MBE: TORTS 2023
TORT LIABILITY
INTRODUCTION
I. Basic Task: to determine whether defendant is liable to plaintiff for any given tort.
II. First Question: Can plaintiff establish prima facie case requirements?
a. No → no liability
b. Yes → second question
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III. Second Question: can defendant establish any affirmative defenses?
INTENTIONAL TORTS
I. Prima Facie Case:
a. Act: any volitional movement by defendant.
b. Intent:
i. Substantial Certainty: intent exists if defendant knows with substantial certainty these
consequences will result.
ii. Incapacitated Defendant: everyone is liable for intentional torts.
iii. Transferred Intent: Intent can be transferred from
1. Person to person; and
2. Tort to tort
3. Applicable to: Batter, Assault, False Imprisonment, Trespass to Land, and Trespass to
Chattels
c. Causation: defendant’s conduct was a substantial factor in bringing about the result.
i. Supersensitive Plaintiff: Plaintiff’s supersensitive are irrelevant.
1. Exception: defendant, in fact, knew of them.
ii. Negligent Conduct Alternative
1. Red Herring: An intentional tort question where an alternative uses “negligence
language” → get rid of it!
2. Example: “defendant is liable for battery because she did not use reasonable care.”
II. Battery: Harmful or offensive contact with plaintiff’s person.
a. Offensive is any unpermitted contact.
b. Plaintiff’s person:
i. Do not have to actually touch plaintiff’s body.
ii. Includes anything connected to plaintiff’s person.
iii. Construe liberally!
III. Assault: Intentional creation of apprehension of imminent battery.
a. Apparent ability creates a reasonable apprehension.
b. Words Alone:
i. Words alone are not enough
ii. Words + Conduct
On MBE, plaintiffs
1. But, words can undue conduct.
egularly bring
IV.
and False Imprisonment: Sufficient act of restraint to a bounded area.
win totally absurd a. Sufficient Act of Restraint:
awsuits. i. Threats are enough. You do not need actual application of force.
ii. Inaction is enough if there has been an understanding that defendant would do something.
iii. Time period of confinement: even a very short time period will suffice.
, MBE: TORTS 2023
iv. Knowledge: plaintiff must know of the confinement at the time.
1. Exception: confinement actually injures plaintiff
v. Shoplifting:
1. Reasonable belief as to theft
2. Reasonable manner of detention
3. Detention for a reasonable period of time
b. Bounded Area:
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Page
i. Plaintiff’s freedom of movement in all directions is limited.
1. mere inconvenience is not enough
ii. Area is not bounded if:
1. There is a reasonable means of escape; and
2. Plaintiff knows it
V. Intentional Infliction of Emotional Distress: Outrageous Conduct and Damages
a. Outrageous Conduct:
i. Must be extreme
ii. Normal conduct can be made outrageous by:
1. Conduct is continuous
2. The type of plaintiff:
a. Young children,
b. Elderly persons,
c. Pregnant women,
d. Adults with supersensitivities defendant knows of
3. The type of defendant:
a. Common carrier,
b. Innkeepers
c. ** only if the plaintiff is a passenger or a guest **
b. Damages: Physical injury is not required, but clear proof of substantial emotional distress is.
VI. Trespass to Land: Act of physical invasion by defendant of plaintiff’s land.
a. Act of Physical Invasion by Defendant
i. Does not require that the defendant personally go onto the land.
ii. Some physical object must go onto the land.
b. Of Plaintiff’s Land
i. Includes not only the surface but also, for a reasonable distance, the space going up and down
from a surface.
