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Intentional Torts to the Person

61 мин7 бөлімдеріТегін тарау

How Torts is tested on the MBE and the essays, and the four intentional torts that protect the body, the mind and personal freedom: battery, assault, false imprisonment and intentional infliction of emotional distress. The chapter teaches the intent element (purpose or substantial certainty), transferred intent and the capacity rule, states the elements of each tort with the fact patterns that separate them, and closes with the damages available, including nominal damages and the California punitive-damages standard in Civil Code § 3294.

Оқу мақсаттары

  1. 1.Apply the intent element, including substantial certainty and transferred intent, and explain why a child or a mentally ill person can still act with intent.
  2. 2.State the elements of battery, assault, false imprisonment and intentional infliction of emotional distress.
  3. 3.Distinguish the four torts on a fact pattern and choose the tort, or torts, that each act creates.
  4. 4.Identify the damages available for each tort: nominal, compensatory and punitive.
  5. 5.State the California punitive-damages standard: clear and convincing evidence of oppression, fraud or malice under Civil Code § 3294.

1.1 How Torts is tested

Torts is the law of civil wrongs: it decides when one person must pay another for harm that does not come from a broken promise. Each such wrong is a tort. The injured person is the plaintiff, and the person sued is the defendant. This chapter covers the intentional torts to the body, the mind and personal freedom.

tort – A civil wrong, other than a breach of contract, for which the law gives the injured person a remedy, usually money damages.

Torts is tested on both exam days. On the MBE it is one of the 7 subjects, with 25 scored questions. On the essay day it appeared on 28 of the last 50 California exams (56 percent), most recently on the July 2025 exam. The July 2026 Performance Test also tested a tort: defamation.

Torts at a glance
ItemDetail
MBE weight25 scored questions out of 175. About half test negligence; the rest cover intentional torts, strict and products liability, and other torts.
MBE assumptionsUnless the question says otherwise: no statute applies; survival and wrongful-death actions exist; joint and several liability applies, with pure comparative negligence.
Essay frequency28 of the last 50 exams. Most tested: negligence elements (16), assumption of risk (11), duty (9), comparative negligence (9), misrepresentation (8).
This chapter on essaysBattery 6 of the last 50 exams; intent 5, plus transferred intent 2; emotional distress 4; assault 3.
California lawLow. Use general law unless the call names California. California statutes matter for that call and for damages.
NextGen statusA foundational subject on the NextGen exam, which California adopts from July 2028. These rules carry over.

Ескерту

The default sentence on the essay booklet

The essay instructions set the default law. For Torts that means the common law as most states apply it, summarized in the Restatement (Second) of Torts. The booklet says: “Unless a question expressly asks you to use California law, you should answer according to legal theories and principles of general application.”

prima facie case – The set of elements that the plaintiff must prove to establish a tort, before the defendant must answer with a defense.

privilege – A defense that makes conduct lawful even though it would otherwise be a tort, such as consent, self-defense or the shopkeeper’s privilege.

Every tort has two stages. First, the plaintiff proves the prima facie case: every element of the tort. Then the defendant may prove a privilege that excuses the conduct. Analyze elements first and defenses second, one tort at a time.

Ереже

California: the general duty and protected rights

Every person must abstain from injuring the person or property of another, or infringing on another’s rights. Every person also has a right of protection from bodily restraint or harm and from personal insult.

Элементтер

The Torts attack order

Every Torts essay follows these steps for each plaintiff against each defendant. Chapter 11 teaches the full method.

  1. 1.1: Parties: list each plaintiff and defendant pair, and each act that caused harm.
  2. 2.2: Intentional torts: battery, assault, false imprisonment, intentional infliction of emotional distress (IIED), trespass, conversion.
  3. 3.3: Privileges: consent, self-defense, defense of others and property, necessity.
  4. 4.4: Negligence: duty, breach, actual and proximate cause, damages, then comparative fault and assumption of risk.
  5. 5.5: Strict liability: abnormally dangerous activities, animals, defective products; then apply the defenses again.
  6. 6.6: Other torts: nuisance, defamation, privacy, misrepresentation, economic torts.
  7. 7.7: Liability for others and the remedy: vicarious liability, several defendants, damages.

Кез келгені жетеді.

Емтихан туралы кеңес

Organize a Torts essay by party, then by tort, with one heading for each tort, such as “Ana v. Ben: Battery.” Graders score each tort as a separate issue, so a missing heading can cost all its points.

Негізгі жазбалар

  1. 1.Torts is on both exam days: 25 scored MBE questions and 28 of the last 50 essay exams.
  2. 2.About half of MBE Torts questions test negligence.
  3. 3.Use general law unless the call names California.
  4. 4.Prove the prima facie case, then privileges and defenses, one tort at a time.
  5. 5.Fault has three levels: intent, negligence and strict liability.

1.2 The intent element: transferred intent and capacity

Every tort in this chapter requires intent; IIED also accepts recklessness. The intent element therefore decides many cases. The examiners tested intent on 5 of the last 50 exams and transferred intent on 2 more. On the MBE, intent is often the hidden issue: the defendant “did not mean any harm,” or hit the wrong person. This section gives you the definition, the transfer rule and the capacity rule.

intentional tort – A tort that requires proof that the defendant acted with intent, such as battery, assault, false imprisonment, trespass or conversion.

intent – The actor’s purpose to cause a result, or the actor’s knowledge that the result is substantially certain to follow from the act.Restatement (Second) of Torts § 8A

Ереже

Intent: purpose or substantial certainty

A defendant acts with intent when the purpose of the act is to cause the result, or when the defendant knows the result is substantially certain to follow. For battery, assault and false imprisonment, the result is the contact, the apprehension (expectation of an imminent contact) or the confinement (being held within fixed limits).

The two branches cover different people. Purpose is the ordinary meaning: the defendant wants the result. Substantial certainty covers the defendant who does not want the result but knows it will almost surely happen. A worker who throws a heavy box from a roof onto a crowded sidewalk may hope to miss everyone. The worker still knows that someone will be hit, so the worker has intent.

