You know that sinking feeling when an MBE question starts with “A woman approached a man in a parking lot”? Your brain immediately scrambles: Is this battery? Assault? Both? Wait, did she actually touch him? Intentional torts questions are some of the most frequently tested on the MBE, and they’re designed to exploit the tiny distinctions you haven’t nailed down. Let’s fix that.
Why Intentional Torts Trip Up So Many Bar Examinees
The intentional torts tested on the MBE—battery, assault, false imprisonment, and intentional infliction of emotional distress (IIED)—seem straightforward until you’re staring at a fact pattern where someone swings a bat, misses, and hits a bystander. Suddenly you’re juggling transferred intent, the difference between harmful contact and apprehension of contact, and whether “I’m going to kill you next week” counts as assault (spoiler: it doesn’t).
The NCBE loves these torts because each one has a precise four-element test, and changing a single word in the fact pattern can flip the answer. You need more than a general sense of what these torts mean. You need the elements cold.
Battery: It’s About Contact, Not Harm
Battery is an act by the defendant that causes harmful or offensive contact with the plaintiff’s person. Here’s what that actually requires:
- An act by the defendant
- Intent to cause harmful or offensive contact (or imminent apprehension of contact)
- Harmful or offensive contact results
Notice what’s missing: you don’t need intent to harm. You only need intent to make contact. If I intentionally tap you on the shoulder to get your attention and you’re a hemophiliac who bruises easily, that’s still battery. I intended the contact. The harm that resulted is irrelevant to the intent element.
The “person” element is broader than you think. It includes anything connected to the plaintiff—clothing, a purse they’re holding, even a plate of food in their hands. Knock someone’s hat off? That’s contact with their person.
Here’s where transferred intent becomes crucial. If I throw a rock intending to hit you but strike your friend instead, my intent transfers. I’m liable for battery against your friend even though I never intended to hit them. Transferred intent applies among five torts: battery, assault, false imprisonment, trespass to land, and trespass to chattels. Memorize that list.
Assault: Apprehension, Not Fear
Assault is where students lose easy points because they confuse it with everyday language. Assault is not hitting someone—that’s battery. Assault is creating a reasonable apprehension in the plaintiff of imminent harmful or offensive contact.
The elements are:
- An act by the defendant
- Intent to cause harmful or offensive contact or apprehension of contact
- Reasonable apprehension of imminent contact
- Plaintiff must be aware of the threat
“Imminent” is the killer word here. Threats of future harm don’t count. “I’m going to punch you tomorrow” is not assault. “I’m about to punch you right now” while raising a fist absolutely is, assuming the plaintiff sees it coming.
That awareness requirement matters. If I swing at you from behind and miss, and you never knew I was there, there’s no assault. You can’t have apprehension of something you didn’t perceive. But if I swing and hit you? That’s battery, even without assault.
Words alone are generally insufficient for assault. You need an overt act. But words can negate what would otherwise be assault: “I’d punch you if you weren’t my brother” combined with a raised fist typically negates the threat because it shows present intent not to follow through.
False Imprisonment: Bounded Areas and Reasonable Escape
False imprisonment is the intentional confinement of another to a bounded area. Students often recognize the obvious scenarios—locking someone in a room—but miss the nuances.
The elements:
- An act or omission that confines the plaintiff
- Intent to confine
- Plaintiff is confined to a bounded area with no reasonable means of escape
- Plaintiff is aware of the confinement or harmed by it
“Bounded area” doesn’t mean small. You can falsely imprison someone in a large building if all exits are blocked. But the area must actually be bounded—if there’s a reasonable means of escape that the plaintiff knows about, there’s no confinement. Reasonable is key. The plaintiff doesn’t have to climb out a second-story window or risk serious harm to escape.
Moral pressure and future threats don’t count as confinement. If I say “You’ll be fired if you leave this room,” that’s not false imprisonment. But if I physically block the door or threaten immediate physical harm, that is.
The awareness requirement has an important exception: if the plaintiff is harmed by the confinement (say, they’re unconscious and miss a critical meeting), they can recover even without awareness.
One defense you must know: shopkeeper’s privilege. A merchant can detain a suspected shoplifter without committing false imprisonment if: (1) the merchant has a reasonable belief that theft occurred, (2) the detention is conducted in a reasonable manner, and (3) it lasts only for a reasonable time to investigate. All three requirements must be met. Detain someone for three hours while you slowly review footage? You’ve exceeded reasonable time and lost the privilege.
