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Flashcards in Intentional Torts Deck (61)
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What are the prima facie elements of an intentional tort?

  1. Voluntary act; 
  2. Intent to cause harm; 
  3. Causation; and
  4. Resulting harm


What intent is needed for intentional torts? 

  • Intent to cause a harmful result; or 
  • Acting with knowledge that harm is substantially certain to result 


Are children and the mentally incompetent liable for their own torts? 

Yes, if they have the intent (knowledge) required for the tort.


doctrine of transferred intent

If D intends to commit a tort but causes injury to a different victim OR commits a different tort than intended, original intent is transferred to the new victim/tort



Transferred intent applies to which torts?

  • Assault;
  • Battery;
  • False imprisonment; and
  • Trespass to chattels or land 


Elements of battery

  1. Intentional act;
  2. That causes harmful, unwanted, or offensive contact to the plaintiff's person


What qualifies as contact for battery? 

Touching either: 

  • P's body
  • Something that has a close physical connection to P's body (purse, pet on a leash); or 
  • Creating circumstances that will harm P (e.g. putting water on stairs so P will fall)



What constitutes harmful or offensive contact for battery? 




Contact that: 

  • Causes injury, pain, or any physical discomfort to P
  • Offends a reasonable person's sensibilities 


Does P need to be aware of the contact to constitute battery? 



Does P need to prove harm for battery?

No, only that the contact would be offensive to a reasonable person & D had the intent to cause the contact


What are the defenses to battery? 

  1. Consent; 
  2. Self-defense;
  3. Defense of property; and
  4. Defense of others


eggshell plaintiff rule

D will be liable for all injuries/damages to P even if injuries are not reasonably foreseeable (i.e. you take P as you found them, even if P is more susceptible to harm)


Elements of assault

  1. Intentional act by D that creates;
  2. P's reasonable apprehension;
  3. Of imminent harmful or offensive physical contact; and
  4. Causation 


What constitutes reasonable apprehension for assault? 

  1. P is aware of D's act; and
  2. Reasonably apprehends imminent harmful or offensive contact 



Can reasonable apprehension exist if the D lacks the ability to commit assault? 

Yes, as long as P didn't know D lacked the ability. If P knew that D lacked the ability, then no reasonable apprehension would exist. 


Are mere words sufficient for assault? 

No, unless in conjunction with other threatening conduct or circumstances


Are threats of future harm considered assault? 

No, the P must fear immediate bodily harm 


Elements of false imprisonment

  1. intends to confine or restrain P in a bounded area (area where P has no reasonable means of escape);
  2. D actually confines or restrains P in bounded area;
  3. knows or is harmed by confinement



What constitutes confinement for false imprisonment? 

Freedom of movement in all directions is limited with ​no reasonable means of escape.


  • Use of physical barriers, duress, or threats
  • Invalid use of legal authority 



Do threats of future or moral harm constitute confinement? 



Does failing to release from confinement constitute false imprisonment? 


(e.g. P gets trapped in the bathroom and D won't let her out)


shopkeeper's privilege

A shopkeeper is not liable for false imprisonment if she:

  1. Has a reasonable suspicion that P has stolen goods;
  2. Uses reasonable force to detain P; and 
  3. Only detains P for a reasonable time to confirm/deny the suspicion

⚠️ Note: Only non-deadly force allowed. Shopkeeper can be liable for P's injuries if actions exceed scope of privilege .



How long does D need to confine P to constitute false imprisonment? 

Only briefly; duration is only important to determine damages


Can you negligently falsely imprison someone? 

No, false imprisonment requires the intent to confine 


When is proof of actual damages required to recover for false imprisonment? 

Only if P was unaware of his confinement. Proof of actual damages is not required if P was aware. 



false arrest

False assertion of legal authority. Form of false imprisonment.


Elements of IIED

  1. D acts intentionally or recklessly;
  2. With extreme and outrageous conduct; and
  3. Causes P severe emotional distress



What constitutes extreme and outrageous conduct?

Conducts that exceeds all bounds tolerated by a civilized society. Must be much more than mere threats & insults; must shock the conscience.




Is non-outrageous conduct actionable under IIED? 



No, unless:

  • D is an innkeepercommon carrier, or in position of authority (teacher, boss, etc); or 
  • P is part of a particularly susceptible group (seniors, children, pregnant women, etc)


What is considered severe emotional distress?

