PRACTICE PROBLEM

SAMPLE ANSWER

I. Preliminary Considerations

The facts state that Dave suffered from “obsessive-possessor disorder” and that
Peter “was not that well-balanced himself emotionally speaking.” For purposes of the
intentional torts, if the tortfeasor was capable of forming the requisite intent for the tort, it
is irrelevant that the motivation behind the intent to commit the tort was a product of
mental illness. Further, where the tortfeasor commits harm by an act of negligence, the
reasonable person against whom the tortfeasor will be compared possesses ordinary
mental attributes. Thus, on the facts presented, Dave’s and Peter’s mental conditions will
be irrelevant.

II. Dave’s actions against Peter and potential defenses

Trespass to real property

Dave’s first action against Peter is for trespass to real property. A prima facie
case of trespass to real property requires proof that the defendant, with intent, caused
entry to property possessed by another.
Intent, for purposes of trespass to real property and all other intentional torts in
this essay, is satisfied by proof that the defendant acted with the purpose of bringing
about the basis of the tort or acted with substantial certainty that the basis of the tort
would result.
In this case Peter acted with both purpose and substantial certainty of causing
entry upon property possessed by Dave, thus satisfying the element of intent. Because
Peter in fact caused entry upon Dave’s property, a prima facie case of trespass to real
property is established.
While the facts do not suggest that Peter caused any actual damages to Dave’s
property, damage is not an element of the tort of trespass to real property. While the
plaintiff may, of course, recover actual damages if proven, the plaintiff may recover
nominal damages in the absence of proof of actual damages.
The only potential defense is the privilege of implied consent. The trespass took
place on Halloween evening and certainly there is implied consent to enter the property
of others on Halloween, no other facts appearing. However, it was 11:00 at night when
Peter entered Dave’s property and Halloween was essentially over. Further, to the extent
there may be implied consent to briefly enter the property of others in general, any such
consent was revoked by Dave’s sign which warned to not enter the property.
There being a prima facie case of trespass to real property and no applicable
defenses, Peter will likely be liable.

Conversion

Dave’s second action against Peter is for conversion of Dave’s pumpkins. A

prima facie case of conversion requires proof that the defendant, with intent, caused
interference with the personal property possessed by another. The extent of the damage
to the property distinguishes trespass to chattels from conversion. If the damage is in the
form of slight but repairable harm to the property, or short deprivation of the property,
trespass to property is the applicable action. Conversion, on the other hand, is a forced
sale of the property and requires proof of damage to the property sufficient to justify
forcing the defendant to essentially purchase the property from the plaintiff. Such
substantial damage would include harm to the property to the point that it is beyond
repair or where repair is not feasible, or such substantial deprivation that the defendant
effectively asserts ownership over the property. Theft of property also justifies an action
for conversion.
In the present case Peter acted with purpose and with substantial certainty of
causing interference with Peter’s personal property, the pumpkins, and did in fact cause
such interference by stealing the pumpkins. By stealing the pumpkins, Peter asserted
ownership over the pumpkins sufficient to force a sale of the property, thus constituting
conversion.
There are no applicable defenses, so Peter will likely be liable for conversion.

Assault

Dave’s third potential action against Peter is for assault. A prima facie case of
assault requires proof that, with intent, the defendant caused reasonable apprehension of
imminent harmful or offensive contact.
Here, Dave confronted Peter in the restroom and explained how his Pumpkin
Poison had caused Peter’s discomfort. Peter waited until Dave turned around to walk out
of the restroom before he decided to “seize the opportunity” to hit Dave in the back of the
head. Dave happened to see Peter raise his fist to hit Dave in a mirror on the back wall of
the restroom. Thus, while Dave did in fact experience reasonable apprehension of
imminent harmful or offensive contact, such apprehension was not Peter’s intent. The
facts suggest that Peter’s intent was to hit Dave in the back of the head while Dave was
facing away from Peter. The facts also fail to suggest that Peter saw Dave watching him
in the mirror on the back wall of the restroom. Therefore, it appears that Peter acted
without either the purpose or the substantial certainty of causing apprehension.
While Peter did commit a harmful battery, discussed below, and while both
assault and battery fall within the five original trespassory torts such that transferred
intent would ordinarily apply, the facts state that the applicable jurisdiction does not
apply the doctrine of transferred intent. Therefore, Peter is not liable for assault.

