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Intentional Torts Instructions Given to Nevada Jurors

CHAPTER 6 - INTENTIONAL TORTS INSTRUCTIONS

INTENTIONAL TORTS INSTRUCTION 6IT.1:

ASSAULT: DEFINITION

“Assault” is intentionally placing another person in reasonable apprehension of immediate bodily harm.

SOURCE/AUTHORITY

NRS 200.471

INTENTIONAL TORTS INSTRUCTION 6IT.2:

BATTERY

A “battery” is any willful and unlawful use of force or violence upon the person of another.

SOURCE/AUTHORITY

NRS 200.481.

INTENTIONAL TORTS INSTRUCTION 6IT.3: SELF-DEFENSE BY FORCE THREATENING DEATH OR SERIOUS BODILY HARM

Actual danger is not necessary to justify a killing or self-defense. A person has a right to defend from apparent danger to the same extent as[he] [she] would from actual danger. The person is justified in using deadly force if:

  1. [He] [she] is confronted by the appearance of imminent danger which arouses in [his] [her] mind an honest belief or fear that [he] [she] is about to be killed or suffer great bodily injury; and

  2. [He] [she] acts solely on these appearances and actual beliefs; and

  3. A reasonable person in a similar situation would believe [himself] [herself] to be in like danger.

The killing is justified even if it develops afterward that the person killing was mistaken about the extent of the danger.

SOURCE/AUTHORITY

Harkins v. State, 122 Nev. 974, 143 P.3d 706 (2006), citing Runion v. State, 116 Nev. 1041, 1050, 13 P.3d 52, 58 (2000).

INTENTIONAL TORTS INSTRUCTION 6IT.4: FALSE IMPRISONMENT

In order to sustain a claim of false imprisonment, plaintiff must prove:

  1. Defendant intended to confine the plaintiff within boundaries fixed by the defendant;

  2. The defendant's act directly or indirectly resulted in the confinement of the plaintiff; and

  3. The plaintiff was conscious of the confinement or harmed by it.

False imprisonment arising from a false arrest occurs when the claimant's liberty is restrained under the probable imminence of force without any legal cause or justification.

SOURCE/AUTHORITY

Jordan v. State ex rel. Dept. of Motor Vehicles and Public Safety, 121 Nev. 44, 69, 110 P.3d 30, 48 (2005); RESTATEMENT (SECOND) OF TORTS' 35 (1965); CF. Cagno v. Gaughan, 2004 WL 3397504 (D. Nev. Aug. 10, 2004).

INTENTIONAL TORTS INSTRUCTION 6IT.5: FALSE IMPRISONMENT: DEFINITION

“False imprisonment” is the withholding of the freedom of movement of a person by force or threat of force. Submission to mere verbal direction of another unaccompanied by force or threats of any character does not constitute false imprisonment.

SOURCE/AUTHORITY

NRS 200.460; Jensen v. Sheriff, White Pine County, 89 Nev. 123, 508 P.2d 4 (1973); Moen v. Las Vegas Intern. Hotel, Inc., 90 Nev. 176, 521 P.2d 370 (1974).

INTENTIONAL TORTS INSTRUCTION 6IT.6: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:

ELEMENTS

To prove a claim of intentional infliction of emotional distress plaintiff must prove each of the following elements by a preponderance of the evidence:

  1. The defendant or defendants engaged in extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress;

  2. The plaintiff suffered severe or extreme emotional distress;

  3. The emotional distress was [actual or] proximately caused by defendant's conduct; and

  4. Plaintiff suffered damages.

SOURCE/AUTHORITY

CF Kraus v. Clark County, 2006 WL 3252619 (D. Nev. Nov. 2, 2006); Shoen v. Amerco, Inc., 111 Nev. 735, 747, 896 P.2d 469, 476 (1995).

