11th or 12th will work TortsTorts fine Professor Pope Class 1: Aug. 23, 2011

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Thursday Vale Moot Ct 30,000 Friday P-302 feet ƒ Constitutional (31) ƒ (33) Intentional ƒ and Procedure (31) Strict ƒ (31) ƒ Real Property (31) ƒ (33)

Negligence 50% Intentional torts 12.5% Torts is Products liability 12.5% deceptively 12.5% Business torts 12.5% easy

DiGeronimo v. Fuchs (N.Y. Sup. Ct. 2011) Learning rules JW said “no transfusion” Bleeding after delivery and doctrines is Dr. Fuchs transfused only one goal of JW sued for med mal this course 3hr study per classroom hour Passive Read cases 4 class hour x 3 = 12 Read hornbook outside hours

Active Lots of evaluation Briefing Midterm Outlining Quizzes Practice exams Final exam

law.widener.edu/LawLibrary/ Learn from Services/ExamArchive.aspx Old midterms (and not just for) Old final exams the midterm Feedback memos Model answers Intentional torts ƒ IIED ƒ to Intentional ƒ property ƒ ƒ ƒ False Torts imprisonment ƒ

Plaintiff must establish PRIVILEGES ƒ elements of each tort she ƒ Authority law brings ƒ Self defense ƒ Discipline ƒ Defense others ƒ Public One element of each of these is ƒ Defense property ƒ Private necessity intent ƒ Recover property ƒ Justification Interest Torts Privileges invaded Physical Battery Consent Self-defense Defense others Discipline Justification Mental Assault same IIED Property Trespass land Recovery property Trespass chattel Public necessity Conversion Private necessity Consent

Intentional torts Done, late September Intent Sole coverage of Midterm (Friday, October 14, 2011 from 10:00-11:15 a.m.) Introduction

These are battery & assault cases (except Battery Ranson) 2 elements Plaintiff’s burden We will look at battery & assault over the next 3 classes 1. DEF intended a harmful or offensive contact with PTF Here, our focus is on just 1 element of battery & assault (and all intentional 2. DEF caused a harmful or torts): intent offensive contact with PTF Restatement of Torts The ALI distills "black letter law" from cases, to indicate a trend in , and, occasionally, to recommend what a rule of law should be.

In essence, they restate existing common law into a series of principles or rules

Justice Cardozo (1924) Rest.2d Torts 8A When, finally, it goes out . . . after Intent includes both all this testing and retesting, it will be something less than a code and something more than a treatise. general intent

It will be invested with unique and authority, not to command, but to persuade. . . . specific intent

Either one is Specific intent sufficient to “All consequences which the actor desires to bring establish intent about are intended.” General intent Specific intent: want it to happen

“If the actor knows that the General intent: know it consequences are certain, or substantially certain to happen substantially certain, to result from Reckless: know it very likely to his act, and still goes ahead, he is happen treated by the law as if he had in fact desired to produce the result.” Negligence: know it might happen

Desired EITHER is sufficient Certain Desire conduct to cause Substantially certain consequences (HOC) Very probable Probable Know conduct substantially Possible certain to cause consequences (HOC) Impossible

Intend to do act Intend act with knowledge that risking consequences Intend act knowing consequences substantially certain to result Intend consequences of act Intend to cause specific harm TortsTorts Tomorrow P-302 Professor Pope All other days P-401 Class 2: Aug. 25, 2011

I R A C Analysis: The most important of Issue: Did Vincent commit a IRAC, by far battery on Marvin Conclusion: No battery Rule: Battery if DEF intended HOC DEF caused HOC Analysis Elements Facts HOC DEF shot “Match-up” rules and facts PTF in face Subjective No evidence Make your argument as desire for this strong as possible Intent Knowledge with Some Recognize weaknesses substantial evidence for certainty this

M v. V: Battery

Vincent caused HOC on Marvin. He pulled trigger of a loaded gun and shot Marvin in the face. Intent Vincent shot Marvin with intent because he knew that it was substantially certain to happen where he was holding a loaded Cases gun, pointing at Marvin, while driving over a bumpy road

PWS 17 Garrat v. Dailey Procedural posture PTF is suing for battery

We are usually reading Did Brian appellate cases intend HOC Did Brian What trial court ruling cause HOC is at issue

Subjective Knowledge that desire that substantially PTF fall certain fall Brian testimony

Ruth testimony

PWS 20 But Brian is only 5- years-old Spivey v. How does that affect the analysis Battaglia Must be 1 or the other

Negligence Æ can proceed

Battery Æ barred by SOL

Trial court: Battery Æ summary judgment for DEF

DEFs want it to be intentional DEF argue intentional Shorter SOL PTF argue not intentional No