Substantial certainty is not the same as high risk. If the defendant knows only that harm is likely or possible, there is no intent. The conduct may then be reckless (a conscious disregard of a known, serious risk) or negligent (a failure to use reasonable care). Neither is intent. Reckless or careless conduct is judged under the rules for negligence, except in intentional infliction of emotional distress, where recklessness is enough (section 5).

Three levels of fault
Level of faultWhat is requiredExample
IntentWhat is requiredPurpose to cause the result, or knowledge that it is substantially certain.ExamplePunching a person in the face.
Negligence (chapters 3 to 5)What is requiredNo intent, but a failure to use the care of a reasonable person.ExampleDriving too fast and hitting a pedestrian.
Strict liability (chapter 7)What is requiredNeither intent nor carelessness. The activity or product itself creates liability.ExampleBlasting that cracks a neighbor’s house.

Іс

Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955) (Supreme Court of Washington 1955)

Фактілер

A boy aged 5 moved a lawn chair a few feet. An adult woman then tried to sit down where the chair had been. She fell to the ground and broke her hip. The trial court accepted that the boy did not intend to injure her or to play a joke on her, and it gave judgment for the boy.

Ұстау

Intent includes knowledge. The boy committed a battery if he knew with substantial certainty that the woman would try to sit where the chair had been. No wish to harm her was needed. The court sent the case back for a finding on his knowledge. On remand the trial court found that he knew, and gave judgment for the woman.

Неліктен маңызды

The leading case on the substantial-certainty branch of intent. It also shows that a young child can form intent: the question is what this child knew, not what an adult would have known.

Ереже

Intent to contact, not intent to harm

The defendant must intend the contact, the apprehension or the confinement, not any injury. A defendant who intends a harmful or offensive contact (one that offends a reasonable sense of dignity) is liable for all the harm that results, even unexpected harm. A good motive, such as a joke or a wish to help, is no defense.

The classic case is Vosburg v. Putney. During class, a schoolboy lightly kicked a classmate’s shin. The kick reopened an old injury, and the classmate lost the use of his leg. The kicker did not intend any harm. The court held that the kick was a battery and that the kicker would be liable for all harm that directly resulted, even harm he could not foresee.

A mistake of fact does not remove intent either. A defendant who hugs a stranger in a crowd, believing she is a friend, intended the contact and has committed a battery. Mistake can matter later, when the defendant claims a privilege such as self-defense. Chapter 2 covers those privileges.

Transferred intent

transferred intent – A legal rule that moves the defendant’s intent from the intended victim to the actual victim, or from the intended tort to the tort that actually resulted.

Ереже

Transferred intent

Intent transfers in two directions. It moves from the intended victim to the person actually harmed. It also moves from the intended tort to the tort that results, for example from an intended assault to a battery. It works only among five torts: battery, assault, false imprisonment, trespass to land and trespass to chattels.

Мнемотехника

B-A-F-T-T

  • B– Battery
  • A– Assault
  • F– False imprisonment
  • T– Trespass to land
  • T– Trespass to chattels

The five torts that grew from the old writ of trespass. Intent transfers among these five only. It never transfers into intentional infliction of emotional distress or conversion.

Мысал

The fist that was meant to frighten

Cara is angry with Dan. She swings her fist toward his face, planning to stop just short of it. She wants only to frighten him. Dan leans forward at the wrong moment, and her fist breaks his nose.

Талдау

Cara intended an assault: she wanted Dan to expect a blow. Under the Restatement (Rest. § 13(a)), intent to cause that expectation is also the intent that battery requires. This is transferred intent from one tort to another. A harmful contact resulted, so Cara has the intent for battery. Her plan to stop short does not matter.

Нәтиже

Cara is liable to Dan for battery. She is also liable for assault if Dan saw the fist coming.

Capacity: children and mentally ill defendants

Ереже

No incapacity defense

Children and persons with mental illness are liable for their intentional torts. The only question is whether this defendant, with this defendant’s age and mind, had the purpose or knowledge that intent requires. Youth or illness is not itself a defense. Garratt applied this test to a child aged 5.

Ереже

California: minors and persons of unsound mind

California puts the rule in its codes. A minor, and a person of unsound mind of any degree, is civilly liable for a wrong. Neither is liable for punitive damages (money awarded to punish) unless, at the time of the act, the person was capable of knowing that the act was wrongful.

A parent is not liable for a child’s tort just because of the family relationship. California makes parents liable, up to a statutory cap, for a minor’s willful misconduct (Civ. Code § 1714.1). Chapter 6 covers parental liability.

Негізгі нүкте

There is no incapacity defense to an intentional tort. Ask only whether this defendant had the purpose or the knowledge that intent requires.

Емтихан туралы кеңес

Wrong MBE answers often say “no liability, because the defendant did not intend to hurt anyone” or “because the defendant was a child.” Both reasons are wrong. Intent means intent to cause the contact, and children can have it.

Негізгі жазбалар

  1. 1.Intent means purpose to cause the result, or knowledge that it is substantially certain (Rest. § 8A).
  2. 2.The defendant must intend the contact, apprehension or confinement, not the harm; motive and mistake do not matter.
  3. 3.Transferred intent moves intent between victims and among five torts: battery, assault, false imprisonment, trespass to land and to chattels.
  4. 4.Children and mentally ill persons can form intent; incapacity is not a defense.
  5. 5.California bars punitive damages against them unless they could know the act was wrongful.

1.3 Battery and assault

The next two torts protect the body and a person’s sense of physical security. They often appear in the same facts: a raised fist creates one tort, and the blow that lands creates the other. Battery was tested on 6 of the last 50 essay exams, and assault on 3 exams. On the MBE both appear as short fact patterns that turn on a single element.

Battery

battery – An intentional act that causes a harmful or offensive contact with the plaintiff’s person.Restatement (Second) of Torts §§ 13, 18

Элементтер

Elements of battery

The plaintiff must prove all four:

  1. 1.1: Act with intent: the defendant intended a contact, or intended to cause the expectation of a contact.
  2. 2.2: Harmful or offensive contact: the contact injures the body or offends a reasonable sense of personal dignity.
  3. 3.3: With the plaintiff’s person: the body, or anything closely connected to it, such as clothing or a held object.
  4. 4.4: Causation: the act caused the contact, directly or indirectly.

