July 7, 2025 • 12 mins
Welcome back to the Bar Exam Toolbox podcast! We're continuing our summary of topics from Torts we've covered in our "Listen and Learn" series. Today we're discussing person-based and property-based intentional torts, as well as defamation. We also go through the defenses to intentional torts and provide a plan for answering intentional tort questions on the bar exam.
In this episode, we discuss:
- Person-based intentional torts
- Property-based intentional torts
- The required elements of defamation
- Available defenses to intentional torts
- Intentional torts versus negligence
- Exam strategy and a hypothetical scenario
Resources:
- Private Bar Exam Tutoring (https://barexamtoolbox.com/private-bar-exam-tutoring/)
- Podcast Episode 103: Listen and Learn – Assault and Battery (https://barexamtoolbox.com/podcast-episode-103-listen-and-learn-assault-and-battery/)
- Podcast Episode 104: Listen and Learn – Intentional Torts: Defamation (https://barexamtoolbox.com/podcast-episode-104-listen-and-learn-intentional-torts-defamation/)
- Podcast Episode 252: Listen and Learn – Property-Based Intentional Torts (https://barexamtoolbox.com/podcast-episode-252-listen-and-learn-property-based-intentional-torts/)
- Podcast Episode 314: Listen and Learn – False Imprisonment and Shopkeeper's Privilege (Torts) (https://barexamtoolbox.com/podcast-episode-314-listen-and-learn-false-imprisonment-and-shopkeepers-privilege-torts/)
Download the Transcript
(https://barexamtoolbox.com/episode-317-spotlight-on-torts-part-2-intentional-torts/)
If you enjoy the podcast, we'd love a nice review and/or rating on Apple Podcasts (https://itunes.apple.com/us/podcast/bar-exam-toolbox-podcast-pass-bar-exam-less-stress/id1370651486) or your favorite listening app. And feel free to reach out to us directly. You can always reach us via the contact form on the Bar Exam Toolbox website (https://barexamtoolbox.com/contact-us/). Finally, if you don't want to miss anything, you can sign up for podcast updates (https://barexamtoolbox.com/get-bar-exam-toolbox-podcast-updates/)!
Thanks for listening!
Alison & Lee
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Lee Burgess (00:02):
Welcome to the Bar Exam Toolbox podcast.
Today we have another episode inour substantive spotlight series.
Today we're talking about torts- specifically, intentional torts.
Your Bar Exam Toolbox hosts are AlisonMonaghan and Lee Burgess, that's me.
We're here to demystify the barexam experience, so you can study
effectively, stay sane, and hopefullypass and move on with your life.
(00:24):
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
career-related website CareerDicta.
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review on your favorite listening
app, and check out our sister podcast,the Law School Toolbox podcast.
If you have any questions, don'thesitate to reach out to us.
You can reach us via the contactform on BarExamToolbox.com,
(00:45):
and we'd love to hear from you.
And with that, let's get started.
Welcome back to substantivespotlight, where we are continuing
our tour through the world of torts.
Today we're diving into intentionaltorts - the original wrongs in our
(01:07):
legal system that date back centuries.
Think of these as the deliberateactions that make you go, "Oh no,
you didn't!" Unlike negligence, wheresomeone accidentally causes harm,
intentional torts involve - well, intent.
What's fascinating about intentionaltorts is their directness.
There's something almostprimal about them.
(01:28):
Hit someone - that's battery.
Threaten to hit them - that's assault.
Take their stuff - conversionor trespass to channels.
These concepts are so fundamentalto our legal system that they formed
the backbone of early common law.
Today we are going to synthesize thekey concepts from our "Listen and Learn"
series, and I'll give you strategiesto tackle these issues on an exam.
(01:53):
So, buckle up; we'reabout to get intentional.
Let's start with theperson-based intentional torts.
These involve harm or threatenedharm to an individual's physical
being or emotional wellbeing.
The big three here are battery,assault, and false imprisonment.
Battery is the intentional infliction ofa harmful or offensive bodily contact.
This has two key elements (02:17):
[1] intent to cause contact or knowledge to a
substantial certainty that contactwill occur; and [2] harmful or
offensive contact actually occurs.
Remember, "intent" doesn't necessarilymean you intended to harm someone.
It just means you intended the contact.
(02:40):
If I playfully push you intoa pool not knowing you can't
swim - that's still battery.
I intended the contact, even if Ididn't intend the drowning risk.
And contact doesn't have to be direct.
