MBE Torts (I,A): Intentional Torts - Harms to the Person

all right hey guys thanks so much for watching this video checking this out this is the MBE tortes video series MBE of course standing for the multi-state bar exam it appears on just about every single bar exam in the country clearly the most important thing you're going to need to study for and if you don't know what that is or you're not a law school student or you're not taking the bar exam I can promise you there are much better videos on YouTube that are far more entertaining but if you are in the unfortunate position of having to study for this thing you are more than welcome to join me the rest of this video and the other videos in the series so let's get started the MBE has six different subjects torts being one of them obviously and what I've done here in this series and in other ones is sort of mapped out exactly what's going to be on the exam the National Conference of Bar Examiners the ncb II those are the guys who make this test and they release an official outline of all the possible subjects and the topics that could be on the MBE by outline fortunately do they don't actually have any content it just has the list of the topics and all the different subtopics but I've gone through and put some meat on the bone so to speak for all that to create a an in-depth outline that actually maps to the official outline of what will be on there so the goal here is to make sure we study every single thing that could possibly be on the exam and that we don't waste time studying things that won't be on the exam that being said let's get started right off the bat here with intentional torts if you do look at the official outline I do have them on the website and you can see them on the NC Bea's website the first part of torts is intentional torts and section a is harms to the person so we're going to look at all the different intentional torts but before we look at the torts themselves we're going to look at two different topics the first one being the intent requirement this is what distinguishes an intentional tort versus a negligence based tort the majority of your time studying torts in a torts classes you're talking about things like causation negligence reasonableness some classes mine didn't they didn't they don't discuss intentional torts because they're pretty basic they're pretty easy you have some elements and if those are satisfied you have an intentional tort so here that the biggest thing is that every single one of them with a minor exception which we'll discuss later has an intent requirement and intent to cause harm and there must be evidence to demonstrate this intent an example being that someone wants to punch someone else they decide the the defendant says I don't like you plaintiff I'm going to slug you and he throws a punch at that guy that's an intentional act to cause some sort of harm the negligence version of that would be if a defendant was blindfolded just swinging his arms in a public space and smacks the plaintiff that's a reasonable behavior negligent behavior he's he's still liable but not for an intentional tort he'd be liable for negligence in that situation here there has to be an actual intent to cause some sort of harm for your purposes on the bar exam they're going to throw at you potentially a question where the intent is a bit ambiguous so for instance an interesting example here is the the distinguishing between an intent to gauge in the conduct itself from an intent to cause harm so an example simple examples that someone may intend to drive at a high rate of speed so there there is an intent of some sort they want to go they want to drive really fast on the road but this doesn't mean that the person had some sort of intent to crash into another driver and that that's what in some instances is hard to prove the the victim might say oh he we just got divorced my husband hated me he wanted to run me over and they want to claim it was an intentional tort and the guy might say oh I was just speeding I didn't want to hit anybody I was just simply negligent there's really not that much of a difference because you're still going to be liable for damages but an intentional tort what's good about those this is something you could potentially throw into an essay is that an intentional tort is easier to establish in court you don't have to start having the jury debate things like reasonableness the reasonable person it's cut and dry if the person did the thing and had the intent they're liable you threw a punch the punch landed you're liable for battery enough said the second issue that you have to be aware of on the bar exam when it comes to intentional torts is the concept of transferred intent now what this means is that a defendant might have some sort of original intent to do something bad but their conduct results in a different harm the example I have here is the defendant shoots an arrow at his enemy plaintiff 1 that guy ducks and the arrow whizzes past him and strikes a bystander plaintiff 2 now defendant didn't intend to hurt the second guy he only intended to hurt the first guy so technically speaking there is no intent but it transfers so if you intended to do something bad to somebody you're liable for anything else bad that results the guy ducks it hits somebody you didn't even know was there and are guilty Christ should say libel and again this technically this is not worth reading I should say now that I have a lot of words here you don't if you want clarification you can hit pause and read some of this stuff but this is all on the website and yeah here it's I mean I'm going to just be a sort of lecturing so you can just listen as opposed to reading oh there's a lot of words obviously on these slides too many probably but anyway if the defendant does something bad and has an intent to do that he's liable for anything else that happens and oh well I was gonna say was this the the benefit here is that again it's easier to prove an intentional tour in court then starting to have to do things about reasonableness and negligence