VII. Trespass to Chattels: Physical damage to the plaintiff’s personal property.
a. Plaintiff gets cost of repair
VIII. Conversion: Physical damage and dispossession of plaintiff’s personal property.
a. Plaintiff gets full market value
DEFENSES
I. Consent
a. Determine if plaintiff had capacity to consent.
i. Exception: where consent is implied by law (emergencies)
b. Determine if the consent was expressly given or implied
i. Express: words used
1. But, undone by facts relating to:
TORT LIABILITY
INTRODUCTION
I. Basic Task: to determine whether defendant is liable to plaintiff for any given tort.
II. First Question: Can plaintiff establish prima facie case requirements?
a. No → no liability
b. Yes → second question
1 Page
III. Second Question: can defendant establish any affirmative defenses?
INTENTIONAL TORTS
I. Prima Facie Case:
a. Act: any volitional movement by defendant.
b. Intent:
i. Substantial Certainty: intent exists if defendant knows with substantial certainty these
consequences will result.
ii. Incapacitated Defendant: everyone is liable for intentional torts.
iii. Transferred Intent: Intent can be transferred from
1. Person to person; and
2. Tort to tort
3. Applicable to: Batter, Assault, False Imprisonment, Trespass to Land, and Trespass to
Chattels
c. Causation: defendant’s conduct was a substantial factor in bringing about the result.
i. Supersensitive Plaintiff: Plaintiff’s supersensitive are irrelevant.
1. Exception: defendant, in fact, knew of them.
ii. Negligent Conduct Alternative
1. Red Herring: An intentional tort question where an alternative uses “negligence
language” → get rid of it!
2. Example: “defendant is liable for battery because she did not use reasonable care.”
II. Battery: Harmful or offensive contact with plaintiff’s person.
a. Offensive is any unpermitted contact.
b. Plaintiff’s person:
i. Do not have to actually touch plaintiff’s body.
ii. Includes anything connected to plaintiff’s person.
iii. Construe liberally!
III. Assault: Intentional creation of apprehension of imminent battery.
a. Apparent ability creates a reasonable apprehension.
b. Words Alone:
i. Words alone are not enough
ii. Words + Conduct
On MBE, plaintiffs
1. But, words can undue conduct.
egularly bring
IV.
and False Imprisonment: Sufficient act of restraint to a bounded area.
win totally absurd a. Sufficient Act of Restraint:
awsuits. i. Threats are enough. You do not need actual application of force.
ii. Inaction is enough if there has been an understanding that defendant would do something.
iii. Time period of confinement: even a very short time period will suffice.
, MBE: TORTS 2023
iv. Knowledge: plaintiff must know of the confinement at the time.
1. Exception: confinement actually injures plaintiff
v. Shoplifting:
1. Reasonable belief as to theft
2. Reasonable manner of detention
3. Detention for a reasonable period of time
b. Bounded Area:
2
Page
i. Plaintiff’s freedom of movement in all directions is limited.
1. mere inconvenience is not enough
ii. Area is not bounded if:
1. There is a reasonable means of escape; and
2. Plaintiff knows it
V. Intentional Infliction of Emotional Distress: Outrageous Conduct and Damages
a. Outrageous Conduct:
i. Must be extreme
ii. Normal conduct can be made outrageous by:
1. Conduct is continuous
2. The type of plaintiff:
a. Young children,
b. Elderly persons,
c. Pregnant women,
d. Adults with supersensitivities defendant knows of
3. The type of defendant:
a. Common carrier,
b. Innkeepers
c. ** only if the plaintiff is a passenger or a guest **
b. Damages: Physical injury is not required, but clear proof of substantial emotional distress is.
VI. Trespass to Land: Act of physical invasion by defendant of plaintiff’s land.
a. Act of Physical Invasion by Defendant
i. Does not require that the defendant personally go onto the land.
ii. Some physical object must go onto the land.
b. Of Plaintiff’s Land
i. Includes not only the surface but also, for a reasonable distance, the space going up and down
from a surface.
VII. Trespass to Chattels: Physical damage to the plaintiff’s personal property.
a. Plaintiff gets cost of repair
VIII. Conversion: Physical damage and dispossession of plaintiff’s personal property.
a. Plaintiff gets full market value
DEFENSES
I. Consent
a. Determine if plaintiff had capacity to consent.
i. Exception: where consent is implied by law (emergencies)
b. Determine if the consent was expressly given or implied
i. Express: words used
1. But, undone by facts relating to:
