INTENTIONAL TORTS - TORTS INVOLVING PERSONAL INJURY

Question 1

EXPLAIN TRANSFERRED INTENT

Answer 1

An actor may intend to commit an intentional tort against one person but instead commit:

• a different intentional tort against that same person
• the same intentional tort against a different person or
• a different intentional tort against a different person.

When this occurs, the actor’s initial intent transfers to the tort that was actually committed or to the person who was actually harmed. This doctrine of transferred intent applies to five intentional torts, including assault. Assault occurs when a defendant (1) intends to inflict harmful or offensive contact (or imminent apprehension of such contact) and (2) causes the plaintiff reasonable apprehension of imminent contact.

Question 2

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS REQUIREMENTS

Answer 2

Intentional infliction of emotional distress (IIED) requires proof that the defendant was at least reckless as to the risk that his/her extreme and outrageous conduct would cause the plaintiff severe emotional distress. To establish this element in cases where the plaintiff’s distress stems from conduct that physically or emotionally harmed a third party, the plaintiff must generally prove the following facts:

• The plaintiff contemporaneously perceived (i.e., saw or overheard) the defendant’s conduct.
• The plaintiff was a close relative (i.e., immediate family member) of the harmed third party.
• The defendant knew that the plaintiff was present and closely related to the harmed third party.

generally only the actual target of the defendant’s extreme and outrageous conduct can recover damages for IIED.

Question 3

FALSE IMPRISONMENT AND THE SHOPKEEPER’S PRIVILEGE

Answer 3

False imprisonment occurs when defendant:

• intentionally confines or restrains plaintiff within boundaries fixed by defendant
• defendant’s actions directly or indirectly result in such confinement and
• plaintiff is conscious of or harmed by confinement

In most jurisdictions, a defendant is not liable for false imprisonment when the shopkeeper’s privilege applies. This privilege applies when the defendant:

• reasonably believed that the plaintiff was shoplifting and
• detained the plaintiff for a reasonable amount of time and in a reasonable manner to investigate the facts.

The reasonableness of the detention is based on the totality of the circumstances, including whether the defendant (1) used greater force than was necessary to detain the plaintiff or (2) caused the plaintiff to suffer unnecessary humiliation, embarrassment, or discomfort.

Question 4

Bystander theories of recovery

(Intentional v. Negligent infliction of emotional distress)

Conduct

Contemporaneous perception

Harm

IIED

• Intentional or reckless—ie, defendant knew plaintiff was:
  
  • present and
  • related to injured person
• Extreme & outrageous

Plaintiff saw or heard injury to close relative

Severe emotional distress

NIED

• Negligent

Plaintiff saw or heard injury to close relative

Serious emotional distress

Answer 4

When a plaintiff’s emotional distress stems from witnessing harm to a close relative, the plaintiff can sue for intentional infliction of emotional distress (IIED) under the bystander theory. Liability arises under this theory when the plaintiff proves all of the following facts:*

• The defendant engaged in extreme and outrageous conduct that emotionally or physically harmed the plaintiff’s close relative.
• • The defendant’s conduct was intentional or reckless (i.e., the defendant knew that the plaintiff was present and closely related to the injured person).
• • The plaintiff contemporaneously perceived that conduct and suffered severe emotional distress.

Question 5

HOW IS CAUSATION DEFINED IN THE CONTEXT OF INTENTIONAL TORTS?

Answer 5

THERE WILL BE CAUSATION IF THE TORT IS THE RESULT OF THE D’S ACT, OR IF THE D SET IN MOTION A STRING OF ACTS THAT EVENTAULLY LED TO THE RESULT.

IN ADDITION, CAUSATION IS SATISFIED IF THE D’S CONDUCT WAS A SUBSTANTIAL FACTOR IN BRINGING ABOUT THE RESULT.