in the jury and all that because technically speaking the defendant who shot the arrow it's reckless because if your victim ducks there might be someone else there and that is that's not something the reasonable person would do so theoretically it is a negligence tort but it does really what it really is is an intentional tort and that the intent transferred okay so let's jump into the different intentional torts that you will so that you might see on the bar exam these are pretty obvious Lee there are others that exist but I think that for your purposes and the limited memory capacity that you know we all have these are the really the ones that will likely be on the bar exam and that are worth taking the time to memorize and this is you know I'm not big on pure memorization because there's just so much material for a bar exam that it's better to understand a lot of stuff conceptually but this is an area where memorization can help you because these torts have specific elements and if they're met then the defendants liable if not the defendant is not liable so it really is a memorization thing and because a question might put some facts before you and ask you if a certain intentional tort applies and you have to think of what the elements are or the hard ones the hard questions are when they give you a set of facts and they say which of the following apply and you've got to start thinking of all the different elements for many different of these torts so it's kind of annoying but if you know let's get into each of them and let's see how we can think of them individually because I have this if you notice here the blue I've kind of summarized what the tort means I mean these are the elements here that are numbered but this is really how you can think of it so battery this is the first one it protects sanctity of the body so we all have bodies and we're entitled to protect them and if somebody violates our body we can go to court and sue them for battery so what is a battery it's bull it is a harmful or offensive contact with plaintiffs person or anything held or connect it to plaintiff so this is a bar exam you know one of those things that could be on the bar exam bar exam alert that somebody might be holding something or it's attached to them their chair is a good examples I been sitting in a chair doing work I get up to get something off a shelf somebody pulls the chair for me I sit down in full well the person didn't actually touch me but they did contact something that was held or connected to me and if I fall they pull chair for me that's absolutely harmful or offensive sets a battery because if you didn't know that you might be like well they didn't actually touch the person maybe that's not a better no it is the rule of thumb here is if someone does something and hurts you intentionally it's a battery harmful or offensive this is also a bar exam alert it's anything that a reasonable person would describe as such what someone of ordinary sensibilities would not want done to them so if you were walking in the mall and it's crowded and someone bumps into you you know that's just life you can't sue someone for battery but if someone in the mall just pushes you out of the way that way they can get online someplace that is a battery and you know one thing also to think about is that batteries really kind of happen all the time it's only the rare instance that somebody actually goes to court and Sue's over it so you really need to think think of yourself like somebody who's just sue-happy crazy because things like that you're at the mall and someone just pushes you hard now no one sues for that but that technically is a battery and if that's on the bar exam you have to say that it's a battery or like if your doctor touches you doing during surgery in your arm does surgery on your arm but didn't have permission to do surgery on your arm that's technically a battery because he touched you in a you know and you didn't want that and so and obviously they would assume that there was something harmful or offensive about it I would have to imagine that cutting your arm open during surgery is harmful or offensive unless there were some sort of emergency so do look to battery anytime you see some sort of injury to a person or damage or anything that's unwanted and it can be a slight touch it doesn't have to be something huge and also there can be a gap in time from when the defendant sets in force whatever motion that he's using to commit the battery because again it doesn't have to be that also doesn't have to be the defendant physically doing the touching if you you throw something at somebody and it hits them that's a projectile that they've thrown so there can be a gap in time if you set a bomb and you time it and the defendant leaves and it blows up and the shrapnel hits the plaintiff that is a battery assault assault protects tranquility or peace of mind now this is one that I out before I went to law school I thought assault was a battery I had it backwards or I didn't really think yes I didn't consider what a battery was I just saw thought of assault because that's what you see in the TV shows they always talk about assault because battery is just not that bad I know it's not that the said the word doesn't have the same cachet but anyway assault is sort of like protecting you from the fear of getting a battery it's your peace of mind that you can walk around without having to worry about somebody committing a battery to you so specifically an assault is when the defendant is in reasonable apprehension of an immediate battery someone pulls out a gun puts it in you know right up to your face you're thinking oh man I'm gonna get shot or I might get shot and this is not good my peace of mind has been violated so the apprehension what we're talking about here is actually the the thought that a battery might happen and what will the reason why we highlight that word is because the the plaintiff has to have some sort of knowledge that there is going to be an immediate battery so the example I said a gun is in my face if I was