TORTS AMP

A prima facie case for intentional tort liability requires proof of _________.

A volitional act by the defendant. i.e., conduct dictated by the actor's mind. The typical prima facie case for intentional tort liability requires the plaintiff to prove the following: (i) An act by the defendant; (ii) Intent; and (iii) Causation. Some intentional torts also require a showing of damages, but most do not. It is not required that there be proof of malice for intentional tort liability, although a showing of malice may permit the recovery of punitive damages. Nor is it required that the actor intend to cause injury. An intent to do the act that constitutes the tort is sufficient.

Which of the following is accurate regarding the defense of property?

A landowner usually must make a request to desist before defending her property.

The most complete statement of the transferred intent doctrine is that an intent to commit a tort against one person can be transferred to:

A different tort committed against the same person, the same tort committed against a different person, or a different tort committed against a different person

Which of the following constitutes sufficient confinement for false imprisonment?

An indirect threat of force against the plaintiff's property False imprisonment can arise from indirect threats of force, i.e., acts or words that reasonably imply that the defendant will use force against the plaintiff's person or property or persons of the plaintiff's immediate family. A threat of future harm against the plaintiff's family is not sufficient confinement. A threat of harm must be imminent to constitute confinement. A cause of action will not be sustained if a person remains in the area in response to future threats against person or property. Reasonable restraint of a suspected shoplifter does not constitute sufficient confinement. As long as the detention was reasonable in manner and time, a shopkeeper has a privilege to detain someone he reasonably suspects has shoplifted.

The tort of intentional infliction of emotional distress requires proof of:

Conduct that transcends all bounds of decency To establish a prima facie case for intentional infliction of emotional distress, there must be proof of: (i) An act by the defendant that amounts to extreme and outrageous conduct; (ii) Intent on the part of the defendant to cause the plaintiff to suffer severe emotional distress or recklessness as to the effect of the defendant's conduct; (iii) Causation; and (iv) Severe emotional distress. To protect against potential abuse, courts limit liability for this tort to those situations where outrageous conduct on the part of the defendant is proved. Outrageous conduct is conduct that transcends all bounds of decency tolerated by society. It is not necessary to prove an intent to cause severe emotional distress to establish this tort. As stated above, acting in reckless disregard of a high probability that emotional distress will result also satisfies the intent element. Intentional infliction of emotional distress does not require proof of physical injury. In fact, this tort covers those situations where the defendant intentionally shocks the plaintiff but there is no physical injury or threat thereof. Intentional infliction of emotional distress also does not require proof of offensive or insulting language. Such conduct could be an example of the outrageous conduct required for this tort, although generally offensive or insulting language will not be characterized as outrageous conduct. The tort can be committed by conduct other than language.

The "shopkeeper's privilege" allows a shopkeeper to avoid liability for false imprisonment when detaining a suspect that he reasonably believes has committed a theft. The shopkeeper also must:

Conduct the detention in a reasonable manner and detain the suspect for only a reasonable time.

Which of the following is not an element of the prima facie case of false imprisonment?

Damages That tort requires proof of the following elements: (i) An act or omission to act on the part of the defendant that confines or restrains the plaintiff to a bounded area; (ii) Intent on the part of the defendant to confine or restrain the plaintiff to a bounded area; and (iii) Causation.

With regard to a trespass to chattels, intermeddling is defined specifically as conduct that:

Directly damages a plaintiff's chattel A prima facie case of trespass to chattels requires proof of an act by the defendant that interferes with a plaintiff's right of possession in the chattel. The act of interference generally takes two forms: dispossession and intermeddling. Intermeddling involves conduct by a defendant that in some way directly damages the plaintiff's chattel, e.g., denting his car, striking his dog, etc. Intermeddling does not involve conduct by a defendant that dispossesses a plaintiff of his lawful possessory right in the chattel. This more accurately defines the type of interference with a chattel known as dispossession. Defining intermeddling specifically as conduct that interferes with a plaintiff's right of possession is inaccurate because it is too broad; it describes the general conduct that is required for the prima facie case of trespass to chattels. Any act of interference will suffice for this tort; intermeddling is one of the two most common forms of conduct that the act of interference typically will take (the other is dispossession).

The doctrine of transferred intent may not be invoked for which of the following torts?

Intentional infliction of emotional distress

An express consent will be valid unless it was:

Made by mistake induced by the defendant A defendant is not liable for a tortious act if the plaintiff consented to the act. Express consent exists when the plaintiff has expressly shown a willingness to submit to the defendant's conduct. If the plaintiff consents by mistake, the consent will still be valid, unless the defendant caused the mistake or knew of the mistake and took advantage of it. An express consent will still be valid if it was induced by fraud as to a collateral matter. If the express consent was induced by fraud, the consent will generally not be a defense for the defendant. However, the fraud must go to an essential matter; if it only goes to a collateral matter, the consent will remain effective. Also an express consent will still be valid if it was induced by threats of future action. Consent obtained by duress will generally be held invalid. However, threats of future action or of future economic deprivation do not constitute legal duress sufficient to invalidate the express consent.

