Intentional Torts and Defenses (Quimbee)

Question 1

What are the four major intentional torts against persons? (Q)

Answer 1

The four major intentional torts against persons are: assault, battery, false imprisonment, and intentional infliction of emotional distress.

Question 2

What is harmful contact in the context of an intentional tort? (Q)

Answer 2

In the context of an intentional tort, harmful contact is contact that results in any physical pain, injury, or impairment of another person’s body. Mere emotional trauma does not make bodily contact harmful; physical injury or impairment is required.

Question 3

In the context of an intentional tort, what does it mean if an actor acts with purpose? (Q)

Answer 3

In the context of an intentional tort, an actor acts with purpose if the actor has the conscious objective to do a particular thing or cause a particular result. In intentional torts, an actor’s intent can mean purpose or substantial certainty.

Question 4

In the context of an intentional tort, what does it mean if a defendant acts with substantial certainty? (Q)

Answer 4

In the context of an intentional tort, a defendant acts with substantial certainty if the defendant is aware that a particular outcome is virtually certain to result from the defendant’s actions. In intentional torts, an actor’s intent can mean purpose or substantial certainty.

Question 5

How does intent differ from motive? (Q)

Answer 5

Intent differs from motive in that intent describes a person’s choice to act in a particular way or to cause a particular result and motive describes a person’s reasons for making that choice. A person can commit an intentional tort without having an evil motive or a desire to cause harm.

Question 6

In an intentional tort, who can form intent? (Q)

Answer 6

In an intentional tort, virtually anyone capable of forming a thought can form the intent required for an intentional tort, including very young children, mentally incompetent people, and insane people. Intent means that an actor either acted with purpose or substantial certainty.

Question 7

Under what circumstances does an actor behave recklessly? (Q)

Answer 7

An actor behaves recklessly if the actor consciously disregards an unreasonably high risk that a particular harm will result from the actor’s conduct. If an actor acts intentionally, recklessness will also be satisfied.

Question 8

In tort law, what are the three most important mental states? (Q)

Answer 8

The three most important mental states are:

intent,
recklessness, and
negligence.
Generally, to recover, a plaintiff must prove that the defendant acted with the required mental state as an element of the tort.

Question 9

What are the elements of the intentional tort of assault? (Q)

Answer 9

The elements of the intentional tort of assault are that (1) the defendant intentionally (2) performed some act, (3) which caused the plaintiff to experience (4) a reasonable apprehension of (5) an imminent battery. Typically, words alone are insufficient to give rise to battery. In addition, some states also hold a defendant liable for the tort of assault for a failed attempted battery. In other words, some jurisdictions hold a defendant liable for assault if the defendant intentionally attempted to contact the plaintiff in a harmful or offensive manner but failed to do so.

Question 9

What constitutes extreme and outrageous conduct in the context of a claim for intentional infliction of emotional distress (IIED)? (Q)

Answer 9

Conduct is extreme and outrageous if it goes beyond the bounds of human decency or if it would be viewed as atrocious and completely intolerable in society. Extreme or outrageous conduct is beyond what a civilized society will tolerate. Conduct that is extreme and outrageous may also give rise to an intentional tort other than IIED, such as battery or false imprisonment. Plaintiffs generally only rely on IIEE if there appears to be no other basis for recovery.

Question 9

In a claim for intentional infliction of emotional distress (IIED), are common insults sufficient to satisfy the requirement that the defendant’s conduct was extreme and outrageous? (Q)

Answer 9

No. Common insults, annoyances, slights, and rude conduct are generally insufficient to constitute extreme and outrageous conduct. However, common carriers (e.g., mass-transportation providers) and innkeepers may be liable for mere gross insults to their patrons.

