Intentional Torts
What are the elements of battery?
What are the assault?
To establish a prima facie case for battery, the plaintiff must prove by a preponderance of the evidence that each defendant acted with the requisite intent to cause a harmful or offensive contact. It is immaterial whether the contact was effected directly through the defendant’s body or indirectly through an instrumentality, and it is likewise immaterial whether the contact was experienced by the plaintiff’s body or within the plaintiff’s zone of personality. In a single-intent jurisdiction, the plaintiff need only establish that the defendant intended to make contact, whereas in a dual-intent jurisdiction, the plaintiff must also demonstrate that the defendant intended the contact to be harmful or offensive.
What are the categories of consent?
Actual, implied, apparent
To establish a prima facie case of negligence a plaintiff must prove by a preponderance of the evidence that:
To establish a prima facie case of negligence, the plaintiff must prove by a preponderance of the evidence that the defendant owed a duty of care to the plaintiff, that the defendant breached that duty, and that the breach was both the factual and proximate cause of the plaintiff’s injury.
Express Assumption of the risk
Express A/R is a complete bar when the plaintiff contractually waives liability
The rule of strict liability?
A defendant is strictly liable for harm caused by certain activities or conditions, regardless of the level of care exercised, if the risk that caused the harm is the kind of risk that makes the activity or condition unusually dangerous or subject to strict liability.
What are the elements of Intentional Infliction of Emotional Distress?
To establish a prima facie case of intentional infliction of emotional distress, a plaintiff must show by a preponderance of the evidence that the defendant acted with the intent to cause severe emotional distress or knew with substantial certainty that such distress would result, that the defendant’s conduct was extreme and outrageous, that the defendant’s conduct caused the plaintiff’s emotional distress, and that the emotional distress suffered was severe.
What are the elements of self-defense?
Self-defense is a complete defense to an intentional tort when the defendant reasonably believes that force is necessary to prevent imminent bodily harm to oneself and others. That belief must be actual and reasonable and the force used must be proportional to the threat. The privilege ends when the threat ends
How can we determine what is reasonable?
What evidence can be used to prove a breach?
1)BPL
2)Negligence Per se
3)Community Common Sense
4)Industry Standard
5)Expert witnesses
direct, circumstantial, res ipsa loquitor
Immunities
Governmental, charitable, statutory compliance
When does strict liability apply?
No fault schemes
ultrahazards
product liability
vicarious liability
What are the elements of false imprisonment?
To establish a prima facie case of false imprisonment a plaintiff would have to prove by preponderance of the evidence that the defendant acted with an intent to confine them using force, threats, or any other means causing just fear resulting in confinement and in the majority of jurisdictions that the plaintiff was aware of the confinement.
What are the elements of defense of real property?
Defense of real property is a defense to an intentional tort when the defendant uses reasonable and non deadly force to prevent or end an unprivileged intrusion onto their land. The defendant must have an actual or reasonable belief that the intrusion is unprivileged and that force is necessary to repel it.Before using force the defendant must request the intruder to desist.
D negligently leaves oil on a store floor. P slips on the oil and breaks her wrist. Which test establishes factual causation?
A. NESS
B. But-for
C. Proximate cause
D. Comparative negligence
B
Primary Assumption of the risk
Primary A/R is also a complete bar because the risk is inherent and obvious, so the defendant owes no duty regarding that risk.
voluntary
risk is outweighed by the benefit
Who can be apart of the plaintiff class for product liability claims?
User, consumer, reasonable bystander
What are the elements of trespass to chattels?
What are the elements of conversion?
To establish a prima facie case of trespass to chattels a plaintiff must show by preponderance of the evidence that the defendant acted with the intent to dispossess, use, or interfere without a right to title and that it resulted in the plaintiff being dispossessed, impaired, or physically harmed.
To establish a prima facie case of conversion the plaintiff must show by preponderance of the evidence that the defendant acted with an intent to assert dominion or control over chattel belonging to the plaintiff and that resulted in a substantial injury to the chattel or significant dispossession to the plaintiff.
What are the elements of defense of movable property
Defense of moveable property is a defense to an intentional tort when the defendant had prior possession or a right to immediate possession and the taking was wrongful or forcible. The retaking must begin immediately upon discovery and the defendant must demand return and that demand must be futile. Only proportional force may be used.
D1 stabs P, causing heavy bleeding but not death. D2 later delays emergency medical treatment, and P dies from blood loss. Which is correct?
A. Only D1 is a factual cause
B. Only D2 is a factual cause
C. Both D1 and D2 may be factual causes
D. Neither is a factual cause
C
Secondary assumption of the risk 1 v 2
Secondary 1:conscious taking of a reasonable risk
Secondary 2: conscious taking of an unreasonable risk
Products can be defective in three ways:
Design defect:A design defect exists when all products of the line are dangerous because of the way they are designed.
Manufacturing defect:
A product has a manufacturing defect when it departs from its intended design, making it more dangerous than consumers expect.
Warning defect:
A product is defective if it lacks adequate warnings or instructions about non-obvious, foreseeable risks.
What are the elements of trespass to land?
To establish a prima facie case of trespass to land, the plaintiff must show that: (1) the defendant intentionally entered, caused entry upon, or remained on land; (2) the land was in the lawful possession of another; and (3) the entry was without consent or other legal privilege. Mistake is not a defense.
Affirmative defenses of trespass
Consent, Privilege
Necessity
Return or retrieve chattel
Abate a nuisance
Stop or prevent a crime
Incident to use of public way
D1 negligently starts a small fire on P’s land that would have destroyed P’s shed within one hour. Thirty minutes later, D2 negligently starts a massive fire that immediately destroys the shed. Which is correct?
A. D1 and D2 are both factual causes under NESS
B. Only D1 is a factual cause under but-for
C. Only D2 is a factual cause under but-for
D. Neither is a factual cause
C
Comparative v Contributory negligence
Contributory Negligence
Plaintiff’s own failure to exercise reasonable care contributes to the harm; in strict contributory negligence jurisdictions, any contribution bars recovery entirely.
Modified Comparative Negligence 1
Plaintiff must be less negligent than Defendant to recover
Modified Comparative Negligent 2
Plaintiff must be equal to or less negligent than defendant to recover
When does respondeat superior apply?
While employees are on detour:YES
While employees are on frolic: NO
Independent contractors:NO