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Bar Prep MBE
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Transferred Intent Doctrine - Answer Transferred intent is defined as intending to commit a tort against one person but the intent is transferred to another tort or person. The transferred intent doctrine applies where the defendant intends to commit a tort against one person but instead (i) commit...

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  • April 10, 2024
  • 137
  • 2023/2024
  • Exam (elaborations)
  • Questions & answers

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  • bar prep mbe

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  • BAR PREP
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Bar Prep MBE

Transferred Intent Doctrine - Answer Transferred intent is defined as intending to
commit a tort against one person but the intent is transferred to another tort or person.
The transferred intent doctrine applies where the defendant intends to commit a tort
against one person but instead (i) commits a different tort against the same person; (ii)
commits the same tort as intended but against another person; or (iii) commits a
different tort against a different person.

The defendant is liable only because of the transferred intent doctrine, and only to the
person harmed.

Transferred intent may be invoked only where the tort intended and the tort that results
are both within the following list: (i) assault; (ii) battery; (iii) false imprisonment; (iv)
trespass to land; and (v) trespass to chattels. Transferred intent does not apply to the
torts of intentional infliction of emotional distress or malicious prosecution.

Implied Consent - Answer Consent by mistake is not a form of implied consent. Where a
plaintiff expressly consents due to a mistake, the mistake is disregarded and the
expressed consent is valid (unless the defendant caused the mistake or knew of it and
took advantage).

Apparent consent is a kind of implied consent. Apparent consent is that which a
reasonable person would infer from the plaintiff's consent. Thus, for example, somebody
who voluntarily engages in a body contact sport impliedly consents to the normal
contact inherent in playing it.

Consent from custom is also a kind of implied consent. It is a form of apparent consent
that may be inferred as a matter of usage or custom. Thus, for example, a person is
presumed to consent to the ordinary contacts of daily life, e.g., minor bumping in a
crowd.

Intentional Infliction of Emotional Distress - Answer Actual damages are required to
prove intentional infliction of emotional distress. To establish a prima facie case for
intentional infliction of emotional distress, there must be proof of: (i) an act by the
defendant that amounts to extreme and outrageous conduct; (ii) intent on the part of the
defendant to cause the plaintiff to suffer severe emotional distress or recklessness as to
the effect of the defendant's conduct; (iii) causation; and (iv) severe emotional distress.
While proof of physical injury is not required, the plaintiff must present some evidence of
severe emotional distress.

,Express Consent - Answer An express consent will be valid unless it was made by
mistake induced by the defendant. A defendant is not liable for a tortious act if the
plaintiff consented to the act. Express consent exists when the plaintiff has expressly
shown a willingness to submit to the defendant's conduct. If the plaintiff consents by
mistake, the consent will still be valid, unless the defendant caused the mistake or knew
of the mistake and took advantage of it.

An express consent will still be valid if it was induced by fraud as to a collateral matter. If
the express consent was induced by fraud, the consent will generally not be a defense
for the defendant. However, the fraud must go to an essential matter; if it only goes to a
collateral matter, the consent will remain effective.

Also an express consent will still be valid if it was induced by threats of future action.
Consent obtained by duress will generally be held invalid. However, threats of future
action or of future economic deprivation do not constitute legal duress sufficient to
invalidate the express consent.

Appropriation for Commercial Purposes - Answer Appropriation of a plaintiff's picture or
name for commercial purposes requires only one element: unauthorized use of the
picture or name for commercial purposes. Neither of the other choices is required.

The defendant's use need not be highly offensive to a reasonable person.

Appropriation of a plaintiff's name or picture for commercial purposes does not require
that the use place the plaintiff in a false light. A separate branch of the invasion of
privacy torts, publication of facts placing plaintiff in a false light, requires publication
placing plaintiff in a false light.

Defamation- Inducement - Answer For the tort of defamation, inducement means
proving additional facts to establish a statement as defamatory. Sometimes a statement
is defamatory on its face. Other times, a statement is actionable via inducement, in
which the plaintiff pleads and proves additional facts to show the defamation.

Inducement does not mean a statement standing alone is defamatory. A statement is
defamatory standing alone when it is defamatory on its face without additional facts as
inducement.

Inducement also does not mean establishing the meaning of words to prove that a
statement is defamatory. This process is known as innuendo. When a statement is not
defamatory on its face, a plaintiff may prove additional facts as inducement and
establish the defamatory meaning by innuendo.

