Intentional Torts Causing Physical Injury

Question 1

To prove an intentional tort, what three elements does the plaintiff need to show?

Answer 1

1. Tortious conduct - either an act or omission
2. The requisite mental state (intent)
3. Causation

Question 2

What is the requisite mental state for an intnetional tort?

Answer 2

The defendant must act intentionally.

Question 3

A defendant acts intentionally if the defendant acts:

There are two tests

Answer 3

(1) D acts with the purpose of causing the consequence

(2) D knows the consequence will come about as a substantial certainty.

Question 4

Can minor children and people who are mentally incompetent be held liable for intentional torts?

Answer 4

Yes! Either may be liable if they act with the requisite mental state.

Question 5

What is transferred intent?

Answer 5

Transferred intent exists when a defendant intends to commit a battery, assault, or false imprisonment against one person but instead commits the intended tort against a different person.

Question 6

What are two examples of situations when you can’t transfer intent?

Answer 6

(1) From a personal injury intentional tort to a property-based harm tort

(2) Intentional infliction of emotional distress

Question 7

What is the definition of battery?

Two elements

Answer 7

(1) Defendant causes a harmful or offensive contact with another and

(2) Intends to cause that contact or the apprehension of such contact

Question 8

For battery, what does ‘harmful’ contact mean?

Answer 8

Contact is harmful when it causes physical injury, illness, disease, impairment of bodily function, or death.means that the defendant causes an injury, pain or illness

Question 9

For battery, what does ‘offensive’ contact mean? Is ‘offensive’ objective or subjective?

Answer 9

Contact is offensive if a person of ordinary sensibilities (a reasonable person) would find the contact offensive. This is an objective test!

Question 10

TRUE or FALSE:
For battery, a victim does not need to be conscious of the touching or contact in order for it to be offensive.

Answer 10

True!

E.g. An operating room attendant inappropriately touches a patient under anesthesia. This is a battery even though the patient is not aware of it because it is objectively offensive.

Question 10

True or False:

The doctrine of transferred intent does not apply to battery.

Answer 10

False!

Question 11

For battery, what is the rule for hypersensitive victims?

Answer 11

If the victim is hypersenstivie, and the defendant knows that about the victim, the defendant may still be liable.

Question 12

True or False:

Contact needs to be direct in order to qualify for battery.

Answer 12

False! Can be either direct or indirect.

E.g. Setting a bucket above a door, such that ice water falls on a person’s head when the door is opened is contact.

Question 13

True or False:

For battery, what has to be intended is the offense, not the contact.

Answer 13

False! The contact must be intended, not the offense.

E.g. Tom intentionally shakes Myrtle by the shoulders. It doesn’t matter whether he intended to cause offense; if he intended the contact and the contact is objectively offensive, he’s liable for battery.

Question 14

True/False:
The plaintiff need not be aware of the contact when it occurs to recover.

Answer 14

True!

Question 15

The defendant pushes another individual into the plaintiff. Has there been a qualifying contact?

Answer 15

Yes, this would be indirect contact. The harmful or offensive contact need not be with the defendant himself.

Question 16

True or False:
Although contact (either direct or indirect) is usually required, in rare circumstances a defendant’s particularly culpable conduct can make them liable for purposeful infliction of bodily harm.

Answer 16

True!

Example: The neighbor of an elderly individual knows that the individual has left the neighbor a small inheritance in his will. When the neighbor is present in the individual’s home, the individual has a heart attack. The neighbor attempts to reach for a phone to call 911. The neighbor, motived by the inheritance, seizes the phone before the individual can reach it and watches the individual die. The neighbor is not liable for battery because the neighbor has not made contact with the individual but is liable for the purposeful infliction of bodily harm.

Question 17

What does contact ‘connected with a person’ mean?

Answer 17

Contact with anything connected to the plaintiff’s person qualifies as contact with the plaintiff’s person for the purposes of battery (e.g., a person’s clothing, a pet held on a leash, a bicycle ridden by the plaintiff).

Question 18

True or False:
Hitting a pet being walked by the plaintiff because the pet, on its own initiative, nipped the defendant would constitute a battery.

