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Torts
John Marshall Law School, Chicago
Lasso, Rogelio A.

Torts

Professor Rogelio Lasso

Textbook: Prosser

Fall 2010

FINAL TORTS OUTLINE

SUMMARY OUTLINE HANDOUTS 1 – HANDOUT 4

INTENTIONAL TORTS: Prima Facie Case and Defenses

For each Element: Address P’s argument then D’s argument + Conclusion

CAUSE OF ACTION

Battery

In order to recover damages, P must prove, by a preponderance of the evidence, the elements of a prima facie case and must overcome D’s defenses.

Rule: A person is subject to liability for battery when he acts intending to cause a harmful or offensive contact, and when a harmful contact results.

I. Prima Facie Case (Elements of the COA)

a. Intent to cause harmful or offensive contact

i. Tests

1. Purposeful desire to harm or offend

a. Must be deliberate

b. Intent to act is not enough

2. Knowledge that act is Substantially Certain to result in harmful or offensive contact

a. Apply reasonable person standard, objective

b. “Would a RP know D intended to harm?”

3. Transferred Intent

a. Torts can transfer to the same plaintiff or to an “unintended” third party

b. Instance 1: A intends to commit TortA against B, but instead commits TortA against C.

c. Instance 2: A intends to commit TortA against B, but instead commits TortB against B.

ii. Intent of children (capacity)

1. No absolute shield because of infancy

2. Liability depends on the ability of the individual child to form necessary intent

iii. Intent of mentally disabled

1. For policy reasons, a mentally disabled person can be held liable for an intentional tort

a. Unless policy reasons don’t apply or sudden onset of disability

iv. X: A insults B, B punches A in the face. Satisfies intent tests, not subject to any defenses.

b. Actual harmful or offensive contact

i. Touching (contact)

1. Direct or Indirect

2. Direct: punching

3. Indirect: smoke?

ii. Actual harm or offense (touching)

1. Objective Standard – RP

2. Harm: obvious harm to RP

3. Offense: offensive to your personal dignity (Cohen – nakedand Snyder – surgery)

c. Cause-In-Fact

i. Factual connection between D’s act and P’s injury

d. Damages

i. Presumed

Defenses – see below

Assault

In order to recover damages, P must prove, by a preponderance of the evidence, the elements of a prima facie case and must overcome D’s defenses.

Rule: Assault refers to an act by D that puts P in apprehension of an imminent bodily touching that would be harmful or offensive

I. Prima Facie Case (Elements of the COA)

a. Intent to put in apprehension of imminent harmful or offensive contact

1. Purposeful desire to harm or offend

a. Must be deliberate

b. Intent to act is not enough

2. Knowledge that act is Substantially Certain to result in harmful or offensive contact

a. Apply reasonable person standard, objective

b. “Would a RP know D intended to harm?”

3. Transferred Intent

a. Torts can transfer to the same plaintiff or to an “unintended” third party

b. Instance 1: A intends to commit TortA against B, but instead commits TortA against C.

c. Instance 2: A intends to commit TortA against B, but instead commits TortB against B.

ii. Intent of children (capacity)

1. No absolute shield because of infancy

2. Liability depends on the ability of the individual child to form necessary intent

iii. Intent of mentally disabled

1. For policy reasons, a mentally disabled person can be held liable for an intentional tort

a. Unless policy reasons don’t apply or sudden onset of disability

iv. Language

1. Look at D’s words + actions and circumstances (Context)

a. Words alone – not enough to show intent

b. Words may negate an act so that there can be no intent and apprehension is not reasonable

i. X: “I would beat you to a pulp if it weren’t for the fact that it is the Sabbath”

c. A threat to inflict harm unless P fulfills a condition that D is not entitled to require, demonstrates an intent to assault (or – conditional demand)

i. Narrow: not all conditions evidence intent

1. X: Give up lawsuit or leave town, yes; Give up seat, probably not.

v. Imminent Contact

1. Does not mean instantaneous – but without significant delay

b. Reasonable Apprehension

i. Objective standard

1. P must prove that a RP, under the circumstances, would be put in apprehension by D’s actions

2. Issue of fact for the jury to determine

ii. Apprehension must be of imminent, as opposed to future, harm

1. Although imminent does not mean instantaneous, it means that there will be no significant delay

iii. Words alone

1. Do not make the actor liable for assault unless together with acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact

iv. D must have had the apparent ability to carry out the threat

v. P must be aware of D’s act

1. X: A is sleeping, B stands over A and holds a knife over A’s head – not assault, because is not aware

c. Cause-In-Fact

i. Factual connection between D’s act and P’s injury

d. Damages

i. Presumed

Defenses – see below

False Imprisonment

In order to recover damages, P must prove, by a preponderance of the evidence, the elements of a prima facie case and must overcome D’s defenses.

Rule: False Imprisonment occurs when a person confines another intentionally without lawful privilege and against her consent within a limited area for any appreciable time, ho

ckless disregard for P’s condition or powerlessness

v. Third party

1. Someone other than the intended target may only recover if the person is present at the time of the conduct AND EITHER a member of target’s immediate family OR suffered bodily injury

2. D has to be aware that the third party is present at the time of the conduct

c. Actual Severe Emotional Distress and/or physical harm related to the emotional distress occured

i. Severity required depends on outrageousness of act

ii. Racial/Ethnic insults considered especially outrageous

d. Cause-In-Fact

i. Factual connection between D’s act and P’s injury

e. Damages

i. Claimed must be caused by D’s conduct

II. Defenses

a. Liability to Third Parties

i. Where D’s outrageous conduct is directed at a third party, D is liable if she intentionally causes SED…

1. To a member of the third party’s immediate family who is present at the time – sometimes even if not present

2. To any other person who is present, if the distress results in bodily harm + ED

3. D has to be aware P is watching/knowing

+ DEFENSES to Intentional Torts (see below)

Trespass to Land

In order to recover damages, P must prove, by a preponderance of the evidence, the elements of a prima facie case and must overcome D’s defenses.

I. Prima Facie Case (Elements of the COA)

a. Intent to enter or to cause entry

i. Tests

1. Purposeful desire to harm or offend

a. Must be deliberate

b. Intent to act is not enough

2. Knowledge that act is Substantially Certain to result in harmful or offensive contact

a. Apply reasonable person standard, objective

b. “Would a RP know D intended to harm?”

3. Transferred Intent

a. Torts can transfer to the same plaintiff or to an “unintended” third party

b. Instance 1: A intends to commit TortA against B, but instead commits TortA against C.

c. Instance 2: A intends to commit TortA against B, but instead commits TortB against B.

ii. Intent of children (capacity)

1. No absolute shield because of infancy

2. Liability depends on the ability of the individual child to form necessary intent

iii. Intent of mentally disabled