IIED: When Conduct Exceeds All Bounds of Decency
Intentional infliction of emotional distress is the hardest intentional tort to prove because the conduct must be truly extreme. The elements:
- Extreme and outrageous conduct by the defendant
- Intent to cause severe emotional distress or recklessness as to the effect
- Causation
- Plaintiff suffers severe emotional distress
“Extreme and outrageous” means conduct that exceeds all bounds of decency tolerated in a civilized society. The bar is high. Insulting someone, yelling at them, even calling them names—that’s typically not enough. Courts are looking for conduct that would make a reasonable person say “that’s absolutely intolerable.”
Classic examples: a bill collector who repeatedly calls a debtor late at night claiming their spouse has been in a fatal accident to pressure payment. A supervisor who fires an employee by having security forcibly drag them out while mocking them. Conduct directed at vulnerable individuals (pregnant women, elderly persons, children) is more likely to be considered outrageous.
Reckless conduct satisfies the intent element. The defendant doesn’t need to desire to cause distress—reckless disregard for a high probability of causing it is enough.
You don’t need physical harm for IIED, but you do need severe emotional distress. “Severe” means more than temporary upset or embarrassment. Think distress that requires medical or psychiatric treatment, or that significantly disrupts the plaintiff’s daily functioning.
Bystander recovery for IIED has specific rules. A close family member present during the outrageous conduct can recover if: (1) they’re a close family relative of the primary victim, (2) the defendant knows the bystander is present, and (3) the bystander suffers severe emotional distress. Non-family bystanders can recover only if they suffer bodily harm from the distress—a much higher bar.
How These Torts Overlap (And When They Don’t)
The NCBE loves fact patterns where multiple torts occur simultaneously. A defendant who punches the plaintiff commits battery (harmful contact). If the plaintiff saw the punch coming, that’s also assault (apprehension of imminent contact). If the defendant then locks the plaintiff in a room, add false imprisonment.
Transferred intent connects these torts in unexpected ways. If I intend to falsely imprison you but accidentally batter you instead, the intent transfers. But transferred intent only works among those five original trespass torts. It doesn’t apply to IIED. You can’t intend to commit assault and have that intent transfer to create IIED.
Here’s a hypothetical that combines several issues: Defendant approaches Plaintiff in a store, yells “I’m going to beat you senseless,” raises a fist, then grabs Plaintiff’s arm and drags them to a back room, locking the door for 30 minutes while continuing to threaten them.
Break it down: The raised fist with threat creates assault (apprehension of imminent contact). Grabbing the arm is battery (harmful or offensive contact). Locking them in the room is false imprisonment (confinement to bounded area). The ongoing threats in the locked room might rise to IIED depending on severity and whether Plaintiff suffers severe distress. That’s four potential torts from one continuous course of conduct.
What You Actually Need to Memorize
Stop trying to learn these torts through narrative explanations. You need the elements in a format that supports active recall. For each tort, you should be able to list all required elements from memory, in order, without hesitation.
For battery: act, intent to cause contact or apprehension, contact results.
For assault: act, intent to cause contact or apprehension, reasonable apprehension of imminent contact, plaintiff aware.
For false imprisonment: act/omission confining plaintiff, intent to confine, bounded area with no reasonable escape, plaintiff aware or harmed.
For IIED: extreme and outrageous conduct, intent or recklessness, causation, severe emotional distress.
Drill these until you can write them out in 30 seconds or less. Then drill the distinctions: What makes contact harmful or offensive? What makes apprehension reasonable? What makes an area bounded? What makes conduct extreme and outrageous?
If you want all 88 torts rules organized for active recall—including these intentional torts plus negligence, strict liability, and nuisance—FlashTables structures everything in two-column tables designed specifically for memorization. The format forces you to test yourself on elements and distinctions rather than passively rereading outlines.
The Bottom Line
Intentional torts questions are free points if you know the elements cold. They’re point-losers if you’re fuzzy on the distinctions between contact and apprehension, between confinement and mere inconvenience, between offensive conduct and truly outrageous conduct.
Don’t rely on intuition. An MBE question will describe conduct that feels like assault but lacks the awareness element, or seems like false imprisonment but includes a reasonable means of escape. The examiners are testing whether you know the precise legal requirements, not whether you have a general sense of right and wrong.
Master the four-element tests. Understand transferred intent. Know when shopkeeper’s privilege applies and when it doesn’t. Distinguish severe emotional distress from ordinary upset. These rules are mechanical. Learn the machinery, and you’ll spot the right answer in seconds while other examinees waste time debating between two choices that both sound plausible.
That’s the difference between guessing and knowing on test day.