It can be through an object, or evensomething connected to the person.
Pulling a chair out from undersomeone about to sit - battery.
(03:04):
Grabbing someone's purse whilethey're holding it - battery
through an object connected to them.
As long as the contact wasintentional and either harmful or
offensive, you've got a battery.
Next up is assault - the intentionalinfliction of a reasonable
apprehension of an imminent harmfulor offensive bodily contact.
(03:26):
Notice how similar this is to battery,except no contact actually occurs.
Instead, the harm is the fearor apprehension of contact.
A classic example that we discussedin our "Listen and Learn" episode:
waving a knife at someone whosees it and fears being cut.
The victim didn't get cut, sono battery, but they reasonably
(03:49):
feared it, which is assault.
One critical detail (03:51):
Words alone aren't enough for assault.
"I'm going to hit youtomorrow" isn't assault.
"I'm going to hit you right now", whileraising your fist, definitely could be.
Then there's false imprisonment - theintentional confinement of another
person within fixed boundaries, withoutlawful privilege or the person's consent.
(04:16):
As we covered in our recent "Listenand Learn" episode, this requires,
[1] an intent to confine; [2] actualconfinement within fixed boundaries;
and [3] the person is either aware ofthe confinement or is harmed by it.
False imprisonment doesn't requirelocked doors or physical restraints.
(04:36):
Threats, or even impliedthreats, can be enough.
If a store security guard tells asuspected shoplifter "You can't leave
until you empty your pockets" - thatmight constitute false imprisonment.
But store owners aren'tcompletely defenseless.
They have the shopkeeper's privilege,which allows for reasonable detention
(04:57):
to investigate suspected shoplifting.
The key word is "reasonable",both in grounds for suspicion
and duration of detention.
Holding someone for hours over a suspectedcandy bar theft - not reasonable.
A brief questioning with legitimatesuspicion - probably protected.
(05:18):
Let's pivot to property-basedintentional torts.
These involve interference withsomeone's land or personal property.
The main three are trespass to land,trespass to chattels, and conversion.
Trespass to land occurs when someoneintentionally enters or remains on
another's land without permission.
(05:39):
As we have explored in our episodes,the key elements are, [1] intent to
be on the land, not necessarily totrespass; [2] physical entry, remaining,
or causing an object to enter the land.
Remember, damage to theland isn't required.
Simply stepping foot on someone's propertywithout permission can be trespass.
(06:03):
And there's no de minimis exception- even momentary intrusions count.
Now what about personal property?
That's covered by trespassto chattels and conversion.
As we explained in a "Listen and Learn"episode, think of these as siblings - they
both involve interference with personalproperty, but they differ in degree.
(06:26):
Trespass to chattels is theintentional interference with
another's personal property thatcauses minor damage or deprivation.
Conversion is essentially the same,but involves substantial interference.
The difference matters for remedies- trespass to chattels gets you compensation
for the damage, while conversiongets you the full value of the item.
(06:48):
Borrowing your roommate's laptop withoutpermission and returning it with a
broken key - trespass to chattels.
Taking that same laptop and sellingit on eBay - that's conversion.
Now let's talk about a particularlyinteresting intentional tort
- defamation, which we covered in anearly "Listen and Learn" episode.
(07:08):
Defamation is a false statement offact about the plaintiff that is
communicated to a third party and causesharm to the plaintiff's reputation.
The elements here are, [1] a falsestatement of fact, not opinion; [2]
about the plaintiff; [3] publication toa third party; [4] fault - negligence
(07:30):
for private figures, actual malice forpublic figures; and [5] damages, unless
the statement is defamatory per se.
Defamation comes in two flavors - libel,which is written defamation; and
slander, which is spoken defamation.
Remember that truth is anabsolute defense to defamation.
If you say something true, nomatter how harmful to someone's
(07:53):
reputation, it's not defamatory.
Another critical distinctionpublic figures have a higher
burden in defamation cases.
They must prove actual malice,meaning the statement was made
with knowledge of its falsity orreckless disregard for the truth.
That is why it's so hard forcelebrities to win defamation cases.
(08:16):
What about defenses to intentional torts?
The most common are consent, self-defense,defense of others, and necessity.
Consent can be expressed or implied.
If you sign up for a boxing match,you've expressly consented to being
punched, within the rules of the sport.
If you stand in line at a crowdedconcert, you've implicitly
(08:37):
consented to reasonable jostling.
Self-defense allows reasonable forceto protect yourself from imminent harm.
