Torts Intentional - MBE

  1. Does being mentally ill negate liability in cases of intent?
  2. Why is use of unreasonable force unlawful?
    because the person had no right to use it
  3. What is the definition of a voluntary act?
    • conscious and willed
    • volitional movement on part of D
  4. What is transferred intent generally?
    D intends to commit a tort against one person but instead either (1) commits a different tort against that person; (2) commits the same tort intended against a different person; or (3) commits a different tort against a different person
  5. What is specific intent?
    • to act for the purpose of
    • goal in acting is to bring about these consequences
  6. What is general intent?
    acting and knowing with substantial certainty that one's actions will bring about a particular result
  7. When is the causation element satisfied?
    where the conduct of the D is a substantial factor in bringing about the injury
  8. What are the 7 intentional torts?
    • Battery
    • assualt
    • false imprisonment
    • IIED
    • trespass to land
    • trespass to chattel
    • conversion
  9. To which of the intentional torts does transferred intent apply?
    • assault
    • battery
    • false imprisonment
    • trespass to land/chattels
  10. Is it possible to be liable for an unintended injury in intentional torts and if so when?
    yes if the D intended to bring about such basis of the tort consequences
  11. What mental state is required for intentional torts?
    • (1) D desires that hisact will cause the harmful result or
    • (2) D knows that it is substantial certain that such a result will occur
  12. What are the elements for intentional torts generally?
    • (1) voluntary act
    • (2) intent
    • (3) causation
    • (4) harm
    • (5) lack of privilege or defense
  13. What are the 2 different ways to establish harm in intentional torts?
    • (1) establish the elements of the tort
    • (2) prove a specific injury
  14. What are the elements of battery?
    • (1) intent
    • (2) harmful or offensive contact
    • (3) with a person or with something closely connected with that person
  15. What are the 2 ways to satisfy the harmful or offensive contact element in battery?
    • (1) the contact would inflict pain or impairment of any body function
    • (2) a RPP would regard it as offensive
  16. Does the P have to be aware of the contact for there to be a battery?
  17. Is the D liable for battery if he knows the particular susceptibility of the P?
  18. Is anger or violence needed to classify touch as battery?
  19. Are actual damages required for a recovery in battery?
    no - can recover at least nominal damages
  20. What are the elements of assault?
    • (1) intent
    • (2) reasonable apprehension
    • (3) imminent battery
  21. What is the test for reasonable apprehension associated with assault?
    would a reasonable person in the P same position have experienced the same apprehension
  22. Must there be awareness on the part of the P for D to be liable for assault?
  23. If the apprehension is reasonable, will the fact that D lacked the actual ability to cause the harmful or offensive contact defeat liability?
  24. Is the threat of violence sufficient for assault?
  25. Will words alone constitute an assault?
    no regardless of how threatening
  26. What does imminence in the context of assault mean?
    • the threat must be immediate and it is insufficient if it is for future contact
    • almost instantaneously
  27. Is actual physical harm required for recovery for assault?
  28. Generally assault will be coupled with what other intentional tort?
  29. Is a sleeping P ever in apprehension sufficient to constitute assault?
  30. What are the elements for false imprisonment?
    • (1) intent
    • (2) confinement
    • (3) against P will
    • (4) P knows of the confinement or is injured by it
  31. Confinement for false imprisonment can occur in what 6 ways?
    • (1) by use of physical barriers
    • (2) failing to provide means of escape
    • (3) invalid assertion of legal authority - false arrest
    • (4) physical force
    • (5) direct threats of force
    • (6) indirect threats of force
  32. Is there a required duration of confinement for false imprisonment liability?
    no - a very brief confinement will suffice however duration may affect the amount of damages awarded
