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How to write a better exam • Organize better • Use IRAC. • Go through one element of one claim at a time. • Address one event at a time. ¶
How to write a better exam • Organize better • Get the rules right • “Battery is the intent to make harmful or offensive contact with someone’s person.” • “For battery, the plaintiff must show that defendant intentionally caused a harmful or offensive contact with the person of plaintiff.”
How to write a better exam • Organize better • Get the rules right • Use the facts USE THE FACTS, LUKE!
How to write a better exam • Organize better • Get the rules right • Use the facts Analyzing whether the guard had the intent for false imprisonment Not using the facts: • The guard intended to confine H by taking her to his office. Using the facts: • When the guard escorted Holly to a room, he appears to have wanted to get her alone so that he could chat with her and ask her on a date. Arguably, he desired the consequence—confinement—because he did not want her to leave. Analyzing whether Holly consented. Not using the facts: • H showed willingness to go with the guard. Using the facts: • Holly admits that she “agreed” to go with the guard. The Met could argue that Holly’s agreement, along with her failure to attempt escape (or complain about it), would cause a reasonable person to believe she consented to go with the guard and stay in his office. Analyzing whether Holly was “confined.” Not using the facts: • Holly was confined in the guard’s office without reasonable means of escape. Using the facts: • The room where the guard took Holly likely had fixed boundaries, but there are not enough facts to determine whether Holly was confined. Holly will say she thought she had to stay “to avoid making trouble” because the guard appeared to have authority. The fact the guard remained with Holly seems to suggest that he was preventing her from leaving. But we do not know whether the guard was armed or whether he said or did anything implying she couldn’t leave.
How to write a better exam • Organize better • Get the rules right • Use the facts • Reach a conclusion
What Does “Intent” Mean in Intentional Torts? • An act is “intentional” if the actor • desires to cause the consequence OR • knows the consequence is substantially certain to result OR • transferred intent applies “The consequence” is different for each tort!
Intent in General PAUSE AND ANSWER QUESTION 1 • For all intentional torts, “intent” generally means intent to cause some consequence. An act is “intentional” if the actor 1) desires to cause the consequence, 2) knows the consequence is substantially certain to result, or 3) transferred intent applies. • The intended “consequence,” however, is different for each tort.
Holly v. the Met • The guard kept Holly in his office. • False imprisonment
False Imprisonment PAUSE AND ANSWER QUESTION S 2-7 In order to make a prima facie case for false imprisonment, the plaintiff must show that defendant intentionally caused plaintiff to be confined within fixed boundaries and that plaintiff was aware of the confinement or harmed. For false imprisonment, “intent” means intent to cause confinement. • Did the guard intent to confine Holly? • Was Holly confined within fixed boundaries? • Was Holly awareness of the confinement or harmed? • When the guard escorted Holly to a room, he appears to have wanted to get her alone so that he could chat with her and ask her on a date. Arguably, he desired the consequence—confinement—because he did not want her to leave. • The room where the guard took Holly likely had fixed boundaries, but there are not enough facts to determine whether Holly was confined. Holly will say she thought she had to stay “to avoid making trouble” because the guard appeared to have authority. The fact the guard remained with Holly seems to suggest that he was preventing her from leaving. But we do not know whether the guard was armed or whether he said or did anything implying she couldn’t leave. • If there was confinement, Holly appears to have been acutely aware of the confinement. It doesn’t matter whether she knew at the time the confinement was unnecessary. She knew she couldn’t leave.
Consent PAUSE AND ANSWER QUESTION S 8-9 • A defendant is not liable for an intentional tort if plaintiff consented to the conduct. • Consent is effective if defendant reasonably believes that plaintiff consented. • Did Holly expressly or impliedly consent? • Holly admits that she “agreed” to go with the guard. The Met could argue that Holly’s agreement, along with her failure to attempt escape (or complain about it), would cause a reasonable person to believe she consented to go with the guard and stay in his office. Holly can counter that the guard created the appearance that she had to go with him “to avoid making trouble” and so she had no real choice in the matter. As a policy matter, we do not want to have a rule that requires a plaintiff to attempt escape in order to prove lack of consent.
Consent induced by misrepresentation PAUSE AND ANSWER QUESTION S 10-13 • Consent is not effective if 1) plaintiff’s consent was induced by a “substantial mistake concerning the nature of the invasion of his interests or the extent of the harm to be expected from it,” AND 2) ∆ knew of the mistake or induced it by misrepresentation. • Was Holly “substantially” mistaken? • Was she mistaken about “the nature of the invasion”? • Did the guard know of her mistake or induce it? Holly could argue that her consent was invalid because it was induced by a mistake—she thought that she had to stay with the guard “to avoid making trouble” when in fact he was just keeping her around to ask her out. Holly could argue this mistake was “substantial” because it affected her decision about whether to comply. She can also claim that the guard knew of the mistake; indeed, he induced it by making it appear as though he needed to question her for his report. The Met may argue that the nature of the invasion for false imprisonment is confinement, and Holly was at no time deceived about where she would be or for how long. This is like the Restatement example of the woman seduced by a false promise to marry: Like the woman in the example, Holly was deceived about the defendant’s motives, but not his actions. On the other hand, Holly can argue that this is more akin to the Restatement example of a doctor taking unnecessary liberties with a patient. Like the doctor who convinced the patient his actions were necessary for health, here the guard made it appear that the confinement (and questions) were necessary, when in fact they were not.
Private arrest PAUSE AND ANSWER QUESTION S 14-19 • A private person may make an arrest if the person either 1) was present when plaintiff committed a misdemeanor that is a breach of the peace, or 2) has reason to believe plaintiff committed a felony. • Was the guard present? • Did Holly commit a misdemeanor that is a breach of the peace? What could you do to make your analysis of Question One deeper?
