Intentional Torts
A shopkeeper can detain for reasonable investigation of a person whom the shopkeeper reasonably believes to have stolen property
What are the affirmative defenses?
1. Self-defense
2. Defense of others
3. Defense of real/personal property
4. Reentry of Land & Recapture of Chattel
5. Necessity
6. Justification & Discipline
What are the elements of a negligence action?
1. Duty
2. Damages
3. Breach
4. Causation
What are the 4 different ways to set duty?
1. Reasonable Prudent Person
2. Rule of Law
3. Statute Enacted for Other Purposes
4. Statute Enacted for Negligence
What are the two ways to defend against an intentional tort?
1. Attack the prima facie case
2. Assert an affirmative defense
Describe the types of property that are covered under the tort of conversion and the types of property that are not
The tort of conversion applies to tangible physical property that can be moved, as well as to documents in which title to a chattel is merged, such as a bill of lading, and documents that convey the value of a tangible chattel, such as a promissory note. The tort is intended to cover that which can be quickly alienated and has a visible aspect. Real property is not included. Neither is intellectual property. Intangible assets, such as the goodwill or trade secrets of a business, are also not include
If consent to what would otherwise be an intentional tort is obtained by the defendant's fraud, is the consent invalid, restoring the prima facie case for an intentional tort and making the defendant liable? Explain.
As a general rule, yes. A defendant should not be allowed to escape liability simply because he or she successfully defrauded the plaintiff. Courts do, however, distinguish between “fraud in fact” or “fraud as to an essential matter” on the one hand, and “fraud as to a collateral matter” on the other. For example, if the plaintiff agreed to what would otherwise have been a battery in exchange for a payment of money, and the payment turns out to be counterfeit money or a bad check, then the consent to the harmful contact is valid. The plaintiff cannot recover for the harmful contact and will have to try to get paid by some other means, such as a contract action or a private right of action based on violation of the criminal law or consumer law.
Whether a duty is breached is a question of...
fact
Whether a duty exists is a question of...
law
What are the two ways to commit a tort under transferred intent doctrine?
1. A tortfeasor intends to commit a tort against one person, but instead commits that tort against another person
2. A tortfeasor intends to commit a tort against a person, but in fact commits another tort against that person
Which of the following scenarios illustrates a claim for battery without an accompanying claim for assault?
(A) Plaintiff Letitia, riding her motorcycle, was hit by motorist Mart and knocked unconscious. Dr. Doolittle, a physician who was walking near the scene of the accident, rendered emergency care to Letitia without her consent.
(B) Before undergoing general anesthesia, plaintiff Sharon reached an agreement with her surgeon, Dr. Spurgeon, saying that she consented to having her appendix removed. Sharon consented to the removal of no other organs. While she was unconscious, Dr. Spurgeon removed her gallbladder as well.
(C) Despite being rich, plaintiff Patrick habitually refused to pay his medical bills. His physician, Dr. Proctor, became infuriated by this practice. When Patrick lay on Dr. Proctor's examining table, Dr. Proctor brandished a scalpel and shouted, “I'm going to amputate your left eye!” Patrick was able to deflect Dr. Proctor with the help of a well-aimed judo chop.
(D) Plaintiff Cankersore recovered slowly from a back injury with the help of opioid painkillers, to which he became addicted. His treating physician, Dr. Milquetoast, obtained sexual gratification from touching Cankersore, along with threatening to withhold prescriptions for the painkillers. Cankersore agreed to Dr. Milquetoast's touchings believing he would be in grave pain if he did not consent.
Answer (B) is correct. Intentional, offensive touching can suffice for battery liability, and unconsented-to operations have been held to satisfy the contact requirement. Because Sharon did not apprehend the touching before it happened, she would have no claim for assault.
Answer (A) is incorrect because Dr. Doolittle's touching of Letitia is privileged as emergency medical treatment.
Answer (C) illustrates an assault without a battery. Patrick was able to avoid harmful contact. Dr. Proctor's behavior satisfies the elements of assault.