asleep and somebody came into my house put a gun next to me and was really honestly considering shooting me I was in in a situation where there might have been an immediate battery but I I personally was not in apprehension because I was asleep my peace of mind was not violated because I did know the person was going to do that so I the the plaintiff has to have some sort of knowledge that the battery is forthcoming and in order to have that knowledge there usually needs to be some sort of conduct or gesture on the part of the defendant like pulling out a gun or making a fist and as though you're going to throw a punch something that would signal that a battery is forthcoming and of course the battery need not actually occur this is not we're not talking about battery were only talking about a person being in fear that they might be the victim of a battery and another bar exam alert here is that an assault will have occurred even if defendant later withdraws his threat so if I'm at a bar and someone turns to me and says I'm gonna slug you pal they make a fist and they put it right in my face I'm thinking oh my god I'm going to get punched here in a bar fight this is not good and then the guy gets talked down and he apologizes to me that's nice now I'm no longer in fear of an immediate battery but I was at some point of time and someone assault occurred regardless if the threat is withdrawn or there's apologies the idea is I had peace of mind and it and it was violated by this guy so you're entitled to tranquility or peace of mind at all times if anybody messes with that they might be liable for assault now unlike battery there cannot be a significant gap in time why because we're talking about apprehension of an immediate battery it's up that obviously well let me give an example I'm walking down the street someone says to me I don't like you I'm gonna come to your house in two weeks and punch you well yes my peace of mind is violated in my tranquility but not to the same extent of I thought he was going to punch me in the moment if I had if there's a gap in time you can do something about it I could get a restraining order I can go to the police so even though your peace of mind and tranquillity is violated it's not to the same extent as if you think of batteries actually forthcoming so the key the defendant can't say he'll be back later you there needs to be an immediate back that battery obviously not a second two seconds but but you're you have to be thinking I am about to be the victim of the battery false imprisonment this protects freedom of movement everybody is entitled to move freely and if that's violated the who the person responsible for that is liable to you for false imprisonment what are the elements defendant restrains plaintiff in a bounded area with no reasonable means of escape so if I am in a high school gymnasium and some gym teacher decides he wants to trap me uh and I'm in there he locks all the doors he can't claim that oh oh he wasn't actually trapped because there if he had climbed up to the ceiling he could have unlatched you know some store and the roof to get out I mean that's ridiculous that's unreasonable there has to be no reasonable means of escape so even if there's technically a way out it unless an ordinary person could could have used that means of escape you're trapped normally this tort requires an affirmative action that like the gym teacher to purposely lock the door or something if I am have I got myself locked in the gym and the gym teacher comes by and sees me technically speaking he doesn't have a duty to release me he he says well you're an idiot that's your own fault and he can continue on with his life but that changes if the defendant owes a duty to the plaintiff so what if I was a student at the school I would have to imagine that there's some torque principle in most states that say that academic instructors have a duty of care towards their students to protect them just like like you know like they say about a common carrier so if someone owns a hotel they also have a special duty to their guests things like that or a caretaker if I'm an official caretaker to somebody sick you have a legal duty so in that instance if you're trapped and someone with a legal duty to you walks by they do have to release you so if I was a student at the school and the gym teacher has a duty to protect his students he has to release me so if he were to continue walking his forbearance would operate as a restraint another thing here before we move on to the next one is we most of the time some of there's false in prison there's physical boundaries a cage shackles or a something like that but another example is what they call constructive restraint when there is some sort of threat that would compel a reasonable person to remain trapped now imagine that I'm accused of shoplifting I'm at Kmart or Walmart whatever and the manager and the security guard brings me into the back of the room now they're not police officers and they don't necessarily have the right to just take anybody and you know and imprison them so to speak and I'm sitting in the office and the security guard says if you get up and walk out of here I'm going to tackle you and pin you now if the guy's twice my size I would consider that a significant threat so even though I wasn't locked anywhere or bounded or caged I don't think they have cages in Kmart that operates as constructive a strength as reasonable people are not you know they don't fight off security guards that you're effectively imprisoned but if they said oh if you get up and leave here we're going to we're not going to give you the 10% discount next week during a sale I mean that's not really a significant threat so the next intentional tort which actually is the one Tork ironically that isn't the intent requirement we'll get to that in a second it's ironic because and this is a good way to remember it actually now I think of it the word intentional is in the title yet this is the one tort that has an exception regarding intent we'll get to that in a second but intentional