MBE Torts

Question 1

Intentional Torts - Elements P must prove

Answer 1

1. Voluntary Act
2. Intent
3. Causation

Question 2

Voluntary Act (def)

Answer 2

Defendant must have the state of mind that directed the physical movement

Question 3

Intent (def) - Intentional Torts

Answer 3

Defendant acted:

(i) with the purpose of causing the consequence, OR
(ii) knowing the consequence is substantially certain to occur

NB: “consequence” is the intention to commit the tort, not necessarily intention to cause the particular harm

NB: Children and the mentally incompetent persons can be held liable for intentional torts if they act with the requisite intent

Question 4

Transferred Intent

Answer 4

When a person intends to commit an intentional tort against one person but instead commits:

(i) a different intentional tort against the same person
(ii) the same intentional tort against a different person, or
(iii) a different intentional tort against a different person

Question 5

Transferred intent applies to which torts

Answer 5

Intentional torts of:

• Battery
• Assault
• False Imprisonment
• Trespass to Land
• Trespass to Chattels

DOES NOT apply to intentional infliction of emotional distress

Question 6

Causation (intentional torts)

Answer 6

Defendant’s conduct was a substantial factor in creating the harm

Question 7

Battery (def)

Answer 7

An intentional tort
Defendant causes a HARMFUL or OFFENSIVE contact with the person of another; and
Acts with the intent to cause that contact OR the APPREHENSION of that contact

Question 8

Offensive contact (def)

Answer 8

A person of ORDINARY SENSIBILITIES (reasonable person) would find that contact offensive.

NB: Df might be liable if aware that the victim is hypersensitive but acts nonetheless

Question 9

P’s Awareness (battery)

Answer 9

P need not be aware of the contact with it occurs

ex: unconscious medical patient is inappropriately touched by doctor

Question 10

P’s person (battery)

Answer 10

Contact with anything CONNECTED to the P’s person qualifies as contact with the person
(ex: knocking someone’s cane out from under them)

Question 11

Egg-shell Plaintiff Rule

Answer 11

The defendant is not required to foresee the extent of damages to be liable for all damages

Question 12

Damages (battery)

Answer 12

NO proof of actual harm is required
The P can recover nominal damages

Many states allow punitive damages if the df acted:

(i) with malice (i.e., wrongful motive)
(ii) outrageously

Question 13

Assault (def)

Answer 13

P’s reasonable apprehension of an IMMINENT harmful or offensive bodily contact caused by the Df

Question 14

Intent (assault)

Answer 14

Df must act with the intent to cause either:

(i) that apprehension, or
(ii) the contact itself

Question 15

P’s Apprehension (assault)

Answer 15

(1) Must be reasonable
(2) P must be AWARE of or have knowledge of the df’s act
(3) Actual fear is NOT required - only reasonable apprehension of imminent contact

Question 16

Imminent (assault)

Answer 16

Must be without significant delay

Threats of FUTURE harm are NOT sufficient

Question 17

Mere Words (assault)

Answer 17

“Mere words” do not constitute an assault, BUT

Words coupled with the circumstances can indicate an imminent threat of harmful or offensive contact

Question 18

Damages (assault)

Answer 18

No proof of actual damages is required
P can recover nominal damages
P can also recover damages for physical harm flowing from the imminent apprehension
(ex: P suffers a heart attack)

Question 19

Intentional Infliction of Emotional Distress (def)

Answer 19

A defendant is liable for intentionally or recklessly acting with extreme or outrageous conduct that causes the P severe emotional distress

Question 20

Intent (IIED)

Answer 20

The defendant must intend to cause severe emotional distress or at least be reckless as to the risk of causing extreme emotional distress

** Transferred intent does NOT apply **

Question 21

Extreme or Outrageous Conduct (IIED)

Answer 21

• Exceeds the limits of common decency so as to be intolerable to society
• Mere insult, indignities, or threats are not enough
• Courts are more likely to find the conduct or language to be extreme/outrageous, if:
  (i) Df is in a position of authority or influence over the P
  (ii) P is a member of group that has a heightened sensitivity that Df knows about

Question 22

Conduct Directed at Third Party (IIED)

Answer 22

Family Member:
- If the conduct is direct at a member of the victim’s immediately family who is PRESENT at the time of the conduct, and the Df is AWARE of that presence, then that person can be liable whether or not there has been a physical injury

Bystander:
- If there is a bystander who is PRESENT at the time of the conduct, and the Df is aware of that bystander’s presence, and that bystander suffers DISTRESS that results in bodily injury, then that person can be liable

Question 23

Damages (IIED)

Answer 23

Physical injury is NOT required, unless a bystander other than a family member

Question 24

False Imprisonment (def)

Answer 24

(1) Df acts intending to CONFINE or RESTRAIN another within boundaries fixed by the defendant
(2) The actions directly or indirectly result in confinement, and
(3) P is AWARE of the confinement OR harmed by it

Question 25

Confinement - Area / Method (False Impr)

Answer 25

Bounded Area:

• P’s freedom of movement in all directions must be limited
• Area can be large
• Does not have to be stationary
• Not considered bounded if there is a SAFE means of escape

Methods of Confinement:

• Use of physical barriers, physical force, threats, invalid use of legal authority, duress, or refusing to provide a safe means of escape
• May also find if the Df refused to perform a DUTY to release the P from existing confinement / provide a means of escape

Question 26

Shopkeeper’s Privilege

Answer 26

A shopkeeper can detain a suspected shoplifted without being considered false imprisonment

Question 27

Knowledge of Confinement (False Impr)

Answer 27

P must be AWARE of the confinement or HARMED by it

• If not aware, and no physical harm, then cannot recover

Question 28

Damages (False Impr)

Answer 28

Actual damages not required

Nominal damages can be recovered, unless the P was not aware of (or harmed by) the confinement

Question 29

Express Consent (def)

Answer 29

P by some words or actions manifests a willingness to submit to the conduct

Question 30

Consent by Mistake (int tort)

Answer 30

Valid unless the Df caused the mistake or knew of it and took advantage of it

Question 31

Consent by Fraud (int tort)

Answer 31

Invalid if it goes to an essential matter (if goes to collateral matter, then consent is valid)

Question 32

Consent Under Duress

Answer 32

Invalid (threats of physical force only – not economic)

Question 33

Implied Consent (def)

Answer 33

P has impliedly consented when:

(i) a reasonable person would object and P is silent
(ii) P enters into circumstances that signal indirectly that P is willing to endure certain conduct

Question 34

Consent - Athletic Competitions

Answer 34

Consent is implied – only liable if conduct is reckless (like bringing a hammer to a field)

Question 35

Self-Defense (def)

Answer 35

A person may use reasonable fo