Intentional Torts
Name Five Intentional Torts
What is a. False imprisonment b. Battery c. Assault d. Conversion e. Trespass to chattels f. Trespass to land g. IIED
What does “Res Ipsa Loquitor” stand for?
“The thing speaks for itself”
What are the elements of negligence
Duty, breach, causation, damages
Name the privileges
a. Necessity b. Consent c. Defense of others d. Defense of property e. Self-defense and f. Recovery of property
What is the “Egg Shell Plaintiff” rule?
You take the plaintiff as you find him and you are responsibility for any harm caused by your negligence
Define Intent
Knowledge or substantial certainty that harm will occur
What are the elements of Res Ipsa?
a. (1) the accident is of a type that normally would not occur unless someone was negligent; and b. (2) defendant exercised exclusive control over whatever caused the injury
True or False? “But-for” causation is required in EVERY action for negligence.
True.
What are the two types of consent and define them?
a. Express - Actual consent verbal or written
b. Implied - Taken from the circumstances
Is suicide by the plaintiff an intervening superseding cause that cuts off the liability of the defendant?
Yes, unless the defendant’s negligence caused physical injury to plaintiff’s brain and causes irresistible urge for plaintiff to kill himself then defendant can be held liable for the suicide
What are the elements of IIED and False Imprisonment?
IIED: Intentional conduct that is outrageous (exceeding all bounds tolerated by society) and that actually causes emotional distress.
False Imprisonment: The intentional and direct restraint of a person against their will without adequate legal justification.
What are the elements of “negligence per se”?
a. (1) – violation of the statute b. (2) plaintiff is a member of the class the legislature intended to protect. c. (3) the harm that occurred is the type of which the legislature intended to prevent
What is an intervening cause?
An event that cuts off the chain of proximate cause
What are the two types of necessity and define them?
a. Public – acting for greater good of the public; No compensation unless by statute
b. Private – acting for own private interest to avoid a greater harm; Entitled to compensation
What is the term for when two negligent defendants are liable for the entire amount of damages?
Joint and several liability
Toy Gun hypo possible tort issues - Bob was playing around with his very realistic looking toy gun. When John comes up behind him. Bob is startled and aims his toy gun at John who faints thinking the gun is real. Bob doesn’t know what to do, so he sticks John in a nearby shed belonging to Mary and locks the door. Mary is gardening outside and finds John passed out in the shed. She pulls him out in order to get her tools, and John wakes up an hour later. Spot the (potential) intentional torts.
a. Assault b. IIED c. False imprisonment d. Trespass to land
Define Duty
Duty - the defendant has a duty to others, including the plaintiff, to exercise reasonable care
A negligent driver causes brain damage to a kid, 9 years later the kid shoots someone. Can P recover against the driver for the shooting incident?
No, the chain of causation has been interrupted.
Explain difference between recovery of property and defense of property
a. Defense of Property: Reasonable physical force to protect property. (Homestead) b. Recovery of Property: Physical force to extent necessary to recover property
Under the doctrine of Contributory negligence how much can a plaintiff recover if total damages are $1,000 and plaintiff is 10% negligent and the defendant is 90% negligent?
Zero because under contributory negligence a plaintiff cannot recover if plaintiff is negligent.
As a joke, Annette removes the bullets from her father’s revolver; takes the gun outside, and points it at the head of her neighbor, Mrs. Joiner, who is just leaving her hose. Mrs. Joiner, who unknown to Annette suffers from serious heart disease has a stroke and dies instantly. What tort has been committed and what are the elements?
Assault. Placing someone in reasonable fear or apprehension of imminent bodily harm.
Name a pro and con of the Hand formula
Pros: Most people do cost/benefit analysis thinking all the time
Objective development/judge people's conduct
Useful to impose a general duty for policy reasons (people know what will happen, more predictability)
Take out hindsight bias (in hindsight I should have done this or that…no longer a thing bc you should have know)
Could encourage economic efficiency and induce people to think about their actions
Keep costs down
Cons:
3 elements to standard and every element is subjective
People tend to overestimate reward and underestimate risk
Difficult to predict injury even if thought through
Unfair to groups with less money or those without access to the legal system
Allows people/organization to put a dollar amount on life and limb (what is the cost of death?)
Not all people have ability to assess probability
Quantifying value?
Not part of our inherent culture (difficult to think about every action that one takes and what precautions should be taken)
In the the classic merged-fires problem, a defendant carelessly starts a fire on its own property, or carelessly fails to contain a fire after building it. Call this fire F1. F1 leaves the defendant’s land, headed in the general direction of the plaintiff’s property. Along the way F1 merges with F2, a separate fire of innocent or unknown origin. The merged fire then arrives on the plaintiff’s property, causing damage. Assume that either F1 or F2 would have been big and powerful enough to cause the plaintiff’s damage by itself if the two had never merged. The merged-fires problem is important to tort law because it challenges
The but-for test for factual cause
(Neither the negligently caused fire nor the innocent fire is the cause of the plaintiff’s damage)
One rainy evening, George, who was recovering from a severe heart attack, went to the local multiplex to see “Screech 2,” a scary movie. During a particularly tense moment, when the slasher was stalking one of his young victims in a dark house, Elaine, who was sitting behind George, tapped George’s shoulder to request that he move his head out of her sight line. Believing he was being attacked, George reached into his pocket, withdrew a switchblade, and swung it behind him, slashing Elaine’s arm. If Elaine brings an action against George for battery, what argument offers George a reasonable chance of avoiding liability
If George reasonably believed Elaine was attacking him, he acted in justifiable self-defense
Explain Joint and Several Liability
This means that all defendants can be sued for the whole cost of the damages or P can seek full amount from just one of the potential defendants. Defendant may have some levers to pull to get part of his money, but there is no guarantee that D can recover the portion that he or she paid that the other D was responsible for.