Quiz #1: Intentional Torts

It was one week before the class's Torts midterm. Kira is very competitive and is worried that Marco is going to outperform her on the midterm. When Marco isn't looking, Kira takes Marco's laptop, which has all of his Torts notes. Marco looks everywhere for the laptop and cannot find it. Without his notes, he does poorly on the examination. Right after the exam, Kira returns the laptop in perfect condition. Can Marco prove the prima facie case for trespass to chattels against Kira? (A) Yes, if the court believes that by Kira's actions Marco was deprived of possession for a substantial period of time. (B) Yes, because any intentional intermeddling with another's chattel is actionable as trespass to chattels. (C) No, because Kira intended to return the laptop. (D) No, unless the laptop was damaged by Kira.

(A) Rationale: Choice B overstates the law. Some intentional intermeddlings, such as picking up the laptop and immediately returning it, are not actionable as trespass to chattels. Choice C is wrong. It is enough that Kira intended to interfere substantially with Marco's use or enjoyment of his property; she need not intend to keep the item forever. Choice D is incorrect. Though damage to the laptop would be sufficient for the trespass to chattels claim, it is not necessary. It is enough if there is interference with a chattel for a substantial enough period of time. Choice A is therefore correct.

Sally is riding her snowmobile on public land when she unexpectedly sees a family of deer crossing in her path. If she had continued going straight, she would have crashed right into them, hurting or killing one or more of the deer, as well as injuring herself and damaging her snowmobile. Sally deliberately turns her snowmobile toward Gary's land, crashing into Gary's fence and thereby allowing Gary's flock of sheep to escape. Gary sues Sally for trespass to land. Can Gary make out the prima facie case for trespass to land? (A) Yes. (B) No, because by entering Gary's land Sally averted a greater loss to herself or others. (C) No, because Sally did not intend to enter Gary's land. (D) No, because Sally did not intend to cause harm.

(A) Rationale: Choice D is incorrect because one need not intend to cause harm in order to be liable for trespass to land; it is enough that Sally intended to enter the land. Choice C is a close second choice, but it is ultimately wrong. The facts tell us that Sally deliberately entered Gary's land. The fact that she had a good reason for doing so, or that she made the choice under the exigencies of the moment, does not defeat Gary's argument that Sally had the intent to enter her land. Choice B is tempting but wrong as well. Nothing in the prima facie case allows for such a balancing. Now you might find this terribly unfair because Sally did a good thing by choosing to hit the fence rather than the deer. Though that is undoubtedly true, that fact will be relevant to affirmative defenses and not to the prima facie case. In sum, Sally acted (she voluntarily drove the snowmobile and then steered it into Gary's fence), she intended to enter Gary's land, and she in fact entered it. Choice A is right.

Eleven-year-old Harry is at a nursing home visiting his grandmother. He and his grandmother are in the facility's social hall. Harry sees a piano, which he has just started learning to play, and he gets very excited about playing for his grandmother. He walks over to the piano and grabs the piano bench out from under another resident, Frank, who is about to sit down to play the piano. Harry saw Frank starting to sit down, but Harry really wanted to play the piano. Harry sits down at the bench. Frank falls to the ground when Harry pulls the bench out from under him. Frank breaks his hip and sues Harry for battery. Can Frank prove that Harry had the requisite intent for battery? (A) Yes, because Harry acted with the knowledge that Frank was substantially certain to hit the floor. (B) Yes, but only if Harry could fully appreciate how harmful a fall can be to an old person. (C) No, because Harry did not act. (D) No, because Harry did not have the purpose to cause Frank to hit the floor.

(A) Rationale: The question asks you to focus on intent, not on the rest of the prima facie case for battery. Choice C is therefore incorrect because the question whether Harry acted is separate from the question whether or not he had the requisite intent. Moreover, Harry did act because his moving of the bench was a voluntary muscular contraction. Choice D, though correctly focused on intent, is incorrect for a different reason: It is not necessary for Harry to have the purpose to cause Frank to hit the floor in order for Harry to have the intent necessary for battery. Choice B is wrong because it gives the wrong standard for intent. It is not necessary that Harry appreciate the harmfulness of his actions in order for him to have the requisite intent for battery. Note that the fact that Harry is a child does not relieve him of liability for battery. Only very small children who are too young to act with the knowledge (or have the purpose) that a consequence is substantially certain to result would be able to escape liability for battery on intent grounds. This leaves us with Choice A. Harry acted with the knowledge that Frank was substantially certain to make contact with the floor. We know that because the fact pattern tells us that Harry acted to move the bench despite the fact that he saw Frank starting to sit down. That's enough for the jury to infer that Harry had the knowledge that contact was substantially certain to occur. The fact that Harry did so for his own purposes—to be able to sit down to play the piano—and not for the purpose of causing Frank injury does not save Harry from liability for battery.