infliction of emotional distress this protects tranquility or peace of mind similar to assault but in a different way assault protects you from the fear that you're going to be the victim of a battery intentional infliction of emotional distress protects you from being the victim of some sort of outrageous conduct that causes you distress so the defendant has to do something outrageous and the result of that outrageous conduct is a plaintiff who suffers from severe distress examples about rageous behavior anything that's beyond normal levels of decency stalker someone doing something really I don't immuno it's hard to think of these things sometimes but it's sort of the scene if test here if the defendant is acting in a way that is just simply beyond the bounds of normal decency the that might qualify and this is sort of a catch-all thing because you're saying the defendant did something that was just so bad that it made me upset and you know that's that the plaintiff doesn't have to manifest a physical reaction so the plaintiff doesn't have to say oh I got a panic attack or I had hides on my face or you know whatever but there has to be some sort of indication that the distress was severe they were I mean if they just say I was I was so scared I was it made me breathe heavy I couldn't concentrate on my work something like that one thing here that it's also this is a bar exam point or alert it's that the first amendment can sometimes be a countervailing factor here if the President of the United States can't say oh the leader of the opposing party was very mean to me and it calls me distressed he was being outrageous and things he said I want to sue him you know you're the President of the United States you're a public figure there's the First Amendment protects us criticism of you you know that's obviously an extreme example but but just remember that this is speech we're talking about whenever we're talking about the government upholding a case that punishes speech the First Amendment comes into play so here's the intent exception when it comes to intentional infliction of emotional distress recklessness replaces intent unlike the other intentional torts the defendant does not have to intend to bring about an emotional reaction the reason for this to try to think of this conceptually is that you can't really intend to cause an I mean I eat you can sort of intend to do it but like for instance at the battery if I say I want to punch someone in the nose you make a fist and you punch them in the nose but if I said I want to make somebody upset you can try to make them upset but you can't open up their mouth their skull get into their brain and make them upset you can intend to do the conduct that you hope will make them upset now the the way the law handles that is by saying was the defendant reckless in their conduct reckless meaning they did something that might have brought about an emotional distress an example here that I'll discuss is that imagine someone they're skiing down a mountain they purposely go as fast as they can and screeched to a halt directly in front of plaintiff now even if the defendant did not intend to cause emotional suffering he might be liable for intentional infliction of emotional distress I was clearly reckless the person might be very scared of that basically they know now note that the defendant intended to stop short in front of the plaintiff and it is that reckless conduct which caused the distress now an astute person might point out here that that actually could be an assault as well because the plaintiff was in reasonable apprehension of a battery and that might be the case but another argument you could say is that they hat all happens so fast that the plaintiff didn't even actually get a chance to appreciate that knowledge so again you know that also highlights the fact here that sometimes a activity can qualify as multiple torts but the the idea that I'm trying to highlight here is that the person does not have to say I want to somebody upset therefore I will ski fasten and halt in front of them the person has to only have the intent to do the halting to do something and they're being reckless with somebody's emotions because it might cause them distress next tort trespassed to land this protects the possession of land of real property now there's a distinction between real property and personal property real property meaning land fixtures on land like a house you have a right to exclude people and to use in dispose of that land as you please and the government will protect that right so the the elements of trespassed land is that there are a physical invasion by defendant himself and this can be on foot or in vehicle or by a projectile projectile set in motion by defendant if somebody operates a drone that that is hovering you know in right in your backyard like right literally like right over your backyard and that is a trespass you have a right to make sure people don't bring their things on your property it's a trespass just as though the defendant hopped a fence and went into your property and the plaintiff has to be the person in possession of the land possession of course being different than ownership this here is a Bar Exam alert because there could be a fact pattern where everything looks like trespass the defendant hopped the land off the gate went over whatnot but the plaintiff the person suing is actually the landlord the landlord is not the person in possession of the land it's the tenant who is in possession or the owner the owner might not read the land and he is the person in possession the bottom line here is the person bringing suit the plaintiff has to be the person in possession your landlord can't decide who is trespassing or not it's the plaintiff who says that person is unwelcome I'm the one who says they're unwelcome they've nonetheless invaded my law the land that I'm in possession of as such I'm going to protect my possession by bringing them to court for trespass to land now most obviously this occurs on the land obviously we call it trespass to land but