Torts MBE - Intentional Torts

Question 1

Prima facie case for any intentional tort

Answer 1

proof of the tortious conduct, the requisite mental state, and causation.

Question 2

For battery and assault, the defendant’s tortious conduct must be an act.

Answer 2

The act must be voluntary, meaning that the defendant must have directed the physical muscular movement.

Question 3

For false imprisonment and the intentional infliction of emotional distress, the focus is on the defendant’s conduct.

Answer 3

Regarding the latter two torts, a defendant who fails to act when having a duty to do so may be liable as well as a defendant who affirmatively acts.

Question 4

Requisite Mental State

Answer 4

A defendant acts intentionally if the defendant acts:

i) With the purpose of causing the consequences of his act; or

ii) Knowing that the consequence is substantially certain to result.

Question 5

Substantial Certainty Test

Answer 5

Limited to situations in which the defendant has knowledge to a substantial certainty that the conduct will bring about harm to a particular victim, or to someone within a small class of potential victims within a localized area.

Question 6

Children and the mentally incompetent

Answer 6

In most jurisdictions, neither a minor child nor a mentally impaired individual is excluded as such from liability for an intentional tort. Either may be liable if they act with the requisite mental state.

Question 7

Transferred Intent

Answer 7

defendant intends to commit a battery, assault, or false imprisonment against one person but instead commits the intended tort against a different person. Transferred intent does not apply to transfer intent from an intentional tort based on personal injury (e.g., battery, assault) to an intentional tort based on harm to property (e.g., trespass to land). It also generally does not apply to intentional infliction of emotional distress, but may under limited circumstances

Question 8

Transferred intent also exists when

Answer 8

Defendant intends to commit a battery (i.e., intends to cause a contact with the person of another) and instead commits an assault (i.e., causes the other to anticipate an imminent, and harmful or offensive, contact with his or her person).

Similarly, transferred intent exists when a defendant intends to commit an assault and instead commits a battery.

However, even when a defendant’s actions are the factual cause of another’s harm, transferred intent does not apply if the harm suffered by the plaintiff is beyond the scope of liability.

Question 9

IIED can also be established with recklessly. A defendant acts recklessly if:

Answer 9

i) The defendant knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person’s situation; and

ii) The precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the defendant’s failure to adopt the precaution a demonstration of the defendant’s indifference to the risk.

Question 10

Causation

Answer 10

Causation exists when the resulting harm was legally caused by the defendant’s conduct. For the defendant conduct to be the legal cause of the harm, the defendant’s conduct must be both the factual cause and the proximate cause of the harm.

Question 11

Factual Cause

Answer 11

But For

When there are multiple acts, each of which by itself would have been a factual cause of the harm at the same time in the absence of the other acts, each act is a factual cause of the harm.

Question 12

Proximate Cause

Answer 12

Foreseeable

Limits D’s’ liability

A defendant who intentionally or recklessly causes harm is not subject to liability for harm the risk of which was not increased by the defendant’s intentional or reckless conduct. However, a defendant is not relieved from liability merely because the harm was unlikely to occur. In addition, a defendant who intentionally or recklessly causes harm is liable for a broader range of harms than the defendant would be if only acting negligently.

Question 13

Participation in an Intentional Tort

Answer 13

A defendant who knowingly and substantially instigates, encourages, or assists another person’s commission of an intentional tort involving personal injury is subject to liability for that tort, even if the actor’s conduct does not independently satisfy all elements of the underlying tort.

Question 14

Battery

Answer 14

(1) Defendant intends to cause a contact with the plaintiff’s person;

(2) His affirmative conduct causes such a contact; and

(3) the contact causes bodily harm or is offensive to the plaintiff

Transferred Intent applies

Question 15

Lack of Consent (battery)

Answer 15

Most jurisdictions (that have decided the issue) have placed burden of proof on P to prove lack of actual consent

P generally precluded from recovery if P consents either to the contact that is harmful or offensive or to the conduct by which the actor intends to cause such a contact.

Question 16

Harmful or Offensive Contact

Answer 16

Contact is harmful when it causes physical injury, illness, disease, impairment of bodily function, or death.

Question 17

Offensive Contact

Answer 17

Contact is offensive when a person of ordinary sensibilities (i.e., a reasonable person) would find the contact offensive (objective test).