  33. Are threats of reputational harm sufficient to satisfy the confinement element of false imprisonment?
  34. Is there confinement and false imprisonment if the P knows of a reasonable means of escape?
  35. Is risk of embarrassment a reasonable means of escape?
  36. Must the P resist the confinement in order to be successful in a false imprisonment action?
  37. Must there be actual damages or physical harm for recovery for false imprisonment?
    not if P was aware of confinement however if P was unaware than yes
  38. What are the elements of IIED?
    • (1) intent
    • (2) extreme and outrageous conduct
    • (3) causation
    • (4) severe emotional distress
  39. What is the requisite mental state of D for IIED liability?
    intentional or recklessness
  40. Is it possible for 3P to recover for their emotional distress under IIED and if so when?
    • yes
    • (1) V is family member, P was present, D was aware of P need for bodily harm
    • (2) any other person who was present if results in bodily harm
  41. When is the element of extreme and outrageous conduct in IIED satisfied?
    • when the D's conduct is beyond the bounds of decency
    • conduct that a civilized society will NOT tolerate
  42. Is offensive or insulting language sufficiently outrageous for IIED liability?
  43. In what 3 instances is the high standard of extreme or outrageous conduct in IIED lowered?
    • (1) D engaged in certain callings
    • (2) D knows of the P particular susceptibilities and acts to exploit it
    • (3) enveloping exception - person in authority using racial or ethnic slurs against a subordinate
  44. What constitutes severe emotional distress?
    • something more than the level of mental distress a reasonable person could be expected to endure
    • Must show it is not trivial or transitory
  45. What are the elements for trespass to land?
    • (1) intent
    • (2) entry
    • (3) P land
  46. Is mistake a defense to a trespass to land action?
  47. When a person is trespassing what are they liable for?
    the full extent of their harm
  48. What constitutes entry in trespass to land?
    • physical invasion
    • anything tangible is sufficient (person or thing)
  49. How far does the P's land extend for purposes of trespass?
    includes both the area above and below the surface
  50. When can an intrusion into a P airspace be trespassory?
    when it both enters the immediate reaches of the airspace and interferes substantially with the use and enjoyment of P land
  51. Is the intent to trespass required for trespass to land?
    no only the intent to enter
  52. Is actual injury to the land an essential element of trespass to land?
    not unless the entry is merely negligent
  53. In order to bring an action for trespass to land, must the P be in actual possession of the land?
  54. What are the remedies available for trespass to land?
    • (1) nominal damages - no real injury occurred
    • (2) ejectment
    • (3) punitive damages - D acts willfully or maliciously
  55. What are the elements required for proving ejectment in the context of trespass to land?
    • (1) proof of legal title
    • (2) proof of P right to possession
    • (3) wrongful possession by D
  56. What is ejectment in the context of trespass to land?
    an action at law to recover possession of real property
  57. If a P is successful in his action of ejectment in a trespass case, what is he entitled to?
    recovery of the property and mense damages
  58. What are mense damages associated with ejectment and how are they measured?
    • compensation for the loss of use of the land
    • measured by the FMRV of the property of benefit gained by the wrongful possessor, whichever is greater
  59. At CL, if a D mistakenly trespasses or takes possession of P property and makes improvements thereon, is the P required to compensate the D for those improvements?
    no - true even if the D acted in good faith, believing he had rightful possession of the property
  60. What are the elements for trespass to chattels?
    • (1) intent
    • (2) interference/intermeddling
    • (3) P chattel
    • (4) harm
  61. Is mistake a defense for trespass to chattels?
  62. What conduct gives rise to trespass to chattels?
    when the P uses, borrows w/o authorization, or damages the personal property of another in a significant enough way to justify the awarding of damages

  63. What is the definition of chattel?
    tangible personal property or intangible property that has a physical representation (i.e. - promissory not) or docs in which title to a chattel are merged
  64. When is a person's interferenc with P chattel actionable?
    when it constitutes dispossession or intermeddling
  65. What is the definition of dispossession?
    direct interference with the P possession
  66. What is the definition of intermeddling?
    an interference with a chattel that doesn't directly affects the P possession
  67. In order to bring an action for trespass to chattel, must the P have been in possession of the chattel or have a right to possess it?