Battery

Dave’s third action against Peter is for battery. A prima facie case of battery
requires proof that, with intent, the defendant caused harmful or offensive contact.
Harmful contact includes any contact that causes pain or alteration of the body, while
offensive contact is contact that would cause offense in a person of ordinary sensitivities.
While in the restroom, Peter acted with purpose and with substantial certainty of
causing, and did in fact cause, harmful and painful contact by punching Dave in the back
of the head and knocking him to the floor. Thus, a prima facie case of battery is present.
 The only potential defense is the privilege of self defense. One may apply
reasonable force in self defense if one reasonably believes it to be necessary under the
circumstances. Mistaken self defense is still privileged provided the mistake was
reasonable.
While it will be discussed in greater detail below, Dave committed a battery
against Peter by causing Peter to come into contact with Dave’s Pumpkin Poison. Thus,
there is at least a question of whether Peter acted in self defense by punching Dave.
However, Dave’s battery against Peter had occurred a significant period of time before
Peter battered Dave. Thus, Peter’s battery was not committed in self-defense and was, at
best, retaliatory.
A prima facie case of battery being present and there being no applicable
defenses, Peter will likely be liable for battery.

III. Peter’s actions against Dave and any potential defenses

Battery

I previously discussed the prima facie case of battery. In this case, Dave acted
with the intent, here the purpose, of causing harmful contact to Peter (or at least to the
person who was stealing his pumpkins) by coating his pumpkins with the chemical
known as Pumpkin Poison. Since the question of whether Dave acted with substantial
certainty of causing the requisite contact essentially reduces to the question of whether he
was substantially certain the pumpkin thief would both make an appearance and “take the
bait,” it would be a stretch to conclude that Dave was sufficiently confident of his plan to
constitute substantial certainty. However, since either purpose or substantial certainty will
provide the necessary intent for battery, and since Dave acted with purpose, the element
of intent is established.
Further, Dave’s conduct placed in motion events which in fact caused harmful
contact to Peter in that he experienced severe itching and burning to his hands and arms.
A prima facie case of battery is present.
The only potential defense Dave may have is defense of real or personal property.
One may use reasonable force, but never deadly force or force calculated to cause serious
bodily harm, in the defense of real or personal property.
In the present case, it does not appear that defense of either real or personal
property was what motivated Dave to batter Peter. Not only did Dave not act with the
intent of protecting his property, he also very much hoped Peter would enter the property
and steal the pumpkins so the chemical would cause pain to Peter. At best, Dave’s
conduct was retaliatory for earlier pumpkin thefts and does not constitute defense of real
property or personal property.
Dave will likely be liable for battery.

Assault

I previously discussed the elements for a prima facie case of assault.

After Peter struck Dave in the back of the head and knocked him to the floor,
Peter ran from the restroom and into the convenience store. Dave jumped to his feet and
followed Peter into the store. While chasing Peter, Dave screamed threats to kill Peter.
Peter heard these threats and ran as fast as he could toward the front door of the store.
Knowing that Dave was chasing him and hearing Dave’s threats, Peter suffered
reasonable apprehension of imminent harmful or offensive contact. The issue becomes
one of whether Dave acted with intent.
While it would appear that Dave’s purpose was to commit a battery against Peter,
he no doubt was substantially certain that his conduct would cause apprehension of a
battery. Since the element of intent is satisfied by either purpose to cause the basis of the
tort or substantial certainty that the basis of the tort will occur, Dave committed an
assault.
The only privilege remotely available to Dave is self-defense. However, as Peter
ran from the restroom after punching Dave in the back of the head, Peter had retreated
making Dave he aggressor for his subsequent conduct.
Peter will likely recover for assault.

IV. Dave’s actions against Fiona and any potential defenses

Battery

I previously discussed the prima facie case of battery.