Sally is riding her snowmobile on public land when she unexpectedly sees a family of deer crossing in her path. If she would have continued going straight, she would have crashed right into them, hurting or killing one or more of the deer, as well as injuring herself and damaging her snowmobile. Sally deliberately turns her snowmobile toward Gary's land, crashing into Gary's fence and thereby allowing Gary's flock of sheep to escape. Gary sues Sally for trespass to land. Can Gary recover damages for trespass to land? (A) Yes. (B) No, because by entering Gary's land Sally averted a greater loss to others. (C) No, because Sally did not intend to enter Gary's land. (D) No, because Sally did not intend to cause harm.

(A) Rationale: This is a reprise of an earlier question about trespass to land, but one that now brings in the element of necessity. First let's clear the brush by eliminating Choices C and D. Choice D is incorrect because one need not intend to cause harm in order to be liable for trespass to land; it is enough that Sally intended to enter the land. Choice C is a close second choice, but it is ultimately wrong. The facts tell us that Sally deliberately entered Gary's land. The fact that she had a good reason for doing so, or that she made the choice under the exigencies of the moment, does not defeat Gary's argument that Sally had the intent to enter her land. Choice B is where necessity comes in. This looks like a good case for necessity: Sally went into the land in order to avoid additional harm to herself and to the livestock. That means that had Gary had the opportunity, he could not have stopped Sally from entering the land. But—and this is the crucial part—even when necessity applies, one still has to pay damages for the injury caused to others. (This is true unless there is someone, like a public official, saving the public from harm, under the doctrine of public necessity.) Thus, A is the correct answer. Sally can assert necessity but still has to pay for the damages that she causes, in this case Gary's broken fence and loss of livestock.

It was one week before the class's Torts midterm. Kira is very competitive and is worried that Marco is going to outperform her on the midterm. When Marco isn't looking, Kira takes Marco's laptop, which has all of his Torts notes. Marco looks everywhere for the laptop and cannot find it. Without his notes, he does poorly on the examination. Right after the exam, Kira returns the laptop in perfect condition. Can Marco prove the prima facie case for conversion against Kira? (A) Yes, if the court believes that by Kira's actions Marco was a serious interference with Marco's property rights. (B) Yes, because any intentional intermeddling with another's chattels is actionable as conversion. (C) No, because Kira intended to return the laptop. (D) No, unless the laptop was damaged by Kira.

(A) Rationale: This is a variation on the prior question, aimed at showing some differences between conversion and trespass to chattels. Choice B is incorrect. Many intermeddlings with others' property do not meet the stricter standards for conversion. There must be a serious interference with one's right to personal property. Choice C is wrong, but the second best choice. It is enough that Kira intended to cause a serious interference with Marco's enjoyment of his property; she need not intend to keep the item forever. Choice D is incorrect. Though damage to the laptop would be sufficient for the conversion claim, it is not necessary. It is enough if there is interference with a chattel for a substantial enough period of time. Once again, Choice A is therefore correct. If it is a serious enough interference, it could count as a conversion.

Alice is robbing Bill at gunpoint. Cindy, who is walking by, sees the robbery. Cindy yells at Alice to put the gun down. Alice ignores Cindy and cocks the trigger to shoot Bill. Cindy takes out her own gun and shoots at Alice, but Cindy misses Alice and shoots Bill as Bill suddenly runs in front of Alice to get away. If Bill sues Cindy for battery: (A) Bill will lose, because Cindy acted reasonably while defending Bill. (B) Bill will lose, because Cindy acted in self-defense. (C) Bill will win, because Cindy shot him. (D) Bill will win, because one cannot use deadly force to defend another.

(A) Rationale: Under these facts, Cindy had the right to use deadly force if she reasonably believed Bill's life was in imminent danger. Had Cindy thereby shot Alice, this would be an easy case for the use of the defense of others defense. The twist here is that Cindy missed shooting Alice and shot Bill instead. In such a case, unless the risk to Bill in shooting at Alice was unreasonable, Cindy cannot be liable for mistakenly shooting Bill. Here, Bill is about to be shot by Alice, and for this reason it appears Cindy acted reasonably. Choice A most closely expresses this idea. Choice B is easily wrong because Cindy was acting to defend Bill, not in self-defense. Choice D is wrong because one may use deadly force to defend another when that other is threatened with deadly force. Choice C is wrong because it is not enough to establish battery to show Cindy shot Bill. Here, Cindy had the right to shoot at Alice and appeared to act reasonably.

