1 Intentional Torts Flashcards
Question 1461 (MBE Exam #3 AM)
In a bicycle race with a $5,000 prize for the winner, a cyclist was leading by a significant margin. A spectator at the race was married to the second place rider. Sensing that her husband would not win unless she took action, the spectator drove to a point two miles ahead on the course, scattered several nails in the middle of the course, and then left the area. Soon thereafter, the cyclist approached the area and noticed the nails. He attempted to swerve around the obstruction but a nail punctured his tire. He fell off his bike, suffered significant physical injuries, and was unable to complete the race.
If the cyclist sues the spectator, under what theory is the cyclist least likely to recover maximum punitive damages?
A. Assault
B. Intentional infliction of emotional distress
C. Trespass to chattels
D. Battery
B. Intentional infliction of emotional distress
Answer choice B is correct. To sustain a claim of intentional infliction of emotional distress, a plaintiff must prove that the defendant intended to cause severe emotional distress, or acted with recklessness as to the risk of causing such distress. The claimed conduct must be extreme and outrageous, and the plaintiff must suffer severe emotional distress. Here, there is no factual evidence that the bicyclist suffered severe emotional distress. A plaintiff can recover punitive damages in assault, battery, and trespass to chattels claims, if the defendant’s behavior is willful and wanton, reckless, or if the defendant acted with malice. Here, the facts suggest such a situation, as the spectator was attempting to knock the cyclist out of the race. For these reasons, answers A, C, and D are incorrect.
Question 1443 (MBE Exam #3 AM)
A pregnant mother and a soccer coach of the mother’s young child were involved in a serious verbal altercation. The argument continued escalating until the coach suddenly punched the mother in the face and pushed her to the ground. The coach immediately fled the area. The mother did not suffer serious physical injury. Nonetheless, the incident greatly traumatized her. In the weeks following the attack, she had many sleepless nights and suffered several panic attacks. The mother brought suit against the coach for intentional infliction of emotional distress. The coach filed a motion for summary judgment. How should the court rule on the motion?
A. Grant the motion, because the coach did not intend to cause severe emotional distress.
B. Grant the motion, because the mother did not suffer a significant physical injury.
C. Deny the motion, because a jury could find that the coach was reckless as to the risk of causing emotional distress.
D. Deny the motion, because the doctrine of transferred intent applies.
C. Deny the motion, because a jury could find that the coach was reckless as to the risk of causing emotional distress.
Answer choice C is correct. To sustain a claim of intentional infliction of emotional distress, a plaintiff must prove that she suffered severe emotional distress as a result of the defendant’s conduct, that the defendant intended to cause severe emotional distress, or acted with recklessness as to the risk of causing such distress, and that the defendant’s conduct was extreme and outrageous. Here, a reasonable fact finder could determine that the coach acted recklessly as to the risk of causing the mother severe emotional distress, and that his conduct was extreme and outrageous. Consequently, the court should deny the motion for summary judgment.
Answer choice A is incorrect because recklessness is sufficient to satisfy the intent requirement.
Answer choice B is incorrect because the physical manifestation requirement only applies to bystanders and is not implicated in this fact pattern.
Answer choice D is incorrect. The traditional doctrine of transferred intent does not apply to intentional infliction of emotional distress when the defendant intended to commit a different intentional tort (such as a battery) against a different victim. However, transferred intent may apply to intentional infliction of emotional distress if, instead of harming the intended person, the defendant’s extreme and outrageous conduct harms another. Here, transferred intent does not apply because the soccer coach’s conduct harmed the mother, who was the intended victim.
Question 1463 (MBE Exam #3 PM)
A borrower owed a substantial sum of money to an unsavory lender. One afternoon, the lender knocked on the borrower’s door. When the borrower opened the door, the lender was holding a baseball bat and said, “If you don’t get me the money you owe within the next two hours, I’ll break your legs.” The borrower was extremely frightened, and immediately gave the lender the cash needed to satisfy the debt.
If the borrower later sues the lender for assault, will the borrower prevail?
A. Yes, because the lender threatened the borrower with harmful or offensive bodily contact.
B. Yes, because the lender intended to place the borrower in apprehension of harmful or offensive bodily contact.
C. No, because the lender’s words alone cannot give rise to an assault claim.
D. No, because the lender gave the borrower two hours to deliver the money.
Answer choice D is correct. To recover for assault, a plaintiff must prove that the defendant’s intentional action or threat caused the plaintiff to experience reasonable apprehension of an imminent harmful or offensive bodily contact. Here, the lender threatened the borrower with harm two hours later in time; thus, the threatened harmful bodily contact was not imminent, and an assault claim cannot prevail.
Answer choice A is incorrect because although the lender threatened the borrower with harmful or offensive bodily contact, the threat was not imminent.
Answer choice B is incorrect because while the lender intended to place the borrower in apprehension of harmful or offensive bodily contact, the requisite intent for assault, the lender’s words and conduct did not create the apprehension of an imminent contact.
Answer choice C is incorrect because, while words alone generally do not constitute an assault, they may be sufficient if coupled with conduct or other circumstances. The lender’s words along with his conduct (i.e., carrying a baseball bat) are sufficient to constitute an assault.
A driver was injured when one of the tires on her car ruptured, causing the car to veer off the road. The rupture resulted from a defect in the tire that existed at the time it was sold by the manufacturer to a retailer, who sold it to the driver and installed it on her car.
