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Analytical Method

Analytical Method. Use IRAC (or similar) to organize presentation of analysis Provide definitions (workable ones with “magic words”) whenever possible Use rules & definitions (including prima facie elements) to organize thinking and points made within presentation

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Analytical Method

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  1. Analytical Method Use IRAC (or similar) to organize presentation of analysis Provide definitions (workable ones with “magic words”) whenever possible Use rules & definitions (including prima facie elements) to organize thinking and points made within presentation Be as thorough as possible tracking all parts of the relevant rule set Applications of fact should be as explicit as possible, make no assumptions and clearly express reasons for all conclusions (for all parts of the rules)

  2. Summary of Intentional Torts • Prima Facie Elements – those things (facts) P must show in every case in order to win (plead, provide sufficient facts to get to jury and then prove by preponderance) • E.g., Cause of Action for Battery: Intent, Harmful or Offensive Contact, to another person (includes causation but rarely an issue w/ intentional torts) • NB: Variations in how prima facie case is defined eg “voluntary act”…. “against will”…. “unauthorized entry” may be seen as part of PF case or as a defense • Significance is on pleading and burdens of proof • NB: sub-definitions and nuances in application • E.g., what is harmful contact? (sufficient to cause pain/or injury); offensive contact? Person of another? etc

  3. Intent • Defined as: purpose (desire) (subjective) or Substantial Certainty (objective) of prohibited result/consequence…eg: the harmful contact, confinement, entry onto land, etc • Vs risk…even highly probable risk • the sliding scale of risk determines type of tort/ wrongfulness negligent risks (foreseeable but not necessarily known to P…unintended harms)…recklessness (consciously disregard high probability)….substantial certainty (same as purpose….presumed to be intended harm) • Intent related doctrines: • Eggshell P • Transferred intent • Insanity • Mistake

  4. The intentional tort causes of action? • Assault : intentionally cause, well-founded apprehension, imminent battery (harmful or offensive contact)…variations might include “apparent ability to touch” but implicitly part of “well-founded” requirement • F.I. ? • Trespass to land? • Conversion? • Trespass to Chattels? • IIED? • NB: the prima facie elements of the cause of action are just the starting points of analysis: essential to cover each element but you must also consider nuances in application gleaned from cases and notes

  5. General defenses • Consent • Complete defense • can be express or reasonably implied (objective standard) • knowing (negated by unilateral mistake induced by fraud/deceit) • Can be limited in space and time/qualified with conditions/ withdrawn • capacity  • Privileges • s.d./defense of others • protect property • recover chattel • necessity • Other more general privileges possible (custody, discipline, legal authority) • Mistakes (typically retain privilege for reasonable mistake but not always!)

  6. ANALYTICAL FRAMEWORKS & ISSUE SPOTTING • Taking cues from the cases & notes develop frameworks (or decision trees) for common issue sets…and even overall approach to subject • e.g., who did what to whom…who was injured…what type of harm (intentional or risk taking/negligence)…any applicable defenses or exceptions…id prima facie elements and address each in turn… giving and using appropriate definitions/sub-rules as relevant

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