Answer (D) is incorrect because Cankersore was aware of the touchings as they became imminent. If the battery claim is good, then the assault claim is equally good.
Which of the following statements best distinguishes public necessity from private necessity?
(A) Public necessity entitles a plaintiff to just compensation as provided by the Fifth Amendment to the U.S. Constitution; private necessity does not.
(B) Public necessity is a qualified privilege; private necessity is an absolute privilege.
(C) Public necessity arises when harm to a large number of people is threatened; private necessity is a defense offered on behalf of individuals or families.
(D) Public necessity permits the destruction of human life; private necessity does not.
Answer (C) is correct. Public necessity is a defense that arises when property is destroyed or harmed to benefit a large number of people, typically towns or neighborhoods. In the classic Mouse's Case (1608), this privilege supported the destruction of heavy objects to help save a ferry whose four dozen passengers were at risk of drowning. Private necessity is available for individuals or, as suggested in the famous Ploof v. Putnam, 71 A. 188 (Vt. 1908), small families.
Answer (A) is incorrect because although Fifth Amendment takings claims are sometimes available when property is destroyed pursuant to public necessity, they may be unavailable.
Answer (C) has it backward. Public necessity is an absolute privilege; private necessity is a qualified privilege, meaning that the defendant has to pay for what is destroyed.
Answer (D) is incorrect because neither public nor private necessity applies to the destruction of human life. This action might be governed by self-defense or defense or others, but never necessity.
Minors engaged in adult activities (ex. Operating autos and large machines)
Minors engaged in other inherently dangerous activities (ex. Hunting, fireworks)
How is the standard of care for professional specialists different than a general practitioner?
The standard of care is higher
Discipline requires a balancing test of what?
the parent's right to privacy and the state's interest in preventing mistreatment
Park, who is Asian-American, worked as an assistant to Smith at BigCorp, a large corporation. Over a period of several months, Smith repeatedly derided Park's ethnicity in front of other workers. He uttered crude, disparaging remarks about Asian-Americans and spoke with what he might have thought was an Asian accent when Park was in the room. Smith thought he was being funny and building camaraderie among the staff. Unamused and upset, Park complained to Smith's supervisor. When the supervisor failed to do anything about Smith's behavior, Park quit her job and brought an action against BigCorp for intentional infliction of emotional distress.
Which of the following statements about this claim is most accurate?
(A) BigCorp probably cannot be liable because Smith's actions were outside the scope of employment.
(B) Park can recover if she suffered physical illness as a result of Smith's behavior.
(C) Park cannot recover because Smith did not intend to cause emotional distress.
(D) Park may have a good claim for intentional infliction of emotional distress.
(D) is correct. To prevail in an action for intentional infliction of emotional distress, Park must prove (1) that Smith's conduct was extreme and outrageous; (2) that Smith acted with intention to cause severe emotional distress or with reckless disregard for that consequence; and (3) that Park suffered severe emotional distress. A jury might well find that Smith's conduct was “extreme and outrageous.” This was an employment context, and he was Park's immediate boss. Park is unlikely to have felt free to complain directly to Smith in that situation. In addition, several courts have found that racial/ethnic slurs go beyond mere insults, and are particularly obnoxious in our society. The second element is probably satisfied even if Smith did not intend to cause severe emotional distress. At the very least, a jury is likely to find that he acted with reckless disregard for that consequence. Finally, Park's distress might well have been severe. She felt the need to quit her job, suggesting that the situation was particularly difficult for her.
Answer (A) is incorrect because the facts reveal that Smith believed he was promoting employee morale. Thus, the “motive" test for scope of employment seems to be satisfied.
Answer (B) is incorrect because most courts do not require proof of physical injury in actions for intentional infliction of emotional distress.
Answer (C) is incorrect because, as discussed above, Smith's actions probably satisfy the standard for recklessness, which is sufficient for this tort.
destruction of his dog, a large Great Dane/Labrador mix named McNulty. Stringer does not deny that he shot McNulty to death with a rifle. He says he “had no choice,” having caught McNulty on his property when McNulty had just killed three chickens in Stringer's large coop and was attacking a fourth. Before he shot McNulty, Stringer had suspected that this dog had killed other chickens of his in the past, but he had never before caught McNulty in the act.