No insurance coverage

Spivey court reasoning Irrelevant that did not desire strained or know about specific HOC consequences (paralysis) Notwithstanding result, DEF did desire to cause Did desire to cause OC, even if not HC HOC PWS 24 Ranson v. Kitner

PWS 25 McGuire v. Almy

Either is sufficient for intent

Desire conduct to cause Intent consequences (HOC) Know conduct substantially certain Summary to cause consequences (HOC) Garrat v. Dailey No per se exception for Intent not negated by Children Garrat v. mistake of identity Dailey Insane McGuire v. Ranson v. Kitner Almy TortsTorts Next week Professor Pope Back in P-401 Class 3: Aug. 25, 2011

PWS 17 Page 19 Garrat “mere absence of any intent to injure plaintiff would not absolve him if in fact he had v. such knowledge . . . With substantial certainty that Dailey plaintiff would attempt to sit”

PWS 20 If DEF had intent to cause OC Spivey Then DEF conduct = battery v. Then action barred by SOL Then SCOFLA wrong Battaglia Page 23 Note 1A Courts sometimes “bend” the rules to reach a Not enough to just do the act compassionate result Must look into the brain of DEF Specific intent to cause HOC Even if legally strained General intent to cause HOC

Note 1C

Not necessary to show DEF Transferred intended the specific actual consequences (e.g. paralysis) Intent Must only show intended a HOC

Transferred intent Alternative way establishes intent to establish element as effectively as establishing it intent directly Only these 5 Intend tort A Battery Not IIED Assault Not conversion on P False imprisonment Trespass to property Commit tort B Trespass to chattels on P

Intend tort Intend tort A against P1 against P1 Commit tort Commit tort B against P2 against P2 PWS 28 Talmage v. Smith

Trespass = battery Intended Assault on P1 Can transfer intent from assault to battery Committed

No imminent apprehension But a HOC Intended Intended Battery on P1 Trespass on P1 Committed Committed

No HOC Trespass + But imminent apprehension HOC

Intended Intended Assault P1 Assault P1 Committed Committed

Assault P2 Battery P2

Intended Assault, Battery… Battery Committed by same conduct Elements assault battery but no Introduction intent or shaky on intent, transfer PWS 33 TORT CRIMINAL Restatement 2d. § 13

Plaintiff Party harmed State or federal prosecutor 1. “Intend” Purpose Compensation Punishment, – Harmful or offensive contact or Deterrence deterrence, – Imminent apprehension of such rehabilitation contact Burden proof Preponderance Beyond a reasonable doubt Relief Money Imprisonment, AND Injunction fine, capital punishment 2. Harmful or offensive contact results

Restatement 2d. § 13 PWS 33

1. Intend (i.e. act with the desire to cause or with substantial certainty that actions would cause) – Harmful or offensive contact or – Imminent apprehension of such contact AND

2. Harmful or offensive contact results

Battery Cases PWS 29 How has definition of battery changed Cole v. Turner

PWS 30 Wallace v. Rosen PWS 35 Fisher v. Caroussel Motel

Element 1 of 2: Intent HOC

Desire or knowledge with substantial certainty that conduct will cause HOC Battery ƒNot matter if funny, helpful, mean . . . ƒNeed only intend HOC, not the actual consequences Review ƒNot negated by mistake of identity ƒCan use Element 2 of 2: Cause HOC Intend HOC HOC Contact ƒ Can be PTF body or extension Garrat ƒ Can be indirect – causal chain (Batman) Contact: harmful or offensive Spivey ƒ Offensive measured by (e.g. not everyday crowded world contacts) ƒ Unless DEF knows peculiar sensitivity McGuire PTF need not be aware of contact

Mateo v. Kirshner (Camden County Superior Court, N.J. 2008) PWS 30 TortsTorts Wallace Professor Pope v. Class 4: Aug. 30, 2011 Rosen

An intended contact

But NOT an intended HO contact DEF no desire or know HO Even if PTF finds it HO PWS 35 Not sufficient to intend conduct Fisher that happens to cause HOC v. Must intend the HOC

(unless transferred) Caroussel Motel

Battery Review Element 1 DEF desire or knowledge to substantial certainty Intend HOC that conduct will cause HOC

Not matter if funny, helpful…

Need only intend HOC, not the Element 2 actual consequences Cause HOC Not negated by mistake identity

Can use transferred intent

Contact Harmful or offensive Can be PTF body or extension Measured by reasonable person (e.g. not everyday Can be indirect crowded world contacts) Causal chain Batman, Bond Unless DEF knows peculiar sensitivity PTF need not be aware of contact Mateo v. Kirshner (Camden Intend HOC HOC County Superior Court, N.J. 2008) Garrat

Spivey

McGuire

Battery 3 Relevant Tangents

Compensation Kid in Talmage has no eye

Purposes Deterrence Individuals, companies structure of tort conduct to avoid liability Fisher Penalty Broader social theory Fisher PTF normally gets compensatory Punitive Medical bills (exemplary) Lost wages damages Punitive damages are extra To “punish” or make “example”