Xeni and Lana are at a concert where there is a lot of pushing to get closer to the stage. Someone shoves Xeni into Lana. Lana gets very angry and says to Xeni, "If I weren't such a nice person, I'd push you to the ground and watch you get trampled." In response to the comment, Xeni pushes Lana to the ground and watches her get trampled. Assuming Lana can prove all the elements of battery, can Xeni successfully raise the affirmative defense of self-defense? (A) No, because Xeni used disproportionate force. (B) No, because Xeni was not justified in using any force. (C) Yes, because Lana assaulted Xeni first. (D) Yes, because Xeni did not use deadly force.

(B) Rationale: A court is almost certainly going to find that Xeni was the aggressor here. Though Lana did suggest she might push Xeni to the ground, it was not a threat of imminent contact because of the hedging words "If I were not a nice person." Given that Lana has not assaulted Xeni—given Lana's words there was no basis for Xeni to be apprehensive of imminent harmful contact—Xeni cannot commit what would otherwise be a battery against Lana. For this reason, Xeni cannot use any force and therefore Choices A, C, and D are incorrect. Choice B correctly states the law on these facts.

A waiter at a banquet knows one of the diners, Mohammad, is a Muslim who avoids eating pork on religious grounds. Rather than having to run back to the kitchen for a special meal, the waiter serves Mohammad pork but tells him it's a "special meal." Mohammad subsequently discovers it was pork and gets very upset, can't sleep, and loses weight because of a lost appetite. Which of the following is Mohammad's easiest cause of action against the waiter to prove? (A) Intentional infliction of emotional distress (B) Battery (C) Assault (D) Negligence

(B) Rationale: Choice B is the correct answer. There was intent and a touching (pork hitting Mohammad's mouth). Certainly, you could claim Choice A is correct except that it is not the "best" answer because IIED is very difficult to prove given the need for outrageousness and extreme injury. C is not correct because there is no apprehension of a touching here, it's actual. And D would not be the best because you have an easy case of intent.

Henry, age 34, was at a cocktail party with several of his friends including Luke. At one point, Henry retrieved his lighter and began to light a cigarette. He hadn't taken more than two puffs when Luke, to Henry's surprise, grabbed the cigarette from Henry's mouth and shouted, "Don't you know those things can kill you." Henry was embarrassed when several other friends started kidding him. Henry recovered and shouted back, "Mind your own business you jerk." Several weeks later, after one of Henry's friends posted a video of the event on Facebook, Henry sued Luke for his injuries. Which of the following alternatives is the most likely outcome? (A) Henry is likely to win under a theory of assault. (B) Henry is likely to win under a theory of battery. (C) Henry is likely to lose because Luke's intent was to benefit Henry not to harm him. (D) Henry is likely to lose because his injuries were exclusively emotional.

(B) Rationale: Choice B is the correct choice. This is an intentional touching of something so close to Henry's body that it counts as a battery. There is no imminent threat so Choice A is not correct. A person's bodily integrity is protected even if the person committing the touching intends to benefit the victim. The intent is merely the intent to touch so Choice C is not correct. Choice D is not correct because battery protects personal integrity, not necessarily physical harm.

Felice detests her classmate Penelope. Every day for a month Felice leaves a flaming bag of dog poop on the front door of Penelope's apartment. A security camera shows Felice in the act. Penelope confronts Felice, who says that she will keep doing it until police drag her away in handcuffs. Penelope sues Felice for intentional infliction of emotional distress. Penelope has not gone to therapy or missed any class, but she's understandably angry with Felice. Can Penelope prove the prima facie case for IIED? (A) No, because she did not have any objectively verifiable proof that she suffered severe emotional distress. (B) No, because she did not suffer severe emotional distress. (C) Yes, if the jury concludes Felice's actions were outrageous. (D) Yes, so long as Penelope was angry.