Question 6

TO PROVE AN INTENTIONAL TORT, THE PL MUST PROVE THREE ELEMENTS:

Answer 6

1. ACT
2. INTENT
3. CAUSATION

Question 7

CHILDREN AND MENTALLY INCOMPETENT PERSONS CAN BE HELD LIABLE FOR INTENTIONAL TORTS IF THEY ACT WITH THE REQUISITE INTENT

Question 8

ELEMENTS FOR A CAUSE OF ACTION FOR THE TORT OF BATTERY

Answer 8

1. HARMFUL OR OFFENSIVE CONTACT (OBJECTIVE STD; NO ACTUAL HARM REQD)
2. TO PERSON OF ANOTHER (OR ANYONE CONNECTED TO IT)
3. CAUSATION (DIRECT OR INDIRECT)
4. D’S INTENT

• SINGLE INTENT RULE - MAJORITY RULE - D MAY BE LIABLE IF D (i) INTENDS TO BRING ABOUT THE CONTACT ; D NEED NOT INTEND (ii) THAT THE CONTACT IS HARMFUL OR OFFENSIVE
• DOUBLE-INTENT RULE: D MUSTl (i) INTEND TO BRING ABOUT A CONTACT; AND (ii) INTEND THAT THE CONTACT BE HARMFUL OR OFFENSIVE

Question 9

Elements of Tort Claim for Assault

Answer 9

Assault: An act or threat by the D intended to cause apprehension of imminent harm or offensive contact.

Elements:

1. Conduct or other circumstances - (Mere words not enough)
2. Pl must have reasonable apprehension and awareness of D’s act or threat;
3. Imminent threat of harm
4. Intent (includes transferred intent)

Question 10

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Answer 10

D must intend to cause severe emotional distress or must act with recklessness as to the risk of causing such distress.

INTENT OR RECKLESSNESS

• Extreme and outrageous conduct by D (beyond human decency, outrageous)
• Transferred intent does not apply to IIED when D intended to commit a DIFFERENT intentional tort (e.g. battery) against a different victim)
• Transferred intent may apply to IIED if, instead of harming the intended person, D’s extreme conduct harms another

CAUSATION (Factual cause test) D’s action must be a cause in fact of the Pl’s harm.

DAMAGES Severe emotional distress ( beyond resonable person’s endurance or D knows of P’s heightened sensitivity)

Question 11

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

When are the courts more likely to find conduct or language to be extreme or outrageous sufficient for a claim of IIED?

Answer 11

• The D is in a position of authority or influence pver the Pl; or
• The Pl is a member of a group that has a heightened sensitivity (such as young children or the elderly)

Question 12

IIED AND PUBLIC FIGURES/PUBLIC OFFICIALS AND CONSTITUTIONAL LIMITATIONS

Can public figures recover on a claim for IIED?

Answer 12

Public figures and public officials cannot recover unlss they can show that the words contain a false statement of fact that was made with “actual malice”.

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

Question 13

IIED AND CONDUCT TOWARD THIRD PARTIES

If the D directed extreme and outrageous conduct toward one party and ended up causing severe emotional distress to antoher party, the doctrine of transferred intent may make him liable for IIED.

Only in certain circumstances

Answer 13

• Immediate family member of the victim who is present at the time of the conduct and perceives the conduct may recover for IIED regardless of whether that family member suffers bodily injury as a result of the distress.
• • Bystander can recover for IIED if present at the time of the conduct, perceives the conduct, and suffers distress that results in BODILY INJURY (i.e. physical manifestation of the distress)

Different intentional tort: If the D commits a different intentional tort toward one victim, thereby causing severe emotional distress to another, the same rules apply.

Question 14

TORTS - IIED THIRD PARTY

WHEN CAN A THIRD PARTY MAKE A SUCCESSFUL CLAIM FOR IIED?