The key is proportionality - youcan't use deadly force unless
you reasonably fear deadly harm.
And remember, once the threat ends,so does your right to self-defense.
(08:57):
Necessity comes in twoforms - private and public.
Private necessity, which isprotecting yourself or a small
group, is only a partial defense.
You avoid liability for the tort,but still pay for any damages.
Public necessity - protecting thepublic at large - is a complete
defense, with no damage liability.
We've got great examples in our "Listenand Learn" episode that covers this topic.
(09:22):
So, what makes Intentionaltorts different from negligence?
Three big things:
1. Intent versus accident - intentionaltorts require purposeful action.
2. Available defenses - differentdefenses apply to intentional
versus negligent acts.
3. Damages - some intentional torts allowfor recovery with only minimal harm,
(09:45):
while negligence requires actual damages.
Here's your attack plan for analyzingintentional tort questions on an exam:
One, identify the specific torts at issue.
Is there physical contact?
Consider battery.
Is there fear of contact?
Consider assault.
Is there confinement?
(10:05):
Consider false imprisonment.
Is there entry onto land?
Consider trespass to land.
Is there interferencewith personal property?
Consider trespass tochattels or conversion.
Is there harm to reputation?
Consider defamation.
Then analyze each element carefully.
Focus on intent - what exactlydid the defendant intend?
(10:27):
Look for transferred intentpossibilities and check for
actual damage where required.
Then consider all potential defenses.
Was there consent?
Was there justification likeself-defense or necessity?
And for defamation,was the statement true?
Let's try a quick hypo (10:44):
Dan is angry with Paula and swings
a baseball bat at her head.
He misses Paula, but hits andbreaks Vince's expensive vase that
was sitting on a nearby table.
What intentional torts might be present?
So, let's break it down.
Assault against Paula - yes.
Dan intended to create reasonable fear
of harmful contact.
(11:05):
Battery against Paula - no.
No actual contact occurred.
Battery against the vase - well, no.
The vase isn't a person.
Trespass to chattels or conversionregarding Vince's vase - yes,
through transferred intent.
Dan's intent to commit batteryagainst Paula transfers to the
property tort against Vince's vase.
(11:27):
Damages - well, substantial harmto the vase suggests conversion
rather than trespass to chattels.
Remember, on the exam thefacts often suggest multiple
torts from a single incident.
Don't just spot theobvious one and move on.
Think about all possible legal theories.
For deeper dives into these topics,check out our "Listen and Learn"
(11:49):
series episodes on assault and battery,defamation, false imprisonment, and
property-based intentional torts.
Each episode walks through real bar examquestions with detailed analysis, and
all our linked to in the show notes.
In the next episode, we'll explorestrict liability and vicarious
liability - situations where defendantscan be liable regardless of fault,
(12:11):
or for someone else's actions.
We'll cover products liability,respondeat superior, and
defenses like assumption of risk.
If you enjoyed this episode of theBar Exam Toolbox podcast, please
take a second to leave a review andrating on your favorite listening app.
We would really appreciate it.
And be sure to subscribeso you don't miss anything.
If you have any questions or comments,please don't hesitate to reach out to
(12:33):
myself or Alison at lee@barexamtoolbox.comor alison@barexamtoolbox.com.
Or you can always contactus via our website contact
form at BarExamToolbox.com.
Thanks for listening, and we'll talk soon!
Welcome to the Bar Exam Toolbox podcast.
Today we have another episode inour substantive spotlight series.
Today we're talking about torts- specifically, intentional torts.
Your Bar Exam Toolbox hosts are AlisonMonaghan and Lee Burgess, that's me.
We're here to demystify the barexam experience, so you can study
effectively, stay sane, and hopefullypass and move on with your life.
(00:24):
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
career-related website CareerDicta.
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review on your favorite listening
app, and check out our sister podcast,the Law School Toolbox podcast.
If you have any questions, don'thesitate to reach out to us.
You can reach us via the contactform on BarExamToolbox.com,
(00:45):
and we'd love to hear from you.
And with that, let's get started.
Welcome back to substantivespotlight, where we are continuing
our tour through the world of torts.
Today we're diving into intentionaltorts - the original wrongs in our
(01:07):
legal system that date back centuries.
Think of these as the deliberateactions that make you go, "Oh no,
you didn't!" Unlike negligence, wheresomeone accidentally causes harm,
intentional torts involve - well, intent.
What's fascinating about intentionaltorts is their directness.
There's something almostprimal about them.
