- INTENTIONAL TORTS
Intent – to act with the desire to produce the legally forbidden concept or purpose
Substantial certainty – acting knowing the consequence is substantially certain to occur
Transferred Intent – if tortfeasor is acting with intent and commits a tort against another, still intent
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- Battery – protects the integrity of the battery
- Is there a harmful or offensive contact?
- Harmful – causes injury
- Offensive – offends a reasonable sense of dignity
- Is that contact with the body (person) of another?
- Includes something you might be holding, ie a cane or a dog on a leash
- Fisher v Carrousel Motor Hotel (black patron holding a tray)
- Is there a harmful or offensive contact?
- Assault – protects the peace of mind – reasonable apprehension of an imminent battery
- Did ∆ place π in reasonable apprehension?
- If so, is that apprehension of an imminent battery?
- An apparent ability creates a reasonable apprehension
- False Imprisonment
- An act of restraint
- A plausible threat can be an act of restraint
- An omission to perform a duty could be an act of restraint (ie failure to stop a car to let out a passenger
- Π must be aware of the restraint or suffers a harm because of the restraint
- There must be a consequence of the mind or of the body
- Confinement in a bounded area
- A π is limited 360º
- Bounded area does not have to be marked out by physical boundaries – can be marked by threat
- Area is not bounded if there is a known and reasonable means of escape
- If means of escape are hidden and π doesn’t know about it, it’s as if it doesn’t exist
- An act of restraint
- IIED – Intentional infliction of emotional distress
- ∆ must engage in outrageous conduct
- conduct that exceeds all bounds of decency tolerated in a civilized society
- factors:
- power disparity, ie employer employee
- repetitive conduct
- public rather than private
- π is a person of unusual vulnerability that ∆ knows about
- deliberately falsely reporting the death of a loved one
- π must suffer severe distress
- physical reaction is not required
- ∆ must engage in outrageous conduct
- Trespass to land
- Walking on someone else’s property or going on their property in a vehicle
- Trespass can be committed by throwing something onto someone’s property even if ∆ does not go on to that property
- Note – Barbri does not cover Trespass to Chattels or Conversion
- Battery – protects the integrity of the battery
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- Defenses
- Consent – Must have legal capacity to consent, ie crazy people, drunk people, developmentally disabled people cannot consent to a tort
- Defenses
The ability of children to consent must be related to age-appropriate torts – ie, can’t consent to sex, can consent to wrestling
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- Express consent – person says they consent
- Express consent procured through fraud or duress does not count as consent
- Fraud is usually an omission or misrepresentation of a key fact, ie key fact of identity (not a doctor) – ie of omission (doesn’t tell a sexual partner of an std)
- Express consent procured through fraud or duress does not count as consent
- Implied consent
- By custom or common practice, ie sports
- ‘body language’ consent, ie romantic encounters
- Express consent – person says they consent
- Privileged defenses
- Self defense
- Defense of others
- Defense of property
- Necessity defenses – Only apply to property torts
- Public necessity – invasion of property as a necessity to protect the community
- Surocco v Geary
- Private necessity – invasion of property as a necessity for private motives
- Vincent v Lake Erie
- Public necessity – invasion of property as a necessity to protect the community
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- NEGLIGENCE
- Duty
- Default rule – the reasonably prudent person standard – applies unless displaced… In any action, the actor must take the amount of precautions as would be taken by a hypothetical by a reasonably prudent person acting under similar circumstances
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- In all circumstances the standard of care remains the same, but the degree or level of care varies with the circumstances
- Superior knowledge or skill is an exception – reasonably prudent person standard is heightened to a reasonably prudent person with similar knowledge or skill
- Physical conditions are considered, ie a reasonably prudent blind person
- Special duty scenarios
- Special standard of care for children – most jurisdictions say children under 4 or 5 can not be liable for negligence – children must behave as would a child of similar age, experience and intelligence acting under similar circumstances
- Exception: if that child is engaged in an adult activity, that child is held to the adult, reasonably prudent person standard, ie a child driving a car
- Special standard of care for professionals, ie health care providers such as doctors, nurses, lawyers, accountants, etc… – a profession must provide that degree of care as is given by an ordinary member of the same profession providing the same service
- Customary practice becomes the standard of care
- Duty of care owed by a possessor of real estate to prevent entrants from dangerous conditions
- Undiscovered trespassers
- Special standard of care for children – most jurisdictions say children under 4 or 5 can not be liable for negligence – children must behave as would a child of similar age, experience and intelligence acting under similar circumstances
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- Breach of duty
- Causation
- Damages