I. Intentional Torts
Battery: harmful or offensive contact w/ another, resulting (even indirectly) from intention to cause that contact, or from intention to put another in imminent apprehension of harmful or offensive contact
Physical Contact Requirement
i. Physical Contact w/ P
1. Must be some physical contact w/ P, or at least something that is in contact w/ P
2. Ordinarily, this is direct physical contact between P and D
ii. or object set in motion by D
1. May also be some object set in motion by D, such as weapon, or some force such as electricity
2. Force need not literally be set in motion by D, as long as the contact results from D’s intentions
3. e.g., Garratt v. Dailey (young boy pulls chair out from underneath old woman… boy set in motion the force)
b. Vosburg v. Putney
i. Facts: Putney lightly kicks Vosburg in the classroom; Vos ultimately develops an infection on leg.
ii. Rule of Law: P must show either D had unlawful intention to produce harm or that he committed an unlawful act
1. note: that harmful or offensive contact must result in order for there to be battery
iii. Intent:
1. irrelevant that Putney did not intend to harm (as jury found)
2. if the intended act is unlawful then the intention to commit it must also be unlawful.
iv. Unlawful Determination:
1. flexible standard – look to context, look for implied license (cf. playground vs classroom)
2. Unlawful contact if it is Harmful (§13) or Offensive (§18)
a. Offensive: if it offends the reasonable sense of personal dignity
b. Harmful: counts if a) there is intent to cause harmful contact and b) harmful contact results, even indirectly
i. note: intent to harm can include imminent apprehension of such contact
Prima Facie Case: You need to establish
1. An act by defendant,
2. with intent to inflict harmful or offensive touching,
3. a harmful or offensive touching,
4. and causation.
ii. Intent
1. D must either desire to bring about harmful or offensive contact, or act w/ substantial certainty that contact will result from his actions (Garratt), but intent need not be malicious
2. Restatement 29 §13 (a) – Intent
a. The act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person
3. Substantial Certainty
a. Garratt v. Dailey
i. FACT SUMMARY: Brian Dailey (D) pulled a chair out from under Ruth Garratt (P) as she began to sit down in it.
ii. CONCISE RULE OF LAW: The intent necessary for the commission of a battery is present when the person acts, knowing, with substantial certainty, that the harmful contact will occur.
1. issue: Did D know (with substantial certainty) that harmful contact would occur? (he is 5 ½)
2. hold: yes. no intent to harm but substantial certainty that harm would occur supplies the needed intent. (constructive intent)
iii. Constructive or Knowledge-Based Intent: if you know something with substantial certainty (i.e. that a consequence will follow from act) then you intend that consequence
4. Transferred Intent
a. D’s conduct too blameworthy to escape liability just b/c wrong victim harmed
b. Individual who actually suffers contact need not be person whom D intended to harm or offend
iii. Harmful or Offensive Touching/Contact
1. see also Vosburg (above)
2. Harmful Contact: Touching is harmful if it injures, disfigures, impairs, or causes pain to any bodily organ or function.
a. Rstmt 2nd, §7 & §15
i. Loss or detriment in fact of any kind to a person resulting from any cause; bodily harm which is a physical impairment
3. Offensive Contact: A touching is offensive if it would offend a reasonable person’s sense of dignity.
a. Rstmt 2nd, §19 (Objective test)
i. Offends a reasonable sense of personal dignity
b. Fisher v. Carrousel
i. Facts: Fisher his plate snatched away.
ii. Rule of Law: A battery may be committed even though there is no physical contact with the person’s body, so long as there is contact with something that is attached to or closely identified with the body (Offensive in nature).
iii. offending dignity is not enough; there must be some contact for battery.
c. Leichtman v. WLW Jacor
i. Fact Summary: blow cigar smoke in Leichtman’s (P) face.
ii. Rule of Law: For purposes of establishing liability for battery, contact that is offensive to a reasonable sense of personal dignity is offensive contact.