In addition, contact is offensive when the defendant knows that the contact is highly offensive to the plaintiff’s sense of personal dignity, and the defendant contacts the plaintiff with the primary purpose that the contact will be highly offensive, unless the court determines that imposing liability would violate public policy.

Question 18

Plaintiff’s Lack of Awareness (battery)

Answer 18

The plaintiff need not be aware of the contact when it occurs to recover.

Question 19

Indirect Contact

Answer 19

The harmful or offensive contact need not be with the defendant himself (e.g., the defendant throws a rock that strikes the plaintiff, the defendant pushes another individual into the plaintiff).

Question 20

Lack of Contact–Purposeful Infliction of Bodily Harm

Answer 20

Separate from battery

When there is no contact (direct or indirect) with the P’s person, the D is not liable for battery

When the D’s conduct is particularly culpable impose liability on D for purposeful infliction of bodily harm

D’s conduct could be either an affirmative act or a failure to act when D has a duty to act

Question 21

Contact with Plaintiff’s Person

Answer 21

Contact with anything connected to the plaintiff’s person qualifies as contact with the plaintiff’s person for the purposes of battery.

Question 22

Causation

Answer 22

D’s act must be voluntary and affirmative, must in fact result in contact. D who sets in motion chain of events that causes contact is liable (setting tripwire and later someone trips on it).

Question 23

Intent

Answer 23

Subject to transferred intent, D must intend to cause a contact with P

To act intentionally, D must act with either (1) purpose of bringing about the consequences of that act; or (2) the knowledge that the consequences are substantially certain to occur

MAJ: D only has to intend to cause contact (single intent); min: intend to cause contact and intend for contact to be harmful or offensive (dual intent)

Question 24

Damages for Battery

Answer 24

P may recover damages for physical injury (bodily harm) as well as damages for emotional distress

P may recover nominal damages

Many jurix allow recovery of punitive damages if D acted outrageously or with malice

D liable for unforeseen consequences (eggshell-skull rule)

Question 25

Assault

Answer 25

D is subject to liability for assault if (1) D intends to cause the P to anticipate (or apprehend) an imminent and harmful or offensive contact with the P’s person; and (2) the D’s affirmative conduct causes the plaintiff to anticipate such contact with the P’s person

Transferred intent applies

Question 26

Assault lack of consent

Answer 26

As with battery, most jurix have not decided which party bears BoP. Of jurix that did decide, most place BoP on the P to prove lack of actual consent.

P precluded from recovery if P consents to (1) the anticipation, including fear, of an imminent harmful or offensive contact, (2) the contact itself, or (3) the conduct by which the D intends to cause such an anticipation or contact

Question 27

Assault anticipated contact

Answer 27

P must be aware or have knowledge of D’s act

But batteries can be committed even though P unaware of contact

Question 28

Anticipation

Answer 28

MAJ: objective; P’s anticipation must be reasonable, meaning a reasonable person must have anticipated a harmful or offensive contact

min: subjective; P must have anticipated a harmful or offensive contact

Question 29

Assault - Anticipation does not mean fear

Answer 29

Only anticipate or apprehend harmful or offensive contact; don’t have to fear it (child attempting to kick adult in full body armor is still assault)

Question 30

Assault prevention of contact

Answer 30

P’s ability to prevent the threatened contact does not preclude P from anticipating that D’s conduct would be harmful or offensive if P failed to act. P may take preventive action, but P not required to do so. Even though P fails to take action, D still liable for assault

someone points gun at you, you can grab the gun from them, and they will still be liable for assault

Question 31

Assault apparent ability

Answer 31

D’s apparent ability to cause harm can be sufficient to place P in anticipation

When someone threatens to shoot you with a gun that looks real but is actually a toy

Question 32

Assault imminence

Answer 32

Threatened bodily harm or offensive contact must be imminent; ordinarily a question of fact; threats of future harm generally insufficient, as are threats made by D who is physically too far away to imminently inflict harm

Question 33

Assault intent

Answer 33

Transferred intent applies

D must intend to cause P’s anticipation of an imminent contact or substantially or virtually know that the P will suffer such anticipation

Question 34

Assault - mere words

Answer 34

Mere words do not constitute an assault; words coupled with other acts or circumstances may be sufficient if P reasonably anticipates that a harmful or offensive contact is imminent

But D’s own words can negate intent

Question 35

Assault damages

Answer 35

Physical injury (heart attack); emotional distress (pain, suffering)

