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TORTS APPROACH:
(1) Determine which torts are being tested.
- Intentional Torts
- Harm to Economic & Dignitary Interests
- Negligence
- Strict Liability
- Nuisance
(2) Determine Bar Exam Testing Area
- Tort Liability (Is D liable to P?) [90%]
- General Considerations (Vicarious liab, >1Ds) [10%]
- TORTS APPROACH:
- (1) Determine which torts are being tested.
- (2) Determine Bar Exam Testing Area:
- Tort Liability
- 1 - Can P estbalish a prima facie case?
- - If Yes, the continue analysis
- - If No, then STOP. P loses
- 2 - Can D estbalish any affirmative defenses?
- - If No, D loses.
- - If yes, D wins.
- General Considerations
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1 - Do any general considerations apply to the facts? - Note: Applies to all cases, regardless of tort invovled.
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I. INTENTIONAL TORTS
Prima Facie Case:
(1) Act
(2) Intent
(3) Causation
- ACT:
- Any volitional movement by D.
- INTENT:
- 1 - Substantial Certainty: intent exists if D knows with substantial certainty that certain consequences will result.
- 2 - Incapacitated D: Everyone is liable for intentional torts. NO EXCEPTIONS. Wrong answer choice = D lacked capacity to have intent.
- 3 - Transferred Intent: Intent can be transferred from (i) person to person and (ii) tort to tort. Applies to: battery, assault, FI, trespass to land, trespass to chattel.
- CAUSATION:
- Exists if D's conduct was a substantial factor in bringing about the result.
- Remember: Treat P as average person. P's supersensititives DO NOT MATTER UNLESS D knew of them.
- Remember: If dealing with intentional tort, ELIMINATE answers with negligence language (reasonable care)!
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I. INTENTIONAL TORTS: TO PERSON
(1) Battery
(2) Assault
(3) False Imprisonment
(4) IIED
- BATTERY:
- Act:
- (1) Harmful or Offensive Contact,
- (2) With P's person
- Intent:
- Substantial certainty certain consequences will result.
- Causation:
- Substantial factor in bringing about result
- Harmful/Offensive: Any unpermitted contact. Harm does not have to result. Super-sensitivities are IRRELEVANT.
- P's person: Anything connected to P's person (car, plate, purse).
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I. INTENTIONAL TORTS: TO PERSON
(1) Battery
(2) Assault
(3) False Imprisonment
(4) IIED
- ASSAULT:
- Act:
- (1) apprehension (understanding of)
- (2) of an immediate battery (an unpermitted touching)
- Intent:
- Substantial certainty certain consequences will result.
- Causation:
- Substantial factor in bringing about result
- Apprehension: Apprehend = understand. Must apprehend that an unpermitted touching could have occurred.
- Must be resonable. Reasonable person standard UNLESS D knew of P's super-sensitivity.
- Immediate Battery: (1) Harmful or Offensive Contact,(2) With P's person could have occurred.
If assault fails, consider IEED.
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I. INTENTIONAL TORTS: TO PERSON
(1) Battery
(2) Assault
(3) False Imprisonment
(4) IIED
- FALSE IMPRISONMENT:
- Act:
- (1) Sufficient Act of Restraint
- (2) to a Bounded Area
- Intent:
- Substantial certainty certain consequences will result.
- Causation:
- Substantial factor in bringing about result.
- Sufficient Act of Restraint:
- Threats are enough. Do not need actual force.
- Inaction is enough IF understanding D would take action.
- Time Period: Even very short time (30 sec) is sufficient.
- Knowledge: P must know of confinement UNLESS actual injury results from confinement.
Shoplifting: (i) reasonable belief as to theft, (ii) reasonable manner of detention, (iii) detention for a reasonable period of time.
- Bounded Area:
- P's freedom of movement in all directions is limited.
- Not Bounded Area:
- (i) reasonable means of escape, AND
- (ii) P knows of it.
If FI fails, consider IIED.
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I. INTENTIONAL TORTS: TO PERSON
(1) Battery
(2) Assault
(3) False Imprisonment
(4) IIED
- IIED:
- Act:
- (1) Outrageous Conduct, and
- (2) Damages
- Intent:
- Substantial certainty certain consequences will result.
- Causation:
- Substantial factor in bringing about result.