by land what we're really talking about the item that we're protecting and item of land is protected from things that might trespass underground or in the air as well so like I said the drone as an example or somebody that is creating a tunnel underground under your property but only if it's in a reasonably close distance above or below if a jetliner is a mile above your land or even less than that it's it's not trip that's not a trespass now the projectile I spoke about that if someone's shooting something into your rocket into your property that is a trespass but it has to be tangible and intangible projectile does not qualify as a trespass so a wafting smell from a factory annoying sounds those are nuisances as opposed to trespasses and we get to that later but a trespass is actually some person or some actual thing that comes on to the land you don't want it there where I should say that the plaintiff a possession doesn't want it there and that is a trespass to land the sister tort to this is trespass to chattels chattels of being a clearly outdated word I don't think I've ever heard that used except in this context which means it's pretty much a useless word but nonetheless that's what we live with it protects the possession of things personal property the opposite of real property the defendant interferes or inter metals with a possessory interest in a chattel belonging to plaintiff so now why do I say interferes or inter metals because there is another torts we'll get to in a second called conversion which is the actual taking this is sort of like a lesser thing now what trespass the land you can't physically take land I can't come home one day and there's just a giant pit where I used to live someone took my land you either go on or you don't but with personal things there's sort of like a spectrum with how with what is the trespass is it a a minor trespass or is it a major one so here's the minor one trespass - chattel tattles you're only interfering or inter meddling so imagine that someone takes your car just for Joyride around the block or they hide something that you own or they damage something that you own that's a trespass - chattels and again the plaintiff must be the possessor of the chattel an example of plaintiff is leasing a car the car dealership can't be the one that's bringing this it's the person who is dispossessed the damages here is the cost of rental or the cost of repair to the chattel if someone takes my car for a day and then leaves it back you know I haven't been dispossessed of it but they did violate my as you know my right to possess it so I can go after them for the cost of renting it or repairing any damage and or I should say repairing any damages to the property so again like if it's a car they take it for a joyride I can say well let's figure out what it would have cost to rent that and what the repair costs are and you might be saying well that that can't be right you get off pretty easy you just a joyride you just have to pay for the cost of rent renting it is it you know if that's the case why go to uh you know hurts when you can just Hotwire your neighbor's car and take it for a day or two that's true I guess you know you are just paying for the rental cost but you or also would be guilty probably of grand theft auto that's fun in videogames but I don't think that you want to go to prison just to avoid having to go to Hertz so a rule of thumb here is that they dispossessed the Chado they impair the condition quality deprived for substantial for time I should say there's something these are rules of thumb there is no real good an explanation it's anything that except actual final taking and when it comes to a final taking of something that's when you get to conversion why do they call it conversion and then not stealing or robbery and I again I don't know I guess because you're converting the possessory interest from one person to the other conversion there you go I don't know this protects ownership of things again personal property defendant appropriates a possessory interest in Chado belonging to plaintiff it is nearly identical to trespass the channel to chattels but is the more substantial version we said that a joyride is trespass to chattels or if it another example of trespass the shadows would be if you like put a boot on someone's wheel and they can't use their car until they take the thing off but if you actually take the car for good you Hotwire your neighbor's car and you say well I don't want to give it back I'm going to take it for good that's conversion you appropriated the possessory interest instead of merely interfering with it the damages here are a forced sale of the chattel or return of the item to plaintiff if I take my neighbors or vet I Hotwire it I Drive it away my neighbor brings me to court for conversion there's one of two things I either have to pay him the price for that car or the court forces me to give the car back again that's not a smart way to get your car by stealing it from your neighbor because you're going to be liable and criminal law but here we're only talking about tort theoretically it is what it is it's a forced sale now obviously that the example of stealing a car is pretty cut-and-dry but things get a little more complicated if you're talking about corporations and there's a dispute over certain widgets that they're selling in corporation a keeps a hold of the widgets despite some dispute and ownership a court might say oh there is conversion you weren't entitled to those so either give them the price of the widgets or return them back no one's probably going to jail in that instance but it is technically conversion so we've finished Part one section a harms to the person and next we will turn to intentional torts and the defenses to the claims for physical harm so the defenses for everything that we just discussed here

Channel: The Legal Coach

Views: 19,971

Rating: 4.8431373 out of 5

Keywords: Bar Exam, Multistate Bar Exam, Torts, Intentional Torts

Id: T4r3XWGE81Q

Length: 36min 38sec (2198 seconds)

Published: Thu Feb 20 2014