Question 9

In a claim for intentional infliction of emotional distress (IIED), what are the factors that make a finding of extreme and outrageous conduct more likely? (Q)

Answer 9

In a claim for IIED, the following factors make a finding of extreme and outrageous conduct more likely:

the defendant, in a position of authority over the plaintiff, abused or exploited that authority;
the defendant abused a special relationship of trust and confidence with the plaintiff;
the defendant engaged in a prolonged pattern of objectionable behavior toward the plaintiff;
the plaintiff belongs to a peculiarly vulnerable class of people;
the plaintiff was subjected to public humiliation;
the defendant’s conduct demonstrated racial or ethnic bias; or
the defendant exploited the plaintiff’s particular sensitivity.
What constitutes extreme and outrageous conduct is a fact-specific inquiry that ultimately depends on the specific circumstances of the case.

Question 9

In the tort of intentional infliction of emotional distress (IIED), what constitutes severe emotional distress? (Q)

Answer 9

In IIED, severe emotional distress is distress that is greater than what a reasonable person of ordinary firmness could be expected to endure under the circumstances. Thus, the mere fact that the plaintiff suffered severe emotional distress is not enough if a reasonable person similarly situated would be expected to endure the distress.

Question 9

To sustain a claim for intentional infliction of emotional distress (IIED), must the plaintiff prove physical effects resulted from the distress? (Q)

Answer 9

No. Most jurisdictions do not require proof of physical effects to sustain a claim for IIED. However, the plaintiff must usually offer some indication that the distress was severe. Emotional distress is severe if it is more than what a person of ordinary firmness could be expected to endure under the circumstances.

Question 10

What kind of conduct by the defendant must the plaintiff prove to establish a claim for intentional infliction of emotional distress? (Q)

Answer 10

To establish a claim for intentional infliction of emotional distress, the plaintiff must show that the defendant engaged in extreme and outrageous conduct. Extreme and outrageous conduct generally includes those forms of antisocial conduct that an average member of society would consider to be truly beyond the pale of acceptable behavior. Extreme and outrageous conduct does not include conduct that the average observer would deem merely unkind or uncharitable.

Question 11

May a bystander recover for the intentional infliction of emotional distress (IIED) based on an intentional tort that the defendant committed against someone else? (Q)

Answer 11

Yes. Some jurisdictions permit a bystander to recover for IIED based on an intentional tort that the defendant committed against someone else. However, these claims require proof of all of the elements of IIED plus additional factors.

Question 12

In jurisdictions that permit bystanders to recover for the intentional infliction of emotional distress (IIED) based on an intentional tort that the defendant committed against someone else, what additional factors must the bystander prove? (Q)

Answer 12

In jurisdictions that permit bystanders to recover for IIED based on an intentional tort the defendant committed against someone else, the bystander must prove that:

the bystander was a close relative of the person against whom the defendant’s conduct was directed or that the bystander suffered some physical harm due to the severe emotional distress arising from the defendant’s conduct,
the bystander was physically present when the defendant committed the tortious act against the third party and that the bystander perceived the act when it occurred, and
the defendant knew of both the bystander’s presence at the scene and the bystander’s relationship to the third-party victim.
Bystanders must also prove the standard elements of IIED (i.e., that the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the bystander to suffer severe emotional distress).

Question 13

To recover for intentional infliction of emotional distress (IIED), must the plaintiff prove that the defendant intended to cause the distress? (Q)

Answer 13

No. IIED can arise either from the defendant’s intent or from the defendant’s recklessness. This is in contrast to other intentional torts that require that the defendant to act with intent.

Question 14

What are the elements of the intentional tort of trespass to land? (Q)

Answer 14

The four elements of the intentional tort of trespass to land are: (1) an intentional, (2) unlawful, (3) physical entry onto real property (4) in possession of another. A claim for trespass to land may be brought by the owner or rightful possessor (e.g., a lessee).

Per Feldman class notes:
Act
Entry
Intent
Unlawful

Question 15

What is the intent required for trespass to land? (Q)

Answer 15

The intent required for trespass to land is the intent to do some act that results in an unlawful physical entry onto someone else’s property. The defendant does not need an intent to enter another’s real property unlawfully. It is not necessary for the defendant to be aware of the unlawful entry onto the property.