Awarded in only 2% civil cases that go trial Vicarious Only if: Injury intended or Liability Oppression, , or malice

DEF We will cover this (hotel) directly near the PTF end of the course in November DEF (hotel) employee Restatement 2d sec. 21 Actor subject to liability for assault if Assault (a) he acts intending to cause imminent apprehension of HOC AND Introduction (b) the other is reasonably thereby put in such imminent apprehension

Rewritten to build-in transferred intent PTF must think HOC (a) he acts intending to cause: (i) imminent, immediate imminent apprehension of such a contact OR (ii) HOC, OR (iii) confinement, OR (e.g. Siliznoiff) (iv) entry land, OR (v) impair chattel AND PTF must think DEF has (b) the other is reasonably thereby put in present ability such imminent apprehension (e.g. Western Union)

What matters is whether a HOC measured by reasonable reasonable person in PTF person (e.g. Rosen), unless position would reasonably be in DEF on notice apprehension of an imminent HOC Need not be fear just awareness Not whether DEF had actual ability to make HOC Assault Cases

PWS 37 I de S v. W de S

PWS 37 Western Union v. Hill Western Union “Every battery includes an assault”

False Can have B without A Can have A without B Can have both Can have neither

Assault Hypos in the notes

“Words are like weapons. They wound sometimes.” Our focus is primarily on Damages liability e.g. for assault: intent to cause AHOC + AHOC

If no actual damages Æ Normally, no need to show recover nominal damages damages for intentional torts If actual damages resulted But if prove them, PTF gets (e.g. heart attack) Æ damages caused by DEF those are recoverable tortuous conduct

Contrast IIED where mental distress (damages) is an element of liability TortsTorts Professor Pope Class 5: Sept. 1, 2011

But “picture” not always clear, Legal training helps complete you recognize fact You can recognize fact patterns patterns as specific as potential torts issues torts issues And you know what to look for to confirm B O A T S

Trespass to land

Bradley v. American Smelting Not in 12th ed. PDF on TWEN Submit Quiz 1 before noon on Tuesday Assault Introduction

Restatement 2d sec. 21 Rewritten to build-in transferred intent Actor subject to liability for assault if (a) he acts intending to cause: (i) imminent apprehension of such a contact (a) he acts intending to cause OR (ii) HOC, OR (iii) confinement, OR imminent apprehension of HOC (iv) entry land, OR (v) impair chattel AND AND

(b) the other is reasonably thereby (b) the other is reasonably thereby put in put in such imminent apprehension such imminent apprehension

PTF must think HOC imminent, immediate HOC measured by (e.g. Siliznoiff) reasonable person (e.g. Rosen), unless PTF must think DEF has present ability DEF on notice (e.g. Western Union) Required Required Whether person in PTF position would reasonably be in Awareness of IHOC apprehension of an IHOC

NOT required NOT required Whether DEF had actual ability Fear of IHOC to make IHOC

Assault Cases

PWS 37 I de S v. W de S PWS 37 Western Union v. Hill

“Every battery includes an assault” False Can have B without A Can have A without B Can have both Can have neither

Assault hypos in the notes “Words are like weapons. They wound sometimes.”

Our focus is Damages primarily on liability

If no actual damages Æ No need to show damages for intentional torts recover nominal damages

If actual damages resulted But if proven, PTF gets all (e.g. heart attack) Æ damages caused by DEF tortuous conduct (even if those are recoverable unintended) Contrast IIED where mental distress (damages) is an element of liability Imminent apprehension No trespass (aka battery) Protect mental integrity Not bodily, integrity TortsTorts Professor Pope Class 5: Sept. 1, 2011

Element Facts to support If suing for battery Æ Intent (desire or DEF knew with substantial know with certainty that PTF would be Grant motion to dismiss in A of IHOC because it was substantial certainty) Or summary judgment obvious that by beating on that conduct will door with hatchet while and cause apprehension during when woman stuck head out, she would be afraid No facts from which reasonable of imminent HOC of getting hit. juror could find necessary PTF apprehension of The PTF was in A of IHOC element of HOC imminent HOC because when DEF struck the hatchet near her head, she was afraid she would get hit.