Level of emotional distress that is expected to adversely affect mental health. Substantial & lasting.


What elements are needed for a bystander to recover for IIED? 

  1. D intentionally or recklessly harmed a third party;
  2. P was present at the scene and witnessed the event; 
  3. P was closely related to victim (i.e. immediate family); 
  4. D knew P was present and closely related; and 
  5. P suffers extreme emotional distress as a result 


⚠️ Note: P does not need to prove the above elements if D's design or purpose was to cause severe emotional distress to P 


Elements of trespass to land

  1. D intentionally
  2. Physically invades P's real property 


What constitutes intent for trespass to land?

Intent to enter the land; D doesn't need to intend to interfere with P's property 


What constitutes entry for trespass to land?

  • Physical invasion by D
  • Object thrown/controlled by D

⚠️ Note: Smells, lights, sounds do not constitute trespass (but may be nuisance)


Is mistake a defense to trespass to land



Elements for trespass to chattel

  1. intentionally;
  2. Intermeddles or uses;
  3. P's personal property (chattel); and 
  4. Causes damage or loss of use



intentionally exercises dominion and control over P's property so as to deprive them of its use 




Is mistake a defense to conversion?



Differentiate trespass to chattels vs. conversion

Trespass to chattels:

  • Shorter in duration with less severe harm than conversion
  • Can only recover cost of repair or rental value 


  • Significant interference that deprives P of use
  • P can recover the full value  + replevin


What are the defenses to intentional torts?

  • Consent (express & implied);
  • Self-defense;
  • Defense of others;
  • Defense of property;  
  • Necessity; and
  • Recapture


What is express consent? When is it negated? 

When P affirmatively communicates permission for D to act through words or writing.

Consent is negated when:

  • D's conduct exceeds the scope of consent;
  • P lacked capacity to consent; or
  • Consent was gained through duress or fraud


What is implied consent? When is it negated? 

Reasonable inference that P consents through her conduct or custom (e.g. participating in boxing match)

Negated when conduct reasonably exceeds the scope of consent.


If consent is given by mistake, is it still a valid defense?

Yes, unless: 

  • D knows that P is mistaken and exploits it; or 
  • D is responsible for the mistake



Elements for self-defense

  1. D subjectively and reasonably believes harm is imminent; and
  2. D uses proportional force to protect herself


When can deadly force be used for self-defense?

Only when faced with intentional threats of death or grave bodily harm 

⚠️ Note: Cannot be used to protect property


Is there a duty to retreat?

Generally no, unless in a retreat jurisdiction (e.g. Washington, DC)


When can the initial aggressor claim self-defense?

Only if the other person responded to non-deadly force with deadly force.


Is a D allowed to act negligently while using self-defense?

No, a D will be held liable if they harm bystanders by acting negligently during self-defense (e.g. shooting a gun into a crowded sidewalk)


What is the defense of others defense?

D is entitled to defend others as long as D has a reasonable belief that P would be entitled to self-defense 


If D mistakenly believes that she or another is in danger, can she still invoke self-defense or defense of others as a defense?

Yes, as long as the mistake was reasonable 


What is defense of property?

D is permitted to use reasonable, non-deadly force to prevent P from causing harm to D's personal or real property



What must D do before using reasonable force to defend property?

Ask the trespasser to stop 


⚠️ Note: Not required if D believes request is dangerous or useless 


What is recapture of chattels?

Privilege to trespass & use peaceful means to get back one's personal property from the wrongdoer


When can force be used to recapture chattels?

Only when in hot pursuit of person with chattel (i.e. tort is in progress) 

⚠️ Note: Deadly force is not allowed


Do parents have the right to discipline their children? 

Yes, parents and educators may use reasonable force to discipline children (reasonableness depends on child's age and proportionality to the misbehavior) 


What is the necessity defense?

Allows D to reasonably interefere with P's property to avoid a substantially greater harm (e.g. D damages P's fence to try and save P's burning house) 


What is the public necessity defense?

D destroyed or interfered with private property to protect the public from severe, imminent disaster



Is public necessity an absolute defense? 

Yes, D is not liable for any damages to the property


When does private necessity arise?

When D interferes or trespasses on P's property to prevent personal harm or harm to a small number of people 


Is private necessity an absolute privilege? 

No, property owner can still recover actual damages for harm done to the property (but not nominal or punitive damages) 


T/F Intentionally wrongful actions render D liable for all consequences of those acts, even if unintended and unforeseen