Question 16

In trespass to land, under what circumstances is a defendant’s physical entry onto someone else’s real property unlawful? (Q)

Answer 16

In trespass to land, a defendant’s physical entry onto someone else’s real property is unlawful if the defendant enters either:

without consent of the property’s lawful possessor or
without some other legal privilege to enter the property.
That said, even if a defendant has consent or a legal privilege to enter the property, the consent or privilege may extend to only a limited portion of the property or may expire after a particular time.

Question 17

In trespass for land, may a defendant’s initially lawful presence on the property later become unlawful? (Q)

Answer 17

Yes. In trespass to land, a defendant’s initially lawful presence on the property can later become unlawful. This may occur when the defendant remains on the property after the possessor’s initial consent expires. Alternately, this may occur if the defendant moves from a part of the property on which the defendant was authorized to be to another part of the property on which the defendant is not authorized to be.

Question 18

In trespass to land, what is physical entry onto property? (Q)

Answer 18

In trespass to land, physical entry onto property means that some kind of physical object—whether the defendant’s body or some other physical object—actually enters the property. Trespass for land, therefore, does not arise if a defendant causes light, sound, or smells to enter another’s property. However, the defendant may be liable to the plaintiff for some other tort, like nuisance, in such cases.

Question 19

In trespass to land, under what circumstances does direct entry occur? (Q)

Answer 19

In trespass to land, direct entry occurs if the defendant causes a part of the defendant’s own body, or something intimately connected with his person, to enter the plaintiff’s property. A defendant’s unlawful, direct entry onto the plaintiff’s land will satisfy the entry element of trespass to land.

Question 20

In trespass to land, under what circumstances does indirect entry onto the property occur? (Q)

Answer 20

In trespass to land, indirect entry occurs if the defendant sets in motion a chain of events that causes some physical object, apart from the defendant’s person, to enter the plaintiff’s property. A defendant’s unlawful, indirect entry onto the plaintiff’s real property will satisfy the entry requirement of trespass to land.

Question 21

In trespass to land, under what circumstances does indirect entry onto the property occur? (Q)

Answer 21

In trespass to land, indirect entry occurs if the defendant sets in motion a chain of events that causes some physical object, apart from the defendant’s person, to enter the plaintiff’s property. A defendant’s unlawful, indirect entry onto the plaintiff’s real property will satisfy the entry requirement of trespass to land.

Question 22

Must consent be express to be a valid defense to an intentional tort? (Q)

Answer 22

No. Consent need not be express to be a valid defense to an intentional tort. Valid consent may be either express or implied, so long as it is knowing, voluntary, and given by someone with legal capacity to consent.

Question 23

If a statute criminalizes certain kinds of contact with particular classes of individuals, may a defendant assert the defense of consent for a tort claim based on the prohibited conduct? (Q)

Answer 23

No. In general, if a statute criminalizes certain kinds of contact with particular classes of individuals, then a defendant may not assert a defense of consent to a tort claim based on the prohibited conduct.

If the legislature adopts a statute that criminalizes certain contact (e.g., statutes forbidding sexual contact between an adult and a minor under a specified age), then the legislature has declared that the individuals protected by the statute do not have the legal ability to ever validly consent to those contacts. Because the plaintiffs must have legal ability to provide consent for a valid consent defense, a defendant may never assert the protected individual’s consent as a defense to a tort claim based on the prohibited criminal conduct.

Question 24

For purposes of the consent defense to intentional torts, what is express consent? (Q)

Answer 24

Express consent is the plaintiff’s explicit and unambiguous oral or written assent to the defendant’s actions. Express consent is a valid defense to intentional torts, provided it is informed, voluntary, and given by a person with legal capacity to consent.

Question 25

For the plaintiff’s express or apparent consent to be a valid defense to a medical battery, what additional element must a medical professional establish? (Q)

Answer 25

For the plaintiff’s express or apparent consent to be a valid defense to a medical battery, a medical professional must show that the medical professional reasonably informed a patient of the nature, risks, and consequences of the medical procedure. This is in addition to the standard requirements for demonstrating consent in the context of any intentional tort. For consent to be legally effective, it must be informed. This additional element ensures the informed nature of a patient’s consent in the context of medical procedures.