Which of the following applies to self-defense for an intentional tort?

One who is the initial aggressor may be able to defend himself. Usually, the initial aggressor may not defend himself against the other party's reasonable use of force in self-defense. However, if the other party uses deadly force against an aggressor who had only used nondeadly force, then the aggressor may defend himself against that deadly force. It is incorrect that one must have an actual necessity to defend oneself. The actor need only have a reasonable belief as to the other party's actions: i.e., apparent necessity, not actual necessity, is sufficient. Hence, one could make a reasonable mistake as to the existence of the danger and still maintain the defense. Also it is incorrect that one must attempt to retreat first before using self-defense. A substantial majority of the courts hold that one need not attempt to escape, but may stand his ground and even use deadly force when necessary to prevent death or serious bodily harm. Some courts impose a duty to retreat before using deadly force when safe to do so, unless the actor is in his home.

A private citizen may make a felony arrest without a warrant:

Only if a felony has in fact been committed and the citizen has reasonable grounds for believing that the person arrested has committed it. No liability for false imprisonment will attach to the citizen in such a scenario because the arrest is privileged. A private citizen may not escape liability for false imprisonment if the arrest is made only on the basis that the citizen reasonably believes that a felony has been committed. Rather, a felony must in fact have been committed for the arrest by the private citizen to be privileged; if no felony took place, the private citizen may be subject to a false imprisonment action. It is not a requirement that the person arrested in fact have committed the felony. To avoid liability for false imprisonment, the private citizen need only reasonably believe that the person arrested have committed the felony.

For conversion, the defendant must have the intent to __________ with the plaintiff's right of possession.

Perform the act that interferes The defendant need not intend to commit a serious act of interference, or even to interfere, with the plaintiff's right of possession. Even if the conduct is wholly innocent, liability may attach where the interference is serious in nature. Hence, even a bona fide purchaser of chattel may become a converter if the chattel had been stolen from the true owner.

What is the rule regarding damages for intentional infliction of emotional distress?

Proof of actual damages is required A plaintiff cannot recover nominal damages from this tort. However, proof of physical injuries is not necessary; rather, severe emotional distress must be established

Defenses to intentional torts generally permit the use of reasonable force except for __________.

Regaining possession of land Use of reasonable force is permitted for recapturing chattels under certain circumstances. The general rule is that, once the defendant has been permanently dispossessed of the property and the commission of the tort is complete, she may not use force to recapture it. However, when the defendant is in hot pursuit of someone who has wrongfully dispossessed her of her property, the other is still viewed as being in the process of committing the tort against the defendant's property, so she may use force to reclaim that property. Use of reasonable force is also permitted for defending property other than a dwelling. One may use reasonable force to defend property (even if it is not a dwelling), but she cannot use force that will cause death or serious bodily harm. One also may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force could not lawfully be directly used.

Which of the following must a plaintiff prove to establish intentional infliction of emotional distress from the defendant's intentional commission of physical harm against a third person?

The defendant knew that the plaintiff was present plaintiff is generally required to show: (i) the plaintiff was present when the injury occurred to the other person; (ii) the plaintiff was a close relative of the injured person; and (iii) the defendant knew that the plaintiff was present and a close relative of the injured person. Proof that the plaintiff was at least a close friend of the injured party is not sufficient.

Which of the following is required to raise the defense of defense of others?

The defender must reasonably believe there is a right to receive assistance. The defender must reasonably believe there is a need for aid to raise the defense of defense of others. If the person aided is the initial aggressor, the defender may still escape tort liability for defending that person. An initial aggressor may defend himself if he had used only nondeadly force and the other person escalates the fight by using deadly force. Also, even if the person aided has no defense, the defender is not liable as long as she reasonably believes the person can use force to protect himself. The person aided need NOT have the right to use self-defense for the defender to escape tort liability for defending that person. As stated above, the defender need only reasonably believe that the person aided can use self-defense. The defender MAY use deadly force in the defense of others. The defender may use as much force as she could have used in self-defense if she herself were being threatened. Hence, deadly force may be used if the person aided is in danger of serious bodily injury.