- Outrageous Conduct:
- Conduct must be extreme. Factors: (i) is conduct continuous? (ii) Type of P? Eldery, young child, super-sensitive P that D knows about. (iii) Type of D? Common carrier, innkeeper.
Damage: Physical Injury NOT Required. Substantial Emotional Distress IS Required.
*IIED IS THE FALL BACK TORT. IF FAIL TO ESTBALISH ANOTHER INTENTIONAL TORT, ANALYZE IIED*
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I. INTENTIONAL TORTS: TO PROPERTY
(1) Trespass to Land
(2) Trespass to Chattel
(3) Conversion
- TRESPASS TO LAND:
- Act
: - (1) Physical invasion by D
- (2) of P's land
- Intent:
- Substantial certainty certain consequences will result.
- Causation:
- Substantial factor in bringing about result.
- Physical Invasion: D need not personally go onto land. Any physical object in D's control sufficies (throw rock, push person).
- P's land: Surface and reasonable distance going up and down. Reasonable airspace and sub-surface.
( Note: If not physical object, consider nuisance)
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I. INTENTIONAL TORTS: TO PROPERTY
(1) Trespass to Land
(2) Trespass to Chattel
(3) Conversion
- TRESPASS TO CHATTEL:
- Act
: - (1) Interference by D with P's right of possession
- (2) Damages
- Intent:
- Substantial certainty certain consequences will result.
- Causation:
- Substantial factor in bringing about result.
- Interference: Damage of chattel or dispossession.
- Damages: Actual Damages are required either to the chattel itself or damage to the right of possession. Value of loss of use.
- Distinguish: From conversion, which is a more serious dispossession.
- Awarded: Damages (cost of repair) [as opposed to FMV]
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I. INTENTIONAL TORTS: TO PROPERTY
(1) Trespass to Land
(2) Trespass to Chattel
(3) Conversion
- CONVERSION:
- Act:
- (1) An intentional act by D
- (2) that causes destruction of or a serious interference with
- (3) P's chattel
- Intent:
- Substantial certainty certain consequences will result. (Mistake is no defense. D liable even if did not intend or recognize legal significance of his act).
- Causation:
- Substantial factor in bringing about result.
- Destruction or Serious Interference:
- D's exercise of dominion and control over chattel.
- Distinguish: From trespass to chattel, which is a less serious dispossession. The longer the time of dispossession and the greater the use of chattel by D, the more likely it is conversion.
- Awarded: FMV of chattel.
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I. INTENTIONAL TORTS: DEFENSES
(1) Consent
(2) Privileges
(3) Self Defense
(4) Defense of Others
(5) Defense of Property
(6) Necessity
- CONSENT:
- (1) Did P have capacity to consent?
- (2) Was consent express or implied?
- (3) Did D stay within bounds of consent?
- Capacity: If no capacity to consent, consent invalid.
- Express: Words were used. Look for mistake, fraud, coercion as they can undo express consent.
- Implied: Custom/Usage and/or P's conduct, or
- Implied by Law: emergencies.
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I. INTENTIONAL TORTS: DEFENSES
(1) Consent
(2) Defense Privileges
(3) Self Defense
(4) Defense of Others
(5) Defense of Property
(6) Necessity
- DEFENSE PRIVILEGES:
- (1) Timing Requirement (is the privilege available?)
- (2) Reasonableness (is mistake a defense?)
- (3) Proper amount of force used?
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I. INTENTIONAL TORTS: DEFENSES
(1) Consent
(2) Defense Privileges
(3) Self Defense
(4) Defense of Others
(5) Defense of Property
(6) Necessity
1 - Timing, 2 - Resonableness, 3 - Proper Force
- SELF DEFENSE:
- When a person resonably believes he is being or is about to be attacked, he may use such force as is reasonably n ecessary to protect against injury.
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I. INTENTIONAL TORTS: DEFENSES
(1) Consent
(2) Defense Privileges
(3) Self Defense
(4) Defense of Others
(5) Defense of Property
(6) Necessity
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I. INTENTIONAL TORTS: DEFENSES
(1) Consent
(2) Defense Privileges
(3) Self Defense
(4) Defense of Others
(5) Defense of Property
(6) Necessity
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I. INTENTIONAL TORTS: DEFENSES
(1) Consent
(2) Defense Privileges
(3) Self Defense
(4) Defense of Others
(5) Defense of Property
(6) Necessity
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