Torts – Fall 2007 – Prof. Lasso
* Specific conduct: describe the D’s conduct being evaluated
a. Proving specific conduct
i. Direct evidence, circumstantial, expert opinion
mantra: In order to recover damages, P must prove (by a preponderance of evidence) the elements of a prima facie case and must overcome D’s defenses.∏ can recover if he can prove all the elements of a battery “prima facie” case and can overcome all defenses.
Intentional Causes of Action
RECOVERY for BATTERY
Applicable rule(s):A person is subject to liability for battery when s/he acts intending to cause a harmful or offensive contact, and when a harmful or offensive contact directly or indirectly results.
P needs to prove all four elements in order to establish a prima facie case for battery:
1. Intent to cause a harmful or offensive contact
2. Actual harmful and offensive contact
a. PRIMA FACIE CASE (Elements of the cause of action)
i. Intent to cause harmful or offensive contact – May be established by showing intent to inflict personal injury or intent to offend. Words + actions determine whether there was intent (the overall circumstances).
Tests to prove intent to cause a harmful or offensive contact include: Purposeful desire, Substantial certainty and Transferred Intent.
i. purposeful desire to harm or offend; must be a deliberate desire to cause harmful or offensive contact. Intent to act not enough.
1. must be deliberate
2. intent to act not enough
ii. knowledge that act is substantially certain to result in a harmful or offense; The element of intent can also be proven by applying the substantial certainty test. Knowledge that act is substantially certain to result in harmful or offense.
Rule: Reasonable person standard. Whether a reasonable person in the place of the plaintiff could have known to a substantial certainty that his actions would cause apprehension of imminent harmful or offensive contact.
c. transferred intent: the defendant intended to harm one person but ended up harming another one or defendant intends to commit one tort but ends up committing another one. Rule: Under the doctrine of transferred intent, an act can be transferred among different torts or among different people, to an unintended
Enough for the contact to be “offensive to a reasonable person’s sense of dignity” (Snyder v Turk – Dr offended the nurse in the OR by yelling at her) – Not always required to show intent to inflict personal injury – enough to show intent to offend (Snyder v Turk – Dr. offended nurse dignity; he never physically hurt her) –
A contact can be offensive if D knows that P finds the contact offensive and proceeds with it anyways [Cohen v. Smith (hospital did not respect religious beliefs while specifically told and consented to them) and Leichtman v Jocor Communications (smoke was offensive b/c guest was antismoking advocate)] A contact may be direct (D touches P) or indirect (Leichtman v Jocor Communications – smoke blown) (gunshot, poison in a drink)
“Every human being of adult years and sound mind has a right to determine what shall be done with her own body” (Cardozo in the Cohen v. Smith case)