Barbri Day 1 Torts Tuesday, May 24, 2011

Topics: 1. personal prop 3. workers comp 2. no fault insurance 3. Equitable remedies

I.

Intentional tort A. 3 proproprositions of intentional torts 1. The extreme sensitivity of a p is ignored if deciding if a p has a cause of action. Assume you are dealing with a reasonable person

2. there are no incapacity defenses in intentional torts. Everyone who does the elements of torts is liable a. kids, drunks, retards, all are liable even though 3. intent is an element of every intentional tort a. a person has intent if he desires to produce the legally forbidden consequences of that tort b. not enough just to act

c. if you desire to produce any forbidden contact, your liable if something else forbidden happens (transferred intent)

B. Battery (3 elements)

1. Defendant must commit harmful or offensive contact

2. contact must be with the Ps person 1) anything the plaintiff is holding or touching , or connected to 2) does not have to have simultaneously and defendants body does not need to be involved poisioning someone- battery even though your gone and it happens later

C. Assault (2 elements) 1. the d must place the P in a reasonable apprehension - apprehension=knowledge (knowledge that P will be touched) ** david and goliath questions, bec they will mention physical characteristics in a threat situation what about threat but no capacity to cause the harm. (unloaded gun) ask your self what does the plaintiff know? Does p know the gun is unloaded? It is reasonable to think the gun might be loaded

2. the apprehension is of an immediate battery - words alone lack immediacy. Naked verbal act isnt a cause of action for P. must be conduct in order for mental capacity to be disturbed enough to have a legal claim - usually a weapon, could be shaking your fist, need a menacing action - even when there is a meanicing action, accompanying words can negate immediacy and if they do they can bar recovery

- ex. If I shake fist, and say if you were not my best friend, I would punch you You have knowledge that you wont be touched bec you are BF

Ex meanacing gesture- cant schedule it, no immediacy. Not as mentally disturbed because things could change between now and the scheduled time

D. False imprisonment 1. Def must commit an act of restraint - threats are an act of restraint - threat must be a threat that would operate on the mind of a person of reasonable sensitivity - an omission can be an act of restraint, if there was a preexisting obligation to help the p move around Ex) taking away someones wheel chair - act of restraint only counts if the P knows about it or is harmed by it

2. P as a consequence must be confined in an area - an area is bounded only if the P is restricted from movement in all directions - an area is not bounded if there is a reasonable means of escape that the p can reasonably discover Ex) on the test, if the only way out is disgusting or humiliating or hidden then thats not a way out Taking clothes in the shower

E. Tort of intentional infliction of emotional distress (no intent needed)

- only tort where its ok to be wreckless instead of negligence

1. Outrageous conduct by d -outtageous=exceeds all bounds of decency tolerated in a civilized society -mere insults are not outrageous as a matter of law, even if done with the desire to mentally distress

Hallmarks of outrageousness a. b. c. d. Conduct in question is continuous or repetitive If you cant tell, send it to the jury D is a common carrier(transportation) or an inn keeper P is a member of a fragile class of persons Young children elderly pregnant women- d must know that woman is pregnant what abt racial speech?has to accompany abuse of power

2. P must suffer severe distress Does not have to have any physical showing by the P of distress Pay attn to the words, if they indicate that P was only mildly annoyed, no go

3. D must commit an act of physical invasion a. Can be accomplished by F. Trespasse D enders ps property on foot or a vehicle

1. Trespass is belongs to the possessor (renter)

2. land interests include air above and soil below out to a reasonable distance

G. Trespass to chattels and conversion a. personal prop is everything you own other than bldgs * d can 1- destroy personal prop 2- stealing

Degree of interference 1. modest is trespass to chattels 2. significant- conversion (p can recover full market value, not rental or repair 1. Bound property -abandoned property- personal item that a person does not want own anymore a. physical act- is giving up possession of the thing b. intent- intent to give up title and control

Lost property- when you accidently give up possession but you dont intend to give up control If you find an umbrella 20 bucks, you must reasonably try to find the owner , if after one year the owner has not come forward, you may keep What if its more than 20 bucks? must turn it in to the police

2. Gifts Issue: whether or not a party making the gift making it final or can he get the item back Donor- making the gift Donee- receives gifts

a)intervivos gifti. donor must have donative intent (acquiescence ii. delievery or transfer of item-