Answer 14

Intentional infliction of emotional distress (IIED) requires proof that the defendant was at least reckless as to the risk that his/her extreme and outrageous conduct would cause the plaintiff severe emotional distress. To establish this element in cases where the plaintiff’s distress stems from conduct that physically or emotionally harmed a third party, the plaintiff must generally prove the following facts:

• The plaintiff contemporaneously perceived (i.e., saw or overheard) the defendant’s conduct.
• The plaintiff was a close relative (i.e., immediate family member) of the harmed third party.
• The defendant knew that the plaintiff was present and closely related to the harmed third party.

Question 16

ELEMENTS OF THE INTENTIONAL TORT OF FALSE IMPRISONMENT

Answer 16

• D intends to confine or restrain another within fixed boundaries;
• The actions directly or indirectly resut in confinement; and
• Pl is conscious of the confinement or harmed by it.

Area need not be stationary or small. Pl can be confined in a moving van if PL cannot leave the van.

Question 17

FALSE IMPRISONMENT: METHODS OF CONFINEMENT TO MAKE A CLAIM

Answer 17

• Use of physical barriers, physical force, threats, invalid invocation of legal authority, duress, or refusing to provide a safe means of escape
• A court may finde false imprisonment when the D has refused to perfrom a duty to help a person escape.

Question 18

FALSE IMPRISONMENT AND THE SHOPKEEPER’S PRIVILEGE

Answer 18

A shopkeeper can, for a reasonable time and in a reasonable manner detain a suspected shoplifter.

• Time of confinement: Immaterial to the tort
• Intent
  
  • Defendant must act:
    
    • With the purpose of confining the Pl; or
    • KNowing that the Pl’s confinement will not be liable under the intentional tort of false imprisonment
    • Transferred intent applies
• Damages: Pl can recover nominal damages; actual damages are also compensable.

Question 19

DEFENSES TO INTENTIONAL TORTS INVOLVING PERSONAL INJURY

Answer 19

• Consent
• Self Defense
• Defense of Property
• Defense of Others
• Privilege of Arrest
• Parental Discipline
  *

Question 21

Defense to an intentional Tort involving personal injury

Consent: What are the parameters of this defense?

Answer 21

The plaintiff expressly consents if he, by words or actions, manifests the willingness to submit to the D’s conduct. The D’s conduct may not exceed the scope of the consent.

Consent by mistake is a valid consent unless the D caused the mistake or knew of it and took advantage of it.

Fraud: Consent induced by fruad is invalid if it goes to an essential matter. If the fraud only goes to a collateral matter, consent can still be a valid defense.

Implied Consent: The Pl’s consent is implied when the Pl is silent (or otherwise nonresponsive) in a situation in which a reasonable person would object to the D’s actions.

• Emergencies: When immediate action is required to save the life or health of apatient who is incapable of consenting to treatment, sucn consent is ordinarily unnecessary. Court generally say that consent is “implied in fact”.
  
  • Even in an emergency situation, a competent and consciou patient’s right to refuse treatment cannot be overridden.
• Injuries arising from athletic contest: Consent may be implied bu custom and usage (e.g. participation in a contact sport).
• The majority of jurisdictions have considered the issue of when a participant in an athletic contest can recover –the injured player can recover only for a reckless disregard of a player’s safety, such as a violation of a safety rule designed primarily to protect participants from serious injury.
• Mutual consent to combat

Capacity: Lack of capacity may undermine the validity of the consent (e.g. youth, intoxication, incompetency)

Question 23

Defenses to Intentional Torts Involving Personal Injury

Self-Defense - What are the parameters of this defense?

Answer 23

A person may use reasonable force to defend against an offensive contract or bodily harm that he reasonably believes is about to be intentionally inflicted upon him.

• The force must be reasonably proportionate to the anticipated harm.
• A person’s mistaken belief that he is in danger, so long as it is a reasonable mistake, does not invalidate the defense.

Duty to retreat: Traditionally, most courts required retreat before one could use deadly force. Now you do not need to retreat before using reasonably proportionate force.