1. Intentionally blowing cigarette smoke can constitute battery, no matter how trivial the incident.
2. Don’t need to consider whether the substantial certainty prong of intent applies, b/c D committed a deliberate act.
3. Don’t need to consider glass cage defense b/c P alleges D directly blew smoke into his face
iv. Lack of Consent
1. Implied Consent v. Express Consent
a. “Unlawful” is whether the touching is permissible and/or accepted by the social norms in the context
i. Implied License—if the kick occurred on a playground, the conditions and norms are different than in a classroom. Subjective determination from a reasonable persons perspective.
b. The idea of intent is not intent to harm, but intent to cause some action which is not consented to by the victim.
c. In the absence of an implied license, any touch at all might be battery.
i. Look to social acceptability of touch
2. ex: Hackbart v. Bengals – Interaction between Tort Law and Custom
a. Rule of Law: Custom among the players will determine what is actually actionable as battery
i. Call in experts. Custom itself will define contours of appropriate behavior between the players and determine what is beyond the pale.
ii. tort law is just there to back it up.
v. Damages
1. Actual damages not necessary
2. Even if no actual harm is suffered, as in the case of some offensive touching, the court will award at least nominal damages.
2. Assault
a. §21 (Restatement Second) Assault if D intends to cause harmful or offensive contact, or an imminent apprehension of such contact and does put P in such imminent apprehension
i. Fear not required, only anticipation of such contact; protect P’s mental peace (Grandma can assault a linebacker)
ii. No assault if apprehension/fear is created but that is not the intent of D
iii. Similar requirements as battery, except physical contact requirement not present; most battery will be assault except when P is unaware of the impeding contact (e.g. Hackbart)
b. Two Key Issues: Imminent Harm and Extra-Sensitive P.
i. Harm threatened must be “imminent” à immediate in time, close in space, actual not potential
ii. Extra-sensitive P – no liability for making threats that would not satisfy requirements for assault
fell under (D) school bus when he attempted to climb out after the bus driver locked the doors to prevent vandals from escaping.
ii. Rule of Law: A person falsely imprisoned is not relieved of the duty of reasonable care for his own safety in extricating himself from the unlawful detention.
h. Coblyn v. Kennedy’s
i. Facts: Coblyn (P) was detained by an employee of Kennedy’s, Inc. (D) who suspected Coblyn (P) of shop lifting; employee doesn’t identify himself.
ii. Rules of Law:
1. (1) If a man is restrained of his personal liberty by fear of a personal difficulty, it amounts to false imprisonment.
a. man didn’t object but he was scared; felt he had no alternative.
2. (2) If a shopkeeper has reasonable grounds to believe a person has committed or is attempting to commit larceny of goods for sale on the premises he may detain that person in a reasonable manner for a reasonable length of time.
a. use an objective standard (‘prudent and cautious man’) for what is reasonable grounds for detention.
4. Intentional Infliction of Emotional Distress (IIED) – outrageous conduct causing severe emotional distress (§46)
a. IIED: Intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress even in the absence of physical harm.
i. Not battery or assault but D still acts in manner intended to severely interfere with P’s peace of mind
ii. “Extreme outrageousness” required – prevents fraudulent claims, doesn’t expand liability too much
b. Prima Facie Case: Involves extreme and outrageous conduct by defendant, with intent to cause severe emotional distress, causation, and severe emotional distress
1. Act by Defendant: Defendant’s act must be extreme and outrageous. Words alone may suffice, but simple assaults are not actionable. The courts will consider the totality of the circumstances
a. Exceptions: Common carriers and public utilities are held to stricter standard
b. D’s liability also includes emotional distress of members of the intended victim’s family if their presence was known to D.
2. Intent: D must intend to cause severe emotional distress. However, reckless conduct also suffices (i.e. where D disregards a high probability that his act will cause emotional distress), and intent is inferred where D knows P is particularly sensitive.
3. Causation: Under the early view, demonstrable physical injuries were required, but under the modern approach, distress alone suffices – outrageousness of the conduct ensures reliability of the claim.
4. Severe emotional distress: The distress must be more than a reasonable person could be expected to endure. (Logan, ‘queer as a $3 bill not enough to upset ordinary sensibilities)