Барлық қажетті элементтер.

offensive contact – A contact that offends a reasonable sense of personal dignity. The test is objective: it asks about a reasonable person, not an unusually sensitive one.Restatement (Second) of Torts § 19

Ереже

What counts as a contact

A harmful contact causes physical injury, pain or illness. It is offensive if it offends a reasonable sense of personal dignity. No injury is required. The plaintiff need not know of the contact when it happens, and the contact may be indirect.

Each part of this rule has a reason. Indirect contact counts: pulling a chair away so that the plaintiff falls, putting poison in a drink, or throwing a rock are all contacts. Awareness is not needed: kissing a sleeping person is a battery even if the person learns of it only later. The closely connected rule protects things in the plaintiff’s hand or on the body, such as a plate, a purse or a hat.

The reasonable-person test also excludes the ordinary contacts of daily life. A tap on the shoulder to get attention, or a push in a crowded train, does not offend a reasonable person. Those contacts are treated as accepted. Consent, including consent implied from custom, is a privilege covered in chapter 2.

Іс

Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967) (Supreme Court of Texas 1967)

Фактілер

A mathematician attended a business lunch at a hotel club. As he stood in the buffet line, the club manager snatched the plate from his hand and shouted that a Black person could not be served there. The plaintiff was not touched and was not afraid of physical harm, but he was deeply humiliated.

Ұстау

Snatching an object from a person’s hand in an offensive manner is a battery. Contact with an object closely connected to the body is contact with the person. The plaintiff recovered damages for humiliation without any physical injury.

Неліктен маңызды

The standard authority for the closely connected object rule. It also shows that battery protects dignity: humiliation alone supports actual damages, and the court allowed punitive damages as well.

Мысал

Spitting

During an argument in a parking lot, Ben spits in Ana’s face. Ana is not hurt, but she is disgusted and embarrassed in front of her coworkers.

Талдау

Ben intended the contact. Spit on the face is a contact with Ana’s person, and it offends a reasonable sense of personal dignity. Harm is not an element, so the lack of injury does not matter.

Нәтиже

Battery. Ana recovers at least nominal damages, plus damages for her humiliation.

Assault

assault – An intentional act that puts the plaintiff in reasonable apprehension of an imminent harmful or offensive contact.Restatement (Second) of Torts § 21

apprehension – The plaintiff’s awareness that a harmful or offensive contact is about to happen. Fear is not required; a brave plaintiff who expects a blow has apprehension.

Элементтер

Elements of assault

The plaintiff must prove all three:

  1. 1.1: Act with intent: the defendant intended to cause apprehension, or intended a contact.
  2. 2.2: Reasonable apprehension: the plaintiff was aware of the threat, and a reasonable person would expect contact.
  3. 3.3: Of an imminent harmful or offensive contact: the contact seems imminent: about to happen, without significant delay.

Барлық қажетті элементтер.

Ереже

Words, ability and fear

Words alone are usually not an assault; they need an overt act (a threatening physical action), such as raising a fist. Words can also remove an assault by showing that no contact will come. Apparent ability is enough: the plaintiff reasonably believes the defendant can make contact. Fear is not required, only apprehension.

The classic case of words that remove a threat is Tuberville v. Savage. One man put his hand on his sword and said to another: “If it were not assize-time, I would not take such language from you.” Assize-time was when the royal judges were in town, and they were. The words showed that he would not strike, so there was no assault.

Compare a conditional threat such as “Your money or your life.” The defendant has no right to make that demand, and the plaintiff expects a blow if there is no payment. That threat is an assault. The difference is simple: in Tuberville the words said the blow would not come; here the words say it will come unless the plaintiff gives in.

Imminent means that the contact will come without significant delay. A threat of future harm, such as “I will beat you tomorrow,” is not an assault, although it may support another tort. The plaintiff must also be aware of the threat when it happens. A person struck from behind without warning has a battery claim but no assault claim.

Мысал

The unloaded gun

At a traffic light, an angry driver points a gun at another driver and shouts, “You are dead.” The gun is not loaded, and the angry driver knows it. The other driver does not know it and ducks below the window.

Талдау

The angry driver intended to cause apprehension. The other driver reasonably believed that a shot could come at once, so apparent ability is enough. The angry driver’s knowledge that the gun was empty does not matter; the other driver’s reasonable belief does.

Нәтиже

Assault. If the other driver had known that the gun was empty, there would be no reasonable apprehension and no assault.

Battery and assault compared
QuestionBatteryAssault
What is protected?BatteryThe body: freedom from harmful or offensive contact.AssaultThe mind: freedom from the expectation of an imminent contact.
Must contact occur?BatteryYes.AssaultNo. If contact follows, there is also a battery.
Must the plaintiff be aware?BatteryNo. A sleeping plaintiff can be the victim of a battery.AssaultYes, at the time of the threat.
Is harm required?BatteryNo. Offensive contact is enough, and nominal damages are available.AssaultNo. The apprehension itself is the injury.
Does intent transfer?BatteryYes, from person to person and from an intended assault.AssaultYes, from person to person and from an intended battery.

Емтихан туралы кеңес

When a blow lands, write two headings: assault first, then battery. If the plaintiff did not see the blow coming, say in one sentence that assault fails. Graders award separate points for each tort (battery 6 and assault 3 of the last 50 exams).

Негізгі нүкте

Battery needs contact but not awareness. Assault needs awareness but not contact. Many fact patterns contain both.

Негізгі жазбалар

  1. 1.Battery: an intentional act causing harmful or offensive contact with the plaintiff’s person or a closely connected object.
  2. 2.Offensive means offensive to a reasonable sense of personal dignity; no injury is needed.
  3. 3.Assault: an intentional act causing reasonable apprehension of an imminent harmful or offensive contact.
  4. 4.Words alone are rarely enough, and words can remove a threat; apparent ability is enough.
  5. 5.Awareness is required for assault but not for battery.