PWS 37 If suing for assault Æ Deny motion to dismiss Deny summary judgment Western Union

Sufficient facts from which v. reasonable juror could find satisfaction of necessary Hill elements “Every battery includes an assault” False Can have B without A Can have A without B Can have both Can have neither

“Words are like weapons. They wound sometimes.” Our focus is Damages primarily on liability

If no actual damages Æ No need to show damages for intentional torts recover nominal damages

If actual damages resulted But if proven, PTF gets all (e.g. heart attack) Æ damages caused by DEF tortuous conduct (even if those are recoverable unintended)

Contrast IIED where False mental distress Imprisonment (damages) is an element of liability Introduction Rest.2d sec 35(1): Actor liable . . . (c) the [PTF] is conscious of for false imprisonment if: the confinement OR is (a) he acts intending to confine . . . harmed by it, AND AND (b) his act directly or indirectly (d) [DEF] lacks consent or results in . . . confinement . . . legal justification AND

1. DEF intends to confine 3. PTF aware of (or injured from) 2. DEF does confine confinement PTF sees no “reasonable” means escape (like assault: 4. Without consent or measured by reasonable belief) legal justification

False Imprisonment Cases PWS 40 Big Town NH v. Newman

Element of FI Facts that establish 09-19-68 Intent to confine

09-22-68 Act confines Conscious or harmed

11-11-68 Absence justification

PWS 42 Parvi v. City Kingston Required If sufficient facts from which reasonable juror could conclude conscious Contemporaneous awareness awareness

Like assault Then trial court error to dismiss

PWS 44 Hardy v. LaBelle Distributors

Element of FI Facts that establish Persuasion Intent to confine Coercion Act confines

Conscious or Threat harmed Physical force Absence justification PWS 46 Enright v. Groves

PWS 48 Element of FI Facts that establish Intent to confine Whitaker Act confines Conscious or v. harmed Absence Sanford justification

Element of FI Facts that establish Intent to confine

Act confines

Conscious or harmed

Absence justification Ginger McGuire v. United Airlines (Wayne Cty., Mich. 2010)

http://www.cnn.com/2010/TRAVEL/05/27/passenger.stuck.on.plane/ind ex.html 1. DEF intends to confine TortsTorts 2. DEF does confine PTF sees no “reasonable” Professor Pope means escape (like assault: measured by reasonable Class 7: Sept. 6, 2011 belief)

PWS 42 3. PTF aware of (or injured from) Parvi confinement v. 4. Without consent or City Kingston legal justification

Required

Contemporaneous awareness Like assault PWS 44 If sufficient facts from Hardy which reasonable juror could conclude conscious v. awareness LaBelle Then trial court error to dismiss Distributors

Element of FI Facts that establish Intent to confine

Act confines

Conscious or harmed

Absence justification

PWS 46 Persuasion Coercion Enright Threat v. Physical force Groves Element of FI Facts that establish Intent to confine

Act confines

Conscious or harmed

Absence justification

PWS 48 Whitaker v. Sanford

Element of FI Facts that establish Ginger McGuire v. United Airlines (Wayne Cty., Mich. 2010) Intent to confine

Act confines

Conscious or harmed

Absence justification http://www.cnn.com/2010/TRAVEL/05/27/passenger.stuck.on.plane/ind ex.html Intentional Restatement 2d sec 46(1) One who by extreme and outrageous Infliction of conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such Emotional emotional distress, and if bodily harm to the other results from it, for such Distress bodily harm.

1. Extreme and outrageous conduct

2. Intentional or reckless http://www.youtube.com/watch?v=iIi_Ae_xPok 3. That causes 4. Severe emotional distress

Extreme & Not just rude (Slocum) Egregiously insensitive and deceptive outrageous Not just insult, offense withdrawal of life support conduct Outside the bounds Intentional or (1) DEF wants, or (Taylor) reckless (2) knows, or (3) very likely should know Causes The E&O conduct will give PTF

Severe Must be severe emotional Can show w/ physical symptoms distress But physical harm not required PWS 50 State Rubbish PTF v. Siliznoff DEF

PWS 54 Slocum v. Fair Food TortsTorts Quiz 1 Professor Pope Format issues Class 8: Sept. 8, 2011

2 elements Unless instructed, never restate or 2 paragraphs summarize the facts

No paragraphs of pure fact No paragraphs of pure law

Get to the analysis -- application of law to facts Quiz 1 (1) H or O Analysis issues contact

Fisher irrelevant DEF caused his fluid to contact PTF Battery through He put it in her bottle guns & grenades She drank it

The contact DEF caused was offensive & harmful

DEF knew PTF would (2) Intent drink the water It was still on her desk H or O It was unfinished She would have tossed it, if contact she were done DEF wanted PTF to drink the water Intend C To have some sort of “connection” to her “lips touched it” – and would again Intent HOC

DEF knew PTF drinking “Michael can be found water would be HO guilty” “as close as he could get” Did it while she was away - In civil law Æ secretively found “liable”

“I can safely say that there is “The defendant . . . specific intent to commit an should have known . . .” offensive contact” Irrelevant for battery Then do it analysis “he obviously wanted to ejaculate into Tiffany’s water bottle” I I E D What facts show intent? This is only intent to do act Introduction Need intent for C Need intent for C that is HO

Restatement 2d sec 46(1) 1. Extreme & outrageous One who by extreme and outrageous conduct intentionally 2. Intentional or reckless or recklessly causes severe 3. That causes emotional distress to another is subject to liability for such 4. Severe emotional emotional distress [and for any distress bodily harm that results].