(B) Rationale: It seems plausible t that a jury would consider the conduct of Felice to be extreme and outrageous, and it appears to have been done with the requisite intent: Even if Penelope cannot prove purpose or knowledge, she should be able to prove at least that Felice acted recklessly about causing emotional distress. The problem is that the facts don't show that Penelope suffered any severe emotional distress, only that she's angry with Felice. This question is best answered by eliminating the weakest choices. Choice A is incorrect because one need not have objectively verifiable proof to recover for IIED; it is enough that the jury believes the plaintiff has suffered severe emotional distress. Choice C is incorrect because outrageousness is a necessary element of IIED but outrageousness without severe emotional distress is insufficient. Choice D is incorrect because being angry is not enough for IIED; there must be severe emotional distress, otherwise every insult would become a tort. This leaves us with Choice B, the best choice. There is neither objectively verifiable evidence of severe emotional distress (such as going to therapy or missing class) nor any other evidence of severe emotional distress. Again, being angry is not enough.

George gets lost on a walk through the woods and ends up entering Elaine's property. George is in a panic because it is going to get dark soon, and he starts running toward Elaine's house. Elaine sees George coming toward her home and she takes out a BB gun and shoots at George. Although Elaine tries to shoot George in the shoulder, she hits him in the eye. George sues Elaine for battery. Can Elaine successfully raise the defense of defense of property? (A) No, because one can never use a weapon to defend property. (B) No, because Elaine failed to warn George before shooting. (C) No, because Elaine reasonably feared for her life. (D) Yes, because George deliberately trespassed.

(B) Rationale: On these facts, Elaine would be justified in using reasonable force to keep George from going onto her property, but only if she first tried to give a warning to leave (unless she reasonably believed the warning would be useless or substantial harm would be done before the warning was made). Choice A is incorrect because in appropriate circumstances one can use a weapon to defend property, including after a warning is ignored. Choice D is incorrect because Elaine still needed to give a warning (given no indication on these facts that the warning would be ignored or substantial harm done before the warning is made.) Choice C is incorrect because fear of one's life is relevant for self-defense not defense of property, and the call of the question asked about defense of property. This leaves us with Choice B, the requirement that Elaine give a warning to George.

Pat, who is 21 years old, joins a church whose members live in a reclusive community and hold unconventional beliefs. Pat's parents are upset about Pat's decisions and hire Detective, a "deprogrammer," to remove Pat from the church and return Pat to her parent's house, using force if necessary. Detective arrives at Pat's church and informs Pat that her parents are very worried about her and want her to return home. Detective also states that he will use force if necessary to bring Pat to her parents. Detective then asks Pat to accompany him by automobile to her parents' house, and Pat says "OK." Upon arrival at the house, she flees and returns to the church. If subsequently Pat sues Detective, what is the most likely result? (A) P is likely to win a cause of action for assault. (B) P is likely to win a cause of action for false imprisonment. (C) P is likely to lose a claim for false imprisonment because she consented. (D) P is likely to lose a claim for false imprisonment because she showed she had a reasonable means of escape.

(B) Rationale: The correct answer is Choice B. This is clearly a confinement brought about by threat of force or duress. Choice A is not correct because there was no "imminent" apprehension of a touching even though there was a conditional threat to use force. Choice C is not correct because of the duress caused by the threat of force. Choice D is not correct because there was no reasonable means of escape if Pat believes Detective would use force. She was confined in the car through an intentional act.

Patient agreed to an operation on his left ear. After he was placed under anesthesia, Doctor examined the left ear and determined that it did not need the operation after all. The doctor then examined the right ear and determined that it was diseased and needed an operation. The doctor operated. The operation was successful, and the condition of the ear was improved as a result of the operation. If Patient sues Doctor for battery, Patient will: (A) Win, only if doctor intended to operate on the right ear before putting Patient to sleep and failed to ask permission. (B) Win, because Patient did not consent to the operation on his right ear. (C) Lose, because Patient impliedly consented that Doctor could extend the operation to remedy any abnormal or diseased condition which Doctor, in the exercise of her professional judgment, determined to require such an operation. (D) Lose because the touching was beneficial, not harmful.

(B) Rationale: This case involves the facts of Mohr v. Williams. Patient can win if Doctor exceeded the scope of his consent. The correct answer, Choice B, recognizes that surgery to a different part of the body exceeds the consent given Choice A only contemplates liability if the doctor intended to operate on the right ear prior to the surgery. This is too narrow. Because the right ear is a different part of the body and would involve a different surgical site, Patient has not impliedly consented to that surgery, making Choice C incorrect. Finally, the benefits of surgery are not relevant to an action for battery and the right of Patient to consent or not consent to the touching, making Choice D incorrect.

