Bar Review

Intentional Torts

Intentional Torts

Always assume you're dealing with a normal person for the plaintiff. Ignore their oddities.
Incapacity is not a defense for torts.
Intent to commit a tort transfers to other torts.


Two elements:

  1. Harmful or offensive contact
  2. With the plaintiff's person

Harmful contact is never tested. It will only be offensive.
Offensive = unpermitted

Your person includes anything you're holding or intimately connected to like a horse you're riding.


Two elements:

  1. Must place in reasonable apprehension (knowledge)
  2. Of imminent battery

You must see it coming, but you don't have to be afraid of the result.
An apparent ability creates a reasonable apprehension.


Words alone are not sufficient to create immediacy. There must be conduct—a menacing gesture, usually brandishing a weapon.
Words can negate immediacy though, by implying it won't be immediate.

False Imprisonment

Two elements:

  1. The defendant must commit an act of physical restraint.
  2. The plaintiff must be restrained in a bounded area.

Threats are sufficient restraint.
"If you leave, we'll call the police" is a restraining threat.

A failure to act can be an act of restraint if there is an owed duty.
Leaving a handicapped customer can be imprisonment.

The plaintiff has to be aware of or harmed by the restraint.

An area is not bounded if there is a reasonable way to exit the plaintiff should reasonably discover.
A gross or dangerous way to escape is not a reasonable means of escape.

Intentional Infliction of Emotional Distress

Can be reckless.

Two elements:

  1. Defendant must engage in outrageous conduct.
  2. Plaintiff must suffer severe emotional distress.

Outrageous conduct is conduct that exceeds all bounds of decency tolerated in civilized society.
Often based on repeated behavior, such as with sexual harassment or debt collectors.
If a common carrier does something to distress its customers, it's often IIED.
Often IIED if against emotionally vulnerable people, mainly children, elderly, or pregnant women.
If the defendant has advanced knowledge of some emotional fear or weakness, targeting that is outrageous.

No specific evidence is required. In theory, the plaintiff could just claim he was distressed.
Problems just can't say that the plaintiff was "mildly annoyed".

Trespass to Land

Two elements:

  1. Physical invasion
  2. Of plaintiff's land

A defendant is not required to know he crossed the boundary line.
A physical invasion can also include, throwing a tangible object onto the land.

Land includes the air above and soil below for a reasonable distance.

Trespass to Chattels and Conversion

Chattels = personal property

Property can be damaged or taken.

If the magnitude of harm is great, it's conversion, if small, trespass to chattels.
In conversion, the damage is so great, that the full value of the item is the damages.

Question of ownership is not a defense for these.

Intentional Torts' Affirmative Defenses


Consent is a defense to all seven intentional torts.

People must have the mental capacity to consent.
People with limited mental capacity can consent to things they understand.

Consent can be express or implied.
Consent obtained through fraud or duress is void.

Consent can be implied by custom and usage.

Consent can be also be implied by the defendant's reasonable interpretation of the plaintiff's conduct. You can consent by your body language.

All consent has a scope. You only consent to what you consent to.

Protective Privileges

  1. Self-defense
  2. Defense of others
  3. Defense of property

All come from when there is a threat from the plaintiff.

The threat must be in progress or imminent.
There cannot be preemption or revenge.

The defendant must believe the threat to be genuine. But it includes if you are actually wrong.

The force responded with must be proportional.


Only apply to property torts

Public Necessity

When the defendant commits a property tort to protect the community as a whole or a significant number of people.
This will be like saving a neighborhood from a fire or flood by damaging or taking property.

Private Necessity

You still have to pay for any actual harm.
You don't have to pay for nominal or punitive damages.
The property owner is not allowed eject a trespasser during an emergency.