The driver sued the manufacturer on a strict products liability theory. During discovery, the driver’s attorney obtained a memorandum that had circulated among engineers employed by the manufacturer. The memorandum acknowledged that undetectable defects would cause ruptures in approximately one out of every 10,000 tires sold. The manufacturer sells approximately 10 million tires per year.
After discovering this memorandum, the driver’s attorney filed a timely amended complaint, adding a claim for battery. The manufacturer has moved for partial summary judgment, seeking dismissal of the battery claim, based on the undisputed facts set out above.
If no additional facts are provided to the court concerning the risk of tire rupture, should the court grant the motion?
A. No, because the evidence would permit a reasonable jury to conclude that a responsible manufacturer would have taken greater care to prevent ruptures.
B. No, because the evidence would permit a reasonable jury to conclude that the manufacturer knew to a substantial certainty that consumers would be injured by tire ruptures.
C. Yes, because a battery claim is inconsistent with a claim for strict products liability.
D. Yes, because the driver cannot establish that the manufacturer intended or knew to a substantial certainty that its placement of the tire into the stream of commerce would cause her to suffer a harmful or offensive contact.
D. Yes, because the driver cannot establish that the manufacturer intended or knew to a substantial certainty that its placement of the tire into the stream of commerce would cause her to suffer a harmful or offensive contact.
A court should grant a motion for partial summary judgment when there is no genuine issue of material fact and the evidence is legally insufficient for a reasonable jury to find in the nonmovant’s favor, so the movant is entitled to judgment as a matter of law. A battery claim requires legally sufficient evidence that the defendant (1) intended to inflict harmful or offensive contact (or create imminent apprehension thereof) and (2) caused such contact with the plaintiff. The intent requirement is met if the defendant acted with either:
purpose – the desire to cause harmful or offensive contact or imminent apprehension thereof or
knowledge – the substantial certainty that such contact or apprehension will result.
Here, a memorandum circulated among the manufacturer’s engineers shows that the manufacturer was aware that there was a slight risk that defects could cause its tires to rupture and harm consumers. However, this evidence is legally insufficient for the driver to establish that the manufacturer intended or knew to a substantial certainty that placing the tire into the stream of commerce would cause the driver harmful or offensive contact. Therefore, the court should grant the manufacturer’s motion for partial summary judgment to dismiss the battery claim.*
*The motion for partial summary judgment only concerns the battery claim, so the driver can still recover under her strict products liability claim.
(Choice A) The evidence may permit a reasonable jury to conclude that a responsible manufacturer would have taken greater care to prevent ruptures. However, this would show that the manufacturer acted negligently—not intentionally.
(Choice B) The memorandum acknowledges that defects would cause ruptures in approximately 0.01% of the manufacturer’s tires. However, this slight risk does not allow a reasonable jury to conclude that the manufacturer knew to a substantial certainty that consumers would be injured by tire ruptures.
(Choice C) A plaintiff may assert multiple claims in the same action based on the same set of facts, even if the claims are inconsistent. As a result, the driver may assert both battery and strict products liability claims.
Educational objective:
For battery, intent exists when the defendant acts with the purpose or knowledge to a substantial certainty that harmful or offensive contact, or imminent apprehension thereof, will result.
References Restatement (Third) of Torts § 1 (Am. Law Inst. 2010) (defining intent).
Restatement (Second) of Torts § 13 (Am. Law Inst. 1965) (setting forth the elements of battery by harmful contact).
Question 5972 MIX MBE PQ S4
A plaintiff was on a crowded subway train during rush hour. The subway line was undergoing significant renovations, resulting in frequent, sudden stops by the subway trains. The plaintiff was standing in the middle of one of the subway cars and holding onto a pole for stability. The defendant, also standing in the subway car, was texting on his cell phone and not holding onto anything. The subway train came to a sudden stop causing the defendant to fall toward the plaintiff. The defendant lightly grabbed the plaintiff’s arm to stop himself from falling completely over. The plaintiff did not like being touched by anyone as she had been in an abusive relationship in the past. Although she was not injured by the defendant’s conduct, the plaintiff subsequently brought an action for battery against the defendant.
Will the plaintiff prevail?
A No, because the plaintiff consented to the defendant’s contact.
B No, because the plaintiff did not suffer any actual harm.
C Yes, because the defendant failed to exercise reasonable care.
D Yes, because the defendant intentionally grabbed her arm.
Answer choice A is correct. There is no battery if the plaintiff consented to the act, either expressly or by virtue of participating in a particular event or situation (such as being bumped on a crowded subway). In this case, the plaintiff chose to ride a crowded subway train. By making that decision, she implicitly consented to the ordinary contacts that can occur in that situation. The defendant lightly grabbing her arm to prevent himself from falling is within the type of contact that is typical on a crowded subway train. In addition, although the plaintiff found the contact offensive, a contact is only offensive when a person of ordinary sensibilities (i.e., a reasonable person) would find the contact offensive (objective test). Answer choice B is incorrect because proof of actual harm is not required to recover for battery. Answer choice C is incorrect. While the defendant’s failure to exercise reasonable care would be relevant to a negligence claim, it is not relevant to a claim for battery. Answer choice D is incorrect. The fact that the defendant intentionally grabbed the plaintiff’s arm to prevent his fall is not enough to impose liability for battery. Here, the contact was neither harmful nor offensive. In addition, the plaintiff impliedly consented to the contact.
