Intentional Torts & Defenses — Torts

At a Franklin office party, Dev pulls a chair out from behind Priya as a prank, just as she begins to sit. He wants a laugh. He never wants her hurt. She lands hard on the floor and fractures her wrist. Now Dev says the most sympathetic sentence in this entire subject. I never meant to hurt anyone.

Here is the problem. That sentence is true, and it does not help him at all. Dev pays for the wrist. You will hear the same excuse from a hiker who read her map carefully, and again from a shop owner who paid a fair price for a stolen camera. It fails both times. Then, at the end of the subject, it starts working. Knowing when it flips is most of this topic.

Here is the route. First the intent element, the engine that drives all seven torts, including transferred intent. Then the four torts that protect the person, battery, assault, false imprisonment, and IIED. Then the three that protect property, trespass to land, trespass to chattels, and conversion. And finally the privileges, consent, self defense, recapture of chattels, and necessity.

Start with intent, because all seven torts share one skeleton. A voluntary act, done with intent, causing a particular kind of harm. Intent means something more precise than meaning to be mean. A defendant acts with intent when he desires the tortious result, or knows that result is substantially certain to follow. Purpose, or substantial certainty. Two branches.

The second branch is the one candidates miss, and it is exactly Dev's. He did not desire a broken wrist. He was substantially certain Priya would meet the floor, and that is enough. Substantially certain means near certain, so a high probability will not do.

Notice what the intent attaches to. The immediate act. The contact, the apprehension, the confinement, the entry. Not the ultimate injury, and not breaking the law. Intend a harmless touch and you answer for the harm it causes. A playful motive is no shield, and a mistake of law or fact is generally no defense.

Who can form this intent? Almost everyone. No minimum age, no sanity requirement. A five year old who drags a chair from under an elderly guest, wanting her to drop, batters her when she fractures her hip. The question is only ever whether this defendant had the intent. Incapacity matters for consent. It never erases intent.

Then the doctrine examiners love most. Transferred intent, a fairness rule that stops a wrongdoer escaping on a technicality, and it moves two ways. Tort to tort, where you swing to frighten, an assault, and you connect, a battery. And victim to victim, where you throw a rock at one person and hit another.

But the membership list is closed. Five torts, all descended from the old writ of trespass. Battery. Assault. False imprisonment. Trespass to land. Trespass to chattels. It does not reach intentional infliction of emotional distress, and it does not reach conversion. Burn those two carve outs in now.

With intent settled, run the four torts that protect the person. Battery first. The defendant must intend, and cause, a harmful or offensive contact with the plaintiff's person. Harmful means physical injury or impairment. Offensive is the broader word, and it is what makes battery so common on exams. A contact is offensive if it offends a reasonable sense of personal dignity.

Three battery rules earn their keep. No actual injury is needed for an offensive battery. The plaintiff need not be aware of the contact, so an orderly who cuts a lock of hair from a sedated patient has battered him. And contact reaches anything closely connected to the body. Clothing, a cane, a held object.

Try that last one. An art critic, irritated by a slow server, snatches the serving tray out of her hands and slams it on a table. He never touches her body, and she is not hurt, only humiliated. Battery, or nothing? Battery. The tray in her hands was, for this purpose, her. And most courts require intent that the contact harm or offend.

Assault is battery's mirror image. No contact at all. It is committed when the defendant intentionally causes you to reasonably anticipate an imminent harmful or offensive contact. So the plaintiff must actually perceive the threat. A blow aimed at a back you never see is no assault, though it may be a battery.

And apprehension means expectation, not fear. A large man draws his fist back and lunges at a smaller woman, stopping inches from her face. She is trained in self defense, not frightened for a second, but she sees the fist and expects the blow. Assault, or nothing? Assault. A small person can assault a large one who is not the least bit afraid.

Timing does the rest. The contact must be imminent, about to happen now, so next week I will get you is not an assault. Words alone are usually not enough without some overt act, and conditional words can destroy an assault outright. But apparent ability suffices. A replica handgun pointed at a motorist who thinks it is loaded is an assault.

False imprisonment protects freedom of movement. Intend to confine the plaintiff within a bounded area, cause that confinement, and the plaintiff must be aware of it or harmed by it. Bounded is the loaded word. It means no reasonable, known means of escape. A manager locks the front door on an angry shopper, but a marked side exit sits ten feet away, unlocked. She is inconvenienced, not confined.

How is confinement caused? By physical barriers. By force against the plaintiff, the plaintiff's family, or the plaintiff's property. By threats of immediate force. By an invalid assertion of legal authority, which is false arrest. And by failing to release someone you must.