  68. Must actual damages be proven in a trespass to chattel action?
  69. What are the remedies available in a trespass to chattels action?
    • (1) replevin
    • (2) actual damages
  70. What would constitute actual damages in trespass to chattels action?
    • value of the loss of use of the chattel during dispossession
    • cost to remedy the intermeddling
  71. What are the elements of conversion?
    • (1) intent
    • (2) dominion and control
    • (3) substantial interference
  72. Is mistake a defense to conversion?
  73. Can a bona fide purchaser for value be held liable for conversion?
  74. What arethe remedies and damages associated with conversion?
    • (1) forced sale
    • (2) replevin
  75. In a conversion action, how much is the D liable for?
    the full value of the chattel at the time of the conversion
  76. What 6 acts are typically classified as conversion?
    • (1) wrongful acquisition
    • (2) wrongful transfer
    • (3) wrongful detention
    • (4) loss, destruction, or severe damage
    • (5) material alteration
    • (6) significant misuse
  77. What factors are considered in determining if D is liable for the full value of the chattel in a conversion action?
    • (1) extent/duration of D's exercise of dominion and control
    • (2) D intent to assert a right inconsistent with the other's right of control
    • (3) D's good faith
    • (4) extent/duration of resulting interference with P right of control
    • (5) harm done to the chattel
    • (6) inconvenience & expense caused to P
  78. If the D offers to return the P's chattel, what is the effect of this regarding the conversion action?
    none - the D is still liable and P need not accept the return
  79. What is the definition of replevin?
    an action at law for the recovery of specific chattel that have been wrongfully taken or detained

    possessory action permitting P's immediate possession of the property at the beginning of the action
  80. For what kinds of property can replevin be used?
    • tangible personal property
    • NOT real property or intangible personal property
  81. What are the defenses to the intentional torts?
    • (1) Privilege
    • (2) Defense of Others
    • (3) Defense of Property
    • (4) Consent
    • (5) Authority
    • (6) Necessity
    • (7) Self-defense
  82. How are privileges different from defenses?
    privileges make D not liable for a tort (i.e. - 12(b)(6) or summary judgment)
  83. When may a privilege exist?
    • (1) person affected by D conduct consents
    • (2) justification based on public or personal interest
    • (3) D performing an essential function
  84. Who has the BoP regarding privilege?
    D must prove both its existence and that it was exercised reasonably under the circumstances
  85. Can consent be both express or implied?
  86. What is required for a consent defense?
    • (1) consent must be effective
    • (2) D must not exceed the scope of the consent
  87. When does express consent exist?
    where the P affirmatively communicates permission for a D to act
  88. When is consent implied?
    under circumstances where a reasonable person would interpret the P conduct as evidencing permission to act
  89. Consent can be found as a matter of law where the P is unable to consent and:
    • (1) emergeny action is nec to prevent his death or SBI;
    • (2) reasonable person would be expected to consent under the circumstances; and
    • (3) no reason exists to believe that P wouldn't consent
  90. When can mistake vitiate consent?
    when it goes to the nature of the act but NOT when it goes to a collateral matter
  91. What is the underlying premise of a consent defense?
    a D is NOT liable for tortious acts if P consented to D conduct
  92. Is capacity required for consent?
  93. Who lacks the requisite compacity to consent?
    incompetents, drunk persons, and very young kids
  94. If P gives consent w/o knowing the truth, is the consent effective?
  95. What does informed consent require doctors to do?
    • disclose to patient the risks of procedures as well as alternative treatments
    • failure to do so makes consent invalid
  96. Can a person consent to a criminal act according the majority view?
  97. What are the defenses to consent?
    • (1) mistake
    • (2) fraud
    • (3) duress
    • (4) incapacity
    • (5) violation of criminal statute
  98. Self-defense defense arise where:
    D honestly and reasonably believed that the force used was nec to avoid imminent harm
  99. How long does the defense of self-defense exist?
    until the threat is over
  100. What degree of force may be used by someone asserting self-defense?
    • that which is reasonably nec to avoid the harm threatened by the P
    • must be less than or proprotionate to the threat
  101. If the P conduct purportedly threatening an immediate attack is priviledged, may a D invoke self-defense?
    no and D will be liable for any tortious acts committed toward the P
  102. What constitutes a reasonable belief for self-defense?
    apparent necessity is sufficient, actual necessity isn't required
  103. Is self-defense available to the initial aggressor?
    not unless the other party uses deadly force against non-deadly force
  104. Is retreat required for a successful claim of self-defense?
    • majority - no, even if safe to do so
    • minority - yes before using deadly force if possible to do so safely unless inside his own home
