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Professor Sherman Clark University of Michigan Law School

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Professor Sherman Clark University of Michigan Law School TORTS PROFESSOR SHERMAN CLARK UNIVERSITY OF MICHIGAN LAW SCHOOL CHAPTER 1: INTENTIONAL TORTS INVOLVING PHYSICAL INJURY A. Generally 1. Three Elements—to prove an intentional tort, the plaintiff must prove: o ____________. o _____________. o __________________. 2. Intent o The actor acts with the purpose of causing the consequence; OR o The actor knows that the consequence is _______________________________ to follow. a. Children and ________________________________________ persons—can be held liable for intentional torts if they act with the requisite intent (i.e., if they act with the purpose of causing the result or know that the consequence is substantially certain to follow). b. Transferred intent—the intent to commit one tort suffices for the commission of another; this applies when a person commits: . A different intentional tort against the same person that he intended to harm; . The same intentional tort against ___________________________________________; OR . A different intentional tort against a different person. Example 1: Prof. Clark throws a brick at you, intending to hit you. If the brick hits you, he commits battery. If the brick misses you but puts you in imminent apprehension of being hit, he commits assault. Different tort/same person: The intent to commit battery against you transfers to the tort of assault against you when the brick misses you. Same tort/different person: Similarly, if the brick misses you and hits your friend, he commits battery against your friend. Different tort/different person: Finally, if Prof. Clark intends to hit you, and the brick misses you and your friend but puts your friend in imminent apprehension of being hit, then the intent to commit battery against you will transfer to the intentional tort of assault against your friend. B. Battery 1. Definition o Defendant causes a ______________ or __________________ contact with the person of another; and o Acts with the ____________ to cause that contact or the apprehension of that contact. 2. Consent—there is no battery if there is express or implied consent. 3. Harmful or Offensive Contact a. Harmful—causes an ____________, pain, or illness. b. Offensive . A person of ordinary sensibilities would find the contact offensive. Example 2: Spitting on somebody; groping somebody. If the victim is ____________________________, the defendant may still be liable if the defendant is aware but acts nonetheless. 4. Plaintiff‘s Person—includes anything connected to the plaintiff’s person. Example 3: Pulling a chair out from under someone; knocking a hat off a person’s head. 5. Causation—the act must result in contact of a harmful or offensive nature (need not be ____________). Example 4: Setting a bucket above a door, such that ice water falls on a person’s head when the door is opened. 6. Intent o If a contact is not consented to, that suffices to make it __________________. o The doctrine of transferred intent applies to battery. 7. Damages o No proof of actual harm is required; the plaintiff can recover ______________ damages. o Many states allow ________________ damages if the defendant acted: . Outrageously; or . With ____________. o “________________-plaintiff” rule—a defendant is liable for all harm that flows from a battery, even if it is much worse than the defendant expected it to be. 2 | © 2017 Themis Review Bar, LLC | MBE Torts C. Assault 1. Definition—plaintiff’s reasonable imminent apprehension of harmful or offensive bodily contact. Editorial Note 1: The Restatement (Second) of Torts uses the phrase “imminent apprehension” to refer to the apprehension of an imminent harmful or offensive bodily contact. 2. Bodily Contact—not required. 3. Plaintiff’s Apprehension o Must be reasonable. o The plaintiff must be __________ of the defendant’s action. Example 5: If you are sleeping and someone gropes you, that person commits battery even though you are not aware of it. If you are sleeping and someone pretends to hit you, there is no assault because assault requires awareness. 4. Imminent o Must be without significant ____________. o Threats of future harm or hypothetical harm are not sufficient. 5. Mere Words o Generally, “mere words do not constitute an assault.” o However, words coupled with the circumstances can, in some cases, be sufficient. 6. Intent—present in one of two ways. o The defendant must intend to cause either: . An apprehension of imminent harmful or offensive contact; or . The contact itself. o Transferred intent applies to assault—the defendant may intend to cause the contact itself. 7. Damages o No proof of ____________ damages is required; the plaintiff can recover nominal damages. o In appropriate cases, ________________ damages may be available. o The plaintiff can also recover damages from physical harm flowing from the assault. MBE Torts | © 2017 Themis Bar Review, LLC | 3 CHAPTER 2: INTENTIONAL TORTS: IIED, FALSE IMPRISONMENT, AND DEFENSES A. Intentional Infliction of Emotional Distress (IIED) 1. Definition—extreme and ____________________ conduct intentionally causing severe emotional distress. 