Select Page

Torts
Rutgers University, Newark School of Law
Troutt, David Dante

Torts Troutt Fall 2016
Torts Background
Five forms of liability for physical harm
Battery
Negligence
Vicarious Liability
Strict Liability
Worker’s Compensation
Intentional Torts
Battery
A harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact is a battery. Malicious intent nor intent to inflict actual harm is necessary. Sufficient that the actor intends to inflict a harmful or offensive contact w/o the other’s consent.
Elements (3)
1.) Intent: the act is done with the intention of bringing about a harmful or offensive contact or n apprehension thereof to the other or a third person
prove intention by showing the act was done with the purpose of causing the harm or done with the knowledge that the harm’s occurrence would be substantially certain to take place
not enough that the actor should have known or recognizes a substantial risk that the harm could occur, that may just be negligence or recklessness, must prove knowledge of substantial certainty.
Minority view: don’t have to prove the intended act was intended to be harmful or offensive
Garratt v. Dailey
5 year old pulling chair out from under woman
establishes how to prove intention in battery cases
says the age and size of child is irrelevant in battery cases
Substantial certainty test
Beauchamp v. Dow Chemical
could company be held liable for battery by exposing employee to agent orange
established “True” Intentional Tort test, that says you must intend the act as well as the actual injury sustained.
2.) The substantive interest being protected against deliberate injury (offensiveness)
would the contact offend an objective reasonable person?
Fisher v. Carrousel Motor Hotel
Rule established: Anything connected to the person when contacted in an offensive matter is sufficient for battery, personal indignity is the essence of an actionable battery, therefore defendants are held liable for contacts which are offensive and insulting.
3.) Lack of Consent
can’t be held liable for battery if the plaintiff consented to the contact
Elements:
Presence of consent
must look at the outward manifestation of the plaintiff’s conduct
objective standard of how that conduct appears to another reasonable person
Scope of consent
objective standard of what would a reasonable person would understand to have consented to in the context of this activity
what do people normally know/think when they enter into some activity
What kind of contact is legitimate given the character of this activity
To argue implied consent plaintiff must have 1) actual knowledge of the danger and 2) a reasonable opportunity (w/o violating legal or moral duty) to safely refuse to expose themselves to the danger
When consent is prohibited, (stat rape)  coerced, or induced by known (to the defendant) fraud, the consent is vitiated
Special rule for Surgeons: S

the extent of control the master has over work
whether or not the employee is in a distinct business
the kind of occupation that the work is done under direction of the master
the skill required in the occupation
the length of time for which they are employed
whether the master supplies the instruments and place for the person working
the method of payment, (by job or by the time)
whether or not the work is part of regular business on master’s behalf
whether they believe they're engaging in a master servant relationship
whether the master is or is not in business
Kind of Conduct within the scope of Employment
conduct must be the same as authorized by employer
whether or not it was authorized is still considered within the scope if:
whether or not the act is commonly done by servants
the time, place and purpose of the act
the previous relations between the master and servant
the extent to which the business of the master is distributed between different servants
whether or not the act is outside the enterprise of the master or if within the enterprise has not been given to another servant
whether or not the master expects the act be done