Fl Bar Exam

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Intentional Torts Checklist

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Who is the plaintiff?

Who is the defendant/who are the defendants? Who are the responsible parties?

What is the plaintiff’s injury or injuries?

What legal theory/theories can the plaintiff assert? (when in doubt, assume negligence)

Make sure that it is a torts question.

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Elements of Every Tort

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1. Voluntary act

2. Intent

3. Causation

4. Harm

5. No privilege or defense

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Voluntary Act

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Something that is conscious or willed, as opposed to purely reflexive

EX: epileptic seizure, sleep walking, reflex

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Intent

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Established by the defendant when s/he either:

1. desires that his act will cause the harmful result described by the tort; OR

2. knows that it is substantially certain that such a result will occur (not should have known)

Exam tip: a defendant with a special skill set may believe a result is impossible to happen which a reasonable person should have known

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Causation -Intentional Torts

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For intentional torts, the defendant's act or a force set in motion by that act must cause the plaintiff's injury

No proximate cause in intentional torts -Extended Consequences Rule (egg shell plaintiff rule)

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Extended Consequences Rule

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Applies to intentional torts, and holds the Defendant liable for the full extent of injuries whether they are foreseeable or not

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Harm

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The Plaintiff will establish harm by:

1. Establishing the elements of the tort is enough and the Plaintiff does NOT have to establish harm as a separate element

2. For others, Plaintiff must prove specific harm as an element

NOTE: Based on the kind of intentional tort.

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Battery

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Elements includes:

1. Intent

2. Harmful or Offensive contact

3. Person or something physically closely connected to that person

Arises where a defendant intentionally causes a harmful or offensive contact with the person of another or something closely physically connected thereto.

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Battery Intent

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Established by either:

1. Defendant desired to cause an immediate harmful or offensive contact; OR

2. Defendant knew such contact was virtually substantially certain to occur

Exam tip: Distinguish intent from motive (reason to act). A good motive or good result does not negate the elements of battery.

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Transferred Intent

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DOES NOT APPLY TO ALL INTENTIONAL TORTS

If a Defendant acts with the necessary intent to inflict certain intentional torts, but for some reason causes injury to a unintended or different victim, the Defendant's intent is "transferred" to the actual victim

Applies ONLY to: assault, battery, false imprisonment, and trespass to land or chattels.

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Insanity

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The fact that a defendant is mentally incompetent, or is a minor, does NOT preclude a finding that s/he possessed the necessary intent to commit an intentional tort BUT may be a factor in whether such intent actually existed

EX: Dolores shoots Patty because she thinks Patty is Hitler. (Dolores will be liable for battery because she desired to cause a harmful contact even though it was the result of a delusion)

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What is harmful or offensive contact?

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The contact would inflict pain or impairment of any body function, or if a reasonable person would regard it as offensive

Offensive conduct is offensive to the reasonable person UNLESS the Defendant has knowledge of Plaintiff's particular susceptibility

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Assault

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An assault arise where the defendant intentionally causes the plaintiff to experience reasonable apprehension of an immediate harmful or offensive (imminent battery)

Elements include:

1. Intent

2. Reasonable apprehension

3. Imminent battery

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Intent for Assault

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The Defendant:

1. Desired to cause an immediate harmful or offensive contact; or

2. Desired to cause the immediate apprehension of such a contact; AND

2. Knew that such a result is virtually certain to occur

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Reasonable Apprehension

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There is no liability for assault UNLESS a reasonable person in the same position as plaintiff would have experienced the same apprehension.

So long as plaintiff's apprehension is reasonable, the fact that defendant lacked the actual means to cause a harmful contact is IRRELEVANT

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Imminence

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For an assault to take place, the battery has to be able to be carried out almost instantaneously without any substantial delay

Words alone rarely create an assault (Ex: "Don't move I have a gun" can be an assault)

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Do intentional torts merge?

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NO. NEVER. Can sue for assault and battery.

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False Imprisonment

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Where the defendant intentionally causes plaintiff to be confined in a bounded area against the plaintiff's will, AND the plaintiff knows of the confinement or is injured thereby.

Elements include:

1. Intent

2. Confinement

3. Against Plaintiff's will

4. Plaintiff knows of confinement or is injured thereby

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Intent for False Imprisonment

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1. Defendant DESIRES to confine or restrain plaintiff to a bounded area OR

2. Defendant knows that such confinement is virtually certain to result

NOTE: Motive is irrelevant.

