Intent
What are the two types of intent? Define them.
(2) Specific Intent - purpose to cause consequences
What does an act have to be to be liable for a tort?
volitional
(not convulsive or reflexive)
Name the 5 affirmative defenses.
(1) consent
(2) self-defense / defense of others
(3) defense of property
(4) recapture of property
(5) shop-keeper's privilege
How can the scope of consent be exceeded for property torts?
a. staying longer than reasonable
b. using the property in a way not explicitly consented to
c. exceeding the geographic scope
Give examples of private nuisances.
odor, noise, vibration
What is intent not negated by? Name at least 3.
mental illness, motive, mistaken identity, age
Define harmful conduct. Define offensive conduct.
(1) Harmful = any contact that causes pain, injury, and/or disfigurement to the plaintiff's person
(2) Offensive = any contact to the plaintiff's person hat a reasonable person would find offensive
Name the three types of valid consent.
(1) expressed
(2) implied-in-fact
(3) implied in law
When is the ONLY time mistaken consent is valid?
when property owner does an act that is reasonable to lead the defendant to believe they are not trespassing
What is the balancing equities test for determining whether an injunction should be granted for a private nuisance?
What are the three types of transferred intent? Can you give an example of each?
(1) Same victim, different tort
(2) Different victim, same tort
(3) Different victim, different tort
T or F: a defendant's knowledge of a victim's specific aversion can meet the offensive conduct element
True!
When is self-defense or defense of others a valid affirmative defense? (2 elements)
when actually and reasonably believe it is necessary to avoid imminent injuries & is proportionate to the perceived threat
Besides consent, name the other 4 types of affirmative defenses for property torts.
(1) trespass to reclaim goods
(2) trespass to abate a private nuisance
(3) trespass to effect arrest/prevent crimes
(4) trespass that is incidental to the use of a public highway/navigable system
Define private nuisance.
inappropriate/excessive/out of place conduct causes an invasion of another's interest in the private use and enjoyment or land
What is the intent element for IIED?
(1) purpose
(2) substantial certainty
(3) recklessly
T or F: mere words are usually enough to establish the act element of assault.
False! Mere words are usually NOT enough unless meet other elements.
Name the elements to assert a shop-keeper's privilege/
a. reasonable belief person has stolen or attempting to steal
b. detention for reasonable time
c. detention in reasonable manner
T or F: consent giving through threats or coercion is valid
False!
Is the (1) reasonableness of the interference OR (2) the reasonableness of the conduct the issue?
(1) reasonableness of the interference!!
*conduct can be legal and under all the right permits and still be a private nuisance
Besides general or specific intent, how can you be liable for private nusiance?
(1) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activites
What factors are considered when determining whether mere words establish the act element for assault and false imprisonment?
(1) lack of relationship / relationship between parties
(2) difference in size/gender
(3) experience
When can you recapture property with force?
What is the difference between private necessity and public necessity? What is the liability for each?
private necessity = trespassed only to save yourself/your own property ; incomplete privilege (still liable for damages)
public necessity = trespassed to save the general public ; complete privilege (not liable for damages)
What are the factors to determine whether there is a private nuisance? (5)
(1) location of claimed nuisance
(2) character of the neighborhood
(3) nature of the thing complained of
(4) frequency of intrusion
(5) effect on plaintiff's enjoyment of life/health/property