What does not count is just as tested. Moral pressure does not confine, and neither does a threat of future action. A detective who says answer my questions or I will call your boss tomorrow has threatened a future consequence, not a present restraint.

That leaves IIED, the catch all dignitary tort, and courts keep its bar deliberately high. Extreme and outrageous conduct, beyond all bounds of decency, atrocious and intolerable in a civilized community. Intent to cause severe emotional distress, or recklessness. And severe distress in fact. Insults never qualify, so the customer who calls a teller worthless has no claim.

What tips conduct over the line? A repeated pattern rather than one insult, an abuse of power by an employer, a landlord, or the police, or a plaintiff the defendant knew was vulnerable. Common carriers and innkeepers answer to a higher standard.

Because transferred intent never reaches IIED, bystanders get their own rule. A man beats his estranged business partner while the partner's husband watches, and the husband is left with severe distress. He recovers by showing he was present, that he was a close relative, and that the attacker knew both. Outrageous speech about a public figure is different, and the First Amendment can bar it.

Now the property torts, where the theme is degree. Trespass to land protects the exclusive right to control land, and the only intent required is the intent to enter that place. Not intent to trespass. Not knowledge of who owns it. Which brings back our hiker. A washout shifts the trail markers and she crosses a corner of a private meadow. She trespassed. She meant to walk where she walked.

And she trespassed although she damaged nothing, because this tort protects the right to exclude and nominal damages follow the intrusion itself. Hold that thought. The chattel torts do the opposite. Entry also happens by propelling something tangible onto the land, rocks, floodwater, cattle. And staying past your license, or leaving an object you had a duty to remove, is a continuing trespass.

A chattel is tangible personal property. A phone. A bike. A laptop. Trespass to chattels is the little interference tort. You intentionally interfere with someone's possession, by dispossessing them briefly or by intermeddling. And here is the flip. This one requires actual damage or deprivation. No nominal damages.

Test yourself. An employee, annoyed at a bicycle in a shared hallway, carries it around the corner and sets it down unharmed. The owner finds it two minutes later in perfect condition and sues for nominal damages. Recovery, or nothing? Nothing. The intermeddling was intentional, but nothing was harmed and nothing was lost for a meaningful time.

Conversion is the serious older sibling. The defendant exercises dominion over a chattel so seriously that it is fair to make him buy it. A forced sale at full market value. Stealing, destroying, selling to another, refusing to return, all classic conversions. Denting a briefly borrowed bike is not. The line is one of degree.

And watch what mistake does here, because this is our second sympathetic defendant losing. A shop owner buys a stolen camera in complete good faith, pays fair market value, and resells it with no reason to suspect a thing. He is liable to the true owner as a converter.

Prima facie case complete. Now step two, and keep it a separate question, because examiners love a pattern where every element is met and a privilege quietly wins. Consent is the master defense. If the plaintiff agreed, there is no tort. It may be express, or implied from conduct or custom. Step into a boxing ring and you consent to the sport's ordinary contacts.

Consent is measured objectively, by what a reasonable person would understand from your outward manifestations, even if you privately objected. Then run three checks. Capacity, because a young child or an incompetent person cannot consent to what they cannot understand. Scope, because a surgeon with consent for the right knee who also operates on the left loses the privilege. And validity, because consent obtained by fraud or duress is none.

The law will also imply consent for you. Paramedics bring in an unconscious accident victim, bleeding internally, no directive, no family reachable, an hour to live. The surgeon operates and saves him. Battery? No. He cannot consent, the need is immediate, and a reasonable person would agree. And the majority says consent to a criminal act is no defense at all.

Self defense turns on two words. Reasonable belief, and reasonable force. And here, at last, our sympathetic defendant catches a break, because an honest and reasonable mistake about the threat keeps the privilege. Force must be proportional. Deadly force answers only a reasonable fear of imminent death or serious bodily harm, so the man who meets a shove with a knife has no defense.

Three limits on it. Once the danger passes, further force is retaliation, and retaliation is not privileged. The initial aggressor cannot claim the privilege unless the other side escalated to deadly force. And the majority imposes no duty to retreat, while a minority requires safe retreat before deadly force, never from your own home.

Defense of others puts you in the shoes of the person you protect, with the force they could have used, and a reasonable mistake is protected there too. Defense of property is narrower, because property is worth less than life. Reasonable, non deadly force only, usually after a demand to stop, and never deadly force for property alone. Nor can you do by machine what you cannot do in person. The spring gun on the cabin door answers to the burglar.

Recapture of chattels is stricter still. Reasonable, non deadly force, only in fresh pursuit of a wrongful taker, and only after a demand unless a demand would be futile. Two traps. If you parted with the thing voluntarily, a loan, you use legal process, not force. And you act at your peril, so a mistake is not excused.

The exception is the shopkeeper's privilege, where a reasonable mistake is protected again. A store that reasonably suspects shoplifting may detain the suspect for a reasonable time, in a reasonable manner, to investigate. There is a craft lesson in that. Consent is starred and expected cold, but the other defenses may arrive as a provided statute, like the Franklin Retail Theft Act.

Necessity closes the list, and the exam contrasts its two flavors constantly. Public necessity protects the community from an imminent public disaster. A fire chief demolishes a house to make a firebreak and save hundreds of homes. Complete, absolute defense, and the owner recovers nothing. Private necessity protects the actor alone, like mooring a boat to a stranger's dock in a storm. That one is qualified. The boater may stay and cannot be cast off, but he pays.

Two smaller privileges round it out. A parent, or a teacher in the parent's place, may use reasonable force to discipline a child. An officer may arrest for a felony on probable cause, protected by a reasonable mistake about identity. A private citizen is not. There the felony must actually have happened, so the shopkeeper certain he has tackled a purse snatcher is liable if the man is the owner's brother.

A word on authorities, because this episode named no cases, and that was deliberate. NextGen questions drop you into a fact pattern and ask which tort is made out, or whether a defense succeeds. They will not ask you to name a case. These rules come from the Restatement of Torts, the standard statement of the modern majority rule.

If you keep only three things, keep these. The intent formula, purpose or knowledge to a substantial certainty, aimed at the act and never at the injury. The transferred intent list, five trespassory torts, never IIED and never conversion. And the two step structure, prima facie case first, privilege second.

Now the traps, straight from the examiners' favorites. One. Treating I didn't mean to hurt anyone as a defense. Intent runs to the act, not the injury, and motive is irrelevant. Two. Forgetting that transferred intent never reaches IIED or conversion. Three. Thinking assault needs contact, which it never does, or that battery needs awareness, which it never does.

Four. Awarding nominal damages for trespass to chattels. The chattel torts require actual harm. Trespass to land does not. Five. Getting the mistake asymmetry backwards. A reasonable mistake is fine in self defense and fatal in ordinary recapture. Six. Allowing deadly force, or a spring gun, to protect property alone.

Seven. Confusing the two necessities. Public is complete and costs nothing. Private is qualified, so the actor pays for actual damage yet cannot be expelled. Eight. Forgetting that consent can be exceeded in scope, or destroyed by fraud, duress, or incapacity. And this topic is starred, so you get no statute for the torts or for consent.

Time for the quick check, and this one comes straight from the BARGO question bank. Trying to scare a neighbor by denting his parked car, a man hurls a rock at the car door. The rock sails over the car and shatters an antique ceramic urn on the porch, one he never noticed was there. The neighbor sues for conversion.

Can he rely on transferred intent to establish conversion? Option one. Yes, because intent transfers freely among all the intentional torts. Option two. Yes, because he intended to damage property and property was destroyed. Option three. No, because transferred intent does not extend to conversion. Pause here if you want a moment.

The answer is option three. Transferred intent is confined to the five trespassory torts, and conversion sits outside them, so the neighbor cannot borrow the intent aimed at the car. Option one overstates the rule. Intent transfers among the historic five, not among all the intentional torts. Option two is tempting, but a general intent to damage property will not do. Conversion demands intent as to that chattel.

Notice what the question leaves open. Trespass to chattels is one of the five, so that claim could be argued instead. There are thirty plus more questions on this topic alone, each with every option explained like that.

Five things to take away. One. Intent means purpose or knowledge to a substantial certainty, and it attaches to the contact, the confinement, or the entry, never to the injury. Two. Transferred intent moves among the five trespassory torts and between victims, never to IIED or conversion. Three. Assault needs perception but no contact, battery contact but no awareness.

Four. Trespass to land needs no damage, while the chattel torts live or die on actual harm, with conversion as the forced sale at the serious end. Five. Defenses are a separate step, and that is where the honest mistake finally starts paying, in self defense and behind the shopkeeper's counter, never in recapture.

Which is why Dev owes Priya for a wrist he never wanted to break. He intended the contact. The law asks nothing more. Next time, Duty and Special Relationships.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.