(01:28):
Hit someone - that's battery.
Threaten to hit them - that's assault.
Take their stuff - conversionor trespass to channels.
These concepts are so fundamentalto our legal system that they formed
the backbone of early common law.
Today we are going to synthesize thekey concepts from our "Listen and Learn"
series, and I'll give you strategiesto tackle these issues on an exam.
(01:53):
So, buckle up; we'reabout to get intentional.
Let's start with theperson-based intentional torts.
These involve harm or threatenedharm to an individual's physical
being or emotional wellbeing.
The big three here are battery,assault, and false imprisonment.
Battery is the intentional infliction ofa harmful or offensive bodily contact.
This has two key elements (02:17):
[1] intent to cause contact or knowledge to a
substantial certainty that contactwill occur; and [2] harmful or
offensive contact actually occurs.
Remember, "intent" doesn't necessarilymean you intended to harm someone.
It just means you intended the contact.
(02:40):
If I playfully push you intoa pool not knowing you can't
swim - that's still battery.
I intended the contact, even if Ididn't intend the drowning risk.
And contact doesn't have to be direct.
It can be through an object, or evensomething connected to the person.
Pulling a chair out from undersomeone about to sit - battery.
(03:04):
Grabbing someone's purse whilethey're holding it - battery
through an object connected to them.
As long as the contact wasintentional and either harmful or
offensive, you've got a battery.
Next up is assault - the intentionalinfliction of a reasonable
apprehension of an imminent harmfulor offensive bodily contact.
(03:26):
Notice how similar this is to battery,except no contact actually occurs.
Instead, the harm is the fearor apprehension of contact.
A classic example that we discussedin our "Listen and Learn" episode:
waving a knife at someone whosees it and fears being cut.
The victim didn't get cut, sono battery, but they reasonably
(03:49):
feared it, which is assault.
One critical detail (03:51):
Words alone aren't enough for assault.
"I'm going to hit youtomorrow" isn't assault.
"I'm going to hit you right now", whileraising your fist, definitely could be.
Then there's false imprisonment - theintentional confinement of another
person within fixed boundaries, withoutlawful privilege or the person's consent.
(04:16):
As we covered in our recent "Listenand Learn" episode, this requires,
[1] an intent to confine; [2] actualconfinement within fixed boundaries;
and [3] the person is either aware ofthe confinement or is harmed by it.
False imprisonment doesn't requirelocked doors or physical restraints.
(04:36):
Threats, or even impliedthreats, can be enough.
If a store security guard tells asuspected shoplifter "You can't leave
until you empty your pockets" - thatmight constitute false imprisonment.
But store owners aren'tcompletely defenseless.
They have the shopkeeper's privilege,which allows for reasonable detention
(04:57):
to investigate suspected shoplifting.
The key word is "reasonable",both in grounds for suspicion
and duration of detention.
Holding someone for hours over a suspectedcandy bar theft - not reasonable.
A brief questioning with legitimatesuspicion - probably protected.
(05:18):
Let's pivot to property-basedintentional torts.
These involve interference withsomeone's land or personal property.
The main three are trespass to land,trespass to chattels, and conversion.
Trespass to land occurs when someoneintentionally enters or remains on
another's land without permission.
(05:39):
As we have explored in our episodes,the key elements are, [1] intent to
be on the land, not necessarily totrespass; [2] physical entry, remaining,
or causing an object to enter the land.
Remember, damage to theland isn't required.
Simply stepping foot on someone's propertywithout permission can be trespass.
(06:03):
And there's no de minimis exception- even momentary intrusions count.
Now what about personal property?
That's covered by trespassto chattels and conversion.
As we explained in a "Listen and Learn"episode, think of these as siblings - they
both involve interference with personalproperty, but they differ in degree.
(06:26):
Trespass to chattels is theintentional interference with
another's personal property thatcauses minor damage or deprivation.
Conversion is essentially the same,but involves substantial interference.
The difference matters for remedies- trespass to chattels gets you compensation
for the damage, while conversiongets you the full value of the item.
(06:48):
Borrowing your roommate's laptop withoutpermission and returning it with a
broken key - trespass to chattels.
Taking that same laptop and sellingit on eBay - that's conversion.
Now let's talk about a particularlyinteresting intentional tort
- defamation, which we covered in anearly "Listen and Learn" episode.
(07:08):
Defamation is a false statement offact about the plaintiff that is
communicated to a third party and causesharm to the plaintiff's reputation.