• Initial aggressor: not permiteed to claim self-defense unless the other party has responded to nondeadly force with deadly force.

Injuries to bystanders: A person acting in self-defense is not liable for injury to bystanders as long as the injury was accidental and the actor was not negligent toward the bystander.

Question 24

Self Defense and the Florida “Stand Your Ground” Rule

**Focus for self-defense is on the reasonableness of the conduct in response to provocation.

Common Law;

A person has a privilege to use self-defense and may use (i) reasonable force, when he (ii) reasonably believes it is necessary, so long as the force is (iii) reasonably proportionate to the threat. Reasonable mistake does not invalidate reasonable belief.

Answer 24

Florida Statute - Stand your Ground - Alters self-defense law to make it more favorable to Ds.

• Imposes a reasonable belief presumption in some circumstances
  
  • i.e. when an intruder breaks into a home or an occupied vehicle
• No duty to retreat prior to using deadly force if:
  
  • A person is where he ahs a right to be;
  • Is not engaging in criminal activity; and
  • He reasonably believes it is necessary to prevent death or great bodily harm.
• Immunity - There is actual immunity (not just a defense) from civil suties where justifiable force was used.
  
  • D will get attorney fees for costs incurred if found immune.

Reasonable belief presumption applies when:

• Unlawful and forceable entry by the intrude into another’s dwelling, residence, or occupied vehicle; OR the attempted forcible removal of another from a dwelling, residence or vehicle; AND
• The person who used force knows or had reasong to believe of the unlawful and forcible entry.

Residence: Where you live

Dwelling: Can be a tent, front porch, etc (broader)

• Does not apply when:
  
  • The person against whom force was used had a legal right to be in the dwelling, residence or vehicle
  • Person against whom force is sued is attempting forcible removal of their child, grandchild, or one over whom they have lawful custody
  • Unlawful activity taking place in the dwelling, residence, or vehicle by the person using force.
• THE LEO EXCEPTION: The person against whom force is used is a law enforcement officer and the person using force knew or reasonably should have known.

*

Question 25

FL Stand your ground law - Is there an duty to retreat before using nondeadly or deadly force?

Answer 25

Florida has no duty to retreat before using deadly or non-deadly force if:

• The person using force is in a place she has a right to be; AND
• She reasonably believes the use of force is necessary to prevent
  
  • Death or great bodily harm to herself or another; OR
  • There is a commission of a forcible felony

Question 26

Defenses to Intentional Torts Involving Personal Injury

Defense of Others

Answer 26

A person may use reasonble force in defense of others, if the others would be entitled to use self-defense.

Question 27

Defenses to Intentional Torts Involving Personal Injury

Defense of Property

Answer 27

Reasonable force may be used if the person reasonably believes it is necessary to prevent tortious harm to the property

Deadly force cannot be used.

• A person may never use deadly mechanical devices (e.g. spring guns).

Recapture of chattels (personal property)

Reasonable force may be used to reclaim personal property that has been wrongfully taken, but only if you first request its return, unless that would be futile.

• If the original taking was lawful (like a bailment), then only peaceful means may be used.

Force to regain possession of land

• Common law - reasonable force permitted
• Modern rule - use of force no longer permitted; can only use the legal process
  *

Question 28

Defenses to Intentional Torts Involving Personal Injury

Parental Discipline

Parents may use reasonable force as necessary to discipline children.

Question 29

Defenses to Intentional Torts Involving Personal Injury

Privilege of Arrest

What are the parameters of this defense?

Answer 29

Private citizen

• Permitted to use reasonable force to make an arrest in the case of a felon IF:
  
  • The felony has actually been committed; and
  • The arresting party has reasonable grounds to suspect that the person being arrested has committed the felony
• It is a defense to make a reasonable mistake as to the identity of the felon.
• It is not a defence to make a mistake as to whether the felony was actually committed.