I I E D Cases PWS 50 State PTF Rubbish v. DEF Siliznoff

PWS 54 Slocum v. Food Fair

Not outrageous that reasonable person would have SED

Might establish if DEF knew special PTF vulnerability Extreme and outrageous?

MOL Severe emotional distress? MOL Jury question

PWS 57 Harris v. Jones

PWS 57 Taylor v. Vallelunga Extreme & Not just rude, offensive outrageous Totally outside bounds conduct Slocum Intentional DEF wants or reckless or knows or EVEN very likely should know Taylor

Causes E&O conduct is the reason for PTF SED Harris Severe Must be severe emotional Can show w/ physical distress symptoms (but not required) PWS 57 TortsTorts Taylor Professor Pope v. Class 9: Sept. 9, 2011 Vallelunga

Not just rude, offensive Extreme & Causes E&O conduct is the outrageous Totally outside bounds reason for PTF SED conduct Slocum Harris Intentional DEF wants Severe Must be severe or reckless or knows emotional Can show w/ physical distress symptoms (but not or EVEN very likely should know required) Taylor Rest. 2d sec. 158 Trespass One is subject to liability . . . for trespass . . . if he intentionally (a) enters land in the possession of the other, or causes a thing or to Land a third person to do so,

PWS 66 OR (b) remains on the land Dougherty OR (c) fails to remove from the v. land a thing which he is under a duty to remove. Stepp

Intent – easy

DEF desired/knew going to that location on Earth “No matter Compare where you go, there Intent to: cause HOC you are"

Intent to: cause IA-HOC Sufficient that you intend to go where you go Intent to: be outrageous (i.e. on another’s land)

PWS 70 Herrin v. Sutherland

Property Line Trespass PWS 72

Space Step onto PTF land No permission at all Rogers

Time Had permission to step on PTF land But stayed past permitted time v. Purpose Had permission to do X on PTF land But did Y and Z Kent Cty. PWS 68 Bradley v. Am Smelting “Environmental” Trespass Y Tangible N Transitory Not interfere with exclusive possession, only use & Accumulation Affect use & enjoyment substantial enjoyment

Non-transitory Trespass – but Y Y Accumulation interferes with only if actual & possession rights substantial damages Trespass Nuisance Possessor OR owner TortsTorts E.g. tenant sues Professor Pope landlord for entry not authorized by lease Class 10: Sept. 13, 2011

PWS 68 Bradley Extra trespass element v. Only required in environmental Am Smelting pollution context Non-transitory Trespass Transitory Nuisance

Accumulation, But only if Not interfere with interferes with actual & exclusive possession rights substantial possession, only damages use & enjoyment

N Transitory Y

Accumulation Affect use & Trespass substantial enjoyment Y Y Chattels Trespass Nuisance Rest. 2d 217: A trespass to a chattel Movable personal may be committed by intentionally property (a) dispossess PTF or (not real ) (b) use or intermeddle

Dispossession No nominal damages “You took it”

OR Cf. IIED (because Damage SED is an element) “You broke it”

PWS 74 Glidden v. Syzbiak Any person to whom or to unless the damage was whose property damage occasioned . . . while may be occasioned by a dog . . . shall be entitled she was engaged in to recover . . . of the person the commission of a who owns . . . the dog . . . trespass or other tort unless . . .

Element Facts Deprive for non- demimus time OR Reduce quality, condition, value

PWS 77 Compuserve v. Cyber Promotions Conversion

Pay amount Trespass damaged or Trespass Conversion chattel cost of to chattel deprivation Damages = Damages = forced sale, Conversion Pay FMV repair, FMV substitute….

Factors to determine PWS 81 SERIOUSNESS, inter alia Pearson (d) extent and duration of interference v. (e) harm done to the chattel

(f) inconvenience and expense Dodd caused 1967 Sen. Dodd censured by Senate Pearson: “corruption even broader”

Dodd sues for conversion

DCT: summary jmt for Dodd

CTA: reverse summary jmt TortsTorts Professor Pope Class 11: Sept. 15, 2011

1967 Sen. Dodd censured by Senate

Privileges to Intentional Torts Rest. 2d 890 DEF can defeat PTF prima One who otherwise would be facie case liable for a tort is not liable Show that PTF cannot if he acts in pursuance of establish one or more and within the limits of a necessary elements privilege . . . .