John owns a bookstore, which used to be a Victorian mansion. It has lots of small rooms, and there are books for sale in each room. Usually at closing time John goes to the top of the mansion and works his way down, making sure that there are no customers left in the store. But one night, John is lazy, and he doesn't bother to check if anyone is still in the store when he locks it up at 8 pm. Unfortunately, Tom is up in one of the rooms and cannot get out. Tom is a diabetic who needs insulin. He suffers physical injuries because he cannot get out until John opens the store the next day. If Tom sues John for false imprisonment: (A) Tom's claim will fail, because John did not act. (B) Tom's claim will fail, because John lacked the intention to confine John. (C) Tom's claim will succeed, because John was harmed by the confinement. (D) Tom's claim will succeed, if he can prove he was actually confined.

(B) Rationale: Tom's claim for false imprisonment has a problem: John did not know that Tom was locked in the store. Without such knowledge, we cannot say that John had the purpose to confine Tom or that he had the substantial certainty that he was confining Tom. John might well be negligent but the question relates to the intentional tort of false imprisonment. Choice B reflects the correct answer. Choice A fails because John did act when he locked the doors to his store: Be sure not to confuse the act and intent requirements. Choice C fails because whether or not Tom was harmed by the confinement does not solve Tom's problem with proving that John had the requisite intent. Choice D fails for a similar reason: It won't be a problem for Tom to prove he was actually confined, but that does not solve Tom's problem with proving John's intent.

Cary is walking down the street late at night when Larry jumps out of nowhere. Larry holds a knife in front of Cary and yells, "Give me your wallet or else!" Cary reaches into his pocket, and pulls out a gun. Cary shoots Larry in the leg, an injury that eventually causes Larry to lose the use of his leg. If Larry sues Cary for battery: (A) Cary will lose, because he used disproportionate force. (B) Cary will win, because he used proportionate force. (C) Cary will lose, because he did not act in self-defense. (D) Cary will win, because one has the right to use deadly force to protect property.

(B) Rationale: Under these facts, Cary was assaulted when being threatened with a knife. Cary can take actions in self-defense. Choice C is therefore incorrect. Between Choices A and B, the question is whether Cary used proportionate or disproportionate force. A knife attack is a threat of deadly force from Larry, and therefore Cary's shooting Larry in the leg appears to be proportionate (it does not appear to be an attempt to use deadly force, but even that may be allowed by a jury under these circumstances). Choice B is therefore correct. Choice D is an incorrect statement of law; one cannot use deadly force to protect property.

Tom and Jerry are friends who often play practical jokes on one another. Sometimes the jokes get out of hand. One day, Tom goes to a novelty store and buys a toy rat. Tom douses the toy rat in gasoline, lights it on fire, picks it up and puts it in Jerry's face. Tom wants Jerry to think Tom will touch him with the rat, but actually he does not intend to touch Jerry. Jerry backs up to get out of the way and trips over a chair, breaking his nose. Can Jerry make out the intent element in a battery claim against Tom? (A) No, because Tom did not intend contact with Jerry. (B) No, unless Jerry feared the rat would cause him physical harm. (C) Yes, even though Tom did not intend that Jerry have a harmful contact with the rat. (D) Yes, because Tom intended that Jerry have an offensive or harmful contact with the rat.

(C) Rationale: Choice A is wrong because a defendant need not intend to make any contact in order to be liable for battery - given transferred intent. It is enough that the plaintiff is put in imminent apprehension of contact. Choice B is wrong because it is enough for a plaintiff to have an immediate expectation of offensive contact if not harmful contact. In any case, that fact does not speak to whether Tom had the right intent. Choice D is incorrect because the facts tell us that Tom did not intend a contact, much less an offensive contact. Choice C is therefore correct because Tom can be liable for battery if he intended to put Jerry in imminent apprehension of an offensive contact. Now one might have been thrown off because the ultimate contact that resulted in this question resulted from the trip and fall rather than touching the actual object held by Tom. That question is relevant to a different part of the prima facie case: whether contact resulted directly or indirectly. But look at the call of the question. It asks only if Tom can make out the intent element for battery, not whether Jerry can prove the entire prima facie case for battery.

Kira is an armed security guard on her way home after her shift at a bank. She sees a large dog trying to bite passers-by. The dog looks out of control, and Kira worries the dog has rabies. Kira takes out her gun and shoots the dog to death, to the cheers of those in the crowd. The owner of the dog sues Kira for trespass to chattels. Kira defends by claiming that she acted out of necessity. (A) Kira will lose, unless the dog was actually rabid. (B) Kira will lose, because one cannot take property without providing "just compensation." (C) Kira will win, and not have to pay damages. (D) Kira will win, but will still have to pay damages.

