 1. Tortious conduct-voluntary act/failure to act 2. Requisite mental state-purposeful (or reckless for IIED), or defendant (D) knows the consequence is substantially certain 3. Causation-resulting harm legally (i.e., factually and proximately) caused by D's conduct

Battery

B. Battery 1. D intends to cause contact with plaintiff's (P's) person (or anything connected to P's person) · Transferred intent applies · Single-intent rule (majority rule)-D may be liable if D (i) intends to bring about the contact; D need not intend (ii) that the contact is harmful or offensive . Double-intent rule (minority rule)-D must (i) intend to bring about a contact, and (ii) intend that the contact be harmful or offensive 2. D's conduct causes such contact . Indirect contact counts . D's conduct must be voluntary and affirmative 3. The contact causes bodily harm or is offensive to P · Harmful: physical injury, illness, disease, impairment, death · Offensive: reasonable-person standard (objective), or when D knows that the contact is highly offensive to P's sense of personal dignity

Assault

C. Assault-D intends to cause P to anticipate imminent, harmful and offensive contact, and D's affirmative conduct causes P to anticipate such contact 1. Anticipated contact-no actual contact required; P must be aware of D's acts; anticipated contact must be harmful or offensive 2. Imminence-threats of future harm or threats made by D who is physically too far away do not usually satisfy this requirement 3. Intent-subject to transferred intent

Intentional Infliction of Emotional Distress (IIED)

D. IIED 1. Intent or recklessness · D, by extreme and outrageous conduct, intentionally/recklessly causes P severe emotional distress . Transferred intent does not apply to IIED when D intended to commit a different intentional tort (e.g., battery) against a different victim (instead governed by the "bystander" rule for third-party victims) · Transferred intent may apply to IIED if, instead of harming the intended person, D's extreme and outrageous conduct harms another 2. Extreme and outrageous conduct by D (beyond human decency, outrageous) Final Review Outline: Torts Page 1 of 193. Public figures/concerns (public figures must show falsity and actual malice; private P cannot recover if issue was of public concern) 4. Emotional harm caused by harm to third party (distresses member of victim's immediate family-with or without resulting bodily injury-or other bystander resulting in bodily injury) 5. Causation (factual-cause test) 6. Damages-severe emotional distress (beyond reasonable person's endurance or D knows of P's heightened sensitivity)

False Imprisonment

E. False imprisonment 1. D intends to confine another within a limited area, D's conduct causes P's confinement or D fails to release P from confinement despite a duty to do so, and P is conscious of the confinement 2. Confinement-limited area or when P is compelled to move in a highly restricted way (e.g., physical barriers or force, threats, invalid use of legal authority, duress, failure to provide means of escape) 3. Length of confinement-immaterial except as to amount of damages 4. Intent-purposeful act or knowing confinement is substantially certain to result 5. Damages-majority: actual damages unnecessary, P can recover nominal and possible punitive damages; minority: actual damages necessary only if P was unaware of confinement

Defenses to Intentional Torts Involving Personal Injury

Consent as a Defense

II. Defenses to Intentional Torts Involving Personal Injury A. Consent-D not liable if P gave legally effective consent (i.e., actual, apparent, or presumed, or there was an emergency) 1. Actual-P is willing for the conduct to occur; revoked by clear communication 2. Apparent-D reasonably believes that P actually consents 3. Presumed (implied)-D is justified based on prevailing social norms or D has no reason to believe P would not actually consent if D had requested consent 4. Emergency-usually medical, purpose of conduct is to prevent/reduce risk to P's life/health

Self-Defense

B. Self-defense-D must reasonably believe that the force is (i) necessary and (ii) proportionate to the force P is intentionally inflicting 1. Defensive purpose-D's force must be defensive, but defense need not be D's sole motive for force 2. Nondeadly force-D reasonably believes that (i) P's force is intentional and unprivileged, (ii) D's force is proportional, and (iii) D can prevent P's force/threat only by immediate force 3. Deadly force-D reasonably believes that (i) P's force is intentional and unprivileged, (ii) D is at risk for death/serious bodily harm/rape, and (iii) D can prevail only by immediate use of deadly force 4. No duty to retreat (majority)-before using force, including deadly force, in defense 5. Withdrawal-if P withdraws, D no longer has privilege to use force 6. Initial aggressors-generally not entitled to claim self-defense Final Review Outline: Torts Page 2 of 197. Not liable for injuries to bystanders-D may use nondeadly force against a bystander if (i) the force P is using against D is substantially greater than the force D uses against the bystander, and (ii) D's use of force against the bystander is immediately necessary

Defense of Third Persons

C. Defense of third persons 1. Reasonable belief that defended party entitled to use force to defend self 2. Immediately necessary

Defense of Property

D. Defense of property 1. D privileged to act to prevent P's imminent intrusion if: · P's intrusion is not privileged; · D reasonably believes that P is intruding/about to intrude and D can prevent it by means used; · D asks P to stop or such request would be useless/dangerous; . Means used are reasonably proportionate to value of interest protecting; and · Means used are not intended to/likely to cause death/serious bodily injury 2. No deadly force allowed-including deadly traps 3. No force allowed to reclaim real or personal property wrongfully taken-must use legal action (e.g., eviction); personal property subject to "fresh pursuit" exception

