If you are a first semester law student taking a midterm exam, intentional torts are likely on the exam. This means you will likely see some questions on Intentional Torts. In this blog post I will help break down what you should write about on an essay exam. Also, what to keep in mind on a multiple choice question.
These six torts require an intentional act directed at a victim or a victim’s property. Intent in this context requires that the wrongdoer either committed the act on purpose (or desired the outcome). A second way of establishing intent is when the wrongdoer knew to a substantial certainty that the result would occur. The intent requirement is different from the two other types of torts, negligence and strict liability.
Negligence and Strict Liability
Negligence focuses on the unreasonable conduct of the wrongdoer, while strict liability looks at certain activities that the law classifies under the strict category. For example, keepers of wild animals, products liability, or those that use explosives. For some interesting statistics, you may want to read about the different type of tort actions brought in the United States.
Once a plaintiff is successful in establishing that an intentional tort has occurred, the defendant can avoid liability by proving that there is an affirmative defense that applies. An affirmative defense is a legally recognized excuse for a person that committed the act to avoid liability. These defenses include consent, necessity, self-defense, defense of others, and defense of property.
Once a jury determines that a person is guilty of committing a tort, the final step is for the jury to determine the amount of damages that should be awarded. Tort law is very generous and attempts to place the victim back into the place they would have been if the injury had never occurred. This means that a plaintiff may recover all damages that are reasonably related to his or her injury.
The topics you could discuss on an intentional tort exam question:
- Intent: unless the essay indicates that intent is present, then you absolutely need to establish the intent element. Intent requires that the wrongdoer either committed the act on purpose, desired the outcome, or that the wrongdoer knew to a substantial certainty that the result would occur.
- Elements of the tort: this will depend on the tort. For example, here is a video on battery.
- Affirmative defense: a wrongdoer will argue this to avoid liability even though he or she did in fact commit the tort of which he or she is being accused. These defenses include:
- Self Defense
- Defense of Others
- Defense of Property
- Damages: the jury will determine the plaintiff’s recovery. The general rule is that the plaintiff should receive an amount that will place them in the position he or she would have been if the injury had never occurred.
Good luck on those midterms!
For a better understanding of the intentional torts, you can check out our book on the intentional torts or our course: Introduction to the Intentional Torts. If you want something that is covers all of Torts, you will want to look at Understanding Torts by Diamond, Levine, and Bernstein.
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