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Confinement (False Imprisonment)

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A plaintiff may be confined by the use of physical barriers or by failing to release plaintiff where defendant has a legal duty to do so, or by the invalid assertion of legal authority

NOTE: NO DURATION PERIOD REQUIRED, A VERY BRIEF MOMENT WILL SUFFICE

Confinement can also occur by force or threat of force or physical harm to plaintiff, or plaintiff's family, or valuable personal property. Threats of reputational harm are generally insufficient.

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Reasonable Means of Escape (False Imprisonment)

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If the plaintiff actually knows of a reasonable means of escape, there is no confinement and therefore no false imprisonment

Not reasonable: escape would involve potential personal injury or damaged property or embarrassment

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Damages (False Imprisonment)

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1. If plaintiff AWARE of confinement, then plaintiff is entitled to any damages, but

2. If plaintiff is NOT AWARE of confinement, then plaintiff can only recover if plaintiff is injured due to the confinement

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False Arrest

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A false assertion of authority by one who does NOT possess that legal authority and a type of false imprisonment

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Intention Infliction of Emotional Distress

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Where the defendant engages in an intentional or reckless act amounting to extreme and outrageous conduct that causes plaintiff severe emotional distress.

Elements include:

1.Intent or recklessness

2. Extreme and outrageous conduct

3. Causation

4. Severe emotional distress

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Intent (IIED)

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A. Intentional: can be shown where the defendant desires to cause severe emotional distress or knows his conduct is virtually certain to cause severe emotional distress

B. Recklessness: can be shown where the defendant acts with a conscious disregard of a high probability of causing severe emotional distress

NOTE: NO TRANSFERRED INTENT FOR IIED

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Third Party IIED

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A third party may recover for severe emotional distress where the defendant was reckless as to whether his conduct would cause the third party emotional distress (not transferred intent)

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Extreme and Outrageous Conduct

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Conduct that exceeds all bounds of decency, tolerated by a civilized society.

However, offensive or insulting language is generally not considered outrageous. Exceptions to offensive language:

1. Defendant is engaged in certain callings such as an innkeeper or common carrier

2. Defendant knows of plaintiff's particular susceptibility

3. Highly offensive language, usually racial epitaphs, from a supervisor to a lower ranking employee

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Severe Emotional Distress

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Plaintiff does not have to show physical injury but must prove that the emotional distress was severe and significant as opposed to short lived and trivial

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Trespass to Land

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An intentional act that causes a physical invasion of the plaintiff's land, interfering with the plaintiff's possessory interest

Elements include:

1. Intent

2. Entry

3. Plaintiff's land

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Intent (Trespass to land)

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Defendant desired to enter the land OR knew that land entry was virtually certain to result from the defendant's actions. It is NOT THE INTENT TO TRESPASS, it is THE INTENT TO ENTER THE LAND

NOTE: Mistake is NOT a Defense, but a non-voluntary act is

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Entry (Trespass to land)

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Entry is the physical invasion of the land. The element of physical invasion is satisfied if:

A. The defendant enters, or causes a third person to enter, or object to enter onto plaintiff's land, OR

B. The defendant enters onto plaintiff's land lawfully but then remains or refuses to leave when under a legal duty to leave, OR

C. The defendant fails to remove an object from plaintiff's land when under a legal duty to do so

NOTE: The Plaintiff's interest in land extends to a reasonable amount above and below the land

NOTE: None physical invasions including smell and sound are grounded in nuisance torts.

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Plaintiff's Land (Trespass to Land)

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Because trespass to land is a tort against one's possessory interest, ANYONE IN POSSESSION of the land can bring a claim for trespass for land.

EX: Owner, tenant, adverse possessor can bring claims for trespass

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Remedies in Tort

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Three types of remedies in tort:

1. Legal remedies include damages which can be nominal, compensatory, and/or punitive

2. Restitutionary remedies (to prevent unjust enrichment) include ejectment (removal from property) and replevin

3. Equitable remedies include injunctive relief

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Trespass to Chattel

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Occurs when the defendant intentionally interferes or inter meddles with the plaintiff's personal property, causing harm.

Elements include:

1. Intent

2. Interference

3. Plaintiff's chattel

4. Harm

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Intent for Trespass to Chattel

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Satisfied when the defendant intentionally performs a physical act that interferes with plaintiff's chattel. Mistake is not a defense and defendant is still liable where s/he did not intend or recognize the legal significance of his act.

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Harm for Trespass to Chattel

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Plaintiff MUST show actual damage, or at least dispossession that is not entirely insignificant.