Discipline or Control of Minor Child

E. Discipline or control of minor child 1. Parents-reasonable force/confinement ok considering child's age and gravity of behavior; privilege may extend to one acting in loco parentis 2. Educators-reasonably force ok to maintain order/safety

Protecting Mentally Impaired Individuals from Self-Harm

F. Protect mentally impaired from self-harm-D may use force against another if (i) D reasonably believes it necessary to protect that person from death/serious bodily harm and (ii) that person does not understand nature/consequences of her actions

Privilege of Arrest and Other Crime-Related Conduct

G. Privilege of arrest and other crime related conduct 1. Private actor . Felony arrest-ok if crime was actually committed and reasonable to suspect the person arrested committed it . Misdemeanor arrest-majority rule: only if committed in presence of arresting party and if breach of peace; Third Restatement: only if misdemeanor creates a substantial risk of bodily harm and private actor reasonably believes police will not be able to prevent/terminate crime · Assisting police-ok if private actor reasonably believes police need help and police conduct is/could be privileged . Intervenor-force ok against an intervenor intentionally impeding actor's privileged conduct/aiding arrestee to resist/escape 2. Law enforcement officials · Privileged to use force/threat/confinement to (i) arrest, (ii) investigate/terminate/prevent crime, or (iii) enforce the law; off-duty officer is a private actor Final Review Outline: Torts Page 3 of 193. Use of force-private actor/police can only use force if (i) reasonably necessary and proportionate, (iii) for a legitimate purpose, (iii) in the context of arrest, intent to arrest is communicated prior to force (unless communication would be useless)

Merchant's Privilege

H. Merchant's privilege-seller of goods/services privileged to use force for the purpose of (i) investigating potential theft, (ii) recapturing personal property, or (iii) facilitating arrest 1. Merchant must reasonably believe that the other has taken merchandise or failed to pay for purchase 2. Merchant's use of force must be (i) on or immediately near merchant's premises, (ii) reasonable, and (iii) of reasonable duration; deadly force not ok

Harms to Property Interests

Trespass to Chattels

III. Harms to Property Interests A. Trespass to chattels (tangible personal property) 1. Intentional interference with P's right of possession by either- · Dispossessing or . Using or intermeddling with P's chattel 2. Only intent to do the act is necessary-transferred intent applies 3. Mistake of law or fact-not a defense 4. Damages-actual, loss of use, and nominal damages; no loss of use damages without dispossession; compensation for diminished value or cost of repair

Conversion

B. Conversion 1. Intentional act . Must only intend to commit the act that interferes (intent to damage not necessary) · Mistake not a defense · Transferred intent does not apply; must intend to control the particular chattel 2. Interference with P's right of possession (exercising dominion or control) 3. So serious (based on duration/extent, intent to assert a right, D's good faith, extent of harm and P's inconvenience) that it deprives P of the use of the chattel 4. Damages (full value of property or replevin)

Trespass to Land

C. Trespass to land 1. Intent to enter land or cause physical invasion, not to trespass; transferred intent applies 2. Physical invasion of property 3. Proper P-anyone in actual or constructive possession of land 4. Necessity as defense to trespass · Private-qualified privilege for limited number of people to enter or remain on land to protect own person/property from serious harm; not liable for trespass but responsible for actual damages · Public-unqualified/absolute privilege to avert imminent public disaster; not liable for damage if actions reasonable or reasonable belief that necessity existed, even if initial entry not necessary Final Review Outline: Torts Page 4 of 19

Nuisance

D. Nuisance 1. Private-substantial and unreasonable interference with another's use or enjoyment of his land · Proper P-anyone with possessory rights in real property . Interference must be intentional, negligent, reckless, or result of abnormally dangerous conduct · Substantial-offensive to average reasonable person in the community (objective) · Unreasonable-injury caused outweighs usefulness of the action · Defenses to private nuisance o Regulatory compliance-incomplete defense; admissible but not determinative o Coming to the nuisance-does not entitle D to judgment as a matter of law but jury may consider 2. Public-unreasonable interference with a right common to the general public; defenses in private nuisance generally applicable · Proper P-private citizen suffering harm different in kind from general public 3. Remedies-damages; injunctive relief (balance the equities) 4. Abatement . Private-Reasonable force permitted to abate; must give D notice of the nuisance and D refuses to act · Public-Absent unique injury, public nuisance may be abated only by public authority

Negligence

Elements of Negligence

IV. Negligence-failure to exercise care a reasonable person would exercise; breach of the duty to prevent foreseeable risk of harm to anyone in P's position; breach must be the cause of P's injuries A. Elements 1. Duty (obligation to protect another against unreasonable risk of injury) 2. Breach (failure to meet that obligation) 3. Causation (close causal connection between action and injury) 4. Damages (harm suffered)

Duty of Care

B. Duty-owed to all foreseeable persons who may be injured by D's failure to meet reasonable standard of care; foreseeability of harm to another sufficient to create general duty to act with reasonable care 1. Failure to act-generally no duty to act 2. Foreseeability of harm to P . Cardozo-D only liable to Ps within the zone of foreseeable harm ( Palsgraf majority rule) . Andrews-if D can foresee harm to anyone resulting from his negligence, D owed duty to everyone harmed (foreseeable or not) (minority rule) 3. Special foreseeable Ps · Rescuers-D liable for negligently putting rescuer/rescued party in danger o Can apply comparative responsibility if rescuer's efforts are unreasonable Final Review Outline: Torts Page 5 of 19