2. Intent o The defendant must intend to cause severe emotional distress or at least act with ________________________ as to the risk of causing severe emotional distress. o Transferred intent may apply. Editorial Note 2: Under the Third Restatement, transferred intent may apply to intentional infliction of emotional distress if, instead of harming the intended person, the defendant’s extreme conduct harms another. Thus, transferred intent is applicable to IIED only when a person commits the same intentional tort (IIED) against a different person. 3. Extreme and Outrageous Conduct—courts are more likely to find conduct or language to be extreme and outrageous if: o The defendant is in a position of __________________ or ____________________ over the plaintiff; or o The plaintiff is a member of a group that has a ____________________________________. 4. Acts Directed Toward Third Parties (i.e., someone other than the plaintiff)—a defendant who directs his conduct at a third-party victim can also be liable to: o Victim’s _______________________________ member who is present at the time of the conduct. Example 6: A mother may be able to recover under the tort of IIED from a defendant who acted outrageously toward the mother’s young child, knowingly distressing the mother, who was present. Editorial Note 3: A present immediate family member may be able to recover regardless of whether there has been bodily injury. o Bystander who is present at the time of the conduct and who suffers distress that results in __________________________. 5. Causation—the defendant’s actions were at least a ____________________________________ in bringing about the plaintiff’s harm. 6. Damages—severe emotional distress beyond what a reasonable person should endure. o Often, the extreme and outrageous character of the defendant’s conduct is evidence of the plaintiff’s distress. o Hypersensitivity—if the plaintiff experiences an unreasonable level of emotional distress, then the defendant is only liable if aware of the plaintiff’s hypersensitivity. 4 | © 2017 Themis Review Bar, LLC | MBE Torts o Physical injury is not required (except in the case of a bystander, discussed above). B. False Imprisonment 1. Definition—three elements: o Defendant intends to ______________ or _________________ another within fixed boundaries; o The actions directly or indirectly result in confinement; and o Plaintiff is __________________ of the confinement or harmed by it. Example 7: Locking a person in a closet. 2. Confined Within Bounded Area o The area can be large. o The area need not be ____________________. 3. Methods of Confinement o Use of __________________________________, physical force, threats, invalid use of legal authority, duress, or refusing to provide a safe means of escape. o Shopkeeper’s privilege—a shopkeeper can, for a reasonable time and in a reasonable manner, ______________ a suspected shoplifter. o A court may find false imprisonment when the defendant has refused to perform a ________ to help a person escape. Example 8: A store clerk refuses to unlock a dressing room in which someone is locked. 4. Time of Confinement—immaterial. 5. Intent o Defendant must act: . With the purpose of confining the plaintiff; or . Knowing that the plaintiff’s confinement is substantially certain to result. o Confinement due to defendant’s negligence—defendant will not be liable under the intentional tort of false imprisonment (but could be liable under negligence). o Transferred intent applies to false imprisonment. Example 9: A person throws a log at you, intending to hit you. The log traps you in a corner, preventing your escape. The person has committed false imprisonment. 6. Damages—actual damages are not required; plaintiff can recover ________________ damages. MBE Torts | © 2017 Themis Bar Review, LLC | 5 C. Defenses to Intentional Torts Involving Personal Injury 1. Consent a. Express consent—must be willing and knowing. Consent by mistake—a ___________ defense unless the defendant caused the mistake or knew of it and took advantage of it. Consent by fraud— ______________ if it goes to an __________________ matter. Example 10: If you engage in physical contact with someone, thinking them to be richer than they are, that fraud will not invalidate consent because the fraud does not go to an essential matter. However, if you are in a hospital and someone sneaks in, puts on a doctor’s coat, and touches you, and you think the person is a doctor, then the fraud goes to an essential matter, and consent will not be valid. b. Implied consent . Emergencies—it is fair to assume that someone in need of rescuing would allow a rescuer to touch him absent explicit consent. Injuries arising from athletic contests Editorial Note 4: May be liable if the conduct is “reckless,” which in this context means conduct outside the normal scope of the sport. Mutual consent to combat c. Capacity—youth, intoxication, incompetency, etc.
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