Intentional Torts

Question 1

Battery Elements

Answer 1

(1) the actor intends to cause a contact with another person and that contact results
(2) The contact is harmful or offensive
(3) The contact is not consented to

Question 2

Assault Elements

Answer 2

(1) The actor intends to cause a harmful or offensive contact OR an imminent apprehension of a harmful or offensive contact
(2) The other person is put in imminent apprehension of a harmful or offensive contact

Question 3

False Imprisonment Elements

Answer 3

(1) The actor intends to confine plaintiff or a third person within the boundaries fixed by the actor
(2) The actors conduct directly or indirectly results in the confinement of the plaintiff or a third person
(3) The plaintiff is aware of the confinement or harmed by it

Question 4

Intentional Infliction of Emotional Distress Elements

Answer 4

(1) The defendant acted intentionally or recklessly to produce plainitff’s severe emotional distress
(2) The defendant’s conduct was extreme and outrageous; and
(3) The defendant’s conduct caused (but for) plaintiff’s severe emotional distress

Question 5

Trespass to Land Elements

Answer 5

(1) Defendant intentionally enters land in the possession of another or causes a thing or a third person to do so; OR
(2) Intentionally remains on the land; OR
(3) Fails to remove from the land a thing that he is under a duty to remove

Question 6

Trespass to Chattel Elements

Answer 6

(1) The intentional interference with or dispossession of another’s personal property that results in injury, damage, loss of use, or harm of the chattel

Question 7

Conversion Elements

Answer 7

(1) The intentional interference with or dispossession of the personal property of another that results in injury, damage, loss of use, or harm of the chattel

(2) Must seriously interfere in the true owners right to control the chattel depending on:
(a) The extent and duration of the actor’s control
(b) Actors intent to assert a right of control inconsistent with the other’s right of control
(c) The actor’s good faith
(d) The extent and duration of the resulting interference
(e) The harm done to the chattel
(f) The inconvenience and expense caused to the true owner

Question 8

Intent Elements

Answer 8

(1) Defendants act with the purpose of causing the outcome
(2) Defendant acts with substantial certainty that the outcome will result (98% certainty)

• Intent is subjective to the defendant, but is measured by circumstantial evidence
• Age, mental illness, and lack of common sense or intelligence do not dismiss the defendant from liability, only factors considered in determining whether the defendant had the ability to formulate intent in their mind

Question 9

Respondeat Superior definition and elements

Answer 9

A form of vicarious liability which holds employers liable for their employee’s tortious conduct if:

(1) The employee is working within the scope of their employment by performing assigned work to further the purpose of the employer

(2)The employee is not an independent contractor and is subject to the control of the employer
(a) Apparent authority exception: where the would-be employer does something that a reasonable person would understand to be a manifestation of intent to give the independent contractor authority to act on the employers behalf, then the would-be employer may be liable for the independent contractor’s tortious acts

Question 10

Shopkeeper’s Privilege

Answer 10

Often used as a defense in cases of false imprisonment but there must be a statute

(1) Doctrine of Hot Pursuit: shopkeeper may detain suspects but must be correct about whether suspect actually stole otherwise they, and the store (through respondeat superior), may be charged with false imprisonment
(b) Shopkeeper Privilege statute exception: If a shopkeeper has a reasonable belief that a theft may have occurred, the shopkeeper may detain the suspect in a reasonable manner for a reasonable time to investigate ownership of the property

(2) Citizen’s Arrest: a citizen may detain a suspected thief if he sees the crime happening, but he/she must be correct about whether they actually stole otherwise they may be charged with false imprisonment

Question 11

Unintended Tort

Answer 11

If the underlying act, if completed, would have been a tort, the actor’s intent is said to “transfer” to unintended torts that result from his/her conduct

Question 12

Unintended Victim

Answer 12

If the underlying act, if completed, would have been a tort, and the actor inadvertently harms another person, his/her intent to harm the intended victim is said to “transfer” to the unintended victim

Question 13

Intentional but mistaken victim

Answer 13

If the underlying act, if completed, would have been a tort, and the defendant mistakes the victim for someone else, his/her intent is said to “transfer” to the mistaken victim

Question 14

Eggshell Plaintiff

Answer 14

Defendant is liable for all harm or offense that results from his conduct, even though it was not foreseeable due to the plaintiff’s increased susceptibility to injury

Question 15

Dual vs Single Intent Jurisdiction

Answer 15

Largely applies to battery

Single Intent jurisdiction: defendant is only required to intend the contact, defendant need not know the extent of the harm or intend the outcome to be harmful

Dual Intent jurisdiction: defendant must intend the contact and intend that the contact be harmful or offensive