DEF can establish a privilege Burden Independent reason for non-liability even if PTF makes her prima of Proof facie case

PTF DEF All prima facie elements for All prima facie elements for each alleged theory each alleged privilege 1. Must allege (Taylor) 1. Must allege 2. Must establish with 2. Must establish with preponderance of the preponderance of the evidence evidence Parties first Organization P1 v. D1 P1 v D2 P2 v D1

Intent Claims second PTF argument(s) DEF argument (if any) P1 v. D1 HOC PTF argument(s) Battery DEF argument(s) (if any)

False Impr Privilege P1 v D2 DEF argument(s) PTF argument(s) (if any)

1. Consent 91-103 Not all privileges go to all 2. Self-defense 103-107 intentional torts 3. Defense of others 4. Defense of property 107-113 Some just for property 5. Recovery of property 113-118 6. Necessity 118-125 Some just for persons 7. Authority 125-127 8. Discipline 127-128 9. Justification 128-130 That will conclude the scope of Before the midterm, we will coverage that will be tested on the midterm. Practice MBE questions Practice essay writing We will move onto negligence Review intentional torts before October 14. But that will not be on the midterm. Discuss exam taking

Rest. 2d 892A

One who effectively to conduct of another intended to Consent invade his interests cannot recover in an action of tort for the conduct or for harm resulting...

PWS 91 O’Brien v. Cunard Co. Express Implied consent Focus on the ostensible OR What is manifested What would reasonable Implied DEF think

Consent & Intent

If DEF reasonably thinks PTF consents to contact

Then, how can DEF intend contact to be OC PWS 92 Hackbart v. Cincinatti Bengals

PWS 94 Mohr v. Williams Emergency exception

PWS 99 Patient lacks capacity Waiting to get consent from patient (or DeMay surrogate) risks serious harm Reasonable person would consent v. No reason to think this particular patient would not consent Roberts Consent not valid if fraudulently obtained

Fraud must go to very nature of the act TortsTorts Existence of consent Professor Pope Scope of consent Class 12: Sept. 16, 2011

PWS 94 Mohr v. Williams Emergency exception

PWS 99 Patient lacks capacity Waiting to get consent from patient (or DeMay surrogate) risks serious harm Reasonable person would consent v. No reason to think this particular patient would not consent Roberts Consent not valid if fraudulently obtained

Fraud must go to very nature of the act

Rest.2d 69 If the actor has consented to any . . .invasion of his interests of personality, he is not privileged to defend himself against such an invasion unless his consent was obtained by fraud or has been withdrawn;

Reasonable belief sufficient Self-Defense Defense, not retaliation Defense must be proportional And its bad, bad Leroy Brown The baddest man in the whole damn town Badder than old King Kong And meaner than a junkyard dog …. He got a 32 gun in his pocket for fun He got a razor in his shoe

Special rule for lethal force

Retreat, if possible Defense

BUT No need to retreat if in own home of Others

Can defend others too

Must have reasonable belief other in danger

Must be proportional

Alter ego – stand in the shoes

TUE 20 27 4 11 Priv Neg Neg No cls TortsTorts THU 22 29 6 13 Professor Pope Priv Neg Neg Rev FRI 23 30 7 14 Class 13: Sept. 20, 2011 Rev Neg Neg Exam

Mohr Intended HOC = battery Consent But HOC outside scope Consent = no privilege PTF actually helped Reflected in damages But does not impact liability

Self-Defense 1. When 2. How You reasonably Amount of force must believe in danger be proportional to reasonably perceived You need not be right threat

222A Factor Degree satisfied Conversion D extent, duration control D intent assert ownership D good faith Harm to chattel P’s inconvenience, expense

1 “Not divisible 3 by 2” 5 7 Judgment - 9 developed with experience 11 Privilege 4: Defense of Property Rest.2d 81 [DEF cannot] cause bodily (1) The actor is not harm or confinement in privileged to use any excess of that . . . means of defending his reasonably believes . . . land or chattels from necessary to prevent or intrusion . . . terminate . . . intrusion.

(2) The actor is privileged . . . PWS 107 To put another in immediate Katko apprehension of a harmful or offensive contact or other bodily harm or confinement v. in excess of that which the actor is privileged to inflict Briney Katko Briney Like self-defense & Pistol Shotgun defense of others Knife Shotgun ? Brass knuckles Shotgun ? DEF must calibrate force to threat No weapon Shotgun ?

PWS 113 Privilege 5: Hodgedon Recovery v. of Property Hubbard

Reasonable force Reasonable time Ask first No mistake (unless PTF-induced) PWS 115

Bonkowski Storekeeper v. privilege Arlan’s Recovery of property Dept Store privilege

Reasonable belief To detain in 1st place

Reasonable investigation Scope Duration

Public Private Privilege 6: necessity necessity Public Save community Save yourself Complete privilege Incomplete privilege

Necessity Need not pay Privileged but must still pay Rest.2d 196 (public necessity) PWS 118 One is privileged to enter Surocco land . . . if . . . reasonably believes it . . . necessary v. for . . . averting an imminent public disaster. Geary

Privilege 7: Private Necessity Rest.2d 197 (private necessity) (b) . . . a third person, or the (1) One is privileged to land or chattels of either, enter or remain on land . . . unless the actor knows or reasonably appears to be has reason to know that the necessary to prevent serious one for whose benefit he harm to (a) the actor, or his enters is unwilling that he land or chattels, or shall take such action.