Answer 18

False! This would not constitute a battery because the pet wasn’t in the plaintiff’s physical control.

Question 19

For Causation and Battery

For causation, the defendant’s act must be both ________ and ________, and it must in fact result in contact of a harmful or offensive nature.

Answer 19

Voluntary and affirmative

Question 20

What is the ‘dual intent’ rule?

(The minority rule)

Answer 20

This is a minority rule which requires a defendant not only to intend to bring about a contact, but also to intend that the contact be harmful or offensive.

Question 21

What damages may a plaintiff recover for battery?

Answer 21

A plaintiff may recover damages for physical injury (e.g., bodily harm) as well as damages for emotional distress (e.g., pain, suffering).

Question 22

Is proof of actual harm required to recover damanges for battery?

Answer 22

No! Proof of actual harm is not required; the plaintiff can recover nominal damages.

Question 23

Are punitive damages available for battery?

Answer 23

Many jurisdictions allow recovery of punitive damages if the defendant acted outrageously or with malice

Question 24

What is the ‘thin-skull’ rule (also called the eggshell rule)?

Answer 24

A defendant is liable for all harm that flows from a battery, even if it is much worse than the defendant expected it to be. The defendant is not required to foresee the extent of damages to be subject to liability for all damages.

Question 25

True or False:

A man inappropriately pinches a woman, who is a hemophiliac, on a bus. She bleeds to death as a consequence. The man is subject to liability for her death.

Answer 25

True. Under the eggshell rule, he would be liable for all consequences which flow from his tortious conduct.

Question 26

What are the three types of transferred intent?

Answer 26

Different tort/same person

Same tort/different person

Different tort/different person

Question 27

True or False:
There is no battery if there is express or implied consent

Answer 27

True! Consent can be a defense to battery. E.g. boxing matches

Question 28

What is the definition of assault?

Answer 28

There are two elements to assault:

(1) The defendant intends to cause the plaintiff to anticipate an imminent harmful or offensive bodily contact

(2) The defendant intends to cause apprehension of such contact or to
cause such contact itself

Question 29

Is actual bodily contact required for assault?

Answer 29

No! Bodily contact is not required. Just the apprehension of imminent contact.

Question 30

Assault Hypothetical

A man throws a punch at another and misses. The man (may/may not) be liability for assault, even though he failed to land the punch.

Answer 30

May be liable!

Question 31

For assault, the plaintiff’s apprehension of contact must be _________, and the plaintiff must be _________ of the defendant’s actions.

Answer 31

Reasonable and aware

Question 32

True or False:

For assault, a plaintiff need not be aware of or have knowledge of the defendant’s act.

Answer 32

False! A plaintiff must be aware of or have knowledge of the defendant’s act.

Question 33

An individual kisses a sleeping stranger. Are they liable for assault? Battery?

Answer 33

The individual is not liable for assault (because the victim was not aware of the act), but they may be liable for battery.

Question 34

For assault, the anticipated contact must be _________ or ___________.

Answer 34

harmful or offensive

Question 35

For assault, is the standard for anticipation of contact an objective or subjective one?

Answer 35

Under the majority rule, the standard for anticipation is an objective one—the plaintiff’s anticipation must be reasonable, that is, a reasonable person (i.e., a person of ordinary ability or courage) must have anticipated a harmful or offensive contact.

Under the minority rule, which is supported by the Restatements, the standard for anticipation is a subjective one—the plaintiff must actually have anticipated a harmful or offensive contact.

Question 36

For assault, does the plaintiff need to be fearful of the harmful or offensive contact?

Answer 36

No, this is not a requirement!

Question 37

Will a defendant still be liable for assault even if the victim could have taken action to prevent the contact?

Answer 37

The plaintiff’s ability to prevent the threatened contact does not preclude the plaintiff from anticipating that the defendant’s conduct would be harmful or offensive if the plaintiff failed to act. While a plaintiff may take preventive action, the plaintiff is not required to do so. Even though the plaintiff fails to take such action, the defendant is subject to liability for assault.

Question 38

An elderly individual points a loaded gun at a teenager who is within arm’s length. The teenager can seize the gun before the individual can fire it. Is the elderly individual liable for assault?