The elements here are, [1] a falsestatement of fact, not opinion; [2]
about the plaintiff; [3] publication toa third party; [4] fault - negligence
(07:30):
for private figures, actual malice forpublic figures; and [5] damages, unless
the statement is defamatory per se.
Defamation comes in two flavors - libel,which is written defamation; and
slander, which is spoken defamation.
Remember that truth is anabsolute defense to defamation.
If you say something true, nomatter how harmful to someone's
(07:53):
reputation, it's not defamatory.
Another critical distinctionpublic figures have a higher
burden in defamation cases.
They must prove actual malice,meaning the statement was made
with knowledge of its falsity orreckless disregard for the truth.
That is why it's so hard forcelebrities to win defamation cases.
(08:16):
What about defenses to intentional torts?
The most common are consent, self-defense,defense of others, and necessity.
Consent can be expressed or implied.
If you sign up for a boxing match,you've expressly consented to being
punched, within the rules of the sport.
If you stand in line at a crowdedconcert, you've implicitly
(08:37):
consented to reasonable jostling.
Self-defense allows reasonable forceto protect yourself from imminent harm.
The key is proportionality - youcan't use deadly force unless
you reasonably fear deadly harm.
And remember, once the threat ends,so does your right to self-defense.
(08:57):
Necessity comes in twoforms - private and public.
Private necessity, which isprotecting yourself or a small
group, is only a partial defense.
You avoid liability for the tort,but still pay for any damages.
Public necessity - protecting thepublic at large - is a complete
defense, with no damage liability.
We've got great examples in our "Listenand Learn" episode that covers this topic.
(09:22):
So, what makes Intentionaltorts different from negligence?
Three big things:
1. Intent versus accident - intentionaltorts require purposeful action.
2. Available defenses - differentdefenses apply to intentional
versus negligent acts.
3. Damages - some intentional torts allowfor recovery with only minimal harm,
(09:45):
while negligence requires actual damages.
Here's your attack plan for analyzingintentional tort questions on an exam:
One, identify the specific torts at issue.
Is there physical contact?
Consider battery.
Is there fear of contact?
Consider assault.
Is there confinement?
(10:05):
Consider false imprisonment.
Is there entry onto land?
Consider trespass to land.
Is there interferencewith personal property?
Consider trespass tochattels or conversion.
Is there harm to reputation?
Consider defamation.
Then analyze each element carefully.
Focus on intent - what exactlydid the defendant intend?
(10:27):
Look for transferred intentpossibilities and check for
actual damage where required.
Then consider all potential defenses.
Was there consent?
Was there justification likeself-defense or necessity?
And for defamation,was the statement true?
Let's try a quick hypo (10:44):
Dan is angry with Paula and swings
a baseball bat at her head.
He misses Paula, but hits andbreaks Vince's expensive vase that
was sitting on a nearby table.
What intentional torts might be present?
So, let's break it down.
Assault against Paula - yes.
Dan intended to create reasonable fear
of harmful contact.
(11:05):
Battery against Paula - no.
No actual contact occurred.
Battery against the vase - well, no.
The vase isn't a person.
Trespass to chattels or conversionregarding Vince's vase - yes,
through transferred intent.
Dan's intent to commit batteryagainst Paula transfers to the
property tort against Vince's vase.
(11:27):
Damages - well, substantial harmto the vase suggests conversion
rather than trespass to chattels.
Remember, on the exam thefacts often suggest multiple
torts from a single incident.
Don't just spot theobvious one and move on.
Think about all possible legal theories.
For deeper dives into these topics,check out our "Listen and Learn"
(11:49):
series episodes on assault and battery,defamation, false imprisonment, and
property-based intentional torts.
Each episode walks through real bar examquestions with detailed analysis, and
all our linked to in the show notes.
In the next episode, we'll explorestrict liability and vicarious
liability - situations where defendantscan be liable regardless of fault,
(12:11):
or for someone else's actions.
We'll cover products liability,respondeat superior, and
defenses like assumption of risk.
If you enjoyed this episode of theBar Exam Toolbox podcast, please
take a second to leave a review andrating on your favorite listening app.
We would really appreciate it.
And be sure to subscribeso you don't miss anything.
If you have any questions or comments,please don't hesitate to reach out to
(12:33):
myself or Alison at lee@barexamtoolbox.comor alison@barexamtoolbox.com.
Or you can always contactus via our website contact
form at BarExamToolbox.com.
Thanks for listening, and we'll talk soon!
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