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John Marshall Law School, Chicago
Lasso, Rogelio A.

Torts-Lasso-Fall 2013
To recover damages, P’s atty must (1) establish prima facia case (by a preponderance of evidence) by establishing elements of a tort and (2) overcome D’s defenses.  Affirmative Defenses are when D claims that D did commit such results but has a defense
1)      BATTERY (Rule: 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 results.  – Snyder (citing Rest. 2d Torts); Cohen v. Smith, also citing the Restatement.)
i)        Elements to battery:
(1)   INTENT to cause harmful or offensive contact (Snyder v. Turk)  (Rule: In order that an act may be done with the intention of bringing about a harmful or offensive contact…, the act must be done for the purpose of causing the [harmful or offensive] contact…or with knowledge that such contact [harmful or offensive]…is substantially certain to be produced (Snyder))
(i)     Ex: A and B are on the train, train stops fast, and B is pushed into A. No intent, so no battery.
(ii)   A and B on train, train stops and minutes later A pinches B, battery.
(iii) Dual intent: D must not only want to contact, but also the contact must be harmful or offensive.
(b)   Tests to prove intent (for all intentional torts) (Garratt v. Dailey)
(i)     D had a purposeful desire to cause harm or offense.
1.      Must be a deliberate desire to harm or offend
2.      Intent to act is not enough (majority view, see Rest 3d.)
(ii)   D knew contact was substantially certain to cause harm or offend.
1.      (Objective) Reasonable person standard (D knew or should have known)
a.       This form of intent is superimposed on D, regardless of her or his subjective intent.  (I didn’t mean to shoot).
i.        Example: If A comes and shoots in the ceiling cuz is happy, and the bullet shots another person, B will say I did not intend to shoot, but the counter argument will be that A intended to shoot at the ceiling and reasonable person would believe there is substantial certainty that a bullet shot in enclosed space will hurt someone.
(iii) Transferred Intent (If a person intended to inflict serious bodily injury while trying to hit another person, but missed and accidentally hit someone else instead, such intent is transferred to the actual victim) (Stoshak)
1.      If D intends an assault upon A but ends up battering A, D is liable for battery
2.      Likewise, if D intends to assault A but ends up causing a battery to person B, D’s intent to assault A is transferred to D’s intent to cause a battery to B.
(c)    Intent of Children
(i)     There is no absolute rule that children cannot be liable for intentional torts. Cts look at individual child’s ability to form the necessary intent.
a.       Old view if child is seven years or less cannot form intent.
(d)   Intent of Persons with mental disabilities (insane) (Rule: For policy reasons, a mentally disabled person can be held liable for an intentional tort.)
1.      Exception: Exception: no liability if policy reasons don’t apply
2.      Policy Reasons:
a.       Between an innocent P and a person who has caused injury, the later should bear the consequences.
b.      Holding an insane person liable will motivate relatives to retain her or him so she can’t harm herself or others.
c.       Not holding an insane person liable would motivate tortfeasors to prevent insanity to avoid liability.
(ii)    D not liable cuz P was not an innocent bystander White v. Muniz, and holding tortfeasor liable would go against policy reasons.
(iii) If A batters B instead of C, liable for battery to C.
(iv) mere passive obstruction of the plaintiff's passage, although it may constitute another tort, does not amount to a battery
(2)   Actual harmful or offensive CONTACT RESULTS  (Rule: A contact may be direct or indirect. A harmful contact is one which causes injury. An offensive contact is a contact which is offensive to a reasonable sense of personal dignity.  A contact can be offensive if D knows that P finds the contact offensive and nevertheless proceeds.)
ii)      Failure to prove intent in tort of battery…doesn’t satisfy element of intent…no battery.
iii)    P can prove battery but if not a big injury and not many damages, can recover nominal damages as recognition that a legal injury was sustained (ie $1).
iv)    Offensive to a reasonable person under the same circumstances.  
(3)  Cause in Fact
      Factual connection between D’s act and P’s injury.