1.4 False imprisonment

False imprisonment protects freedom of movement. It appears on the exam in store detentions, locked rooms, workplace interviews and false arrests. The tort needs no physical harm and no jail; a few minutes in a locked office can be enough. The hard questions are what counts as confinement and whether the plaintiff had a reasonable way out.

false imprisonment – An intentional act that confines the plaintiff within boundaries fixed by the defendant, when the plaintiff knows of the confinement or is harmed by it.Restatement (Second) of Torts § 35

confinement – Restraint of a person within a bounded area, so that the person’s freedom of movement is limited in every direction.

Элементтер

Elements of false imprisonment

The plaintiff must prove all four:

  1. 1.1: Act with intent to confine the plaintiff, or a third person.
  2. 2.2: Confinement within a bounded area, however large or small.
  3. 3.3: Awareness or harm: the plaintiff knew of the confinement at the time, or was harmed by it.
  4. 4.4: No reasonable means of escape that the plaintiff knows about.

Барлық қажетті элементтер.

A bounded area is any space closed on all sides: a room, a car, a moving train or even a large building. Blocking only one direction is not confinement if the plaintiff can go another way. In Bird v. Jones, the defendants fenced off part of a public bridge and stopped the plaintiff from going forward. He could turn back and take another route, so there was no false imprisonment.

Ереже

Means of confinement

Confinement may be caused by physical barriers or physical force. It may also be caused by threats of present force against the plaintiff or family members, a false claim of legal authority, or keeping valuable property. Moral pressure, a threat of future harm, or a wish to clear one’s name is not confinement.

Ереже

Awareness, harm and escape

The plaintiff must know of the confinement when it happens, or be harmed by it. A way out defeats the claim only if it is reasonable and the plaintiff knows of it. An exit is not reasonable if it is dangerous or humiliating to use.

A false arrest is one form of false imprisonment. The defendant confines the plaintiff by claiming a legal authority that the defendant does not have. The plaintiff need not resist; submitting to an apparent arrest is confinement. The length of the confinement matters only to damages. A short confinement is still a tort, but it usually earns small damages.

Preview: the shopkeeper’s privilege

Ереже

Shopkeeper’s privilege (general law)

A store owner who reasonably believes that a person has taken goods without paying may detain that person on the premises. The detention must be for a reasonable time, only to investigate, and in a reasonable manner, with no more than reasonable force. A reasonable mistake does not remove the privilege.

Ереже

California: merchant detention

California lets a merchant with probable cause to believe that a person is stealing merchandise detain the person for a reasonable time. The detention must be to investigate, in a reasonable manner. The words differ from the Restatement’s “reasonable belief,” but the three questions are the same: grounds, time and manner.

The shopkeeper’s privilege is a defense, so it comes after the prima facie case. First prove the confinement. Then ask whether the store had good grounds, held the plaintiff only as long as an investigation needed, and acted without threats or unnecessary force. Chapter 2 teaches this privilege and the other privileges in full.

Гипотетикалық

The locked office

A restaurant manager suspects that a waiter, Ben, has taken $200 from the cash register. At the end of Ben’s shift, the manager asks him to come into the back office. The manager shuts the door, stands in front of it and says: “You are not leaving until you sign a confession. If you try to walk out, I will call the police and tell every restaurant in town that you are a thief.” Ben stays for 2 hours and does not sign. The office has a second door to the alley. It is hidden behind a stack of boxes, and Ben does not know it is there. Ben later sues the manager.


Does Ben have a claim for false imprisonment against the manager?

Талдау

Yes. The issue is whether the manager confined Ben. False imprisonment requires an intentional act that confines the plaintiff within a bounded area, awareness of the confinement or harm from it, and no reasonable means of escape known to the plaintiff. Here, the manager intended to keep Ben in the office until he signed. The office is a bounded area. The manager confined Ben by standing in front of the only door Ben knew about and telling him that he could not leave. The threat to call the police and to damage Ben’s reputation is pressure about the future; by itself it would not be confinement. However, the physical blocking of the door is enough. Ben knew that he was confined. The hidden door does not help the manager, because Ben did not know about it. The manager will argue a shopkeeper’s privilege. However, holding an employee for 2 hours to force a confession is not a reasonable investigation in time or manner. Therefore, the manager is liable for false imprisonment.

Емтихан туралы кеңес

Watch two MBE distractors. An exit that the plaintiff did not know about does not defeat the claim. A plaintiff who was neither aware of the confinement nor harmed by it has no claim, however badly the defendant behaved.

Негізгі нүкте

Confinement must be complete. Ask what closed the plaintiff in, whether the plaintiff knew or was harmed, and whether a known, reasonable exit existed.

Негізгі жазбалар

  1. 1.False imprisonment: intentional confinement within a bounded area, with awareness or harm, and no known reasonable escape.
  2. 2.Confinement may come from barriers, force, threats of present force, false legal authority or withheld property.
  3. 3.Moral pressure, threats of future harm and blocking one direction are not confinement.
  4. 4.The plaintiff must know of the confinement or be harmed by it (Rest. § 42).
  5. 5.Stores may detain on reasonable grounds, for a reasonable time, in a reasonable manner; California says probable cause.

1.5 Intentional infliction of emotional distress

The fourth tort protects peace of mind. It is younger than the other three: most courts recognized it as an independent tort only in the twentieth century. Its elements are open-ended, so courts keep it narrow. It was tested on 4 of the last 50 essays. On the MBE the usual question is whether the conduct is outrageous enough, or whether another tort fits better.

intentional infliction of emotional distress – Extreme and outrageous conduct that intentionally or recklessly causes another person severe emotional distress. Abbreviated IIED.Restatement (Second) of Torts § 46

extreme and outrageous conduct – Conduct so extreme in degree that it goes beyond all possible bounds of decency and would be regarded as atrocious in a civilized community.Restatement (Second) of Torts § 46

severe emotional distress – Distress so substantial or so long-lasting that no reasonable person in a civilized society should be expected to endure it.Hughes v. Pair (2009) 46 Cal.4th 1035

Элементтер

Elements of IIED

The plaintiff must prove all four:

  1. 1.1: Extreme and outrageous conduct: beyond all possible bounds of decency.
  2. 2.2: Intent or recklessness: the defendant intended severe distress, or acted in reckless disregard of a high probability of it.
  3. 3.3: Causation: the conduct caused the distress.
  4. 4.4: Severe emotional distress: more than upset, anger or embarrassment.