Answer 38

Yes, the elderly individual is still liable even though the teenager can prevent the individual from firing the gun.

Question 39

If a plaintiff knows that a third party will likely prevent the threatened harm, does this preclude the defendant’s conduct from being an assault?

Answer 39

No! the plaintiff’s knowledge that a third party likely may or will prevent the threatened harm does not preclude the defendant’s conduct from being an assault

E.g. An elementary school student cocks his arm to throw a rock at another student. The intended victim sees a teacher standing behind the student ready and able to prevent the student from throwing the rock. The student may be liable for assault, even though the intended victim is certain that the teacher will intervene and prevent the student from throwing the stone.

Question 40

A woman threatens to shoot a man with a toy gun that appears to be a real gun. Is the woman potentially liable for assault, even though the gun is incapable of harming the man?

Answer 40

Yes! The defendant’s apparent ability to cause harm can be sufficient to place the plaintiff in anticipation of harm.

Question 41

What does it mean that the threatened bodily harm or offensive contact must be ‘imminent’?

Answer 41

It must be without significant delay.

Question 42

What are some examples of situations where the imminent requirement cannot be met?

There are two

Answer 42

Threats of future harm

Threats made by a defendant who, because of physical distance, cannot possibly inflict imminent harm

Example: A man calls another, who is located 20 miles away, and tells him, “I’ll beat you up.” The caller is likely not liable for assault because there will be a significant delay between the threat and the contact.

Question 43

A man visits his ex-wife’s house and screams at her for several minutes. He then threatens to shoot his ex-wife and walks out of the house toward his car. The ex-wife knows that the man always used to keep a gun in his car. Is the ‘imminence’ requirement met?

Answer 43

Whether the ex-wife anticipated an imminent harmful or offensive contact would depend on the circumstances of the case and would be a question for the finder of fact.

Question 44

Do mere words count for an assault?

Answer 44

It is sometimes said that “mere words alone do not constitute an assault.” However, words coupled with other acts or circumstances may be sufficient if the plaintiff reasonably anticipates that a harmful or offensive contact is imminent.

Question 45

What damages can a plaintiff recover for assault?

Answer 45

A plaintiff may recover damages for physical injury (e.g., a heart attack) as well as damages for emotional distress (e.g., pain, suffering) when the defendant is liable for assault.

Question 46

Proof of actual damages is (required/not required) for assault. In such a case, a defendnat can recover _________ and _____ damages.

Answer 46

Not required.

The victim can recover nominal damages and, in appropriate cases, punitive damages.

Question 47

True or false:
Threats of future harm or hypothetical harm are not sufficient for assault.

Answer 47

True!

Question 48

What is the definition of Intentional Infliction of Emotional Distress?

Answer 48

The defendant intentionally or recklessly engages in extreme and outrageous conduct that causes the plaintiff severe emotional distress

Question 49

What must D intend for Intentional Infliction of Emotional Distress?

Answer 49

D must:

(1) Intend to cause severe emotional distress; or

(2) Act with recklessness as to the risk of causing severe emotional distress.

Question 50

True or False:
For Intentional Infliction of Emotional Distress, transferred intent does not apply for different tort/different victim situations.

Answer 50

True! 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.

Question 51

When may transferred intent apply to Intentional Infliction of Emotional Distress?

Answer 51

Same tort/different victim cases.

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.

Question 52

A man, with the intent to cause his ex-wife severe emotional distress, calls her cell phone and falsely tells the individual who answers that the couple’s only child was murdered, describing the murder in graphic detail. The individual who answered the phone was not the man’s ex-wife but instead the best friend of the couple’s only child.

Is the man liabile for intentional inflictiono f emotional distress?

Answer 52

Yes! The man’s intent to cause severe emotional distress to his ex-wife satisfies the intent requirement with respect to his liability for the intentional infliction of emotional distress regarding the best friend.

Question 53

For IIED, what does it mean for conduct to be ‘extreme and outrageous’?

Answer 53

Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society

Question 54

True or False:
Mere insults, threats, or indignities often give rise to liability for Intentional Infliction of Emotional Distress.