PWS 121 (2) [DEF] is subject to liability for any harm done Vincent in the exercise of the privilege . . . except where v. the threat of harm . . . caused Lake Erie by the tortious conduct . . . of the possessor. Transp.

What good is an incomplete privilege? No nominal damages

Property owner deprived of own privileges (e.g. defense of property Privilege 6: TortsTorts Public Professor Pope

Class 14: Sept. 22, 2011 Necessity

Public Private Rest.2d 196 (public necessity) necessity necessity One is privileged to enter Save community Save yourself land . . . if . . . reasonably

Complete privilege Incomplete privilege believes it . . . necessary for . . . averting an Need not pay Privileged but must still pay imminent public disaster.

PWS 118 Surocco v. Geary Rest.2d 197 (private necessity) Privilege 7: (1) One is privileged to enter or remain on land . . . Private reasonably appears to be necessary to prevent serious harm to (a) the actor, or his Necessity land or chattels, or

(b) . . . a third person, or the (2) [DEF] is subject to land or chattels of either, liability for any harm done unless the actor knows or in the exercise of the has reason to know that the privilege . . . except where one for whose benefit he the threat of harm . . . caused enters is unwilling that he by the tortious conduct . . . of shall take such action. the possessor. PWS 121 Vincent v. Lake Erie Transp.

No nominal damages What good is an incomplete Property owner deprived privilege? of own privileges (e.g. defense of property

Privilege 8: Police Authority Court order of confinement mental of Law institution Rest.2d 147(1) Privilege 9: A parent is privileged to apply . . . force or . . . confinement . . . reasonably Discipline believes to be necessary for [child’s] proper control, training, or education.

Rest.2d 147(2) One other than a parent . . . Privilege 10: given . . . the function of controlling, training, or educating . . . is privileged . . . Justification except in so far as the parent has restricted the privilege . . .

PWS 128 Generic, catchall privilege Sindle ƒ Unfair to hold DEF liable v. ƒ But no traditional privilege applies NYC Transit Midterm Exam

WHEN: Fri. Oct. 14, 2011 Open book not easier 10:00 – 11:15 a.m. Timing is tight 75 minutes No time to look up WHAT: Completely open book Bring any printed rules materials

Do not study less Emotional comfort Multiple choice only To jog what is already Essay in head Multiple choice Essay 10 questions 1 question 3 minutes each 45 minutes

Total time Total time 30 of 75 minutes 45 of 75 minutes 20 of 48 points 28 of 48 points

Weeks before the exam

Outline Practice Ideally after each Pope’s old exams unit of material Others Know your outline Deep breath Check time During E.g. multiple choice = 3min Do not spend 10 min on just one the exam Points max out – no “extra” Cannot compensate for lack of time elsewhere

Answer questions in order Read “call” of the question first

Otherwise Is it a “one theory” question or You may forget to come back an “anything goes” question May screw up timing Exception: you cannot make Frames how you read the heads or tails question 1. Read the question Make sure you get the facts correct Make sure you notice all facts that might 2. Read the question Raise an issue Foreclose an issue 3. Re-read the question Change the way issue is analyzed

Objectives For essay problems, spend ¼ of your time outlining your answers on scratch Knowledge Makes sure you do not forget to Understanding discuss an issue or sub-issue Critical reading Makes sure you stay on point Problem solving Makes sure answer is organized Judgment Expression

Think of your audience as Issue spotting a smart non-lawyer client Somewhat difficult without practice In class, often deal with one issue at They know the facts a time Do not know the law Casebook cases are edited to present a single issue Have a master checklist All doctrines, rules Run through to see if applicable to the facts

Most points lost by completely Battery Æ assault missing issues Conversion Æ trespass chattel

Do on scratch paper first Show each step in your

Generally best to organize by legal analysis doctrine Be explicit And make any Be complete counterargument right then Be clear

Identify theory Elements not clear Show why satisfied, point to Elements clearly satisfied facts Show why satisfied, point to facts Show why not satisfied, point to facts Can spend less time on these – but do not skip altogether Conclusion Do not restate the facts Do not state legal conclusions without reasons Do not just state the law Do not figure out p.18 of your The right conclusion is NOT the right answer outline applies Signals that you are doing legal analysis And then just copy p.18 into the Because Even if answer book However Similarly And then baldly assert a conclusion Alternatively In contrast Likewise