(1)   Damages are Presumed
(a)    No Need to show actual injury, can recover nominal damages.
Recovery for Battery Against Third Parties
(recovering against D’s employer)
(Rule: One who is present and encourages or incites commission of a battery by words can be equally liable as a principal – Jacor)
            P may Recover from Batterer’s employer under Respondeat Superior – Jacor
(a)    If employee was acting within scope of employment
(i)     Usually a question of fact for the jury
2)      ASSAULT (Rule: When one acts intending to cause a reasonable person to suffer an imminent apprehension of a harmful or offensive contact. (Cullison v. Medley)
i)        Elements to assault
(1)   INTENT to put in apprehension of imminent harmful or offensive contact.
(a)    (Rule: To determine whether D’s intent to put in P apprehension of imminent (harmful or offensive) contact was purposeful or substantially certain, or transferred, we look at D’s words + acts and circumstances.)
(b)   Imminent means instantaneous, means without significant delay
(c)    Words alone not enough to put in apprehension.  Must look at actions and circumstances.
(d)   Threats for future harm do not prove intent to assault
(i)     Even if someone is pointing machine gun, no assault.
(e)    Words can negate intent
(i)     Ex: I’d shoot you, but it is the Sabbath (no intent…no assault)
(2)   Actual reasonable apprehension of imminent harmful or offensive contact
(a)    (Rule: Objective standard- Whether, under the circumstances, a reasonable person would be in apprehension by D’s actions.)
(b)   Usually an issue of fact for the jury to determine.
(c)    P must be aware of D’s act and D’s apparent ability to carry out the threat.
(d)   Apprehension must be IMMINENT (not future) harmful or offensive contact.
(i)     Imminent means there will be no significant delay.
(ii)   D’s conduct must be more than mere verbal threats.
1.      Words alone not enough unless other acts or circumstances help to put P in reasonable apprehension of an imminent harmful.
(iii) Words may negate an act so that apprehension is not reasonable.
1.      D’s words may negate P’s subjective apprehension.
(e)    P must be aware of D’s act and of D’s apparent ability to carry out the threat
(i)     Ex: A places a gun to B’s forehead while B is sleeping, when B wakes up he is told that A placed a gun to the forehead, B gets scared, no assault.
(f)    HYPO: Phil Phobic is out walking his dog when he sees local officeseeker Candice Candidate approaching from the other direction on the street, shaking hands with other walkers. Phobic has an irrational phobia about germs from physical contact with other persons. Consequently, Phobic crosses to the other side of the street. Candidate sees Phobic cross and not wanting to miss a single vote, crosses toward him and with a big grin sticks out her hand. Phobic backs away and says “Don't touch me!” Candidate believes Phobic is a supporter of her opponent and so is even more insistent on pressing the flesh. She continues toward him with hand out. When she reaches touching distance, Phobic screams and runs off. Candice Candidate did not assault Phil cuz his fear is unreasonable.
(3)   Case-in-Fact
(4)   Damages are presumed.
(a)    Factual connection between D’s words + acts and P’s apprehension of imminent harmful or offensive contact
(b)   HYPO: D holds P’s cat over the roof. P faints.  Assault?  No.  Because threat must be to the plaintiff, not to the cat.
(c)    HYPO: A large man sees the elevator doors closing, so he nimbly leaps through the rapidly-closing opening into the elevator car only to land next to a small woman who had been hidden by the closing door. She apprehends imminent body contact. No assault because man did not intend to cause her apprehension of H or O contact.
(d)   HYPO: Rock Hard, the famous professional wrestler who stands seven feet tall and weighs 350 pounds, makes his way through the crowd to the ring. He encounters Stanley Pipsqueak, who stands five feet four inches and weighs 97 pounds. Pipsqueak is a crazed fan of Hard's wrestling opponent for the evening, so he seizes his opportunity and takes a swing at Rock Hard's nose, narrowly missing. Hard is neither fearful nor surprised. He emits a harsh guttural laugh/snort and proceeds to the ring. Pipsqueak has assaulted b/c Hard did not fear the punch, but he did apprehend it.
