TORTS OUTLINE BERNABE
A lawyer’s task is to establish a prima facie case and overcome any defenses.
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.
To recover in tort, the plaintiff must allege and prove the defendant’s conduct was faulty.
PRIMA FACIE CASE FOR 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 contact results. (Snyder and Cohen citing Rest. 2d Torts)
I. INTENT to cause a harmful or offensive contact – Snyder v. Turk
a. Intent may be established without a showing of intent to inflict personal injury; it may be proven by showing intent to offend. Snyder v. Turk
b. Tests to prove intent:
i. Purposeful desire to harm of offend
1. Must be deliberate
2. Intent to act is not enough
ii. Knowledge that act is substantially certain to result in a harmful or offensive contact;
1. Reasonable Person Standard
iii. Transferred Intent
1. Torts can transfer to the same plaintiff or to an “unintended” third party.
c. Intent of Children
i. No absolute shield because of infancy. Liability depends on the ability for an individual child to form necessary intent.
d. Intent of Mentally Disabled
i. For policy reasons, a mentally disabled person can be held liable for an intentional tort.
1. Unless policy reasons don’t apply. White v. Muniz
a. Policy Reasons:
i. Between an innocent P and a person who has caused injury, the latter should bear the consequences
ii. Holding an insane person liable will motivate relatives to restrain him
iii. Not holding an insane person liable would motivate tort feasors to pretend insanity to avoid liability.
II. HARMFUL or OFFENSIVE Contact
a. An offensive contact is one which is offensive to a reasonable sense of personal dignity. Snyder
b. A contact may be offensive if D knew P found contact offensive Cohen v. Smith, Leichtman v. Jacor
c. Based on the principle that “every human being of adult years and sound mind has a right to determine what shall be done with her own body” Cohen v. Smith
d. A contact may be direct or indirect Leichtman v. Jacor
a. Factual connection between D’s act and P’s injury
IV. DAMAGES- presumed
PRIMA FACIE CASE FOR ASSAULT
Rule:Assault refers to an act by the defendant that puts the plaintiff in apprehension of an imminent bodily touching that would be harmful or offensive. Dickens
I. INTENT to put in apprehension of imminent harmful or offensive contact
a. TEST- same as battery
b. Must have intent to put the other in apprehension of an imminent contact. Dickens
i. Imminent: Instantaneous; it means “without significant delay” Id.
ii. Threats for the future do not prove intent to assault.
ble person feel confined under the circumstances.
i. Knowledge by P of confinement.
ii. There must be no safe & reasonable means of escape
IV. DAMAGES are presumed
PRIMA FACIE CASE FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Rule: To recover damages for intentional infliction of emotional distress, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the action of the defendant caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. GTE v. Bruce
I. EXTREME AND OUTRAGEOUS CONDUCT
a. Rule: Is conduct so outrageous in character and extreme in degree as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community?
i. In determining whether a certain conduct is extreme and outrageous, courts consider the context and relationship between the parties, such as whether (Factors)
1. P and D are in an unequal hierarchy relationship, like:
a. In employment context, employees are entitled to a greater degree of protection from insult and outrage by a supervisor
i. A course of harassing conduct directed at P is actionable.
When it is done by someone