No proof of actual damages required

Victim can recover nominal damages and sometimes punitives

Question 36

IIED

Answer 36

D is liable for IIED if D by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to P

Question 37

IIED intent

Answer 37

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

Transferred intent does not apply when D intended to commit a different intentional tort (such as battery) against a different victim

Transferred intent may apply if instead of harming the intended person, D’s extreme and outrageous behavior harms another

Question 38

IIED extreme and outrageous conduct

Answer 38

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

Typically doesn’t extend to mere insults, threats, or indignities

Abusive language and conduct may be sufficient if either (1) D is in a position of authority or influence over P, such as a police officer, employer, or school official, or traditionally an innkeeper or an employee of a common carrier; or (2) P is a member of a group w/ a known heightened sensitivity (young children, pregnant women, or the elderly)

Question 39

IIED public figures

Answer 39

Public figures and public officials may not recover for IIED by reason of publication without showing in addtion that the publication contains a false statement of fact that was made with actual malice (knowledge the statement was false or reckless disregard as to truth)

Question 40

IIED emotional harm caused by harm to third party

Answer 40

D who causes harm to an individual may be liable when his intentional or reckless conduct also causes severe emotional distress to a close family member of the individual who contemporaneously perceives the D’s extreme and outrageous conduct

Bystander rule does not require close family member to suffer bodily harm

If D’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 41

IIED causation

Answer 41

P must establish D’s actions were a factual cause of P’s distress

Question 42

IIED damages

Answer 42

P must prove severe emotional distress beyond what a reasonable person could endure

If D’s conduct causes bodily harm, recoverable

In most cases, D’s extreme and outrageous behavior provides evidence P experienced severe mental distress (i.e., the more extreme the conduct, the less evidence required of the severity of the P’s emotional distress)

If P hypersensitive and experiences severe emotional distress unreasonably, then there is no liability unless D knew of the P’s heightened sensitivity

Question 43

False Imprisonment

Answer 43

D is liable for false imprisonment if:
(1) D intends to confine the P within a limited area
(2) D’s conduct causes the P’s confinement, or the D fails to release the P from a confinement despite owing a duty to do so; and
(3) the P is conscious of the confinement*

*min: P who was not conscious of confinement may still recover if harmed

In ALL jurix, intent for false imprisonment may be satisfied through transferred intent

Question 44

False Imprisonment lack of consent

Answer 44

As with battery and assault, most jurix have not decided who bears BoP with issue of consent; of those who addressed issue, MAJ place BoP on P to prove lack of actual consent

Question 45

False Imprisonment Confinement

Answer 45

P must be confined w/in limited area in which P’s freedom of movement in all directions is constrained

P may be confined when compelled to move in a highly restricted way (accompanying D to back of store or to police station)

Question 46

False Imprisonment methods of confinement

Answer 46

(1) Physical Barriers
(2) Physical force or restraint
(3) Threat of physical force or restraint; or
(4) Duress (other than by threat of physical force or restraint)

Question 47

False Imprisonment physical barriers

Answer 47

D can confine a P by creating a physical barrier that precludes the P from exiting a limited area

the boundaries that confine the P need not be created by the D

P who knows of a readily available, feasible, and safe way to exit is not confined by physical barrier; P is not required to use an exit that would expose P to any risk of physical harm

D’s lack of knowledge and P’s knowledge of an exit will not result in D’s liability

Question 48

False Imprisonment physical force or restraint or threat of physical force or restraint

Answer 48

D who employs physical force or restraint against P to prevent P from leaving a limited area has confined P

If physical force or restraint employed wrongfully places P at risk of being subjected to additional force, restraint, indignity, or physical injury, P who submits to force or restraint has been confined, even though P is physically capable of escaping

D who threatens to employ immediate physical force or restraint if P attempts to leave limited area has confined P; threat may be expressed or implied and may be made by words, conduct, or both

Question 49

False Imprisonment duress

Answer 49

P who agrees to remain in limited area b/c of D’s duress has been confined; duress may arise from D’s threat to harm a member of P’s family or retain P’s property, but not all threats or forms of pressure (moral pressure) constitute duress

Question 50

False Imprisonment assertion of legal authority

Answer 50

D confines P if (1) D asserts the legal authority to take P into custody or to otherwise confine P; and (2) P submits to such confinement b/c P believes either P (a) has a duty to comply with the assertion of authority or (b) might face adverse legal or physical consequences for failure to comply