(C) Rationale: Kira has acted out of necessity in shooting a dog that is attacking people, whether or not the dog is rabid. For this reason, Choice A is wrong. Choice B is wrong because the "just compensation" standard from the Constitution's Takings Clause does not apply to private actors. This leaves us with Choices C and D. The question is whether Kira would have to pay damages. Because she is protecting the public at large, this would count as public necessity and she would not have to pay damages, making Choice C correct. This is true even though Kira is a private individual.

Bill and Jennifer start arguing in a bar over a football game on television. Their tempers flare. Jennifer tries to punch Bill in the face. Bill gets out of the way and Jennifer's fist almost hits Phil, who sees the whole thing. Though Jennifer's fist does not touch Phil, it comes within an inch of his face, upsetting Phil greatly. Can Phil make out the the prima facie case for assault against Jennifer? (A) No, because Jennifer did not make contact with Phil. (B) No, because Jennifer did not intend to make contact with Phil. (C) Yes, even though Jennifer did not intend to make contact with Phil. (D) Yes, unless Jennifer's fist actually made contact with Phil.

(C) Rationale: This question shows transferred intent across people (Jennifer tried to hit Bill but instead assaulted Phil) and across torts (Jennifer tried to commit a battery but ended up causing an assault). In this case, Jennifer acted by voluntarily taking a swing at Bill. From the facts (we know there is an argument where tempers are flaring), it sounds like Jennifer intended to make a harmful contact with Bill. Though Bill is not the plaintiff, to meet the intent requirement of battery it is enough for the defendant to intend contact with a third person. It appears that Phil was put in imminent apprehension of contact. Thus, it appears that Phil can make out the prima facie case for assault. Choice C accurately explains that Jennifer can be liable for assault even if she did not intend to make contact with Phil. Choices A and D are incorrect because contact is not necessary for an assault. Choice B is incorrect because, though intent to make contact with Phil would be sufficient to meet the intent requirement for assault, it is not necessary.

Robert is obsessed with superstar actor Jodi. He sends her notes about how one day he will take her away and they will spend the rest of their lives together. Because of these letters, as well as disturbing communications from others, Jodi is surrounded by bodyguards. One day, when Jodi was coming out of a movie premiere, Robert jumped out of a crowd to try to grab Jodi and kiss her. As he lunges, Jodi's bodyguards tackle Robert before he can make any contact with Jodi. Jodi sees the whole thing and is very shaken up. If Jodi sues Robert for assault: (A) Jodi should lose, because her bodyguards were able to take evasive action to avoid harmful or offensive contact. (B) Jodi should lose, because she was not afraid of Robert's attempted contact. (C) Jodi should win, because she was put in imminent apprehension of offensive contact. (D) Jodi should win, if she can prove she was actually afraid of being touched.

(C) Rationale: To succeed on assault, a plaintiff must prove that she had an immediate expectation of a harmful or offensive contact to herself. It does not matter if the plaintiff can take evasive maneuvers to avoid the contact. Here, Robert attempted to make an offensive contact with the person of the other; the fact that Jodi's bodyguards took evasive action is irrelevant. Choice A is therefore incorrect. Nor does it matter whether or not Jodi was actually afraid of the contact; it is enough that Jodi had an immediate expectation of contact. Assault requires apprehension of contact not necessarily fear of contact. For this reason, Choices B and D are wrong. Choice C correctly explains that Jodi wins, so long as she had an immediate expectation of offensive contact.

Alice is at a party having a conversation with Betty and Crissandra. Crissandra accidentally spills her drink on Betty and Betty gets angry. Betty pushes Alice into Crissandra. Crissandra falls to the ground and breaks her tooth. Both Betty and Crissandra sue Alice for battery. Will the lawsuits be successful? (A) Yes as to Crissandra's suit against Alice, because Betty was the aggressor. (B) Yes as to Betty's suit against Alice, if Crissandra provoked Betty. (C) Yes as to both Betty's and Crissandra's suits against Alice. (D) No as to both suits against Alice.

