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

TORTS
Fall 2007- Outline
Professor Troutt

I. Intentional Torts:
a. General:
i. Battery
ii. Assault
iii. False Imprisonment
iv. Intentional Infliction of Severe Emotional Distress (IISED)

b. Elements of Intentional Torts:
i. Act:
A. Volitional movement on D’s part
B. Controlled by the mind
C. “External manifestation of the actor’s will”
ii. Causation:
A. Result legally caused the act
B. Can be direct or indirect
iii. Intent of consequences:
A. Elements of intent:
a. State of mind
b. About consequences of an act and not the act itself
c. It extends not only to have a purpose to bring about given consequences but also having knowledge that given consequences are substantially certain to happen
B. Specific Purpose: intends the consequences of his conduct if his goal in acting is to bring about these consequences
C. Substantial Certainty: intends the consequences of his conduct if he knows with substantial certainty that these consequences would result.
a. Bring about a result which will invade the interests of another in a way that the law forbids
D. Subjective Intent: based on what D in fact believed, not what reasonable person would believe.
E. Transferred Intent: Injury must be direct and immediate
a. Ex. A shoots gun at B, misses B w/ intent to harm B, but hits C.
b. A is liable to C
iv. Result: wrong to P
A. Battery – harmful or offensive touching
B. Assault –apprehension
C. IISED – intentional infliction of severe emotional distress

II. Battery – [Restatement (Second) of Torts §13]: intentional infliction of a harmful or offensive contact with the person of another without consent.
a. Prima Facie Case:
i. Unauthorized contact:
A. Body to body not necessary; can be extension of the body
a. ex. Fisher v. Carrousel – plate in P’s hand was a part of his body
B. Must intend the harmful or offensive contact w/o P’s consent
ii. Harmful:
A. Bodily Harm: [Restatement (Second) of Torts § 15] – “any physical impairment of the condition of another’s body or physical pain or illness”
B. Act requirement.
C. Causes pain, injury, or suffering
iii. Offensive:
A. Offends a reasonable sense of personal dignity
a. Is contact warranted by social norms of time and place of the incident?
B. Super sensitivity only counts if D is aware of P’s sensitivity
C. We wish to protect the dignitary interest
iv. Causation:
A. Result legally caused by the act
B. Direct or indirect cause
v. Without privilege or consent:
A. Part of prima facie case (majority) – P must prove contact was w/o P’s consent.
B. Affirmative Defense (minority) -burden falls on D lies in the mouth of D
a. Must prove beyond preponderance of the evidence that there was in fact consent.

i. Harm- *White v. University of Idaho. The intent element of the tort of battery does not require a desire or purpose to bring about a specific result or injury; it is satisfied if the actor’s affirmative act causes an intended contact which is not permitted and which is harmful or offensive.

B. *Ellis v. D’Angelo- If it is not substantially certain that the invasion of a ∏s interests would occur, but merely highly likely, the act is not an intentional tort. This is true even though it may be “reckless,” and may give rise to liability for negligence.

C. Beauchamp v. Dow Chemical Co.- in order to allege an intentional tort outside the workers compensation act, the ∏ must allege that the employer intended the injury itself and not merely the activity leading to the injury.

ii. Offense- offensive, or damaging to a reasonable sense of dignity.

A. In determining whether a particular contact is offensive,
the standard is not whether the ∏ is offended but whether an ordinary person not unduly sensitive as to his dignity would have been offended.

B. Fisher v. Carrousel Motor Hotel, Inc.- A battery may
be committed not only by a contact with ∏’s body but also by contact with her clothing, an object she is holding, or anything else that is so closely identified with her body that c

Markley v. Whitman- Facts: Parties students at same high school. ∆ engaged in a game of “rush.” ∏ was pushed and injured by the ∆. ∆ Argument: 1. push was not an assault, but an accident; 2. game is not dangerous; 3. ∆ pushed by another into the ∏; 4. no intent to injure ∏. Reasoning: 1. Game was dangerous; 2. ∆ was engaged in the game; 3. ∏ was not engaged in the game. Holding: Even if result was not anticipated, that does not make the act any less unlawful.

e. Custom- If the ∆ can show that it is customary for one in the ∏’s position to consent to a certain act by the ∆, there will be consent even if the ∏ made no manifestation of consent in this particular case.(e.g. customary to permit public to fish in small ponds).

f. Inaction- ∏ inaction by itself indicates consent (e.g. kiss).

g. Lack of capacity to consent- ∏s incapable of giving consent: child, intoxicated, unconscious, etc.

* Elkington v. Foust- Facts: ∆ charged with sexually assaulting and abusing his adopted daughter from age 9 to 16. Issue: Whether the jury should have considered ∏’s consent, if it existed, as a defense to the ∆’s acts. Reasoning: ∏ was a minor and incapable of giving consent to acts of this nature. AND the ∆ is not permitted to take advantage of any consent, if it existed. There are policys of decency and morality that are being upheld in this decision. Holding: Consent is not a defense in the sexual assault and abuse of a minor.

i. Exceptions- here the ∏’s consent will be implied is all of the following factors exist:

1. Incapacitated, or unable to give consent.

2. Emergency

Lack of consent not