Барлық қажетті элементтер.

Ереже

The general rule

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable for that distress, and for any bodily harm that results. Physical injury is not required. California uses the same elements.

Outrageousness is the element that decides most cases. Insults, rude language, threats of minor harm and ordinary unkindness are not enough, because people are expected to tolerate some rough treatment. In Hughes v. Pair, the California Supreme Court held that a trustee’s vulgar sexual comments to a beneficiary’s mother were not outrageous. The conduct must exceed all bounds of what a civilized community usually tolerates.

Ереже

Factors that make conduct outrageous

Four factors make a finding of outrageous conduct more likely. The conduct is repeated or continuous. The defendant is a common carrier or innkeeper. The defendant knows that the plaintiff is especially vulnerable. Or the defendant abuses a position of power over the plaintiff.

Each factor appears in exam facts. Repetition turns one rude call into a campaign. Common carriers and innkeepers owe their passengers and guests a special duty of courtesy. Known vulnerability covers children, elderly or ill people and pregnant women. Position of power covers employers, landlords, debt collectors, police officers and school officials.

In Alcorn v. Anbro Engineering, Inc., a supervisor shouted racial insults at an employee and fired him on the spot. The California Supreme Court held that the complaint stated a claim. The employment relationship, and the defendants’ knowledge that the employee was especially sensitive to such insults, could support a finding of outrageous conduct.

The distress must be severe, but it need not produce a physical injury. Evidence usually includes medical treatment, an inability to work or sleep, or a long period of anxiety. In Hughes, “discomfort, worry, anxiety, upset stomach, concern, and agitation” were not severe. The more outrageous the conduct, the more readily a court accepts that severe distress followed.

Іс

State Rubbish Collectors Assn. v. Siliznoff, (1952) 38 Cal.2d 330 (California Supreme Court 1952)

Фактілер

A garbage collectors’ association demanded that a collector pay for an account he had taken from one of its members. Its agents told him that they would beat him up, damage his truck and put him out of business unless he paid. He signed promissory notes out of fear. He became ill, vomited and missed several days of work. The threats concerned the future, so they were not a technical assault.

Ұстау

A person who, without privilege, intentionally causes serious mental suffering by serious threats is liable. The threats need not amount to an assault, and no physical injury is required.

Неліктен маңызды

The case that established IIED as an independent tort in California. It shows the fallback role of IIED: when assault fails for lack of imminence, IIED may still fit.

Bystanders, transferred intent and free speech

Ереже

Conduct aimed at a third person

When the conduct is aimed at someone else, a bystander may recover only if present when it occurs and the defendant knows of that presence. A close family member recovers for severe distress alone. Any other bystander must also show bodily harm.

California asks the same question in one sentence. The conduct must be directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware (Christensen v. Superior Court). A daughter who watches strangers beat her father can sue for her own distress only if the attackers knew that she was watching.

Ереже

No transferred intent; the fallback role

Transferred intent does not apply to IIED. IIED is often called a fallback tort because it is most useful when no traditional tort fits. In most states, including California, a plaintiff may still claim IIED together with battery, assault or false imprisonment.

Ереже

Constitutional limit on speech

The First Amendment limits IIED for speech on public matters. Under Hustler, a public figure must prove a false statement of fact made with actual malice: knowledge of falsity or reckless disregard of the truth. Under Snyder, even a private plaintiff cannot recover for peaceful speech on a public matter in a public place.

Actual malice is a speech-law term. It is not the malice that supports punitive damages in section 6. Chapter 9 covers these constitutional limits together with defamation.

Мысал

The false message

As a joke, Dan telephones Eva and tells her, falsely, that her husband has been badly hurt in a car crash and is dying in the hospital. Eva screams, rushes to the hospital and collapses. She is under a doctor’s care for anxiety and sleeplessness for 3 months.

Талдау

A false report that a spouse is dying goes beyond all bounds of decency. Dan knew that severe distress was substantially certain, or at least acted recklessly; a joke is no excuse. The call caused Eva’s collapse and 3 months of treatment, which is severe distress.

Нәтиже

IIED. There was no contact, no imminent threat and no confinement, so IIED is the only tort that fits.

Емтихан туралы кеңес

If another tort fits the facts, IIED is usually the wrong MBE answer. Choose IIED when there is no contact, no imminent threat and no confinement, but the conduct is outrageous and the distress severe.

Емтихан туралы кеңес

On an essay, discuss IIED after the other torts. Argue both sides of outrageousness, using each factor that the facts support. Graders reward the use of the facts more than the conclusion.

Негізгі нүкте

IIED is narrow: outrageous conduct plus severe distress. Look first for a tort with fixed elements; then consider IIED as well.

Негізгі жазбалар

  1. 1.IIED: extreme and outrageous conduct, intent or recklessness, causation and severe emotional distress.
  2. 2.Insults are not outrageous; repetition, known vulnerability, power and carrier status raise the level.
  3. 3.Severe distress needs no physical injury, but mild upset is not enough (Hughes v. Pair).
  4. 4.Bystanders must be present and known to the defendant; non-family bystanders also need bodily harm.
  5. 5.Intent does not transfer into IIED, and the First Amendment limits IIED for speech on public matters.

1.6 Damages: nominal, compensatory and punitive (Civ. Code § 3294)

Every tort answer ends with the remedy. The intentional torts to the person help plaintiffs in three ways. Battery, assault and false imprisonment need no proof of harm. A defendant who acts intentionally pays for all the harm the act causes, even harm that was unexpected. And intentional wrongdoing opens the door to punitive damages.

nominal damages – A small sum, such as $1, awarded when a tort is proved but the plaintiff shows no actual loss. It declares that the plaintiff’s right was violated.

compensatory damages – Money that puts the plaintiff, as far as money can, in the position the plaintiff was in before the tort. Also called actual damages.

punitive damages – Damages beyond compensation, awarded to punish a defendant for malicious or similar conduct and to deter others. Also called exemplary damages.

Ереже

Nominal damages

Battery, assault and false imprisonment are complete without actual harm. A plaintiff who proves the prima facie case of one of them recovers at least nominal damages. IIED is different: severe emotional distress is an element, so actual harm must be proved.

Ереже

Compensatory damages: all harm caused

The plaintiff recovers for all harm the tort caused: medical costs, lost earnings, pain, humiliation and emotional distress. The defendant takes the plaintiff as found. If a slight blow causes severe harm because of a hidden weakness, the defendant pays for all of it.

The last point is the eggshell plaintiff rule: a defendant cannot complain that the plaintiff was unusually fragile. For intentional torts the reach of liability is wide, as Vosburg shows. The California Civil Code states the same measure. Under Cal. Civ. Code § 3333, the plaintiff recovers the amount that compensates for all the detriment proximately caused, “whether it could have been anticipated or not.” Chapter 4 applies the eggshell rule to negligence.

Punitive damages

Ереже

Punitive damages (general law)

Punitive damages are available when the defendant acted with malice, or in a willful and wanton way, or in conscious disregard of the plaintiff’s rights. Many courts require an award of actual damages first. Damages for humiliation or distress count, as in Fisher. Ordinary negligence does not support punitive damages.

ЖарғыCA

Cal. Civ. Code § 3294

Civ. Code § 3294(a) (exemplary damages)

In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.
Ашық дереккөз

In plain English: in a tort case, the plaintiff may recover punitive damages only by proving oppression, fraud or malice by clear and convincing evidence. That standard is higher than the usual preponderance of the evidence. The statute defines the three words. Malice is conduct intended to injure, or despicable conduct carried on with a willful and conscious disregard of the rights or safety of others.

Oppression is despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. Fraud is an intentional misrepresentation, deceit or concealment of a material fact, made to deprive a person of property or rights or otherwise to cause injury. On intentional-tort facts, malice is usually the word to use.

Ереже

California: punitive damages against an employer

An employer pays punitive damages for an employee’s act only in three cases. It knew the employee was unfit and employed the employee anyway, in conscious disregard of others’ rights or safety. It authorized or ratified the act. Or it was itself guilty of oppression, fraud or malice. For a corporation, an officer, director or managing agent must act.

Ереже

California: evidence of the defendant’s wealth

Before punitive damages can be awarded, the plaintiff must offer evidence of the defendant’s financial condition. On the defendant’s request, the court keeps that evidence out until the jury awards actual damages and finds oppression, fraud or malice.

CAКалифорнияның айырмашылығы

Punitive damages: standard of proof and evidence

Жалпы ереже (федералдық/көпшілік)

Courts allow punitive damages for malicious, willful and wanton, or reckless conduct. The standard of proof varies: many states require clear and convincing evidence, while others use a preponderance. The MBE rarely tests the standard.

Калифорния

Civil Code § 3294 requires clear and convincing evidence of oppression, fraud or malice, each defined by the statute. The plaintiff must present evidence of the defendant’s financial condition (Adams v. Murakami (1991) 54 Cal.3d 105). The defendant may keep that evidence out until liability for punitive damages is found (Cal. Civ. Code § 3295).

If the call names California law, write the § 3294 sentence with the three words and the clear and convincing standard. If the call is silent, state the general rule, and add one sentence on California only if it changes the result.

Ереже

Constitutional limits on the amount

Due process limits the size of punitive awards. Courts weigh the reprehensibility of the conduct, the ratio between punitive and compensatory damages, and the civil penalties for similar conduct. Few awards above a single-digit ratio satisfy due process.

Damages for the four torts
TortActual harm required?Nominal damages?Punitive damages?
BatteryActual harm required?NoNominal damages?YesPunitive damages?Yes, if malice. California: clear and convincing proof under § 3294.
AssaultActual harm required?NoNominal damages?YesPunitive damages?Yes, if malice.
False imprisonmentActual harm required?NoNominal damages?YesPunitive damages?Yes, if malice.
IIEDActual harm required?Yes: severe emotional distressNominal damages?No: the harm is an elementPunitive damages?Yes, if malice; outrageous conduct often shows it.

Мысал

The bouncer

A nightclub bouncer punches a customer who complained about the music. The customer’s jaw is broken, and the medical bills are $12,000. The club’s general manager watched the attack, did nothing, and later praised the bouncer at a staff meeting. The customer sues the bouncer and the club in California.

Талдау

The bouncer committed battery, so he owes compensatory damages for the bills, lost wages and pain. An unprovoked punch meant to injure is malice, which supports punitive damages on clear and convincing proof. Against the club, § 3294 asks whether a managing agent authorized or ratified the act, or knew the bouncer was unfit. The manager’s praise is evidence of ratification.

Нәтиже

The club is likely liable for compensatory damages through respondeat superior, because using force on customers is part of a bouncer’s job (chapter 6). It is liable for punitive damages if a managing agent authorized or ratified the attack, or knew the bouncer was unfit and kept him anyway. The general manager’s praise is strong evidence of ratification.

Емтихан туралы кеңес

End each intentional tort with one damages sentence: nominal damages because harm is not required, compensatory damages for the harm shown, and punitive damages if malice appears. When California law is called, name Cal. Civ. Code § 3294 and its clear and convincing standard.

Негізгі нүкте

Intent raises the stakes: no harm is needed for nominal damages, the defendant pays for unexpected harm, and malice can add punitive damages.

Негізгі жазбалар

  1. 1.Battery, assault and false imprisonment support nominal damages without harm; IIED requires severe distress.
  2. 2.Compensatory damages cover all harm caused, including unexpected harm to a fragile plaintiff.
  3. 3.Punitive damages need malice or similar conduct; many courts require actual damages first.
  4. 4.California (§ 3294): clear and convincing evidence of oppression, fraud or malice; limits on employer liability.
  5. 5.Due process limits the ratio of punitive to compensatory damages.

1.7 Review

This review has 5 multiple-choice questions in the MBE style. The real exam gives you about 1.8 minutes for each question: 200 questions in two 3-hour sessions. Time yourself. For each question, name the tort first, then find the element that the facts put in doubt, then read the options. After the questions, the glossary lists the new terms from this chapter.