(D) Rationale: Alice was a passive instrument of Betty. Alice did not act because she made no voluntary muscular contraction. Without such an act, Alice cannot be liable for battery because neither Betty nor Crissandra can make out the first element of the prima facie case for battery. For this reason, Choice D is right. Choices A, B, and C are each wrong. Choices A and B are wrong because it is irrelevant who the aggressor is between Betty and Crissandra for purposes of figuring out Alice's liability. (It could be very relevant if they sue each other for battery.) Choice C is wrong because Alice cannot be liable for battery absent an act.

Talia and Sammy are neighbors who dislike each other. Every afternoon, Talia sends her dog to go to the bathroom near the line between their adjoining properties. Talia insists the dog is on her side of the property line. Sammy insists the dog is crossing the line. To resolve the case, Sammy sues Talia for trespass to land, seeking $1 in damages for the invasion. Talia responds by stating that, even if Sammy is right that Talia's dog has crossed into Sammy's property, Sammy cannot prove his prima facie case for trespass to land because he has neither requested nor proven any damages. How should the court rule on Talia's argument? (A) The court should accept Talia's argument because plaintiffs must always prove damages as part of the prima facie case. (B) The court should reject Talia's argument because Talia was acting intentionally. (C) The court should reject Talia's argument because plaintiffs never need to prove damages as part of the prima facie case. (D) The court should reject Talia's argument because Sammy could seek nominal damages as a means of declaring the rights between the two parties.

(D) Rationale: Generally speaking, plaintiffs must prove damages as part of the prima facie case for all torts. However, this rule is subject to some exceptions, such as trespass to land where nominal damages are available. For this reason, Choices A (plaintiffs must always prove damages) and C (plaintiffs never need to prove damages) are both incorrect. Choice B is wrong because whether or not Talia was acting intentionally is irrelevant to Talia's argument. That is, even if Talia concedes she has acted intentionally in entering Sammy's land, Talia is claiming that Sammy's failure to prove damages should doom his case. Choice D is the best answer: For certain kinds of cases, such as trespass to land, a person can seek nominal damages as a means of declaring the rights between the parties. Sammy wants to use nominal damages as a way of telling Talia to keep off his land. If Talia continues to do so after the case, Sammy might seek an injunction or punitive damages for later violations.

Father and son are involved in an automobile accident on an isolated rural highway. The son is badly cut on the head and is bleeding, and the father is concerned about whether he will survive. Third Party happens on the scene and gets out of his car to assess the situation. The father asks Third Party if he will drive them to the hospital. Third Party refuses. When Third Party isn't looking, the father jumps into Third Party's car with his son and drives off. On the way to the hospital, father has an accident and Third Party's car is totally destroyed. Third Party subsequently sues father for damages to the car. What is the most likely outcome? (A) Father is liable for conversion of the automobile. (B) Father is liable for damages to the automobile only if Third Party can show that Father negligently caused the second accident. (C) Father is liable for trespass to the automobile. (D) On the facts, Third Party is entitled to recover the value of the automobile.

(D) Rationale: The correct answer is Choice D. There would be a necessity privilege here that would make taking the car privileged, but under Vincent v. Lake Erie, the father would have to pay for the damage he caused. It would not be a conversion or trespass because of the privilege, so Choice A and C are not correct. Choice B is incorrect because Third Party would not have to show negligence under the necessity privilege.

Phil has a heart attack while sitting on a park bench. Jane is passing by and starts to perform CPR on Phil while Phil is unable to talk or otherwise communicate his wishes. Phil is okay, but Jane broke one of Phil's ribs trying to perform CPR. If Phil sues Jane for battery: (A) Phil will win, because he did not give express consent to being touched. (B) Phil will win, because he did not give consent in fact to being touched. (C) Phil will lose, because he consented to being touched. (D) Phil will lose, even though he gave neither express consent nor consented in fact.

(D) Rationale: This is a straightforward question about the law excusing the lack of consent because of an emergency. In this situation of an emergency, where Phil has neither expressly consented (with words) nor impliedly consented in fact through his actions, Jane still may touch Phil to provide first aid. The case for battery will fail and Choice D is correct and Choices A and B are incorrect. Choice C fails because there is no evidence Phil gave implied-in-fact consent to being touched; he was unable to talk or communicate his wishes.

Frank and Stein met in the park with a bunch of other people interested in playing touch football. In order to stop a play under the usual touch football rules in the park, a defensive player must get both hands on an offensive player while that offensive player is in the possession of the football. Stein had just caught the ball when Frank, on defense, touches him with both hands consistent with the rules, thereby ending the play. Stein is unhappy that Frank stopped the play, so he pushes him to the ground as hard as he can, breaking three of Frank's ribs. If Frank sues Stein for battery: (A) Frank will lose, because Frank touched Stein first. (B) Frank will lose, because he consented to play football. (C) Frank will win, because no one can ever consent to sharp physical contact. (D) Frank will win, because Stein exceeded the scope of Frank's consent.