Which of the following statements, if correct, relates most closely to Stringer's defense?
(A) The chickens were more valuable than McNulty, in dollar terms.
(B) McNulty had a reputation for aggression.
(C) Stringer had previously asked Omar to restrain McNulty and Omar refused the request.
(D) McNulty was innocent, so to speak, in the earlier chicken-killings; Stringer's other chickens had been killed by coyotes.
Answer (A) is correct. “Had no choice” as a statement by the defendant = a necessity defense. (Note that tort law generally regards both dogs and chickens as property.) Under necessity, an actor is privileged to inflict lesser harm to prevent a greater loss.
Necessity is analyzed as a snapshot; courts look at the circumstances the moment the defendant acted. Answer (B), (C), and (D) all talk about the past.
Answer (B) is incorrect because an animal's reputation or propensity for aggression is considered only in a separate realm of torts—actions for harms by the animal, like biting or other attacks.
Answer (C) is incorrect because this prior effort does not affect the necessity defense, although presumably it would make the plaintiff appear more sympathetic to a jury.
Answer (D) is incorrect because the dog's history also does not affect a necessity defense when the actor, to prevent the destruction of more valuable property, has killed a dog in the act of killing other animals.
What are the requirements for unexpected insanity?
Tortfeasor can’t understand duty OR
Tortfeasor can’t control actions AND
Tortfeasor has no warning or knowledge of insanity onset
Jojo, a graduate student halfway to an MBA in finance, frequently gave financial advice to his friends free of charge. The advice usually served his friends well. One startup business called Hooya caught Jojo's eye: Jojo thought Hooya would go public, thereby making money for investors. Jojo bought shares of Hooya and suggested that his girlfriend Alma, a physician's assistant, do so. Alma took this advice and invested. Hooya went out of business without ever going public. Jojo himself lost $10,000 on Hooya; Alma, the poorer of the two, feels worse about her loss of $2,500 and is thinking of litigation against Jojo. Assume that reasonable care by Jojo would have resulted in no investment in Hooya by either Alma or Jojo.
Is the duty element of a negligence claim against Jojo present under these facts?
(A) No, because in general, no duty of care is owed to avoid the risk of consequential economic loss to another.
(B) No, because Jojo, still a student, was not yet a professional financial adviser and cannot be held to a professional standard of care.
(C) Yes, because Alma relied on Jojo's superior knowledge about finances.
(D) Yes, because an undertaking is present, even though in general no duty of care is owed to avoid the risk of consequential economic loss.
Answer (A) is correct. Jojo acted carelessly and caused harm, but he did not owe a duty of care to Alma. The facts fall within the center of the “no duty for consequential economic loss” rule.
Answer (B) is incorrect because the professional standard of care relates to breach, not duty.
Answer (C) may be true under the facts but doesn't matter. When a person gives unsound financial advice, reliance is not sufficient to create a duty of care.
Answer (D) is incorrect because the “undertaking” exception to a no-duty category involves an overt, explicit statement or gesture where the defendant agrees to look out for the welfare of the plaintiff. It is not applied to economic loss claims like this one
What is the sudden emergency doctrine and can a person still be held negligent under it?
Did tortfeasor act as a reasonable and prudent person would in such an emergency, considering stress created by emergency and redacted time to deliberate and act?
Yes a person can still be held negligent
Store detective Escamillo observes Angie slip five small objects from a display shelf into her large leather purse. Angie is about to walk out the store door into a crowded parking lot. Escamillo wishes to protect the store's property but does not want to be liable, or make his employer liable, for the tort of false imprisonment.
