Torts - Intentional Torts

Question 1

8.3%

Define “battery”

Answer 1

Intentionally causing the harmful or offensive contact of another or anything connected to them

Question 2

8.3%

Can you be liable for battery accidentally?

Answer 2

No, need intent.

Question 3

What are the elements of assault?

Answer 3

An assault occurs when the defendant:
Causes or is a substantial factor in bringing about;
Reasonable apprehension in the plaintiff;

Of imminent harmful or offensive bodily contact to the plaintiff’s person; AND

Has specific or general intent

Question 4

8.3%

What are the elements of battery?

Answer 4

A battery occurs when the defendant:

1. Causes or is a substantial factor in bringing about;
2. Harmful or offensive contact;
   Harmful Contact. Contact is harmful when it causes injury, pain, or illness.
   Offensive Contact. Contact is offensive when a person of ordinary sensibility would find the contact offensive (e.g., spitting on someone).
3. To the plaintiff’s person; AND
   The plaintiff’s person includes anything connected to the plaintiff (e.g., kicking someone’s cane out from under them)
4. Has** specific or general intent **

Question 5

As to assault, what is required for reasonable apprehension?

Answer 5

Bodily contact is NOT required for an assault, only a reasonable apprehension of such contact.
The plaintiff MUST be aware of the defendant’s actions in order to have reasonable apprehension (e.g., a plaintiff cannot have reasonable apprehension of harmful or offensive contact if she is unconscious).
Generally, mere words do NOT constitute an assault.

Question 6

What is required for imminent harmful or offensive bodily contact for assault?

Answer 6

The plaintiff must be apprehensive that she is about to become the victim of an immediate battery. There cannot be a significant delay (e.g., threats of future harm are not sufficient).

Question 7

What is the key to trespass to chattels?

Answer 7

You’re eventually going to get your stuff back, so D will only pay for damages of what happened while I had the chattel

You don’t owe for the whole price of chattels

Question 8

What are the elements of trespass to chattel?

Answer 8

A trespass to chattels occurs when the defendant:
Causes or is a substantial factor in bringing about;
An interference with the plaintiff’s right of possession in a chattel; AND
Has specific or general intent (See Page 1 in Torts for explanation of intent).

Question 9

For trespass to chattels, what are the types of interference?

Answer 9

Interference by Intermeddling. Intermeddling occurs when the defendant directly damages the chattel.
Interference by Dispossession. Dispossession occurs when the defendant deprives the plaintiff of his lawful right of possession of the chattel.

Question 10

What is key to conversion?

Answer 10

The property is converted to the D and is lost, gone, destroyed, and P will never get it back (unlike trespass to chattels)

Question 11

Elements of conversion?

Answer 11

A conversion occurs when the defendant:

1. Causes or is a substantial factor in bringing about;
2. An interference with the plaintiff’s right of possession in a chattel;
3. Where the interference is so serious, it deprives the plaintiff entirely of the use of the chattel; AND
   Unlike trespass to chattels, the interference MUST be so serious; it
   warrants requiring the defendant to pay the chattel’s full value.
4. Has specific or general intent.*

Question 12

Do you have to have intent to destroy forever, some evil intent, for conversion?

Answer 12

No, the taking just must be intentional. And then something bad (if unintentional) happens while in D’s possession to warrant D having to pay full value. DO NO THAVE TO INTEND TO KEEP.

Question 13

For MBE questions on conversion, if the property is taken without intent to keep, but then it “breaks” while in the D’s possession, is this conversion?

Answer 13

Yes. Even if intended to return, when they say it “breaks” such as the neighbor who borrowed the chainsaw with intent to return but then it broke…then at this point it becomes converted and neighbor can keep chainsaw but has to pay value of chainsaw when he took it.

Note they didn’t say “broke beyond repair” in F’s, they just said “broke,” and you’re to infer that this amounted to conversion… sneaky one. but now ya know.

Question 14

What are the elements of trespass to land?

Answer 14

A trespass to land occurs when the defendant:

1. Causes or is a substantial factor in bringing about;
2. A physical invasion of the plaintiff’s real property; AND
   The invasion may be by a person or an object (e.g., throwing a rock on
   another’s land).
3. Has specific or general intent.
   The defendant need only intend to enter the land or cause the physical Invasion (i.e., its irrelevant whether the defendant believed the land belonged to him – mistake of fact is not a defense to trespass).

Question 15

For trespass, do you have to damage the land or know who’s land it is?

Answer 15

No. Just have to do the intentional act of walking onto someone else’s property. No damage necessary.

Question 16

One form of conversion occurs when a person is initially legitimately in possession of the chattel, but then…

Answer 16

…but then unjustifiably refuses to return it upon rightful demand by the owner.

Question 17

So if I put up stock as a security and it’s worth $1k, then pay off my loan and am owed the stock back, which is now worth $2k, but the bank makes a mistake and doesn’t return it for unreasonable period, like two months, at which point it’s worth $500, how much am I owed?