USE NOTE

In cases where emotional distress damages are not secondary to principal injuries, but rather precipitate physical symptoms, either a physical impact must have occurred, or, in the absence of a physical impact, proof of serious emotional distress causing physical injury or illness must be present. Olivero v. Lowe, 116 Nev. 395, 995 P.2d 1023 (2000). Recovery on the part of a third party witness to an outrageous act is permitted if that third party is a close relative of the person against whom the outrage was directed. RESTATEMENT (SECOND) OF TORTS, § 46(2); Star v. Rabello, 97 Nev. 124, 625 P.2d 90 (1981).

INTENTIONAL TORTS INSTRUCTION 6IT.7:ABUSE OF PROCESS

The plaintiff seeks to recover damages based upon a claim of abuse of process. The elements of an abuse of process claim are:

  1. An ulterior purpose by the defendant[s] other than resolving a legal dispute; and

  2. A willful act in the use of the legal process not proper in the regular conduct of the proceeding.

SOURCE/AUTHORITY

LaMantia v. Redisi, 118 Nev. 27, 38 P.3d 877 (2002).

INTENTIONAL TORTS INSTRUCTION 6IT.8: MALICIOUS PROSECUTION

Another of plaintiff's claims in this matter is based on malicious prosecution. For this claim, plaintiff has the burden of proving each of the following:

  1. Lack of probable cause to commence the prior criminal proceeding;

  2. Malice;

  3. Termination of the prior criminal proceeding in plaintiff’s favor; and

  4. Damages.

[Malice means an evil intent, wish or design to vex, annoy or injure another person. Malice may be implied if defendants acted in willful disregard of the rights of plaintiff, or wrongfully acted without just cause or excuse, or acted or omitted a duty betraying the willful disregard of a social duty. Malice does not necessarily require intentional conduct.]

[For malicious prosecution, you must determine whether, on the basis of the facts known to the defendant, at the time of the prior action, whether a reasonable defendant would have believed that the institution of the prior action was legally tenable. The standard is objective rather than subjective. The degree of expertise and the belief of the defendant are not relevant.]

[A malicious prosecution claim requires that the defendant initiated, procured the institution of, or actively participated in the continuation of a criminal proceeding against the plaintiff.]

SOURCE/AUTHORITY

LaMantia v. Redisi, 118 Nev. 27, 38 P.3d 877 (2002); Lester v. Buchanen, 112 Nev. 1426, 1428, 929 P.2d 910, 912 (1996); Dutt v. Kremp, 111 Nev. 567, 571-72, 894 P.2d 354, 357 (1995); Ewish v. State, 6.11 110 Nev. 221, 229 n. 4, 871 P.2d 306, 312 (1994); CF Cagno v. Gaughan, 2004 WL 3697504 (D. Nev. 2004).

INTENTIONAL TORTS INSTRUCTION 6IT.9: CIVIL CONSPIRACY

To prove a claim of civil conspiracy, plaintiff has the burden of proving each of the following:

  1. Two or more persons or entities, who, by some concerted action, intended to accomplish an unlawful objective for the purpose of harming plaintiff; and

  2. Plaintiff suffered damages as a result of this act or acts.

SOURCE/AUTHORITY

Consolidated Generator-Nevada, Inc. v. Cummins Engine Co., Inc., 114 Nev. 1304, 971 P.2d 1251 (1998); Hilton Hotels Corp. v. Butch Lewis Productions, Inc., 109 Nev. 1043, 1048, 862 P.2d 1207, 1210 (1993), citing Collins v. Union Federal Savings & Loan Ass’n, 99 Nev. 284, 303, 662 P.2d 610, 622 (1983).

INTENTIONAL TORTS INSTRUCTION 6IT.10: DEFAMATORY COMMUNICATION: DEFINITION

A communication is defamatory if it tends so to harm the reputation of the plaintiff as to lower [him] [her] in the estimation of the community or to deter third persons from associating or dealing with [him] [her]. Words or conduct or the combination of words and conduct can communicate defamation.

SOURCE/AUTHORITY

K-Mart Corp. v. Washington, 109 Nev. 1180, 866 P.2d 274 (1993).

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