(D) Rationale: This question tests the scope of consent. One cannot be liable for battery if the plaintiff who was touched consented to the touching. From these facts, it appears that Stein granted consent implied in fact to Frank touching him during the football game, and Frank granted consent implied in fact for Stein to touch him. But consent to one kind of touching does not mean consent to any kind of touching. In this case, Stein consented to Frank touching him with two hands to end the play. That is consistent with the park's rules. But Frank did not consent to being pushed so hard by Stein during the game. This went beyond the scope of consent. For this reason, Choice D is correct and Choice B is incorrect. Choice A is incorrect because Frank's touching of Stein was within the scope of Stein's consent. (If Frank had pushed Stein very hard first, then Stein could possibly have pushed Frank back hard in self-defense.) Choice C is incorrect because it is possible that a person would consent to sharp physical contact, as in a game of tackle football.

Dennis works as a clown at a children's pizza restaurant. All day he hears kids screaming as they jump in the ball pit and play games around the restaurant. He hates it. Two particularly obnoxious seven-year-old boys keep coming over and hitting Dennis with soft toy swords that they won as prizes at the restaurant. When Dennis sees the two boys, Sam and Max, go into the bathroom, he locks them in. They bang on the door, crying for help and pleading to get out. After 15 minutes, Dennis lets them out on the condition that they promise to behave. The boys tell their parents, who are very upset. If Max sues Dennis for false imprisonment: (A) Max cannot prove the prima facie case, because he did not suffer physical harm. (B) Max cannot prove the prima facie case, because children are not aware of confinement. (C) Max can prove the prima facie case, only if his parent's distress counts as harm. (D) Max can prove the prima facie case, whether or not the crying counts as physical harm.

(D) Rationale: To answer this question, first consider each element of the prima facie case for false imprisonment. Dennis acted by locking the door. Dennis intended to confine Sam and Max to the boundaries of the bathroom. Sam and Max were not allowed out for 15 minutes, showing actual confinement. Finally, Sam and Max were conscious of the confinement; they were crying and asking to get out. There seems no question Max (and Sam) can prove the tortious conduct portion of the prima facie case. Choice A is wrong: It is not necessary to prove physical harm if the plaintiff can prove consciousness of the confinement. Choice B is incorrect because though there may be very small infants who are unaware of their confinement, on these facts Max was well aware of his confinement as indicated by his crying and pleading. Choice C is wrong because what Max's parents suffered is irrelevant. It is enough that Max himself has suffered this dignitary and emotional harm to be entitled to compensation for false imprisonment. Choice D is correct: Max can recover even without physical harm because of his awareness of the confinement.

Tina is very excited to take part in a Civil War reenactment taking place in Patriot Park next weekend. She takes her antique gun, unloaded, to the park for practice. She practices marching with the gun and pointing it at "the enemy." When Tina practices, she picks a secluded place in the park. Carlos suddenly rides on his bicycle right in front of Tina as Tina picks up the gun and holds it out for practice against her imaginary opponent. Carlos becomes very afraid he was going to be shot and he nearly crashes his bike. Carlos sues Tina for the tort of assault. Can Carlos make out the the prima facie case for assault? (A) Yes, because contact is not required for an assault. (B) Yes, unless Carlos's bike actually crashed. (C) No, because Tina did not act. (D) No, because Tina did not have the requisite intent.

(D) Rationale: When Tina held up the gun, she was certainly committing an act. It was a voluntary muscular contraction; she was not sleepwalking or responding to a reflex. For this reason, Choice C is incorrect. Though it was an act, Tina did not act with the requisite intent. When she held out the gun, she did not see anyone around. Therefore, she did not have the purpose and did not act with the knowledge that she was substantially certain to make a harmful or offensive contact with Carlos or a third person. Nor did she have the purpose or act with the knowledge that she would put Carlos or a third person in imminent apprehension of such contact. Thus, Choice D is correct. Choice A is incorrect because, though it states a correct proposition of law (contact is not required for an assault), the assault claim fails because of a lack of intent. Choice B is wrong because whether or not Carlos's bike crashed could be relevant to Carlos's cause of action for battery, not assault. It would be enough for him to be put in imminent apprehension of a harmful or offensive contact.