Inducement for defamation purposes does not mean the motivation for making a
defamatory statement, although that is more like the ordinary meaning of the word.

Defamation- Publishers - Answer The newspaper is liable as a primary publisher. Each
individual who takes part in making the publication is charged with the publication as a

,primary publisher; e.g., a newspaper or TV station carrying a defamatory message
would be viewed as a primary publisher and held responsible for that message to the
same extent as the author or speaker.

The newspaper is not liable as a republisher or as a secondary publisher. A republisher
is one who repeats a defamatory statement. A republisher usually will be held liable on
the same general basis as a primary publisher. A secondary publisher is responsible
only for disseminating materials that might contain defamatory matter (e.g., a vendor of
newspapers, a player of a tape) and is liable only if he knew or should have known of
the defamatory content.

Because the newspaper is a primary publisher rather than a secondary publisher, it will
be liable even absent negligence that the statement was defamatory.

Interference of Business Relationships - Answer The defendant's relationship with a
third party is a factor that may give rise to a privilege to interfere with the plaintiff's
business relations with another.

The type of damages suffered by the plaintiff is not considered in determining whether a
privilege exists in an action for interference with business relations. The plaintiff must
prove actual damages from the interference, and may recover mental distress damages
and punitive damages in appropriate cases, but the type of damages suffered by the
plaintiff is not related to the privilege factors.

The fact that there was no contract between the plaintiff and the third party is not a
factor giving rise to a privilege. In fact, the tort of interference with business relations
also covers interference with a valid business expectancy of the plaintiff, not just a
contract.

Defamation- Special Damages - Answer Loss of a job would form the basis for special
damages from defamation. Special damages from defamation are awarded when the
plaintiff suffers a pecuniary loss as a result of a defamatory statement. The loss of a job
is the type of pecuniary loss contemplated in the awarding of special damages.

Mental distress does not form the basis for special damages from defamation. Mental
distress is an element of general damages for defamation, which are presumed by the
law and need not be proved by the plaintiff in a defamation claim.

Loss of friends does not form the basis for special damages from defamation. Special
damages require proof of a pecuniary loss and are not proved merely by evidence of
actual injury, such as the loss of friends, humiliation, or hurt feelings.

Invasion of Privacy- False Light - Answer Publicity of the facts that place the plaintiff in a
false light in the public eye is required to establish a prima facie case for invasion of
privacy for false light publication. This requires more than mere publication in the
defamation sense.

, It is not required that the false light be highly offensive to the plaintiff. Rather, the false
light must be something that would be highly offensive to a reasonable person under the
circumstances.

Actual malice is also not required. Actual malice is required on the part of the defendant
only when the published matter is in the public interest.

Fraud/Deceit- Misrepresentation - Answer With regard to the element of
misrepresentation in an action for fraud or deceit, the defendant cannot actively conceal
a material fact. While there is no general duty to disclose a material fact, where a
person actively conceals a material fact, she is under a duty to disclose this fact, and
failure to do so satisfies the misrepresentation element of a prima facie case for
intentional misrepresentation.

The defendant CAN be liable for a misrepresentation of opinion. Typically, the
misrepresentation is of a material past or present fact. However, in cases where
reliance on an opinion is justified, a misrepresentation of opinion may be actionable.

It is also incorrect to state that the defendant cannot be liable for failing to disclose a
material fact unless a fiduciary relationship exists between the parties. There are other
exceptions where failure to disclose may satisfy the misrepresentation element, such as
when the defendant is selling real property and knows that the plaintiff is unaware of
and cannot reasonably discover material information about the transaction, or when the
defendant speaks and her utterance deceives the plaintiff.

Consent as a Defense - Answer Consent is a defense to an action for invasion of the
right to privacy. Some states by statute require that the consent be in writing. Even with
consent, however, the defendant may still be liable if he exceeds the consent granted.

Misrepresentation- Intentional - Answer The elements of intentional misrepresentation
are:

(i) Misrepresentation by the defendant;

(ii) Scienter;

(iii) An intent to induce the plaintiff's reliance on the misrepresentation;

(iv) Causation (i.e., actual reliance by the plaintiff on the misrepresentation;

(v) Justifiable reliance by the plaintiff on the misrepresentation; and
(vi) Damages.

Scienter and an intent to induce the plaintiff's reliance do not need to be proved for a
prima facie case for negligent misrepresentation; rather, those must be established for a
prima facie case of intentional misrepresentation.

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