Citation of authority Signals that you are too conclusory: Clearly Obviously Not necessary

Lay out arguments and counter- More relevant arguments Explain the principle But also indicate their relative strength And how it applies to the and weakness fact pattern

Style & Format Use headings After Use paragraphs If you have time the exam Underline or highlight key words Later in October Check answers On the TWEN site Fix punctuation and grammar ƒ Exam Clarify what might have been stated ƒ Score sheet I will email your too casually ƒ Model exams exam upon request ƒ Grades Expand what might have been too ƒ Grade distribution I will respond to compressed questions not resolved by score sheet Sindle Unclear application of discipline TortsTorts or authority of law Professor Pope DEF should have been permitted to plead & prove Class 15: Sept. 23, 2011 justification

I HOC I IA- HOC Reas Mr. Drysdale and Miss Jane, walking on a country HOC Appreh road, were frightened by a bull running loose on the road. They climbed over a fence to get onto the IHOC adjacent property, owned by Clampet. After Battery climbing over the fence, Drysdale and Jane 1 damaged some of Clampets's plants which were near the fence. The fence was posted with a large way x sign, "No Trespassing." Clampet saw Drysdale and Jane and came toward them with his large watchdog Assault on a long leash. The dog rushed at Miss Jane. Jed 1 had intended only to frighten Drysdale and Jane, but the leash broke, and before Jed could restrain the way x dog, the dog bit Jane.

Battery? Assault?

No, because Jed did not intend to cause Yes, if Mr. Drysdale reasonably believed that any harmful contact with Miss Jane. the dog might bite him No, if Jed was trying to protect his property No, because Miss Jane made an unauthorized entry on Jed's land. No, if the dog did not come in contact with him.

Yes, because Jed intended that the dog Yes, because the landowner did not have a frighten Miss Jane. privilege to use excessive force. Drysdale for damage to plants?

Yes, because Miss Jane and Mr. Drysdale entered on his land without permission. Essay Yes, because Jed had posted his property with a "No Trespassing" sign.

No, because Miss Jane and Mr. Drysdale were confronted by an emergency situation. Writing No, because Jed used excessive force toward Miss Jane and Mr. Drysdale.

Theory Elements Relevant Arguments Facts PA Bar Exam

Trespass Essay Problem to chattel

Conversion

Theory Elements Relevant Arguments Facts Al may have a trespass Trespass 1. Intent be to land 2. And on to land PTF land Trespass 1. Intent to None t/f against Ned. Ned to chattel 2. And take or damage intentionally entered Conversion 1. Intent to None t/f 2. And Al's land. serious TD BAD I believe that this would Ned's cause of action in be a sure winner for Al. negligence against Al There is plenty of would not be successful. . . . . evidence to show that Ned physically trespassed It should be Al instead of on Al's land. Ned suing for anything. BAD BAD

A trespass to a chattel may be committed by intentionally When Ned stepped into Al's dispossessing another of the coyote trap and then disengaged chattel, or by using or it to set his foot free, he intermeddling with a chattel in intentionally dispossessed Al the possession of another. of its use Restatement Torts 2d § 217 ok BAD

Ned never found a turkey so The interference can be any even though he was trying to physical contact with the hunt Al's turkeys, he did not chattel in a quantifiable way, find out. And Ned never any dispossession of the chattel dispossessed Al of his coyote or intermeddling with the trap because it is never chattel. (a) Ned intermeddled mentioned that he broke it or took it. with Al's coyote trap. BAD BAD Al could sue Ned for trespass to land there are damages resulting because he entered Al's land without from the conversion (a) If permission. Al could sue Ned for upon entering Al's property trespass to chattel because Al "used without permission, Ned may and intermeddled" with Ned's trap have damaged Al's coyote that he set to catch the coyote. The trap by when he stepped on trap was Al's personal property and it. Ned intermeddled with it when he stepped into it. BAD BAD

in trespass to chattel. Al will I believe that Al would be able have to show nominal to bring three additional causes damages in order to collect, of action against Ned in a civil that the trap's quality or value suit. These three causes of action was diminished or he was are: trespass to land, trespass to deprived of it for a substantial chattels, and conversion. amount of time. NICE Extra BAD

First we will cover the cause of action for Applying these two elements to our facts, trespass to land. A trespass to land offense it is clear that Ned intentionally entered requires only two actions. First, the Al's land without permission. It is also offender must intentionally enter the very likely that Ned remained on Al's land Plaintiff's land without permission. Second, without the right to be there, because Al the offender must either remain on the had posted very clear warnings across his Plaintiff's land without the right to be there, land that hunters were not allowed on the or the offender must put an object on or property. It is very likely that Al would prevail against Ned under a trespass to refuse to remove an object from the land. land action. OK Nice format (ok content) Ned might assert that he had good reason to be there as he had lost his job and needed to provide food for his family.

So what