Police

• Must reasonably believe that a felony has been committed and that the person arrested committ it;
• An officer who makes a mistake as to whether a felony has been committed is not subject to tort liability

Misdemeanor

• An arrest by a police officer may only be made if the misdemeanor was committed in the officer’s presence;
• An arrest by a private person may only be made if there is a “breach of the peace”.
  *

Question 30

TORTS - ASSAULT

ASSAULT; requires that a defendant cause the plaintiff reasonable apprehension of imminent harmful or offensive contact. Words alone cannot cause reasonable apprehension unless they are accompanied by some act apparently intended to carry out the threat (eg, a threatening gesture).

Question 31

MBE TORTS - USE OF FORCE AND SELF-DEFENSE AND/OR BATTERY

WHEN CAN A BATTERY BE JUSTIFIED? EXPLAIN THE PARAMETERS OF DEFENSE OF OTHERS.

Answer 31

A person commits battery when he/she (1) causes harmful or offensive contact with the victim’s person and (2) intended to cause that contact—or the victim’s apprehension of the contact. A battery is justified, and will not subject the person to civil liability, when it is committed in defense of others—i.e., when:

the person reasonably believed that the defended party would be entitled to use self-defense and

• the force used by the person was reasonable under the circumstances.

Question 32

TORTS MBES: BATTERY

CAN A PERSON BE LIABLE FOR BATTERY WHEN A PERSON REFUSES TRATEMENT BUT THE DEFENDANT PERSON STILL PROCEEDS?

Answer 32

A defendant is liable to the plaintiff for battery when he causes a harmful or offensive contact with the person of another, and acts with the intent to cause such contact or the apprehension of such contact. The plaintiff’s consent to physical contact can be implied by silence in a situation in which a reasonable person would object to the defendant’s actions, but even in an emergency situation, a competent and conscious person’s right to refuse treatment must be respected

Question 33

MBE TORTS - INTENTIONAL INFLICTION OF EMOTION DISTRESS

WHAT ARE THE REQUIREMENTS FOR A THIRD PARTY TO MAKE A CLAIM FOR IIED?

Answer 33

Intentional infliction of emotional distress (IIED) requires proof that the defendant was at least reckless as to the risk that his/her extreme and outrageous conduct would cause the plaintiff severe emotional distress. To establish this element in cases where the plaintiff’s distress stems from conduct that physically or emotionally harmed a third party, the plaintiff must generally prove the following facts:

The plaintiff contemporaneously perceived (i.e., saw or overheard) the defendant’s conduct.
The plaintiff was a close relative (i.e., immediate family member) of the harmed third party.
The defendant knew that the plaintiff was present and closely related to the harmed third party.

Question 34

TORTS MBE - COMPARATIVE FAULT IN NEGLIGENCE CASES

EXPLAIN HOW COMPARATIVE FAULT WORKS IN NEGLIGENCE CASES. WHAT HAPPENS WHEN THE DEFENDANT ALSO COUNTERCLAIMS?

Answer 34

raditionally, a plaintiff who was contributorily negligent was barred from recovering damages. But almost all jurisdictions have now adopted some form of comparative fault (i.e., comparative negligence). There are two forms of comparative fault:

Pure comparative fault (default rule on the MBE) – the party’s recovery is reduced by his/her percentage of fault

Modified comparative fault – the same as pure comparative fault, except that the party’s recovery is barred if his/her fault exceeds 50%

In a pure comparative-fault jurisdiction, when both parties are entitled to recover damages (as seen here), the plaintiff’s recovery is reduced (i.e., offset) by the defendant’s recovery—and vice versa.

Question 35

TORTS MBE - NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

UNDER WHAT THEORIES CAN YOU MAKE A CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS? THEN EXPLAIN HOW TO MAKE A CLAIM UNDER THE ZONE OF DANGE THEORY.