Question 26

For purposes of the consent defense to intentional torts, what is implied consent? (Q)

Answer 26

Implied consent is consent that can be reasonably inferred from conduct or the surrounding circumstances or implied by law, rather than expressly given orally or in writing. Implied consent is a defense to an intentional tort if it is informed, voluntary, and given by a person with legal capacity to consent.

Question 27

What is the defense of implied consent? (Q)

Answer 27

The defense of implied consent is consent that is not expressly granted by a person, but rather implicitly granted by a person’s actions and the facts and circumstances of a particular situation. In order to establish the defense of implied consent, a defendant must show that: (1) a reasonable person in the defendant’s position (2) could infer (based on the circumstances and the plaintiff’s conduct) (3) that the plaintiff consented to the defendant’s actions. A defendant may rely on a consent defense even if the plaintiff did not subjectively intend to give consent. The defendant can also establish the defense of implied consent by law.

Question 28

May consent to an intentional tort be implied from a plaintiff’s conduct and the surrounding circumstances? (Q)

Answer 28

Yes. Consent may be implied from when a reasonable person in the defendant’s position could infer that the plaintiff consented to the defendant’s actions. The inference must be based on a reasonable assessment of both the plaintiff’s conduct and the surrounding circumstances. A plaintiff is deemed to consent to the reasonably foreseeable results of activities in which she voluntarily participates.

Question 29

If a person voluntarily participates in an activity, does the person implicitly consent to all reasonably foreseeable results of the activity? (Q)

Answer 29

Yes. A person is deemed to implicitly consent to the reasonably foreseeable results of any activity in which the person voluntarily participates (e.g., bodily contact, including fouls, that are a reasonably foreseeable part of engaging in a contact sport). However, a person participating in an activity does not impliedly consent to conduct during a voluntary activity that is so intentional or reckless that it is not a reasonably foreseeable result of the activity (e.g., being deliberately punched in the head after the end of a football play).

Question 30

What is consent to an intentional tort implied by law? (Q)

Answer 30

Consent to an intentional tort is implied by law when an emergency exists that makes it apparently necessary for the defendant to make physical contact with the plaintiff before the plaintiff can consent for the purpose of preventing harm to the plaintiff. The defendant must not have any reason to believe that the plaintiff would withhold his consent if given the opportunity. Consent implied by law protects good samaritans who voluntarily assist incapacitated people .

Question 31

May a victim’s consent to an intentional tort ever be implied by law? (Q)

Answer 31

Yes. A victim’s consent to an intentional tort may be implied by law. The law will imply a person’s consent if an emergency makes it apparently necessary for the actor to make physical contact with the victim:

before the victim can consent and
for the purpose of preventing harm to the victim.
The actor must not have any reason to believe that the victim would decline to consent if given the opportunity. However, if under the circumstances, a guardian or other person with authority to provide consent for the victim can reasonably be consulted before contact with the victim is made, then the actor must seek consent from that guardian or other representative. If the emergency is so dire that the guardian or other person cannot feasibly be consulted beforehand, then the actor is privileged to proceed without consent.

Question 32

If a defendant is facing an intentional-tort claim, will the plaintiff’s implied consent to the action support a defense of consent? (Q)

Answer 32

Yes. If a defendant is facing an intentional-tort claim, the plaintiff’s either implied or express consent to the defendant’s actions can support a defense of consent. A plaintiff gives express consent occurs if the plaintiff expressly communicates the plaintiff’s voluntary agreement or acceptance of the risk. A plaintiff gives implied consent if a reasonable person in the defendant’s position could infer consent from the plaintiff’s conduct and the surrounding circumstances. Implied consent is equally valid as express consent for establishing a consent defense to an intentional tort.