Answer 54

False!

Question 55

Courts are more likely to find conduct or language to be extreme and outrageous if…

There are two conditions

Answer 55

(1) The defendant is in a position of authority or influence over the plaintiff, such as a police officer, employer, or school official, or traditionally an innkeeper or an employee of a common carrier; or

(2) The plaintiff is a member of a group with a known heightened sensitivity (e.g., young children, pregnant women, or elderly persons).

Question 56

What must public figures/public officials show to claim Intentional Infliction of Emotional Distress?

Answer 56

Public figures and public officials must show that the words contain a false statement of fact that was made with “actual malice”

Question 57

Under the public figure doctrine for Intentional Infliction of Emotional Distress, what does ‘actual malice’ mean?

Answer 57

With knowledge that the statement was false or with reckless disregard of its potential falsity.

Question 58

What is the position of private plaintiffs when the IIED matter is one of ‘public concern’?

Answer 58

The Supreme Court has suggested that even private plaintiffs cannot recover if the conduct is speech in the context of a matter of public concern.

E.g. The Supreme Court held that the father of a slain military officer could not recover for IIED after a church picketed his son’s funeral because the picketing was about a matter of public concern (U.S. military policy toward homosexuality and other concerns of public import).

Question 59

For the tort of Intentional Infliction of Emotional Distress, what is the rule for conduct toward related bystanders (such as family)?

Answer 59

An immediate family member of the victim who is present at the time of the conduct and contemporaneously perceives the conduct may recover for IIED regardless of whether that family member suffers bodily injury as a result of the distress.

Question 60

A defendant acted outrageously toward a young child and the
child’s mother is present at the time. If the mother experiences emotional distress, is she able to recover under the tort of IIED?

Answer 60

Yes!

Question 61

IIED

Can other third parties recover if emotional harm is done to them and they are not related bystanders (like family)? Do they need to have contemporaneously perceived the conduct?

Answer 61

Yes! If the defendant’s purpose in harming an individual is to cause severe emotional distress to a third party, the third party need not have contemporaneously perceived the conduct nor be a close family member of the harmed individual.

Question 62

A man kills a woman when the two are alone for the purpose of causing severe emotional distress to the woman’s unrelated friend. When the friend learns of the killing the following day, the friend suffers severe emotional distress. Is the man liable for IIED of the unrelated friend?

Answer 62

Yes! The man is subject to liability to the friend for intentional infliction of emotional distress, even though the friend was not a close family member of the woman and was not present at her killing. It was his purpose!

Question 63

Regarding causation for the tort of IIED, the plaintiff must establish that the defendant’s actions were a ___________ of the plaintiff’s distress.

Answer 63

factual cause

Question 64

What must a plaintiff prove for damages for the tort of IIED?

Answer 64

The plaintiff must prove severe emotional distress beyond what a reasonable person could endure.

Question 65

IIED

If in additional to emotional distress a defendant’s conduct also causes bodily harm to the plaintiff, the defendant will not be liable for that harm as well.

Answer 65

False! A defendant CAN be liable for bodily harm damages for IIED.

Question 66

True or False:
The more extreme the defendant’s conduct, the less evidence is required of the severity of the plaintiff’s emotional distress.

Answer 66

True!

Question 67

For IIED, if a plaintiff is hypersensitive and easily (and unreasonably) suffers emotional distress will a defendant nontheless be liable?

Answer 67

No! If the plaintiff is hypersensitive and experiences severe emotional distress unreasonably, then there is no liability unless the defendant knew of the plaintiff’s heightened sensitivity.

Question 68

What are the 3 elements of false imprisonment?

Answer 68

(i) Defendant intends to confine or retrain another within fixed boundaries;

(ii) The actions (or inactions) directly or indirectly result in confinement; and

(iii) Plaintiff is conscious of the confinement or harmed by it

Question 69

True or False:
If the defendant fails to release the plaintiff from a confinement despite owing a duty to do so, they may be liable for false imprisonment.

Answer 69

True!

Question 70

What are some of the main methods of confinement for false imprisonment?