The examiners test this chapter in predictable ways. On the MBE, the trap option usually names the wrong element. It requires harm for battery, fear instead of apprehension for assault, a minimum time for false imprisonment, or physical contact for IIED. On the essay, points go to a heading for each tort, a complete rule and the use of the facts for each element. Both formats reward the same habit: element by element, one tort at a time.

Ереже

Choosing among the four torts

Ask what the defendant intended and what resulted. A contact is battery. An expectation of a contact that is about to happen is assault. A confinement is false imprisonment. Outrageous conduct that causes severe distress is IIED; it is often the only tort left when there is no contact, threat or confinement. One act can create more than one tort.

The four intentional torts to the person
TortWhat the plaintiff must showAwareness needed?Transferred intent?
BatteryWhat the plaintiff must showHarmful or offensive contact with the person or a closely connected object.Awareness needed?NoTransferred intent?Yes
AssaultWhat the plaintiff must showReasonable apprehension of an imminent harmful or offensive contact.Awareness needed?Yes, at the timeTransferred intent?Yes
False imprisonmentWhat the plaintiff must showConfinement in a bounded area with no known reasonable escape.Awareness needed?Yes, unless harmedTransferred intent?Yes
IIEDWhat the plaintiff must showExtreme and outrageous conduct causing severe emotional distress.Awareness needed?Bystanders must be present and knownTransferred intent?No

IRAC

Мәселе
Whether [Defendant] is liable to [Plaintiff] for battery.
Ереже
A defendant is liable for battery if the defendant acts intending to cause a harmful or offensive contact with the plaintiff’s person, or the apprehension of such a contact, and a harmful or offensive contact results. Intent includes knowledge that the contact is substantially certain. A contact is offensive if it offends a reasonable sense of personal dignity. Harm is not required.
Қолданба
Here, [Defendant] [describe the act]. Intent: [Defendant] [wanted the contact / knew it was substantially certain]; if [Defendant] aimed at another person, intent transfers. Contact: [describe the contact, direct or indirect, or with a closely connected object]. Harmful or offensive: [describe the injury, or explain why a reasonable person would be offended]. [Defendant] will argue that [there was no intent to harm / the contact was ordinary / the plaintiff was unaware]. However, [intent to harm is not required / the contact went beyond ordinary social contact / awareness is not an element of battery].
Қорытынды
Therefore, [Defendant] is liable for battery and owes [nominal / compensatory / punitive, if malice] damages.

Тәжірибе · MBE

During an argument on a city sidewalk, a man picked up a rock and threw it at his neighbor’s head, intending to hit him. The neighbor ducked. The rock flew past him and struck a jogger who was running by with her back to the two men. The jogger never saw the rock and did not know about the argument. She suffered a deep cut to her scalp. The jogger sued the man. What is the jogger’s best claim against the man?
Жауапты таңдаңыз

Shift + әрпі опцияны қағады

Жауабы: B

Battery requires an act intended to cause a harmful or offensive contact, and a resulting contact. The man intended to hit the neighbor. Under transferred intent, that intent moves to the person actually hit, so the man has the intent for battery against the jogger. The rock caused a harmful contact with her body. Option A fails because the jogger never saw the rock, so she had no apprehension. Option C is wrong because transferred intent supplies the intent; a negligence claim may exist, but battery is stronger. Option D confuses the two torts: battery does not require awareness.
B is correct. Rule: intent to cause a harmful contact with one person transfers to the person actually struck (Talmage v. Smith). Facts: the man threw the rock to hit the neighbor, and it hit the jogger. Therefore the man committed a battery against the jogger. The neighbor may also have an assault claim if he saw the rock coming. A assumes that the jogger had apprehension; she never saw the rock, and assault requires awareness at the time. C assumes that intent must be aimed at the actual victim; transferred intent removes that requirement. D assumes that battery requires awareness; a plaintiff can be the victim of a battery without knowing of it in advance.

Тәжірибе · MBE

At a crowded holiday party, a guest walked up behind a woman he had never met. She was talking with friends and did not see him approach. He put his hand on her shoulder and kissed her on the cheek, saying that this was his way of greeting new people. Nothing about the party or the local custom suggested that strangers greeted each other with kisses. The woman was not injured, but she was shocked and upset. She sued the guest for battery. Will the woman prevail?
Жауапты таңдаңыз

Shift + әрпі опцияны қағады

Жауабы: A

Battery requires an intentional act, a harmful or offensive contact, and contact with the plaintiff’s person. The guest intended to kiss the woman. A kiss from a stranger, without any invitation or custom, offends a reasonable sense of personal dignity, so the contact is offensive. No injury is required, and the guest’s friendly motive does not matter because he intended the contact itself. Option B describes assault, and the woman did not see him approach. Option C adds a harm requirement that battery does not have. Option D confuses intent to make contact with intent to offend.
A is correct. Rule: battery protects dignity as well as the body; an intended contact that offends a reasonable sense of personal dignity is a battery without any injury (Rest. §§ 18, 19). Facts: a stranger kissed the woman without warning, and no custom made such kisses acceptable. Therefore the guest is liable for battery, at least for nominal damages and damages for her distress. B assumes an assault; the woman did not see the guest coming, so she had no apprehension. C assumes that battery requires physical harm; offensive contact is enough. D assumes that the defendant must intend to offend; he need only intend the contact, and a good motive is no defense.

Тәжірибе · MBE

A young man and his elderly neighbor argued loudly over a parking space. The young man stood about 3 feet from the neighbor, raised his fist and said: “If you were not an old man, I would knock you down.” He did not move closer. After a moment he lowered his fist and walked away. The neighbor was shaken and could not sleep that night. The neighbor sued the young man for assault. Will the neighbor prevail?
Жауапты таңдаңыз

Shift + әрпі опцияны қағады

Жауабы: C

Assault requires an intentional act that causes reasonable apprehension of an imminent harmful or offensive contact. Words can remove the threat that a gesture would otherwise carry. The young man made the blow depend on a condition that could not change: the neighbor was old. A reasonable person would therefore understand that no blow was coming, so there was no reasonable apprehension of imminent contact. Option A ignores the effect of the words. Option B borrows a factor from IIED; vulnerability does not create apprehension. Option D misstates the rule: the raised fist was an act, so this is not a case of words alone.
C is correct. Rule: an assault requires reasonable apprehension of an imminent contact, and words that accompany a gesture can show that no contact will come (Tuberville v. Savage). Facts: the young man said that he would not strike because the neighbor was old, a fact that could not change, and he then walked away. Therefore a reasonable person would not expect an imminent blow, and there is no assault. A assumes that a raised fist is always enough; the words removed its threat. B borrows the vulnerability factor from IIED; it does not create apprehension of contact. D states the rule too broadly; an act existed here, but the words took away its meaning.

