Introduction (A1-A4)
Vosburg v. Putney (Battery)
Battery is Offensive OR Harmful contact
Is offensive because it broke the rules of the classroom;thenturned into harmful for damages
Plaintiff’s Prima Facie Case (1-7)
Prima Facie Case Outline
Nominal/Punitive damages
Act by Defendant
Intent
Purpose test:
Desire to cause {consequence of specific tort}
Knowledge Test: ‘must have’ not ‘should have’
Belief that {consequence of specific tort} is substantially certain to occur
Specific intent test:
Only for insurance or parental vicarious liability situations
Transferred Intent:
Single transfer: most will recognize
Double transfer: many will not recognize
CF
Of the tort at hand
Compensatory damages
CF
Of harm caused (physical or non-physical)
Cohen v. Smith (Battery)
Is offensive because Smith was aware of her beliefs.
Note: Medical Battery
As a general rule, when a doctor operates without a patient’s consent, a technical or medical battery is committed. An exception to the general rule is recognized in the case of an emergency when it is not possible for the doctor to obtain consent of the patient or a family member.
Note: Intentional Tort Damages
Nominal damages are available in most of the traditional intentional tort actions that derive from the writ of trespass, including assault, battery, false imprisonment, and trespass to land.
Compensatory damages and punitive damages are potentially available in all intentional tort actions
Nominal: to vindicate a plaintiff’s legal interests
Compensatory: make plaintiff whole
Punitive: punish past misconduct and deter future misconduct
Defendant’s Affirmative Defense (9-22)
Ashcraft v. King (Battery – Consent)
In medical batteries; doctors always commit and have intent to cause harmful battery when performing surgeries, they usually have consent.
Acting outside the scope of consent; can be liable for battery
Note: Consent by a Mature Minor
Rule of 7 (common law)
Under 7: no capacity
7-14: rebuttable presumption of no capacity
14-21: rebuttable presumption of capacity
Trend lately has shown that conditions in society have changed to the extent that maturity is now reached at earlier stages of growth than at the item that the common law recognized the age of majority at 21 years.
Note: Implied in Fact consent to medical treatment
Mature minor, relative unreachable… implied in fact consent
Shine v. Vega (Battery/Wrongful Death – Consent)
Consent implied by law if there is a threatening situation and 1. The plaintiff is not capable of consent, or 2. A family member is not available to consent.
Restatement (second) section 892D:
Emergency makes it necessary or apparently necessary, in order to prevent harm to the other, to act before there is opportunity to obtain consent form the other or one empowered to consent for him.
Liability will not attach if the “actor has no reason to believe that the other, if he had the opportunity to consent, would decline”
If the actor knows or has reason to know, because of past refusals or other circumstances, that the consent would not be given, he is not privileged to act.”
Torts
Battery (23-31)
Battery Outline
Act by Defendant
Act must be volitional
Intent
Purpose to cause harmful or offensive contact
Note: not “specific intent” as in criminal law
Knowledge that H or O contact is substantially certain to occur
Note: Plaintiff may use circumstantial evidence of intent
Cause in Fact
Harmful or Offensive contact to plaintiff
Offensiveness is judged by reasonable person test
Contact is with person of plaintiff or something closely connected to plaintiff
Cause in Fact
Resulting Harm to the Plaintiff (Physical or Non Physical)
Frey v. Kouf (Intent)
Difference between Criminal Intent/Civil Intent
Civil Intent: Substantially certain to occur
Criminal Intent: Design to cause certain result
Knowledge or Purpose Test of Intent
Note: Intent as Defined by the Restatement Third of Torts (p 27)
Tentative draft of Restatement 3rd proposes “dual definitions” or “intent”:
A person acts with the intent to produce a consequence if:
A. The person has the purpose of producing t
damages to be awarded there must be a showing that the D actd with Malice or bad faith.
McCraney v. Flanagin (Awareness)
Must be aware of the assault (drunk and unaware not adequate)
Note: Assault and Battery (p38)
Battery requires proof of contact, an actor is subject to liability to another for assault if he acts intending to cause an imminent apprehensions of a harmful or offensive contact, and the other is thereby put in such imminent apprehension.
Note: Implied consent to Sexual Intercourse (p39)
Consent defense available here like in medical malpractice.
D is not entitled to persist in intercourse once his victim withdraws her consent
Note: Damages for Sexual Assault and Battery (p40)
Battery entitling P to compensatory damages may also entitle to punitive damages. AZ if malice is express or may be implied form the nature of the acts and the circumstances, punitive damages are possible.
Cullison v. Medley (Immediacy)
Threats of Future or Conditional Harm are not adequate
When paired with touching a gun… may be adequate
Note: Future and Conditional Threats of Harm (p44)
A threat of future harm will not support an action for assault because such a threat does not create an apprehension of imminent contact.”
As a general rule, a conditional threat does not give rise to an assault action because the plaintiff can comply with the condition, thereby avoiding the threatened harm.
ON the other hand, the tort of assault may be established based upon the utterance of a conditional threat when the defendant has no legal privilege to impose the condition.
NOT ASSIGNED
Castiglione v. Galpin
Assault cannot be based on a future threat