Answer 70

(1) Physical barriers/boundaries

(2) Physical force or restraint or threat of physical force or restraint

(3) Duress - D’s threat to harm P or P’s family (or to retain P’s property)

(4) Invalid assertion of legal authority

(5) Refusal to release or provide a means of escape when under a duty to do so

Question 71

True or False:
An individual, aware that another person is sitting in a windowless room, intentionally locks the only door to that room. The individual has confined the other person.

Answer 71

True!

Question 72

The plaintiff must be conscious of the confinement in order to claim false imprisonment.

Consider both majority and minority view

Answer 72

In the majority of jurisdictions, this is true. But in a minority of jurisdictions and under the Restatement Third, a plaintiff who was not conscious of the confinement may still recover if the plaintiff was harmed by the confinement.

Question 73

If a plaintiff knows of a readily available, feasible, and safe way to exit the limited area, can they still claim for false imprisonment?

Answer 73

No, where P knows of an exit and can safely avail themselves of it, they are not confined by a physical barrier.

Question 74

True or False:
A plaintiff is required to use any available exit, no matter that it would expose the plaintiff to a risk of physical harm.

Answer 74

False!

Question 75

An individual, aware that another person is sitting in a room on the ground floor of a building, intentionally locks the only door to that room. The room has a window through which the other person can safely exit the room without any risk of physical harm. Has the individual not confined the other person?

Answer 75

No! There is no confinement because there is a safe, available exit.

Question 76

An individual, aware that another person is sitting in a room on the second floor of a building, intentionally locks the only door to that room. The room has a window through which the other person can exit the room, but in doing so the other person would risk a sprained ankle. The individual has confined the other person. Is this correct?

Answer 76

Yes, it is!

Question 77

If a defendant believes that they have confined the plaintiff by locking what they believe to be the only door, is the defendant liable for false imprisonment if the plaintiff has knowledge of another exit?

Answer 77

No! The defendant’s conduct does not result in the plaintiff’s confinement if the plaintiff has knowledge of a safe exit.

Question 78

Consider physical force for false impriosnment. If a defendant can easily free themselves from physical restraint is their claim for false imprisonment defeated?

Answer 78

No, even if a plaintiff can free themselves from restraint (but does not) they have still been falsely imprisonned.

E.g. A ten-year-old, 70-pound fan grabs the shirt of a professional football player as the player is walking across a stadium parking lot after a game. The fan intends to retain his hold until the player signs the fan’s football. Although the player could easily break free of the fan’s grasp, the player does not. The fan has confined the football player.

Question 79

True or False:
A threat to employ immediate physical force or restraint if the plaintiff attempts to leave the confined area is sufficient for false imprisonment.

Answer 79

This is true!

Question 80

What is the rule for duress and false imprisonment?

Answer 80

A plaintiff who agrees to remain in a limited area because of the defendant’s duress has been confined. The duress may arise from the defendant’s threat to harm a member of the plaintiff’s family or retain the plaintiff’s property, but not all threats or forms of pressure (e.g., moral pressure) constitute duress.

Question 81

True or False:
The amount of time one spends in confinment is relevant to the tort of false imprisonment.

Answer 81

False! The length of time is immaterial.

Question 82

If an individuals confinement is due to a defendant’s negligence, will they be liable under the intentional tort of false imprisonment?

Answer 82

Defendant will not be liable under the intentional tort of false imprisonment.

Must act with the purpose to confine or have knowledge that confinement would be substantially certain to result.

Question 83

What are the two ingredients of intent for false imprisonment?

Answer 83

(1) D must act with the purpose to confine the plaintiff

(2) D must know the plaintiff’s confinement is substantially certain to result.

Question 84

What damages can a plaintiff recover for false imprisonment?

Answer 84

Typically nominal damages, although actual damages are also compensable

Question 85

False Imprisonment

A defendent does not positively obstruct the plaintiff but they refuse to perform a duty to release the plaintiff or to provide a means of escape. Are they still liable for false imprisonment?

Answer 85

Yes!

E.g. An individual accidentally locks herself in a restroom in a restaurant. The restaurant may be liable if it intentionally fails to assist her in unlocking the door.