Answer 35

Negligent infliction of emotional distress (NIED) has three theories of recovery: (1) zone of danger, (2) bystander, and (3) special situation. Liability under the zone-of-danger theory arises when:

the defendant’s negligent conduct placed the plaintiff in danger of immediate bodily harm and
that danger caused the plaintiff serious emotional distress.

Question 36

TORTS MBE - LEARNED INTERMEDIARY RULE AND FAILURE TO WARN CLAIMS

EXPLAIN THE LEARNED INTERMEDIARY RULE AND ITS EFFECT ON A STRICT PRODUCTS LIABILITY CLAIM (FAILURE TO WARN).

Answer 36

Under the learned-intermediary rule, a manufacturer of a prescription drug or medical device will not be held strictly liable for inadequate warnings or instructions if the manufacturer warned the prescribing physician about the risk of harm associated with that product.

Question 37

TORTS MBE - NEGLIGENCE STDS AND GUEST STATUTES

WHAT IS THE STANDARD OF CARE WHEN THERE IS A GUEST STATUTE THAT IS APPLICABLE? WHAT DUTY IS OWED TO THE GUEST?

Answer 37

In negligence actions, the standard most often applied to determine if the defendant breached a duty to the plaintiff is ordinary care—i.e., the care that a reasonably prudent person would use under the circumstances. In most jurisdictions, automobile drivers owe a duty of ordinary care to their passengers (persons who pay money for the ride) as well as their guests (persons who ride for free).

However, a minority of jurisdictions—including the one at issue here—have enacted “guest statutes.” Under these statutes, the only duty that automobile drivers owe to their guests is to refrain from gross or wanton and willful (i.e., reckless) misconduct. As a result, a plaintiff-guest can recover damages from a defendant-driver under a guest statute if the driver’s reckless behavior caused the guest’s injuries.

Question 38

TORTS MBE - ATTRACTIVE NUISANCE

EXPLAIN THE ATTRACTIVE NUISANCE DOCTRINE.

Answer 38

Under the attractive-nuisance doctrine, land possessors have a duty to protect child trespassers from artificial conditions on their land under certain circumstances. A land possessor that breaches this duty of care and causes the child trespasser physical harm is liable for negligence.

Question 39

TORTS MBE - STRICT PRODUCTS LIABILITY

WHEN IS A COMMERCIAL SUPPLIER OF A COMPONENT THAT IS INTEGRATED INTO A DEFECTIVE PRODUCT SUBJECT TO STRICT LIABILITY IN A STRICT PRODUCTS LIABILITY CLAIM?

Answer 39

The commercial supplier of a component that is integrated into a defective product is subject to strict liability when (1) the component is defective or (2) the supplier substantially participated in the process of integrating the component into the product’s design and the component’s integration caused that product to be defective.

Question 40

TORTS MBE - LANDOWNER LIABILITY TO LAND ENTRANTS

WHAT IS THE MODERN APPROACH TO LANDOWNER LIABILITY?

Answer 40

Under the modern approach to land-possessor liability, land possessors owe a duty of reasonable care to all land entrants (except flagrant trespassers).

Question 41

TORTS MBE: NEGLIGENCE AND MOTIONS FOR A DIRECTED VERDICT

WHEN SHOULD A COURT GRANT A MOTION FOR A DIRECTED VERDICT?

Answer 41

A court should grant a defendant’s motion for a directed verdict if the plaintiff fails to present legally sufficient evidence to support every element of the claim—i.e., no reasonable jury could find in the plaintiff’s favor (Choice B). For a negligence claim, the plaintiff must prove all of the following:

The defendant owed the plaintiff a duty.
The defendant breached that duty.
The defendant’s breach caused the plaintiff’s harm.
The plaintiff is entitled to damages.
Traditionally, the duty owed to land entrants depended on their status on the land. But under the modern approach—adopted in this jurisdiction and about half the others—land possessors owe all land entrants (except flagrant trespassers) a duty of reasonable care.