Question 16

Battery – Indirect vs Direct Contact

Answer 16

Contact doesn’t have to be with that person’s body as long as the contact is with something on or closely identified with the person

Indirect contact: A defendant may still be liable for indirect contact made with the plaintiff by setting something in motion that contacts and harms or offends the plaintiff

Question 17

Battery – Harmful or Offensive contact

Answer 17

(1) Contemporaneous awareness is not required → may discover the harm or offensiveness later and still recover

(2) Harmful: anything resulting in physical injury or ailment

(3) Offensive Contact:
(a)The contact offends a reasonable sense of personal dignity
- Some courts may find a battery during a “window of anxiety” between tests and results
- Although someone may actually be offended, it may not be reasonably offensive based on norms, customs, science, etc.
(b) The contact is highly offensive to the plaintiff’s unusually sensitive sense of personal dignity, and the actor was put on notice of that unusual sensitivity
- Exception: if it would be unduly burdensome
- Exception: if it violates public policy

Question 18

Imminent apprehension of harmful or offensive contact

Answer 18

(1) Contemporaneous awareness is required because the apprehension must be imminent, or about to happen

(2) It must be a reasonable apprehension such that a reasonable person would believe that they were going to be contacted, regardless of whether the actor intended to follow through with the contact

(3) It doesn’t matter whether the actor had the actual ability to complete the contact, as long as they had the apparent ability to

(4) Words alone typically cannot constitute assault, but threatening words with ANY physical action or physical action alone can

(5) Conditional threats may constitute an assault as well, as long as the contact or apprehension thereof is imminent

Question 19

Assault – Legal right to something

Answer 19

(1) If the defendant does not have a legal right to what they are asking for, then they may not use any force or threat of force, and if they do it will likely constitute an assault

(2) If the defendant has a legal right to what they are asking for they may use reasonable force to get it, but anything beyond that may constitute as an assault

Question 20

False Imprisonment transferred intent

Answer 20

(1) Intent may be transferred from other intentional torts that results in confinement of the plaintiff

(2) Intent may also be transferred to a third person that ends up being confined

Question 21

False Imprisonment Confinement

Answer 21

There must be no reasonable means of escaping and the plaintiff must reasonably believe that they cannot leave
- The bigger the area plaintiff is confined to, the less likely a court will find false imprisonment
- Contemporaneous awareness of the confinement, but not of harm is required

(1) Physical blocking of access or restraining of someone

(2) Unlawful threats against plaintiff’s property if a reasonable person wouldn’t feel free to leave

(3) A threat of violence towards the plaintiff or a loved one

(4) Moral persuasion; threat of being fired from a job; economic, social, or reputational harm typically won’t constitute confinement

Question 22

Application of IIED

Answer 22

(1) Courts narrowly construe IIED claims in order to protect socially useful conduct that nevertheless may cause emotional harm
(a)Exception: common carriers and innkeepers are held to a high standard of care, so courts are more likely to find that the tort of IIED occurred

Question 23

IIED intentionally or recklessly

Answer 23

(1) Defendant acts with the purpose or substantial certainty of causing severe emotional distress, OR

(2) Defendant deliberately disregards a high probability that severe emotional distress will follow from the act

Question 24

Transferred intent in IIED is limited to

Answer 24

(1) Plaintiff is a family member of the victim (of another intentional tort)
(2) Plaintiff was present during a different intentional tort committed by defendant against another
(3) Plaintiffs presence was known to the defendant

Question 25

IIED Extreme and outrageous conduct

Answer 25

Extreme and outrageous: utterly intolerable conduct in society (very high standard)

(1) More likely when the defendant is in a position of authority or knows that the plaintiff is vulnerable to emotional distress
(2) Marital infidelity, abusive language and insults, and other hurtful speech is typically not extreme and outrageous
(3) Racial slurs especially at work, repeated or continuous undesirable acts, and acts of violence or threats of physical violence are typically considered extreme and outrageous
(4) Whether the 1st Amendment applies depends on whether the speech is of public or private concern→ public if it relates to any matter of political, social, or other community concerns

Question 26

IIED Severe emotional distress

Answer 26

Severe emotional distress: distress that no reasonable person should be expected to endure (PTSD, suicidal ideation, mental psychotic breaks, and severe physical symptoms)

(1) Requires actual injury→ courts look at how the person was before and after the conduct
(2) Depression, anxiety, nervousness, muscle twitches, embarrassment, loss of appetite, and lack of sleep are typically not enough
(3) Defendants typically argue that their conduct didn’t cause the emotional distress because the plaintiff already suffered from the symptoms before

Question 27

Trespass to Land Intent

Answer 27

(1) The defendant must have the intent to be where they are at
(2) Even if the defendant mistakes the land to be someone else’s, but intends to be there, he/she still trespassed→ defendant need not know they are trespassing
(3) Mineral estate: ownership of subsurface vs. Surface estate: ownership of surface land