  105. Is a person liable for injuries on innocent 3P resulting from his defending himself?
    • not for intentional torts if this was done inadvertently
    • yes if he deliberately injures a 3P
    • may be negligently liable
  106. Will abusive words alone justify the exercise of self-defense?
    no but liability may be limited to actual damages
  107. What is involved in the defense of others defense?
    D is entitled to defend another person from an attack by the P to the same extent that hte 3P would be lawfully entitled to defend himself from that P
  108. Can a person intervene on behalf of the aggressor and then assert a defense of others defense?
  109. What is the majority rule regarding mistake and defense of others?
    entitled to be wrong if reasonable in the mistake
  110. What is the minority rule associated with mistak and defense of others?
    mistakes are NOT allowed and if mistaken then liable
  111. What is defense of property?
    D is permitted to use reasonable force to prevent P from committing a tort against the D's property (both real and personal)
  112. Before exercising defense of property, what must the D do?
    ask the trespassor to leave before using any force on the P unless doing so would be futile
  113. Can a D use deadly force to protect personal or real property?
    not unless the situation escalates to defense of others or self-defense
  114. When attempting to recapture chattels, one may use reasonable, non-deadly force provided what?
    • (1) request is made or would be futile to do so; and
    • (2) hot pursuit
  115. Will the use of dogs or mechanical devices in defense of property result in liability even if P conduct is tortious?
    generally yes b/c such force is considered unreasonable
  116. Is a D if he makes a mistake regarding defense of property?
    No unless the intruder mislead the owner as to his identity or authorization
  117. When is reasonable mistake allowed regarding the right to use force in defense of property?
    where the mistake involves whether an intrusion has occurred or whether a request to stop is required
  118. Defense of property is limited to what types of intrusions?
    • unlawful intrusions
    • No privilege against those who are lawfully allowed to enter
  119. Defense of property is limited to preventing what?
    the commission of a tort against D property or the commission of a crime
  120. What force may be used in the recovery of property?
    peaceful means up to the level used by the person who took the property
  121. What is the majority rule regarding recovery of wrongfully dispossessed land?
    D may NEVER use force to recover land of which he has been wrongfull dispossessed
  122. What is the D asserting when claiming necessity?
    that the right thing to do or the lesser evil was to commit the intentional tort
  123. What is public necessity?
    when D is acting to protect the public from severe harm
  124. What is the standard regarding necessity?
    whether a reasonable person in the same circumstance would believe it nec to injure the P property (objective)
  125. Does mistake preclude the assertion of this defense?
    no - if D reasonably but mistakenly believed that actions were justified by necessity then privileged to act even if subsequently established there was no actual necessity
  126. What is private necessity?
    D commits an intentional tort to avoid greater harm to himself or his property
  127. If D is acting out of public necessity, is he liable for damages?
    no - this is an absolute privilege but the threatened harm must be severe
  128. If the D is acting out of private necessity, is he liable for any resulting damage?
    yes regarding actual damage to the P property but not for any technical tort
  129. What 3 things are included under the authority defense?
    • (1) arrest
    • (2) shopkeeper's privilege
    • (3) discipline
  130. What is "authority of law"?
    if D is duly commanded or authorized by law to do what he does, he is NOT liable for doing it
  131. Are citizens protected by authority of arrest if they are mistaken?
  132. When does a LEO have privilege regarding felony arrest?
    when he has reasonable rounds for believing the felony has been committed and he believes he has the right person
  133. When is a citizen's arrest allowed?
    when a felony has in fact been committed and the citizen has reasonable grounds to suspect the person
  134. Does the privilege of arrest carry with it any other privileges?
    yes the privilege to enter another's land for purposes of effecting the arrest
  135. What is the majority rule regarding warrantless arrests involving misdemeanors and the defense of authority?
    D may not assert the defense if he makes a warrantless arrest for a misdemeanor not involving a breach of the peace
  136. What is the shopkeeper's privilege under the defense of authority?
    if a store owner has reasonable suspicion that someone shoplited they may detain the person for a reasonable time to conduct an interrogation/investigation in a reasonable manner
  137. What is the discipline privilege under authority of defense?
    if a D is charged with maintaining discipline (i.e. - parent or teacher) then he may use reasonable force to perform this duty
  138. What factors are used to determine whether the amount of force used in discipline is reasonable?
    • (1) age, sex, and physical condition of disciplined P
    • (2) motivation under which the D acted
  139. What is justification and when is it used?
    • used as a last resort when no other privilege or defense will work
    • D must show that his actions were reasonable and justified by the circumstances
Card Set
Torts Intentional - MBE
MBE Review - Intentional Torts