Intentional Torts

Question 1

What are the elements of battery?

Answer 1

(1) Harmful or offensive contact to the plaintiff’s person
(2) Intent to bring about that contact
(3) Causation – either direct or indirect (sets in motion a force bringing about harmful or offensive contact)

Question 2

What are the elements of assault?

Answer 2

(1) An act creating a reasonable apprehension in the plaintiff of immediately harmful or offensive contact with the plaintiff’s person
(2) Intent
(3) Causation

Question 3

What are the elements of false imprisonment?

Answer 3

(1) An act or omission to act on the part of the defendant that confines or restrains the plaintiff to a bounded area (may be big or small) for any period of time
(2) The plaintiff is aware of or harmed by the restraint
(3) Intent to restrain the plaintiff
(4) Causation

Question 4

What are the elements of IIED?

Answer 4

(1) Extreme and outrageous conduct by the defendant
(2) Intent to cause the plaintiff to suffer severe emotional distress or recklessness as to effect of conduct
(3) Causation
(4) Damages (severe emotional distress)

Question 5

What are the elements of trespass to land?

Answer 5

(1) An act of physical invasion of plaintiff’s real property by defendant
(2) Intent to bring about the physical invasion/enter onto the land [mistake is no defense! intent to trespass is not required!]
(3) Causation

Question 6

What are the elements of trespass to chattel?

Answer 6

(1) An act by the defendant interfering with the plaintiff’s right of possession in the chattel
(2) Intent to perform the act bringing about the interference
(3) Causation
(4) Damages

Question 7

What are the elements of conversion?

Answer 7

(1) An act by the defendant interfering with the plaintiff’s right of possession in the chattel serious enough in nature and consequence to warrant that the defendant pay the full value of the chattel
(2) Intent to perform the act bringing about the interference
(3) Causation
(4) Damages

Question 8

What is the difference between conversion and trespass to chattel?

Answer 8

The differences are in a matter of degree: conversion is so serious that the defendant must pay full value

Question 9

What is the requisite intent for intentional torts?

Answer 9

Either specific (the tortfeasor intends to bring about the consequences) or general (the tortfeasor knows to substantial certainty that their conduct will result in those consequences). Intent to injure not required, but rather intent to bring about the basis of the tort.

Question 10

What is transferred intent?

Answer 10

The transferred intent doctrine transfers the intent to commit a tort against one person to either a different tort actually committed and/or a different victim actually injured. This applies where both tort intended and committed are one of: assault, battery, false imprisonment, trespass to land, and trespass to chattels.

Question 11

When is contact “offensive” for purposes of battery?

Answer 11

Contact is offensive if it would be considered offensive by a reasonable person of ordinary sensibilities (objective standard).

Question 12

What qualifies as the plaintiff’s “person” for purposes of battery?

Answer 12

Anything connected with the plaintiff’s body.

Question 13

What does “apprehension” mean for purposes of battery?

Answer 13

Knowledge/anticipation. Plaintiff does not have to be afraid.

Question 14

What role do words play in establishing assault claims?

Answer 14

Words alone are not enough; an overt act is required. Words may also negate an assault by making apprehension unreasonable.

Question 15

What are sufficient measures of restraint for purposes of false imprisonment?

Answer 15

Physical barriers
Physical force aimed at plaintiff (or family/property)
Direct threats of force to same
Indirect threats of force that reasonably imply defendant will use force against same
Failure to provide a means of escape where plaintiff’s ability to leave could not occur without defendant’s assistance (affirmative duty to take steps to release)

Question 16

What is the shopkeeper’s privilege?

Answer 16

If a shopkeeper suspects a shoplifter and detains the individual to investigate, they may be liable for false imprisonment. Shopkeepers may avoid liability where:

(1) they had a reasonable belief that the theft occurred
(2) the detention was conducted in a reasonable manner (no use of deadly force permissible)
(3) the detention was for a reasonable period of time and only for investigative purposes

Question 17

What are insufficient means of restraint for the purposes of false imprisonment?

Answer 17

Moral pressure and future threats.

Question 18

What is a “bounded area” for the purposes of false imprisonment?

Answer 18

Plaintiff’s freedom of movement restricted in all directions. Not bounded if there is a reasonable (not dangerous, disgusting, humiliating) means of escape of which the plaintiff is aware.

Question 19

What is extreme and outrageous conduct? List examples.

Answer 19

Outrageous conduct is conduct that transcends all bounds of decency. Examples include extreme business conduct (debt collection methods), misuse of authority, targeting a known sensitivity of the plaintiff’s, lesser bad conduct when done by a common carrier or innkeeper.. Keep an eye out for conduct that is repetitive. Mere insults generally not enough.

Question 20

What are the requirements to prove IIED if the plaintiff was a bystander witnessing the defendant’s harm to a third party?

Answer 20

A bystander may recover on an IIED claim against a defendant they witnessed harming a third person where:
(1) plaintiff was present when the injury occurred
(2) plaintiff was a close relative
(3) the defendant knew the plaintiff was present and a close relative
Exception: The plaintiff does not need to show presence/family relationship where proven that the defendant had a purpose of causing them severe distress.

Question 21

What constitutes “physical invasion” for purposes of trespass to land?

Answer 21

Physical invasion of land need not involve defendant personally coming onto the land. It can be, for example, when defendant floods land, throws things onto land, or chases someone or something onto the land.

Physical invasion can also occur when a defendant remains on the land after their lawful right of entry expires.

Where there is no physical invasion (sound/smell/etc), the case sounds in nuisance.