Question 28

Traspass to land – Failure to remove

Answer 28

The continued presence of a structure, chattel, or other thing which the defendant placed upon the land with a privilege or with consent from the plaintiff results in a trespass if the defendants fails to remove that thing after the consent or privilege expires

Question 29

Trespass to Chattel and Conversion – Intent

Answer 29

(1) Only need the intent to take the chattel, not intentionally interfere in another’s personal property, for trespass to chattel
(2) Mistaking something as yours does not negate intent
(3) Knowingly interfering with another’s property, or acting in bad faith, is likely to constitute conversion

Question 30

Trespass to Chattel – Damages

Answer 30

(1) plaintiff can only recover the value of the actual damage caused to the chattel

Question 31

Conversion – Damages

Answer 31

Plaintiff may chose between

(1) recovering the chattel and receiving the value of the harm caused to it, or
(2) letting the defendant keep the chattel and recovering it’s fair market value

Question 32

Privilege

Answer 32

Defendant is privileged when they have no duty to refrain from acting in a certain way, although they otherwise would, given the circumstances
(shopkeeper’s privilege, self defense, defense of others, defense of property, necessity)

Question 33

Consent

Answer 33

A legal privilege for the defendant to act in a way that would otherwise be prohibited based on the plaintiff’s subjective willingness in fact for that conduct to occur
(1) It can be expressed verbally (actual consent) or nonverbally (apparent consent)
(2) Consent to some conduct does not equal consent to all conduct
(3) A person may withdraw their consent at any time, regardless of their history or reason

Question 34

Apparent consent

Answer 34

Courts measure consent based off of the plaintiff’s overt action or inaction, not their unexpressed feelings
(1) If a reasonable person would understand the plaintiff’s action or inaction to be consent then they will be said to have consented
- Exception: where it appears that the plaintiff was overcome by the circumstances and didn’t have a choice (duress)

Question 35

Apparent Consent applied

Answer 35

(1) When a plaintiff knows that there is risk of contact or injury and chooses to engage in the conduct anyways, he/she may be said to have “apparently” consented
(a) includes contact that is considered “ordinary activity” in a game as written in the rules, or any “customary” conduct
(b) Exception: just because the plaintiff apparently consents to certain contact, does not mean that they consent to all types of contact
(c) Exception: malicious conduct by the defendant will be considered non-consented to and tortious

Question 36

Substituted Consent

Answer 36

When a legally authorized person makes medical decisions for a patient who is unable to do so because of illness, disability, or sedation

Question 37

Consent invalidated by Fraud

Answer 37

(1) If the defendant procures consent through means of fraudulent or deceitful conduct, that consent is invalid
(2) The misrepresentation must be about something that affects the intrinsic nature and quality of the harm → the but for cause of someone consenting

Question 38

Consent invalidated by Duress

Answer 38

Where consent is procured in a high pressure environment, resulting in the plaintiff having no other reasonable choice, any consent given will be invalidated by duress
(1) Duress: a threat of unlawful conduct that is intended to, and does prevent the plaintiff from exercising free will or choice
(2) Physical violence or threats of physical violence against plaintiff or a loved one of the plaintiff is likely to constitute duress
(3) Economic coercion, religious damnation, and reputational harm is unlikely to constitute as duress

Question 39

Consent invalidated by Lack of Capacity

Answer 39

Consent may be invalidated by lack of capacity where the plaintiff is unable to appreciate the consequences of their actions
(1) The actor doesn’t need to know that the person was incapacitated
(2) Adults with diminished mental capacity, mental illness, and minors are considered “unable to consent” even if they voluntarily do consent
(3) Being drunk, whether involuntarily or voluntarily, invalidates consent under lack of capacity

Question 40

Lack of Capacity – Age of Consent

Answer 40

(1) Majority Age of Consent Doctrine: if you’re not of a certain age, you cannot consent to activities that carry a substantial risk of harm
(2) Minority Mature Minor Doctrine: courts measure minor’s age, ability, education, experience, training, maturity, and judgment to determine if the child has the capacity to consent
(a) Criminal statutory rape: cannot consent at all under a certain age;
(b) Civil battery: age is considered as a factor

Question 41

Lack of Informed Consent (Medical Malpractice)

Answer 41

A doctor must give a patient adequate information to make an intelligent choice before the patient consents to bodily contact; if they don’t, any bodily contact may be considered a battery
(1) Reasonable doctor standard: what the person should know before the procedure according to the medical community
(2) Reasonable patient standard: what a reasonable patient would want to know before the procedure