Answer 17

The value of the stock at the point it was converted, which was $2k, when they refused to return it. if they just needed a couple days to process the paperwork, that’s reasonable, but two months is not, and would constitute conversion, meaning they had taken it at that point and owed it and i’m not forced to take it back when they discover the mistake, i’m allowed to refuse and sue for the $2k.

Question 18

Intentional infliction of emotional distress occurs when the defendant:

Answer 18

1. Acts with extreme or outrageous conduct;
   Conduct is considered extreme or outrageous if a reasonable person would regard the conduct as intolerable in a civilized society.
2. Which causes or is a substantial factor in bringing about;
3. Severe emotional distress; AND
4. Has intent to cause severe emotional distress OR acts with recklessness (for torts, includes malicious, knew or should have known) as to the risk of causing severe emotional distress.
   Unlike other intentional torts, reckless conduct will satisfy the intent requirement. However, transferred intent does NOT apply to IIED.

Question 19

Is physical harm required for IIED?

Answer 19

No. Just severe emotional distress

Question 20

Does transfered intent apply to EEID?

Answer 20

No, transferred intent does not apply to IIED.

Question 21

What is required for the bystander rule?

Answer 21

Needs to be three parties. One person doing something to someone else, and a third person who sees it.

Question 22

What is the bystander rule?

Answer 22

Scenario 1

Bystanders can bring claim for IIED if:

bystander is close family relative of potential victim;
D knows that person is there watching; AND
bystander suffers emotional distress

if family relation is on the fence as to closeness, they’re testing you on close family relative and the answer choice will say “best argument for them to prevail is because they are close family relative” or “if he loses, it’s likely because not a close family relative”
you won’t have to litigate the facts, it’ll be set up for you

Question 23

What is the bystander rule?

Answer 23

Scenario 2

Bystander is not a close family relation;
but they suffer physical harm

Question 24

A false imprisonment occurs when the defendant:

Answer 24

1. Causes or is a substantial factor in bringing about;
   The defendant may cause confinement of the plaintiff through the use of physical barriers, force, threats, invalid use of authority, duress, or failure to provide a safe means of escape.
2. The confinement of the plaintiff within fixed boundaries; AND
   Confinement within fixed boundaries exists when the plaintiff’s movement is limited in all directions, such that there is no reasonable means of escape known to the plaintiff.
   The plaintiff MUST be aware of the confinement or be harmed by it.
3. Has specific or general intent

Question 25

What is the shopkeeper's privilege to false imprisonment?

Answer 25

A shopkeeper can detain a suspected shoplifter so long as the detainment is reasonable in both time and manner.

Question 26

What is required for negligent trespass?

Answer 26

Must damage the property.

Question 27

What is "zone of danger" negligent infliction of emotional distress?

Answer 27

Zone of Danger. The plaintiff can recover for NIED if: The defendant negligently caused a threat of physical impact; The plaintiff was within the “zone of danger” of the threatened physical impact; AND The threat of physical impact caused emotional distress.

Question 28

What is "bystander recovery" negligent infliction of emotional distress?

Answer 28

Bystander Recovery is one of the three ways (in addition to zone of danger recovery and special relationship (corpse or false medical diagnosis) recovery) a P can recover for NIED. The plaintiff bystander can recover for NIED if: 1. The defendant negligently inflicted bodily injury to another; 2. The plaintiff is closely related to the person injured by the defendant; 3. The plaintiff was present at the scene of the injury; AND being on the phone not enough, must be physicall present 4. The plaintiff personally observed the injury. Don't have to touch, just inflict emotional distress. SOME jurisdictions also require that the plaintiff manifest physical symptoms after witnessing the injury.

Question 29

What is "special relationship/corpse" negligent infliction of emotional distress?

Answer 29

The plaintiff can recover for NIED in certain circumstances where a pre-existing relationship exists between the defendant and plaintiff (e.g., doctor/patient). This commonly arises when: 1. The defendant negligently mishandles a corpse; OR 2. The defendant negligently provides false medical information (e.g., the plaintiff is told that she has terminal cancer when she is, in fact, perfectly healthy).

Question 30

Where the only injury or physical damage from the defendant's negligence is property damage, courts...

Answer 30

... are unwilling to allow the plaintiff to recover for emotional distress at the property damage. (Courts fear inflated claims and liability without a natural stopping point.) Since the restaurateur's distress is due to the property damage (not, say, due to the restaurateur's nearly being burned in the negligently caused fire), this rule applies here to deprive the restaurateur of recovery for the distress. eg, F's above come from MBE question about fire and damages awarded to restaurant owner for emotion distress incident to negligently caused propertly loss. This was improper, as courts do not allow for this. Must meet elements above (as this scenario would not be in zone of danger, bystander, or special relationship NEID).