The defense of consent is not available if:

The plaintiff consented due to a mistake induced by the defendant. he general rule is that if a plaintiff consents by mistake, the defense of consent is still valid, unless the defendant caused the mistake or knew of the mistake and took advantage of it.If the plaintiff is incapable of consent because she is unconscious, the defense of consent may still be valid in certain situations. Consent to unauthorized contact may be implied by law in an emergency situation when action is necessary to save the plaintiff's life. Consent will be implied in such a case if the plaintiff is incapable of consenting and a reasonable person would conclude that contact is necessary to prevent death or serious bodily harm.If the plaintiff's consent was induced by fraud as to a collateral matter, the defense of consent is still valid. The fraud must go to an essential matter for the consent to be nullified.If the plaintiff consented due to threats of legal action, the defense of consent is still valid. Consent obtained by duress is invalid. However, threats of future action or future economic deprivation do not constitute duress sufficient to invalidate consent.

Which of the following statements is true as to the right of a plaintiff to recover for intentional infliction of emotional distress when the defendant inflicts severe physical harm on another?

The plaintiff need not be present or a close relative of the injured person if the defendant's design was to cause severe distress to the plaintiff. Normally, a defendant will not be liable to a plaintiff who suffers severe emotional distress when the defendant inflicts severe physical harm on another unless (i) the injured person is a close relative of the plaintiff, (ii) the plaintiff was present when the injury occurred, and (iii) the defendant knew of the plaintiff's presence and relationship. However, the presence and family relationship requirements do not need to be established if the plaintiff shows that the defendant had a design or purpose to cause severe distress to the plaintiff by harming a third person, and the plaintiff does suffer severe distress.If the plaintiff is not present, the plaintiff cannot recover absent a showing that the defendant's design or purpose was to cause severe distress.Similarly, if the plaintiff is not a close relative of the injured person, a cause of action will not be established absent a showing of the defendant's design or purpose.

Which of the following is required for a trespass to land?

The plaintiff's land must be physically invaded A prima facie case for trespass to land requires proof of: (i) An act of physical invasion of the plaintiff's real property by the defendant; (ii) Intent on the defendant's part to bring about a physical invasion of the plaintiff's real property; and (iii) Causation. All that is necessary to satisfy the first element is a physical invasion of the plaintiff's land. It is not necessary that the defendant unlawfully enter onto the land. Thus, a trespass exists when a defendant floods a plaintiff's land, throws a rock onto it, or chases a third person onto it. Furthermore, a trespass to land also exists when a defendant remains on the plaintiff's land after an otherwise lawful right of entry has lapsed. It is also not necessary for the plaintiff to request that the defendant leave his land. The tort is complete as soon as the defendant, with the requisite intent, has caused the invasion.

Transferred intent may be invoked when the defendant intends to commit _________ and instead causes _________.

Trespass to land; a battery Transferred intent may be invoked only where the tort intended and the tort that results are both within the following list: (i) assault; (ii) battery; (iii) false imprisonment; (iv) trespass to land; and (v) trespass to chattels. Transferred intent does not apply to the torts of intentional infliction of emotional distress or malicious prosecution.

To assert the defense of property, a defendant using force against another may not:

Use force against one with a privilege to enter the property Whenever an actor has a privilege to enter upon the land of another because of necessity, right of reentry, right to enter upon another's land to recapture chattels, etc., that privilege supersedes the privilege of the land possessor to defend her property. It is not true that the defendant may not use force that may injure the entrant. The force used must be reasonable and not likely to cause death or serious bodily injury. It is incorrect to state that the defendant may not use force without a request to desist. A request to desist must usually precede the use of force, but if the circumstances make it clear that the request would be futile or dangerous, then a request to desist is not required. It is also incorrect to state that the defendant may not make a mistake about the right to use force. A reasonable mistake is allowed as to the property owner's right to use force in defense of property, where the mistake involves whether an intrusion has occurred or whether a request to desist is required.

Force may not be used by __________.

a landowner to regain real property after being tortiously dispossessed Most states today do not allow resort to "self-help"; one who has been wrongfully excluded from possession of real property may bring an ejectment action or other summary procedure to recover possession. Hence, the owner who uses force to retake possession is liable for whatever injury she inflicts. (In former years, under the common law, a landowner tortiously dispossessed of real property could use reasonable force to regain possession, if she acted promptly upon discovery of the dispossession.) An owner of chattel may use force to recapture the chattel. An owner may use reasonable force to recapture a chattel when in "hot pursuit" of the tortfeasor. A demand for return of the chattel must be made before force is used, unless the demand would be futile or dangerous. However, force can be used only against the tortfeasor or a third party who knows that the chattel was tortiously obtained. If an innocent third party has obtained the chattel, the owner is no longer privileged to use force to effect a recapture of the chattel. A citizen may use force to effect a misdemeanor arrest. However, the citizen is allowed to use only the amount of force necessary to effect the arrest and never deadly force. A property owner may use force to defend the property from tortious interference. Although a property owner may use reasonable force to defend property, she may not use force that will cause death or serious bodily harm. Furthermore, one may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force could not lawfully be directly used, e.g., against a mere trespasser.