(e)    HYPO: Miko, the famous Zen master of the east, is well-schooled in the martial arts, so much so that she fully believes she can dodge a bullet. A mugger approaches her on the street late at night, points a large caliber revolver at her, and demands money. Miko refuses with a confident grin. The mugger fires. Miko, not fearful or apprehensive, dodges. Unfortunately, she is not as quick as she thought and the bullet strikes her shoulder. The mugger has assaulted Miko-“[T]he mere fact that he can easily prevent the threatened contact by self-defensive measures which he feels amply capable of taking does not prevent the actor's attempt to inflict the contact upon him from being an actionable assault.”
(f)    When P believes

erson with some authority (hierarchy/power)
1.      Employer/Employee
a.      Employer can criticize, demote and discipline you (even if causes emotional distress), if conduct causes humiliation, harassment, etc. may be IIED;
2.      Doctor or Therapist/Patient
3.      Priest/Parishioner;
4.      Teacher/Student
5.      In employment context, an employer must be able to supervise, review, criticize, demote, transfer, and discipline employees – even if this causes emotional distress. There is no claim for IIED for ordinary employment disputes like criticism, lack of recognition, low evaluations.
6.      Conduct which goes beyond ordinary employment disputes, like a course of repeated and ongoing harassing conduct directed at the employee can have a cumulative effect of extreme and outrageous conduct.
(iii) Directed at person who is vulnerable (mentally/physically disabled)
1.      D must know about P’s vulnerability (or should have known-a reasonable person under circumstances should have known)
(b)   Other factors Extreme and Outrageous Conduct
(i)     Conduct which causes the community to exclaim “Outrageous”
(ii)   Conduct so outrageous in character and extreme in degree as to go beyond all bounds of decency
(iii) Mere insults, indignities, inconsiderations or petty oppressions do not rise to the level of outrageous conduct
(c)    All About Context…Look for Factors such as:
(i)     D exploiting P’s special vulnerability of which D knows (physical, mental)
1.      P’s vulnerability can be because of physical, mental
(ii)   D exploiting P&D’s unequal relationship (hierarchy/power)
1.      Doctor or Therapist/Patient; Priest Parishioner, et al.
(d)   Extreme and Outrageous Conduct for Employer/Employee Relationship (Rule: An employer must be able to supervise, review, criticize, demote, transfer, and discipline employees-even if this causes emotional distress.  There is no claim for IIED for ordinary employment disputes—like criticism, lack or recognition, low evaluation.  However, conduct which goes beyond ordinary employment disputes, like a course of repeated and ongoing harassing conduct directed at the employee can have a cumulative effect of extreme and outrageous conduct.)
(3)   Cause in Fact
(a)   Factual link between the D's action and P's severe emotional distress.  Must establish this because could be other causes of emotional distress.
(4)   Severe Emotional Distress and/or physical harm related to emotional distress
(a)   (Damages NOT presumed)
(b)   Any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so. – Metzger
(c)    (Rule: Distress that is so severe that no reasonable person could be expected to endure it. – Bruce 
(d)   Severity required depends on outrageousness of act.  The more outrageous the conduct, the less severe the distress need to be)
(e)    Example: If you get blood results that says you are positive for STD, and are upset and worried about it, did anther tests that says negative for STD.  No severe emotional distress.
iv)    Exercising legal right.  Cannot be held liable for exercising a legal right, even if there is substantial certainty it will cause emotional distress.  But not immunized if conduct goes beyond what is necessary to exercise right that is extreme and outrageous.
(1)   Examples: filing for divorce, firing at-will employee, seeking to collect a debt.
b)      IIED TO THIRD PARTIES (Rule: Where conduct is directed at a 3d person, D is subject to liability if s/he intentionally or recklessly causes severe emotional distress (a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or (b) to any other person who is present at the time, if such distress results in bodily harm. –  Homer v. Long)