How should Escamillo proceed?
most jurisdictions, through statutes or case law, Escamillo has a limited privilege to protect the store against shoplifting using reasonable detention. The facts suggest that the privilege would have force here. Escamillo may intercept Angie on her way out the door and detain [162/163] her—that is, tell her that she may not leave for a limited period of time while he investigates. The privilege has requirements. First, Escamillo must have a reasonable belief that Angie is in the middle of committing theft. This requirement appears to be fulfilled. Second, the detention must take place in a reasonable manner. If Angie resists detention, Escamillo may not use deadly force to detain her. Third, the detention must take place for only a reasonable period of time, and this time must be used for investigation.
Imagine the following split-second scenario as if you had time to weigh all your options: You are in a cocktail lounge and you see a person at the crowded bar slipping a vial of some liquid into another person's drink, while the person about to drink is not looking. The person about to drink lifts her cocktail glass by the stem and opens her mouth, preparing to drink.
Does tort doctrine permit you to use force, or any kind of physical contact, to defend the drinker before she drinks the adulterated cocktail? If so, consider what you could do that would be both privileged and effective, and also state which tort(s) you could be accused of committing
You could be wrong, but it looks as if the person about to drink has been given a dangerous substance without her consent. Your privilege to use force in her defense extends to what is reasonable under the circumstances. Knocking the drink out of her hand onto the floor would be reasonable, and you'd have a privilege in an action by the person about to drink, should she bring a claim for battery, or by the bar, for trespass to their chattel. Brawling with the maybe-assailant would go beyond the needs of defense because the person has already poured the vial of liquid into the other person's drink.
On a commercial airline flight, things were going fine until the captain accidentally played for the passengers a pre-recorded announcement, an audio clip from a feature film that a friend had sent him, stating that the plane was about to crash into the sea. There was no actual emergency and after a short time, the captain realized the mistake and apologized over the sound system for the false alarm. Daphne, an elderly passenger, suffered a serious anxiety attack as [7/8] a result of the erroneous announcement, and a flight attendant made an announcement asking whether a physician was on the plane. Dr. Gloucester, a physician, was there, but did not look up from his screen and said nothing.
If Daphne brings an action against Dr. Gloucester for negligence, which of the following statements is most likely correct?
(A) Because Dr. Gloucester had the ability to assist, his failure to do so constituted actionable negligence.
(B) Because all the passengers were in a special relationship with one another, those with medical expertise had a duty to assist. Dr. Gloucester's failure to assist constituted actionable negligence.
(C) Because the passengers were in a special relationship with one another, those with medical expertise had a duty to assist. If, by assisting, Dr. Gloucester could have prevented some of the harm Daphne suffered, his failure to assist constituted actionable negligence.
(D) Dr. Gloucester will not be held liable for failing to assist.
Answer (D) is correct. A physician has an ethical duty to assist a person in need of medical attention, but does not have a legal duty to assist unless the physician caused the need for medical attention or has a special relationship with the person. Neither is true here. The physician's failure to act may be reprehensible but it is not tortious.
Answer (A) is incorrect because merely having the ability to assist does not impose an obligation to do so.
Answer (B) is incorrect because sharing the status of passengers on a commercial flight does not create a special relationship among them. In some sense, they are all “in it together,” but this is more a matter of coincidence than any voluntary association. Perhaps if the plane had made a hard landing and the survivors were stranded while awaiting assistance, a court would find that their relationship was one of dependence on each other. But that is not the case here.
Answer (C) is incorrect because, as explained above, the passengers were not in a special relationship with each other. In addition, as also explained above, the physician's ability to assist does not impose a legal obligation to assist.
Suppose negligence law were to impose a general duty to exercise reasonable care to avoid causing harm, through both affirmative conduct and failure to act. Why might it be unwise to impose this general duty, eliminating what are now sometimes called “no-duty rules
Imposing a general duty to exercise reasonable care through both affirmative conduct and failure to act, or eliminating “duty” from the prima facie case, would make many more claims actionable, with unfortunate results. Claims alleging economic and emotional injury would be much harder to dispose of before trial. Liability for omissions would expand: without limited duty, an obligation to prevent harm by others or to eliminate suffering unrelated to tortious conduct would foster new claims.
How do customs interact with the reasonable prudent person standard of care?
Custom is not determinative, but it is an element that is examined when looking at the totality of the circumstances.