Check- a gift if - third party check - stock certificates- the gift is complete when the stock is turned over b) gift causa mortis-gift in contemplation of death - imminent death of the donor is likely to occur. *Only valid if the guy dies *not valid if the donee dies first

Liens- ptimitive security to enforce payment of a debt Elements: 1. Debt relating to the performance of services 2. Person owed the money (creditor) has possession of item in question 3. But retains title to the item of question (debtor) -General Lien- right of creditor to retain property for balance due (storage space) -returning some property does not discharge or release a general lien

Special lien- Mechanics lien, specific property, pay for services But if he gives you the car he releases lien, yet still can collect on the debt

Bailments

Happens when you voluntarily turn over possession to a person for a period of time (coat check) A bailee has duty to protect the coat, what about things in the coat? *general rule, normal things are part of the bailment but extraordinary things are not

Safe deposit box- the bank is a bailee of everything in a safe deposit box. Park and Lock- if I keep my keys, not a bailment, short term licensee Leave keys- its a bailment Coat checks- in NY dollar amounts are limited to certain dollar amounts

Affirmative Defense

A. Consent Express 1 fraud or duress negates express Defense to all 7 intentional torts Ask if the person had legal capacity, only then can a person give consent Dont need legal capacity to be liable for a tort but need agreement to be torted on Children lack capacity but for the purpose of sliding consent Assumping have a p with legal capacity there are t2 kinds

implied consent 1. consent based on the d reasonable interpretation of the Ps objective conduct(RPP test) 2. unexpressed mental thoughts are not part of the analysis

Final note- consent is not all or nothing, there is always a scope, if def exceeds scope then he is liable. Determine the scope, then determine if he exceeds it

Protective privileges 1. self defense 2. defense of 3rd person 3. defense of property Elements 1. need to establish proper timing a. must act when the threat is imminent or in progress b. cant wait for threat to be done and respond after the fact c. no revenge -D must establish a reasonable belief that the threat is immenent

Amount of force: 1. use the amount of force necessary to fight the force 2. rule of necessity 3. NY- runaway state, rule of retreat. Does not apply if you are in your own home 4. Cant use deadly mechanical devices to protect your property

Necessity Only an affirmative defense if you are defending one of the three property torts

Public Necessity When a def invades Ps property in an emergency, to protect the community as a whole for a significant group of people (this will be a catastrophe ? and the city savior needs to break the law to save the city) Rule is absolute defense, no liability

Private Necessity When a defendant invades property in an emergency to protect interests of his own *a private necessity def is liable to pay actual (compensatory) damages for the harm done * no liability for nominal or punitive damages * as long as that emergency continues the d is allowed to remain on ps land in a position of safety

** if a def acts out of private necessity but the danger is not to himself but he injures his own property then

Defamation- never an essay, but always lots of questions Traditional def (3 elements) 1. Def must make a defamatory statement specifically identifying the P *a statement is defamatory when it tends to adversely effect reputation * name calling isnt defamatory- it doesnt give listeners any concrete reason to think poorly of the guy and its conclusory *look for an allegation or representation of fact *look for lack of peaceablenes *look for lack of loyalty (to state or job) *morality -statements of opionion * yes if a rpp listening would assume that its a fact *otherwise its non actionable opinion

* P must be alive 2. Def must publish the statement (reputation is what other people think of you) P must share the statement with at least one other person Publication can be negligent, doesnt require consent 3. Damages, maybe Libel- any form of permanence P doesnt have to prove damages in libel Slander- oral defamatory statement Slander per se- a slanderous statement which falls between $ categories 1. A statement relating to the Ps business or profession 2. A statement that the P has committed a crime of moral turpitude 3. A statement impuding chastity to a woman (only applies to women) 4. A statement from D that P suffers from a loathsome disease *leprosy * venereal diseases

Slander not per se (economic harm) must prove damages! That you lost your job or didnt get a promotion Socially impacted doesnt count

NY Libel cases that dont presume damages: (look this up) a. Not within one of the four per se catagories b. Its defamatory impact is not clear on the face of the statement but requires addtl evidence

Affirmative Defense a. Consent

b. Truth Def bears the proof c. Absolute and qualified privileges (based on identity of def) 1. spouses talking to each other 2.govt officers engaged in the conduct of their official duties ( cant be liable for stuff you say in court arguments, or briefs, immunity)

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Must confine yourself to matters that are relevant, you lose the priv of immunity