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Remedies for Trespass to Chattel

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Damages typically include cost of repair or fair market rental value, restitutionary remedy may include replevin (to get back personal property of which one has been wrongfully dispossessed)

NOTE: If the chattel is completely destroyed then Trespass to Chattel turns into the tort of Conversion

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Conversion

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Arises when the defendant exercises dominion and control over the plaintiff's personal property in a way that constitutes a serious and substantial interference with that property or causes destruction of the property

Elements include:

1. Intent

2. Dominion and control

3. Serious and Substantial interference

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Intent for Conversion

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Defendant is liable even though he did not intend or does not have the intent to convert or intend or recognize the legal significance of his act. Mistake is not a defense.

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Bona fide purchaser for value (conversion)

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A bona fide purchaser for value (who pays fair market value) can still be liable for conversion

EX: A burgles B and steals B's tv. A sells B's tv to C for fair market value. Both A and C are liable for conversion.

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Remedies for Conversion

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Typical remedy is a force sale in which the Converter must pay FMV (fair market value) of the chattel at the time of conversion OR replevin

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Defenses to Intentional Torts (mnemonic)

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POPCANS: Privilege, Others, Property, Consent, Authority, Necessity, Self-Defense

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Consent (Defense to Intentional Tort)

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If plaintiff consents to any intentional tort, there is NO RECOVERY for damages. Consent is a total defense.

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What are the ways a Plaintiff can manifest Consent?

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There are 3 ways a plaintiff can manifest intent: expressly, by implication, or as a matter or law.

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Express Consent

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Express consent exists where plaintiff affirmatively communicates permission (oral, or written) for defendant to act. But there are limitations as to the scope of consent. Where a defendant's act exceeds consent reasonably given, defendant will be liable for tort.

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Implied Consent

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Arises where a reasonable person would interpret plaintiff's conduct as evidencing permission to act

Limitation: cannot exceed consent that might be implied from conduct

Standard is what the defendant might reasonably believe

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Mistake as to Consent

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Mistake can vitiate consent when it goes to the consequence or nature of the act. If the mistake is to a collateral matter, then there is still consent.

EX: A and B are about to have sex. A asks B if B has an STD, B lies and says no. A gets an STD. A will not be deemed to have consented

EX: A is a sex worker. B pays A with counterfeit money. A is still deemed to have consented because the money is a collateral matter.

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Self-Defense

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Arises where a defendant honestly AND reasonably believes that she used reasonable force to prevent plaintiff from engaging in an imminent and unprivileged attack. Mistaken self-defense is a defense.

NOTE: If the threat is over, self-defense is no longer a defense. There MUST be an imminent existing threat and response accordingly.

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Use of Deadly Force for Self-Defense

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The force used MUST BE PROPORTIONATE to the threat and deadly force can NEVER be used to meet non-deadly force.

Note: Some jurisdictions require the plaintiff to attempt to retreat, if it is safe to do so, before using deadly force. However it is never safe to retreat where there is a loaded gun. A person NEVER has to retreat from their own home.

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Defense of Others (or third persons)

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A person is entitled to defend another person from an attack to the SAME EXTENT that the third person would be lawfully entitled to defend himself from the attacker

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Defense of Property

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Defendant is permitted to use reasonable force to defend real and personal property against a person committing a tort against Plaintiff's property. BUT deadly force in protecting real or personal property is NEVER reasonable force.

NOTE: A person may use reasonable force to eject a trespasser from their property ONLY AFTER asking them to leave.

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Recapture of Chattel

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A person may use reasonable non-deadly force to get back one's personal property provided that a request is made for return of the property unless the request would be futile, and the defendant is in hot pursuit.

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Necessity (private and public)

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Defendant is permitted to injure plaintiff's property if it is reasonably necessary to avoid a substantially greater harm to the public, himself, or to his property.

Public necessity arises when the defendant is acting to protect the public from severe harm. This is a total defense.

Private necessity arises when arises where the defendant commits an intentional tort for the defendant's own personal benefit. Defendant will be liable for any harm caused while exercising privilege.

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Authority Defense

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Arrest:

1. For felonies, a police officer may arrest a person who the officer reasonably believes committed a felony.

2. For misdemeanors, an officer can only arrest for misdemeanors that constitute a breach of the peace

For private individuals, they act at their own peril. If they are wrong, they are liable for the torts they committed.

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Shopkeeper's Privilege

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A shop owner is NOT liable for false imprisonment for a related tort, IF he has a reasonable suspicion that the plaintiff has stolen goods, may use reasonable force to detain the person, and the shop owner MUST detain the person for a reasonable period and in a reasonable manner, on the premises or in the immediate vicinity.

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Discipline

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Parents and teachers who are charged with disciplining others may use reasonable force to discipline children and students