Question 22

What constitutes “land” for the purposes of trespass to land?

Answer 22

Anything on the surface, below the surface, or above the surface (to the height or depth to which plaintiff can make beneficial use of such space).

Question 23

Who may bring an action for trespass?

Answer 23

Anyone in actual or constructive possession of the land.

Question 24

What constitutes interference with the right to possess chattels?

Answer 24

Intermeddling – conduct that directly damages chattels

Dispossession

Question 25

List possible acts of conversion

Answer 25

(1) Theft or embezzlement
(2) Wrongful transfer (e.g., misdelivery)
(3) Refusing to return chattel to the owner
(4) Substantially changing
(5) Severely damaging or destroying
(6) Misusing

Question 26

Is accidental conduct sufficient to amount to conversion?

Answer 26

No. Accidentally causing damage or loss is not conversion unless the actor was using the chattel without permission when the accident occurred.

Question 27

May a bona fide purchaser be liable for conversion?

Answer 27

Yes, if chattel stolen from the owner. Even if the conduct is wholly innocent, conversion liability may still attach where the interference is serious in nature.

Question 28

What are the available remedies for conversion?

Answer 28

Damages (fair market value computed as of time and place of conversion) or replevin.

Question 29

List the major defenses to intentional torts.

Answer 29

Consent
Defense of self, property, or others
Necessity

Question 30

What is the defense of consent?

Answer 30

A defendant is not liable where the plaintiff expressly or impliedly given consent.

Question 31

What are the types of implied consent?

Answer 31

Apparent consent – a reasonable person would infer consent from the plaintiff’s conduct. Usage and custom may inform this (if a plaintiff engages in a contact sport, they have given implied consent to the normal contacts inherent in the sport).

Consent implied by law – if an action is necessary to save someone’s life or some other important interest in person or property

Question 32

When is consent not valid?

Answer 32

(1) Incapacity — Where the plaintiff is incompetent, impaired or very young;
(2) where the act is a criminal act;
(3) where the defendant exceeds the scope of the consent given.

Question 33

What is self-defense and when is it available?

Answer 33

When a person has reasonable belief that they are being or about to be attacked (apparent rather than actual necessity), they may use the force reasonably necessary to protect themselves. This extends to accidental third party injuries.

Question 34

When is self-defense invalid?

Answer 34

When the act is retaliation or when the defendant was the initial aggressor

Question 35

Is retreat necessary to raise self-defense?

Answer 35

In the majority of courts, it is not necessary to attempt first to escape. A growing trend would impose a duty to retreat before using deadly force if possible to do safely (unless in your own home).

Question 36

How much force may be used in self-defense or defense of others?

Answer 36

Only the force that reasonably appears necessary to prevent the harm. Deadly force only available where there is a reasonable belief of threat of serious bodily injury. Exceeding the permissible scope of force undoes the self-defense privilege.

Question 37

When is the defense of others privilege available?

Answer 37

Where an actor has reasonable belief the the person being aided would have the right of self-defense. (Even if the person aided would actually have had no defense, the defense of others privilege will remain intact if the belief was reasonable).

Question 38

When is the defense of property privilege available?

Answer 38

One may use reasonable force to prevent the commission of a tort against their property. A request to desist must precede the use of force unless it would clearly be futile or dangerous.

Limitations: This does not apply to completed torts (force may not be used to recapture chattel already dispossessed). Defense still operates when defendant is in “hot pursuit.”

Question 39

What is the effect of reasonable mistake on the defense of property privilege?

Answer 39

Reasonable mistake is allowed as to the right to use force in defense of property where the mistake is about whether an intrusion occurred or a request to desist was required. A mistake is not allowed where the entrant has a superseding privilege unless the the entrant intentionally or negligently caused the mistake.

Question 40

When is the defense of property privilege superseded by other privileges?

Answer 40

When an actor has a privilege to enter land because of necessity, right to reentry, right to recapture chattels, etc, that supersedes an owner’s privilege to defend their property.

Question 41

How much force may be used in defense of property?

Answer 41

Reasonable force may be used but never deadly force. (If a trespass involved threat of serious bodily harm, that would raise a self defense privilege!) This includes a ban on indirect deadly force (traps, spring guns, vicious dogs).

Question 42

What is the common law privilege of reentry onto land?

Answer 42

Old common law rule: when a person was tortiously dispossessed of land by fraud or force, they could regain it using reasonable force. Most states do not allow self-help but now require an ejectment action. Under the old rules, it would only apply where timely demand preceded the use of force, the defendant was in hot pursuit, and could only be from a wrongdoer or third party who knows or should know the property was tortiously obtained.

Question 43

What is the privilege of entry on land to remove chattel?

Answer 43

Where chattel is on the wrongdoer’s land, the owner is privileged to enter and reclaim at a reasonable time and in a reasonable manner after a demand for return.

Where chattel is on an innocent party’s land, the owner may enter and reclaim in a reasonable time and in a peaceful manner where landowner is given notice and refuses to return it.

If the chattel is on the land through the fault of the chattel’s owner, there is no privilege and they must reclaim it through legal process.

Question 44

What is the defense of necessity?

Answer 44

A person may interfere with another’s real/personal property where the interference is reasonably and apparently necessary to avoid threatened injury and where the injury is substantially more serious than the invasion of property.

Question 45

What is the difference between public and private necessity?

Answer 45

Public necessity is an absolute defense and applies where the act is for the public good.

Private necessity is qualified (the actor must still pay for any injury caused) where the act is solely to benefit a limited number of people.