Question 33

If a defendant’s conduct exceeds the reasonably understood scope of the plaintiff’s consent, is the defendant’s intentional tort excused? (Q)

Answer 33

No. If a defendant’s conduct exceeds the reasonably understood scope of the plaintiff’s consent, the intentional tort is not excused. If the defendant’s actions go beyond the scope of the plaintiff’s consent, the defendant may be liable if all elements of the intentional tort are present.

Question 34

How much force may a defendant use in self-defense or defense of another ? (Q)

Answer 34

A defendant may use no more force than is reasonably necessary to defend against the threat of actual or imminent use of unlawful physical force. In other words, the defendant’s use of force must be proportional to the threat. Thus, excessive force is forbidden.

Question 34

May a person use physical force in self-defense? (Q)

Answer 34

Yes. A person may use physical force in self-defense to the extent that the person: (1) reasonably believed that the force was necessary to defend herself or someone else (2) from the use or imminent use (3) of unlawful physical force. A person’s use of physical force in self-defense must be proportional to the threat and not excessive. If a person’s physical force exceeds what is proportional to the threat, then the person becomes liable for any harm caused by the extra force.

Question 35

Under what limited circumstances may a defendant use deadly force in self-defense or defense of another? (Q)

Answer 35

A defendant may use deadly force only to prevent:

imminent death,
serious bodily injury, or
inherently dangerous felonies.
Inherently dangerous felonies include major crimes such as armed robbery, rape, or homicide.

Question 36

Against what types of felonies may a defendant use deadly force to defend the defendant or someone else? (Q)

Answer 36

A defendant may use deadly force in self-defense or defense of another to guard against inherently dangerous felonies. Inherently dangerous felonies include major crimes like armed robbery, rape, or homicide.

Question 37

For purposes of self-defense, must a defendant’s belief that the use of deadly force is necessary be reasonable? (Q)

Answer 37

Yes. For purposes of self-defense, a defendant’s belief that deadly force is necessary must be objectively reasonable under all of the circumstances. A defendant who is mistaken about the need for deadly force may still claim self-defense, so long as the defendant’s mistake was sincere and objectively reasonable.

Question 38

For purposes of self-defense, what is the imminence requirement for a defendant’s use of deadly force? (Q)

Answer 38

For purposes of self-defense, a defendant may use deadly force only when the defendant reasonably believes that the use of unlawful force is imminent. Imminent is defined as either happening or about to happen without delay. A defendant may not use deadly force to retaliate or preempt another’s use of force in the indefinite future].

Question 39

Does a defendant have a privilege to use force in self-defense against another’s lawful use of force? (Q)

Answer 39

No. There is no privilege to defend against another’s lawful use of force. For a defendant to have a valid privilege to use force in self-defense, the defendant must be defending against force, or a threat of force, that is unlawful.

Question 40

For purposes of a self-defense analysis, who is an initial aggressor? (Q)

Answer 40

For purposes of a self-defense analysis, an initial aggressor is the person who acts (e.g., by using or threatening the use of force) to confer on someone else the privilege of defense. Generally, the initial aggressor does not have a privilege to use force in self-defense, unless responding to a disproportionate use of force by the victim or subsequent attack by the former victim after the initial threat has passed.

Question 41

How much force may a person who holds a privilege of self-defense use? (Q)

Answer 41

A person who holds a privilege of self-defense may lawfully use any proportional amount of force. However, if a holder of the privilege of self-defense responds with more than a proportional use of force, the holder has exceeded the scope of the privilege and may lose its protection.

Question 42

May a person use physical force to defend against conduct if the only likely harm from that conduct is severe emotional distress? (Q)

Answer 42

No. A person may never use physical force to defend against conduct that is likely to cause only emotional harm. The privilege to use physical force in self-defense is limited to circumstances in which a person reasonably believes force is necessary to defend against the imminent use of unlawful physical force by another.

Question 43

What does battery law protect people against? (Q)

Answer 43

Battery law protects people against harmful or offensive contact.