Here, Fiona acted with the intent, both with purpose and substantial certainty, of
causing harmful contact to Dave when she struck him with the broom. Fiona in fact
caused harmful contact to Dave by striking him with the broom knocking him to the
floor, so there is a prima facie case of battery.
Fiona’s only potential defense is the privilege of defense of others.
The general rule is that one may use reasonable force in defense of others.
((The following information would not appear in your answer as the issue did not
arise – I have included it here for your review of the rules.) However, if one is mistaken
in the defense of others and actually batters the victim rather than the aggressor, one may
or may not be privileged depending on the rule applied by the pertinent jurisdiction.
Some jurisdictions examine the issue from the perspective of the apparent victim
and ask whether he would have been privileged to use self defense. If so, the defendant
is privileged as well. Since the apparent victim in a mistaken defense case is actually the
aggressor, he has no privilege of self defense so the defendant has no privilege either.
In other jurisdictions, the issue is examined from the perspective of the defendant.
If the defendant made a reasonable mistake in confusing the victim for the aggressor, he
will be privileged to defend the aggressor by battering the victim).
In the present case, the facts state that Fiona thought Dave was the aggressor.
Fiona was correct in her interpretation of the events, so this case does not present a
scenario for mistaken self-defense analysis.
While Peter was the original aggressor by punching Dave in the back of the head
in the restroom, afterward Peter ran from the restroom and toward the front door of the
store. Thus, Peter was in retreat.
By pursuing Peter and shouting threats to kill him, Dave’s conduct was retaliatory
and he, therefore, became the aggressor. Thus, Fiona appropriately defended Peter by
striking Dave with the broom. Further, given that Dave apparently suffered no serious
harm, the force Fiona used was likely reasonable force under the circumstances.
The privilege of defense of others will likely preclude Fiona’s liability for battery.

IV. Fiona’s actions against Dave and any potential defenses

Assault

I have previously listed the elements of assault.

Here, Dave threatened that he would punch Peter’s “lights out” and then “come
back here to do the same to you.”
It would appear that Dave’s purpose, or intent, was to cause apprehension of
imminent harmful or offensive contact, and he was probably successful in causing such
apprehension.
However, the apprehension must be reasonable and the threat of harmful contact
must be imminent. Mere words generally do not suffice and, instead, may actually negate
the threat of such contact.
In this instance, Dave used only words in threatening and those words tended to
negate any present intent to cause harmful contact with Fiona.
Accordingly, Fiona’s action for assault should fail.

