Torts 1L Flashcards


Rule- A person is a subject to liability when s/he acts
intending to cause harm and when a harmful and offensive contact
results Elements Intent Harmful Contact

Test for Intent (Battery)

Deliberate or
Substantial Certainty

Transferred intent

Torts can transfer to an �unintended� 3rd person

Intent of Children

No absolute shield b/c of infancy. Liability depends on the ability
of individual child to form necessary intent

Intent of Mentally disabled

For policy reasons a person who is mentally
disabled is helped liable for intentional torts
Unless the policy doesn�t apply (i.e. you decide
to work in a health facility)

Harmful or offensive contact

An offensive contact Can be harmful to character or
personal dignity


Rule: Assault is effectuated when one acts intending to cause a
reasonable person to suffer an imminent apprehension of a harmful or
offensive contact Elements Intent Actual
reasonable apprehension

Intent (assault)

Must have intent to put the other in apprehension of an imminent contact.

Actual Reasonable apprehension

Objective standard-If reasonable person would feel� P
is aware of the D�s act and apparent ability to carry out the
threat Apprehension must be imminent and not future harmful
or offensive contact

False Imprisonment

Occurs when a person confines another intentionally without
lawful privilege against his consent within a limited area for any
appreciable time, in which the victim is either conscious of the
confinement or harmed by it Elements: Intent to
confine actual confinement

IIED-Intentional Infliction of Emotional Damage

Rule-To recover damages for intentional infliction of emotional
distress, a plaintiff must prove that The defendant acted
intentionally or recklessly The conduct was extreme and
outrageous The actions of the defendant caused the
plaintiff emotional distress; and The resulting
emotional distress was severe Elements
Intent extreme and outrageous conduct

Transferred IIED

Conduct directed at one person causing distress to another
person or one not present Rule-Where conduct is directed at
a 3rd person, D is subject to liability if he
intentionally or recklessly cause severe or emotional distress
To a member of such person�s immediate family who is present
at the time, whether or not such distress results in bodily harm
+ the family member�s presence To any other person who
is present at the time; if such distress results in bodily

Trespass to Land

Rule- One who intentionally enters or cause entry upon the land
of another is liable for damages even if no harm is done to the
land. Entries above or below the surface can subject one to
liability and the plaintiff may recover parasitic damages
Elements Intent to enter or to cause entry
Actual entry Damages Presumed

Conversion (Trover)

Rule: an intentional exercise of control over P�s chattel which
is so serious as to justify D pay its full value Elements
Intent to exercise control over the property of another
Mistaken exercise is enough, but accidental
interference is not enough Conversion v bona fide
purchase of goods for value (liable even if they didn�t
know) Damages are presumed usually include full value
of chattel at time of conversion P may accept
chattel back

Trespass to Chattels

Rule- intentional interference w/ P�s chattel by contact or
dispossession impairing its condition or value Elements
Intent to interfere with exclusive possession
Mistaken interference is enough
Interference with P�s possessory rights- may be
temporary Damages are nominal (value temp interference)
unless destruction to chattel

Section 1983-Forcible Harms as Civil Rights

Elements Person acting under color of state law
Deprivation of a right secured by federal constitution or
law Intent is not a question/not an element


Defense to 3rd person Defense to property
Arrest and Detention Statute of Limitations
Self Defense Discipline Necessity (Public v
Private ) Consent

Self Defense

Rule-�one is privileged to use reasonable force to defend
against harmful or offensive bodily contact- or against confinement.
This privilege depends on apparent necessity of self-defense, not on
actual reality. Thus if the D reasonably, but mistakenly believes
she is attacked, she is privileged to use reasonable force to
forestall the attack or minimize its effects� Elements
Apparent necessity- real threat (danger) of harm or
reasonable belief that there is a threat of harm
Reasonable Force- force commensurate (equivalent) to
threatened harm

Defense of a 3rd person

Rule A person is justified in the use of force against another
when he reasonably believed that such conduct is necessary to defend
another against such other�s imminent use of unlawful force
Elements Apparent necessity Was the force used
reasonable (commensurate)

Arrest and Detention/Merchant's Privilege

Rule: one who reasonably believes that another has taken goods
without payment upon his premises, is privileged to detain him on the
premises for the time necessary for a reasonable investigation of the
facts (Restatement 2nd Torts)

Defense to Repossession of Property

Rule: you cannot use deadly force to protect property only
Elements Apparent necessity Reasonable


Rule: as a defense to battery discipline arises out of doctrine
of in loco parentis (standing in parent�s shoes) when a person by
virtue of her job may be privileged to use force and restraint to
ensure discipline (i.e. parents, teachers and military officials)
Apparent necessity Reasonable force under the


Rule the actor�s subjective willingness in fact that an act or
an invasion of an interest by another takes place. Apparent (or
objective) consent is based upon a reasonable appearance that the P
consents. D is entitled to rely upon reasonable appearances created
by the P. Elements Was there actual consent-
usually in writing Apparent consent- reasonable
appearance that plaintiff consents to D�s conduct

Statute of Limitations

A time limit usually run at the time of action
Intentional torts usually give a year to sue Most
common reason that lawyers are sued is because of statute of


Rule: D acts to prevent a threatened injury from some force of
nature or some other independent cause not connected with P may be
protected by privilege Public necessity One
(usually the state) has a complete privilege to destroy,
damage, or use real or personal property if the actor
reasonably believes it to be necessary avert a imminent
public disaster Private necessity
Privilege to trespass on someone�s land to preserve
human life

Elements of Negligence

Duty Breach Cause in Fact Actual
Harm Legal/Proximate Cause
DBCAL-Dangerous Boys Can All Lie


Rule: reasonable person under the circumstances
Elements A reasonable person Recognizes risks
(foresees harm) and Takes precautions
to minimize them Standard never varies, but the degree
of care varies to be proportionate to the danger The
greater the danger, the greater the care necessary


(must show specific conduct & that the conduct fell below
the std of care) Specific Conduct- conduct which creates
foreseeable and unreasonable risk

Res Ipsa Loquitar

(circumstantial proof of duty/breach when specific conduct
cannot be found)- �the thing speaks for itself� The
Doctrine Must prove that it was more probable than not
that the P injury was a result of the D�s conduct
Allows inferring negligence from circumstantial evidence
(ex. Skid marks)

Actual Harm

Just because there is an accident does not mean that someone is
negligent P must prove that she suffered actual harm as a
result of D�s breach of duty Even if D admits fault, only
proves that D was negligent�P still must prove some harm caused by
the negligence

Cause in Fact

"but-for" test Rule: P can prove cause in
fact if she can show that "but for" D�s conduct, P would
not have been injured. Used when there is One
tortfeasor Defendants use it in other cases to argue
against CIF (Ex. Woman got x-rays; testified that if had
been asked if she was pregnant would have said no)

Legal Cause/Proximate Cause

Direct Cause Test D is liable for all injuries
directly caused by D�s negligence The
Principle: Scope of Foreseeable Risk - Foreseeable Risk Rule
(objective) Liability Limited to Type of Injury Within
Scope of Risk D liable for harm of the same general
nature as the foreseeable risk created by D�s
Liability Limited to People within the Scope of Risk