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Comprehensive PMBR Torts

Comprehensive PMBR Torts

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Published by: api-3803061 on Oct 17, 2008
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03/18/2014

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PMBR CD #1
Relevant for both essay and the multistate bar exam.
Pocket areas.

1. Intentional Torts
2. Negligence
3. Strict Liability
4. Defamation
5. Nuisance

I.
Intentional Torts
a. Assault

i. Where the D acts intending to place the P in imminent
apprehension of unpermitted contact and the P is placed in such
imminent apprehension.

ii. Mental tort
1. We look to the P\u2019s subjective state of mind to see if the P
was placed in imminent apprehension.
a. As long as P was, D is liable for assault.
iii. Apprehension is required for assault

1. Ex: If someone comes up from behind you and places a gun from behind your head but you don\u2019t see it or if they have a hatchet and they\u2019re going to hit you but you aren\u2019t aware of it, this is not assault b/c there is no apprehension.

2. Compare: Battery
3. Future threats lack imminency and are insufficient for
assault.
4. Words alone are insufficient, unless accompanied by some
overt act.

iv. Ex: 12-year old boy comes up to Superman and says Superman,
I\u2019m going to punch you in the stomach. Superman laughs. Is the
boy liable for assault?

1. Yes, because a child can be held liable for his or her
intentional tort, even though Superman knew that the
youngster could not injure him.

2. If Superman believed that the young child was about to hit him, if he was placed in imminent apprehension, he can be liable for assault.

3. If the kid hits Superman, a battery has occurred.
v. Ex: You intend to commit assault and then an unpermitted touching
occurs.

1. Ex: You throw a rock at Johnny, aiming 2-feet over his head, and if you miss that but it hits his head, a battery occurs.

11
Torts
2. Assault will merge into battery where an unpermitted
touching results.
3. D is generally liable for battery only and the assault merges
into battery.

4. One instance where merger did not occur (multistate): a
driver was operating his motor vehicle and a kid threw a
snowball and hit the car. Once the snowball hit the car, this
was battery . After the snowball hit the car, the driver was
placed in fear of an accident and he swerved the car to
avoid an accident. The driver then feared he was going to
be involved in an auto accident after the snowball hit the
car. Here, the driver could recover both for battery and
assault. He was placed in fear.

5. Fear is generally not required for assault. Apprehension is
all that is necessary. But, if the P is placed in fear,
apprehension is satisfied. Fear is a more grievious mental
state than apprehension.

b. Battery

i. Where the D acts intending to cause an offensive or harmful
contact with the person of another and an offensive or harmful
contact results.

1. Requires physical contact

ii. Protection against battery extends to the person of the P and
anything that can be closely associated or identified with him or
her, such as clothing, or anything that can be grasped in the hand.

1. Ex: Someone yanks your tie, spits in your face, etc. \u2013 this is
a battery.

iii. Ex: Johnny is walking down the street with a cane and Andy comes
by and kicks the cane away from his hand, Andy is liable for
battery b/c the Cane is an extension of the P b/c it\u2019s held in his
hand.

iv. Where you\u2019re operating a car, the driver of the automobile \u2013 the car is an extension of the driver. If someone throws a snowball, this is a tortious battery.

v. If you\u2019re holding a horse by its reigns and someone hits the horse with a whip, then this is battery b/c the horse is an extension of the person.

vi. If you\u2019re sitting in a chair and someone pulls it out from under you,

this is battery.
vii. Prosser\u2019s definition : Offensive touching.
viii. D must act intending to offend P\u2019s sense of dignity.

1. Ex : If you\u2019re on a crowded bus or subway car and you push
into somebody or the bus suddenly stops and you fall and
you hit Jones, one of the other passengers, you\u2019re not liable
for battery. That\u2019s socially acceptable conduct. You\u2019re not22

intending to commit an offensive or unpermitted conduct /
touching.
ix. Awareness of contact or damages is not required for recovery from
battery.
x. Battery is protection from unpermitted contacts.
c. False Imprisonment
i. D is subject to liability if:
1. The D must intend to confine the P within certain fixed
boundaries, where there is no reasonable means of escape.
a. Physical confinement \u2013 someone grabs your arm
and doesn\u2019t allow you to leave

b. Threats of force \u2013 someone puts a gun to your head
\u2013 saying if you leave this room, I\u2019ll blow your head
off. B/c of threat, you stay within certain
boundaries.

c. Unlawful warrantless arrest \u2013 false arrest \u2013 may constitute false imprisonment. ** (CA bar exam essay)

d. Confinement can result no matter how brief the time
interval involved (i.e., someone grabs your arm and
detains your for 30 seconds) \u2013 if it\u2019s against your
will and you\u2019re confined and not able to leave, then
this is false imprisonment.

2. The D\u2019s conduct\u2014directly or indirectly--in fact does cause
such a confinement.

3. P is aware of the confinement or is conscious. If he is not
aware of it, we do allow recovery if he harmed by it. **
a. Awareness of the confinement is necessary.

b. Exception : Young child (3-year old) or a moron or
idiot \u2013 who may not be conscious of the
confinement, then we do allow recovery for false
imprisonment.

c. Ex : 5-year old child is walking home from daycare;
driver asks him if he wants candy. Driver gave him
some candy, locked the doors. The child wasn\u2019t
aware of the false imprisonment, but the driver
locked the doors. This is unlawful confinement
within certain fixed boundaries. We do allow
recovery here without consciousness of the
confinement.

ii. Shopkeeper\u2019s privilege:

1. Storekeeper can detain a suspected shoplifter if there\u2019s
reasonable grounds to believe that a theft has occurred; the
intention must be conducted in a reasonable manner; and,
the detention must be for a reasonable period of time to
make an investigation.

33

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