Negligence

The prima facie case of negligence requires proof of duty, breach, cause in fact,
proximate cause and damages.
Since Dave’s conduct against Fiona presents the first instance of a potential action
sounding in negligence, it presents the first opportunity to address the criminal statute.
In certain instances, a court may, but is not obligated to, adopt a criminal statute
as an articulation of a specific standard of care beyond the ever-present duty of
reasonable care under the circumstances. The preliminary test involves the questions of
whether 1) the statute is a safety statute, 2) the plaintiff is in the class of persons intended
to be protected by the statute, and 3) the plaintiff suffered the type of harm the statute was
intended to prevent.
Applied to the present case, the statute was a safety statute as it was intended to
protect those engaged in the act of trick or treating from being harmed while engaged in
that activity. However, Fiona was not in the class of persons to be protected by the
statute because she was not engaged in the activity of trick or treating when she suffered
her harm. Fiona did suffer the type of harm the statute was intended to prevent because
she was harmed by a Halloween decoration. However, because she was not in the class
to be protected, the statute is not applicable as a standard of care.
Although the statute does not apply, Dave still owed to Fiona a duty of reasonable
care under the circumstances. The existence of a duty and the applicable standard of care
are matters of law decided by the court. The standard of reasonable care under the
circumstances is personified for the jury by comparing the defendant to the “reasonable
person.” An adult defendant, no other facts appearing to alter the standard, will be
compared to a person of ordinary mental attributes and the actual physical attributes of
the defendant. However, while the reasonable person’s mental attributes are never
diminished to match those of the defendant, the reasonable person does take on any
additional superior mental attributes of the defendant.
In the present case, there is no evidence that Dave had other than ordinary
physical attributes. However, Dave was trained as a chemist so the reasonable person
applicable to Dave also will be trained as a chemist if relevant.
A breach of the duty of reasonable care under the circumstances is established by
proof that the defendant failed to act reasonably under the circumstances by exposing the
plaintiff to an unreasonable and foreseeable risk of harm. In other words, the defendant
acted in such a way that he could foresee causing harm to the plaintiff through his
conduct. It is this general foreseeability of risk of some type of harm to the plaintiff that
makes the defendant’s conduct unreasonable.
In the present case, Dave coated his pumpkins with a chemical that caused pain to
anyone who came into contact with the chemical. This act alone is probably a breach of
the duty of reasonable care. However, more pertinent to Fiona, Dave left the pumpkins in
the parking lot of the convenience store. Dave even paused for a moment to consider
removing the pumpkins so no one else would be harmed, establishing that, by his conduct
in leaving the pumpkins in the parking lot, Dave could foresee harm to someone else.
Thus, Dave breached his duty of reasonable care to Fiona.
Dave’s negligent act was the cause in fact of Fiona’s harm because, but for
Dave’s negligent act of leaving the chemical coated pumpkins in the parking lot, Fiona
would not have suffered damages. Stated another way, if Dave had not left the harmful
pumpkins in the parking lot, Fiona would not fallen and bumped her head, suffered the
pain and itching in her arms, or collapsed due to breathing problems associated with her
allergic reaction.
Proximate cause, though used to limit liability based on policy, is generally a
question of whether the particular type of harm the plaintiff suffered was the type of harm
that the defendant could foresee when he engaged in negligent conduct. It is certainly no
stretch to conclude that, by negligently leaving the pumpkins in the parking lot, Fiona
would suffer itching and burning to her hands and arms because this was the intended
purpose of the chemical in the first instance. Further, it is reasonably foreseeable that
someone might trip over the pumpkins and suffer damages. The facts even state that
Dave “thought about removing the offensive pumpkin remains from the parking lot so
that no one else would be harmed, either from slipping and falling or from the chemical
he applied to the pumpkins.” Thus, Dave’s negligent conduct proximately caused Fiona’s
damages regarding the harm from falling and the pain and itching to her arms.
However, an issue arises as to whether Dave could foresee that the chemical
would cause Fiona to experience shortness of breath and to collapse. While Dave was
trained as a chemist and will be compared to the reasonable person with the same
training, the problem states that experts would agree that Fiona’s allergic reaction to the
chemical was so rare that even a trained chemist could not suspect that such a reaction
would occur.
It would seem that Dave may be liable for the harm to Fiona’s arms and hands but
not for the harm caused by her allergic reaction.
However, by rule of law, where the defendant causes foreseeable harm to the
plaintiff, the defendant is liable for all harm, even unforeseeable harm.
 This rule is sometimes referred to as the “thin skull” or “eggshell skull” rule. If
the plaintiff is more susceptible to harm due to a pre-existing physical ailment, the
defendant will remain liable for the extended harm provided he caused foreseeable harm
as well.
Applied to the present case, Dave could foresee that by leaving the pumpkins in
the parking lot, Fiona might touch the pumpkins and experience pain and itching in her
arms and legs and that she might fall and get hurt. Fiona’s “eggshell skull” was her rare
allergy. By causing foreseeable harm, Dave is liable for all harm and even unforeseeable
harm arising from Fiona’s allergic reaction.
However, Fiona may well have committed her own act of negligence such that
she will be barred from recovery in this Contributory Negligence jurisdiction.
Fiona owes a duty of reasonable care to herself, which she breached by failing to
act reasonably while negotiating her way around the pumpkins in the parking lot. In other
words, by her conduct she created an unreasonable and foreseeable risk of harm to
herself.
She was aware of the presence of the pumpkins and saw the “slippery remains,”
yet because of her anger she slipped and fell. Since her negligence “contributed” to her
injuries, her contributory negligence will preclude her from recovering for the damages
associated with her fall and bump to the head but has no bearing on her recovery for the
pain and itching to her arms as her negligence did not contribute to that portion of her
damages.
Of course, Fiona was also bitten by the stray dog wandering around the parking
lot.
There is no general duty to rescue. However, one exception applies where the
defendant placed the plaintiff in danger. In that instance, the defendant does have a duty
to rescue, to protect, to render aid and assistance.
Since Dave left his pumpkins in the parking lot, he created a risk of harm to
Fiona. Accordingly, he had a duty to protect her or render aid and assistance.
Because Dave created the peril, and particularly in light of the fact that he saw the
dog in the parking lot, his failure to render assistance to the unconscious Fiona was a
breach of the duty or reasonable care.
His breach was the cause in fact for the damages.
The dog would likely be viewed as an intervening act of nature, but one that was
reasonably foreseeable as a matter of proximate cause – particularly since Dave actually
saw the dog in the parking lot before it bit Fiona. Since the intervening cause and Fiona’s
damages, the bite, are foreseeable, proximate cause exists.
And, of course, there are damages.
Again, Fiona’s contributory negligence would not appear to have contributed to
her dog bit in any foreseeable fashion.
Finally, the potential for a plaintiff being harmed again while being rescued,
including during the course of treatment, is reasonably foreseeable. Thus, Dave will also
be liable for the damages Fiona incurred from her physician’s malpractice.