Question 31

What is the consent defense to intentional torts?

Answer 31

The plaintiff’s consent to the defendant’s conduct is a defense to intentional torts (not crimes), provided that: The consent was valid (e.g., no fraud, incapacity, etc.); AND The defendant’s conduct remained within the boundaries of the plaintiff’s consent (e.g., cannot use a knife in a boxing match).

Question 32

Does consent have to be express?

Answer 32

No, the plaintiff’s consent may be express or implied through words or conduct. eg, in pickup basketball, some elbowing may happen and if you're playing, there's implied consent. Note, that if another's aggression goes beyond the implied consent, then consent is not a defense for them.

Question 33

Is there an implied consent just by venturing out into daily life?

Answer 33

Yes, not liable for battery when acting reasoning and withinordinary social norms privileging such contact. eg, if i tap you to let you know you dropped your purse, i am not liable for battery.

Question 34

For self-defense and defense to others, A defendant is NOT liable for harm to the plaintiff if:

Answer 34

The defendant reasonably believed that that the plaintiff was going to harm him or another; AND The defendant used only the amount of force that was reasonably necessary and proportionate to protect himself or another.

Question 35

Is reasonable mistake okay when acting in self-defense or defense of another?

Answer 35

A reasonable mistake as to the existence of danger to the defendant or the person the defendant is attempting to protect is allowed. But the mistake has to be reasonable, not merely genuine. (landowner believes he has a gun, but no reasonable facts to tell us he had a gun much less about to use it to cause death or GBH...landowner not justified in deadly force.)

Question 36

When an owner uses an automatic mechanical device to protect against intruders...

Answer 36

..., the situation is judged by the same standards as if the owner were personally applying the force. Therefore, the mechanical device can supply deadly force (force likely to cause death or serious bodily injury) only if the owner could do so personally on the particular occasion in question. An owner could use such deadly force only if the owner reasonably feared, in that particular situation, that the intruder posed a risk of death or serious bodily harm to the owner or other inhabitants.

Question 37

eg, if salesman came onto property, even if he had been told no trespassing and was an unknown trespasser, if landmines cause him serious injury, then...

Answer 37

... landowner not justified in using deadly force. While a reasonable mistake is OK, it has to be against a person on a particular ocassion, not just a mechanical device set up on the land against anyone. This is true even if homeowner reasonably fears that intruders would come and harm him or his family.

Question 38

For defense of another, can i push person out of way to protect from speeding automobile?

Answer 38

Yes, if person was actually in danger. If however, person not actually in danger and i should have realized that, then that person can sue me for battery.

Question 39

For self-defense, what if D is initial aggressor?

Answer 39

The defendant is NOT permitted to claim self-defense if the defendant was the initial aggressor, unless the other party responded to nondeadly force with deadly force.

Question 40

Can you use self-defense for your property?

Answer 40

A defendant may use reasonable force if he believes it is reasonably necessary to prevent tortious harm to his property. However, deadly force cannot be used to prevent harm to property. Can never use deadly force, unless F's tell you the D is in threat of grave bodily harm or death.

Question 41

What is the private necessity defense?

Answer 41

Private Necessity. A necessity defense is private when the defendant’s act is done to benefit a limited number of people. Under private necessity, the defendant MUST pay for the actual damages that he caused. However, the landowner may NOT use force to exclude the defendant (a landowner may usually use reasonable force to exclude a trespasser) eg, crash landing in plane on someone's property; this is OK, but must pay for damage done.

Question 42

Do I have privilege of necessity to prevent serious harm to my chattels, or just my person?

Answer 42

a person has the privilege of “private necessity” to enter another's land, if that entry is or reasonably appears to be necessary to prevent serious harm to the person or his chattels. So, if threatened with flooding on a roadway, i have privilege of necessity to pull my car onto a private driveway (but liable for any damages i cause in doing so; which is why it's known as an "incomplete privilege")

Question 43

So if someone parks their car on my land out of private necessity to avoid damage to their car during a rainstorm, for instance, can I remove the car?

Answer 43

No. I have a duty to allow the entry to continue until the danger (the rainstorm) has passed. If there through private necessity, they are entitled to be on the land. So if I remove the car and the car suffers damage during the rainstorm, I, the landowner, am responsible for the damages to the car owner.

Question 44

What is the public necessity defense?

Answer 44

Public Necessity. A necessity defense is public when the defendant’s act is done for the public good. Under public necessity, the defendant is NOT liable for property damage that he caused.

Question 45

What is the necessity defense?

Answer 45

The defense of necessity is available to a defendant that enters onto the plaintiff’s land or interferes with the plaintiff’s personal property, provided that the defendant does so to prevent an injury or some other severe harm.

Question 46

MBE Tip

Answer 46

Never apply a defense to a tort in the answer unless they ask you about the defense in the question. Do not litigate and come up with Facts.