Тәжірибе · MBE

A shopper who felt faint asked to rest in a department store. An employee let her lie down on a couch in a back office, and she fell asleep. A security guard wrongly suspected that she had stolen a scarf. He locked the office door from the outside for 10 minutes while he reviewed video recordings. The recordings showed no theft, and he unlocked the door. The shopper slept the entire time. A week later an employee told her about the locked door. She suffered no harm, but she sued the store for false imprisonment. Will the shopper prevail?
Жауапты таңдаңыз

Shift + әрпі опцияны қағады

Жауабы: D

False imprisonment requires an intentional confinement within a bounded area, and the plaintiff must either know of the confinement at the time or be harmed by it. The guard intentionally locked the shopper in a closed room, so confinement occurred. But she slept through it, learned of it only a week later, and suffered no harm. Without awareness or harm, there is no false imprisonment. Option A states only the confinement element. Option B concerns the shopkeeper’s privilege, a defense that matters only after the plaintiff proves the tort. Option C is wrong because a short confinement can be a tort; time affects only damages.
D is correct. Rule: there is no liability for false imprisonment unless the plaintiff knew of the confinement when it happened or was harmed by it (Rest. § 42). Facts: the shopper was asleep for the whole 10 minutes, learned of the lock a week later, and suffered no harm. Therefore she cannot prove the tort. A assumes that confinement alone completes the tort; awareness or harm is also required. B assumes that a lack of grounds creates liability; grounds matter only to the shopkeeper’s privilege, which is a defense to a tort that must first be proved. C assumes a minimum time; any confinement can qualify, and time goes to damages.

Тәжірибе · MBE

A collection agent tried to collect a son’s unpaid debt from the son’s 80-year-old mother, who did not owe it. The agent knew that she lived alone and had a heart condition. For 30 days he telephoned her every day, sometimes after midnight. In each call he told her, falsely, that she would be arrested and jailed within the week unless she paid. The mother developed severe anxiety and could not sleep. Her doctor admitted her to a hospital for a stress-related illness. She sued the agent for intentional infliction of emotional distress. Will the mother prevail?
Жауапты таңдаңыз

Shift + әрпі опцияны қағады

Жауабы: A

IIED requires extreme and outrageous conduct, intent or recklessness, causation and severe emotional distress. Several factors make the agent’s conduct outrageous: the calls were repeated for a month, some came after midnight, the threats of arrest were false, and the agent knew that the mother was elderly and ill. He at least acted recklessly as to her distress. Her hospital care shows severe distress. Option B confuses IIED with assault; an arrest within a week is not an imminent harmful or offensive contact. Option C adds a physical-contact requirement that IIED does not have. Option D ignores that the conduct was aimed directly at the mother.
A is correct. Rule: a defendant who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress is liable (Rest. § 46); repetition, known vulnerability and abuse of a position of power make conduct outrageous. Facts: 30 days of calls, false threats of jail, calls after midnight, and an 80-year-old victim with a known heart condition who was hospitalized. Therefore the agent is liable for IIED. B assumes that the threat of arrest is an assault; the arrest was not imminent and is not a bodily contact. C assumes that IIED needs contact or a threat of force; it needs neither. D treats the mother as a bystander; the calls were directed at her, so she is the direct victim.

– Knowledge that a result will almost surely follow from an act. It satisfies the intent element even without any wish to cause the result.

– Conscious disregard of a known and serious risk. It is less than intent and more than negligence, and it satisfies IIED.

– A contact that causes physical injury, pain, illness or other damage to the body.

– About to happen without significant delay. A threat of harm in the future is not imminent.

– A physical action, such as raising a fist or reaching for a weapon, that gives threatening words the force of an assault.

– A space closed on all sides, large or small, that limits a person’s movement in every direction.

– False imprisonment by a person who claims legal authority to hold the plaintiff but does not have it.

– A store owner’s right to detain a suspected shoplifter on reasonable grounds, for a reasonable time and in a reasonable manner.

– A plaintiff with a hidden weakness who suffers more harm than an ordinary person would. The defendant pays for all of it.

– A person who is present when the defendant’s conduct is aimed at someone else.

– For California punitive damages: conduct intended to injure, or despicable conduct in willful and conscious disregard of the rights or safety of others.

– A standard of proof higher than a preponderance of the evidence: the fact must be shown to be highly probable.

Chapter 2 continues with the intentional torts to property: trespass to land, trespass to chattels and conversion. It then teaches the privileges that can defeat intentional torts: consent, self-defense, defense of others and of property, the shopkeeper’s privilege in full, and necessity. Before you go on, write from memory the elements of the four torts in this chapter and the five torts that share transferred intent.

Негізгі нүкте

Every intentional-tort answer follows one pattern: name the tort, state its elements, apply the facts to each element, consider privileges, then state the damages.

Негізгі жазбалар

Chapter summary

  1. 1.Intent is purpose or knowledge to a substantial certainty; it concerns the contact, apprehension or confinement, not harm.
  2. 2.Intent transfers between victims and among battery, assault, false imprisonment and the two trespass torts, never into IIED.
  3. 3.Children and mentally ill persons can form intent; incapacity is no defense.
  4. 4.Battery needs contact but not awareness; assault needs awareness of an imminent contact but not contact.
  5. 5.False imprisonment needs complete confinement, awareness or harm, and no known exit; IIED needs outrageous conduct and severe distress.
  6. 6.Nominal damages need no harm; punitive damages need malice, proved in California by clear and convincing evidence.

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