Question 42

Two approaches to determine whether the lack of information was the but for cause of patient’s consent

Answer 42

(1) Reasonable patient standard: would a reasonable person with this omitted information have consented
(2) This patient standard: would this particular patient have consented to the procedure if they were provided with the omitted information

Question 43

Self defense

Answer 43

A person is privileged to use reasonable force to defend themselves against unprivileged acts that he reasonably believes will cause him imminent bodily harm, offensive bodily contact, or confinement
(1) Hinges on the defendant’s reasonableness of their belief that force was necessary
(a) The danger itself need not be real, but the belief must be reasonable
(b) A defendant may have a genuine belief of imminent harm, but it may not necessarily be reasonable
(c) Courts will consider whether there were reasonable alternatives to force

Question 44

Initial Aggressor Doctrine

Answer 44

Majority jurisdiction: the initial aggressor loses the right to self defense, unless they abandon the fight and give notice to their adversary that they have done so
- State variations that impose limits including the need for proportional force

Question 45

Self Defense with non-deadly force

Answer 45

A person may use reasonable non-deadly force to protect themselves against another’s unprivileged imminent harmful or offensive contact or threat thereof
(1) Anything beyond reasonable force is considered a tort and damages will be the difference between the excessive act and what was reasonable
(2) No duty to retreat, give up a right or privilege, or comply with a demand or threat before using non-deadly force

Question 46

Self defense with deadly force

Answer 46

A person has NO right to use deadly force in response to non-deadly force, but may use deadly force when they reasonably believe that they are in imminent danger of death or serious bodily injury

Question 47

Duty to Retreat before using deadly force in self defense

Answer 47

(1) Majority Rule: no duty to retreat when someone is using deadly force against you, especially not in your home
(a) Stand Your Ground Statutes: no duty to retreat before using deadly force in self defense (whether in the home or not)
(2) Restatement/Common law Minority Rule: there is a duty to retreat if possible
(a) Duty to relinquish any right or privilege before using deadly force, but not the right to possession of your property
(3) Castle Doctrine: no duty to retreat in your home before using reasonable force, including deadly force, regardless of minority of majority jurisdiction rules

Question 48

Defense of Others

Answer 48

A person is privileged to defend another in the same way they would be privileged to defend themselves

They must have a reasonable belief that the other person is in imminent danger of bodily harm, offensive contact, or confinement.

Question 49

Mistaken defense of others

Answer 49

If the person is mistaken and uses force to defend another that is not actually under threat, he may be held liable depending on the jurisdiction
(a) Majority: if the mistaken belief regarding the need to intervene was reasonable under the circumstances, some courts allow the privilege
(b) Minority: If the intervenor’s belief was mistaken, even if that belief was sincere and reasonable, some courts refuse to allow the privilege

Question 50

Defense of Real Property

Answer 50

A person cannot use deadly force to defend property, only reasonable non-deadly force, unless the occupier is threatened with death or serious bodily harm
(a) Exception: may use deadly force if the property transcends the idea of “just property”
(b) Blanket prohibition on spring guns, unless used to simply scare an intruder, not inflict injury on them

Question 51

Recovery of Personal Property

Answer 51

(1) General Rule: one who loses rightful possession of chattel to another must resort to legal redress to recover the property
(2) Exception of Hot Pursuit: a person may use reasonable non-deadly force to regain chattel tortiously taken from them, so long as the rightful possessor acts promptly in “hot pursuit” after dispossession or after timely discovery of dispossession
(a) The rightful possessor must be correct about the suspected theft, otherwise he/she may be liable for any battery committed, even if belief was reasonable,
- Exception: in a state with a favorable shopkeeper statute where liability is based on the reasonableness of the shopkeeper’s belief

Question 52

Necessity

Answer 52

A defense against trespass to chattel, conversion, or trespass to land where the defendant interferes with the plaintiffs property in an emergency to protect his/her own interests
(1) Must act reasonable under the circumstances, cannot use another’s property beyond the extent that is necessary
(2) The defendant cant be ejected as long as the emergency lasts
(3) plaintiff could be held liable for ejecting defendant from their property or protecting their property from defendant’s use

Question 53

Private Necessity

Answer 53

Where a person uses another’s property to preserve his/her own personal property/interests or the interest of a few people
(1) partial defense
(2) Requires the payment of actual damages, but not compensatory or punitive damages

Question 54

Public Necessity

Answer 54

(1) Where a person uses another’s property to preserve a public interest in an emergency situation
(a) Must be a large number of people
(b) The person must have a reasonable belief that the action was needed
(c) The action must be a reasonable response to the need
(2) absolute defense
(3) no payment of any damage is required
(4) Sometimes in conflict with the 5th amendment → “nor shall private property be taken for public use without just compensation”