TORTS
OPDERBECK
FALL 2010
1. INTENT: a state of mind about consequences or results
a. To be intentional the tort must be committed with purpose or knowledge
i. Purpose
· D intends the consequences of his conduct if his goal in acting is to cause the consequences the law forbids. Depends on D’s subjective wishes.
o consequences: actions that are the basis of the tort
ii. Knowledge
· D, regardless of subjective purpose, intends the consequences of his conduct if he knows with substantial certainty that the actions in question will cause the prohibited result.
o Doesn’t depend on subjective motive
o Ex, battery: To commit battery, D must not only intend to act; she must act for the purpose of inflicting a harmful or offensive contact on the P or have knowledge that such a contact is substantially certain to result
b. Actor Need Not Intend the Injury
i. Relevant intent is the intent to commit the consequences (aka actions) that are the basis of the tort (Lambertson)
c. Intent not motive
i. Only intent is relevant for purposes of establishing a prima facie tort case. Motive (malice etc) is looked at to see if the plaintiff had rightful privilege or may permt recovery of punitive damages.
· Motive impels a person to act to achieve a result.
· Intent stands for the purpose to use a particular means to effect that result
2. Transferred Intent
a. Transferred intent doctrine applies where the defendant intends to commit a tort against one person but instead
i. commits a different tort against that person; or
ii. commits the same tort as intended but against a different person; or
iii. commits a different tort against a different person.
b. In such cases, the intent to commit a tort against one person is transferred to the other tort or to the injured person
i. Example: A shoots at B, intending only to frighten him. A’s bullet hits C. A’s intent to commit assault on B transferred to C, and A’s act constitutes battery on C. The intention follows the bullet. (Keel)
c. Limitations on transferred intent
i. Transferred intent may be invoked only where the tort intended and the tort that results are both on the following list: assault, battery, false imprisonment, trespass to land, trespass to chattels
ii. To show transferred intent you must first show that the original intent was tortuous
· Ex: Jim is standing against a wall, when Jason runs at him with a knife. He grabs a brick and hurls it at Jason, but hits Mark instead- an innocent bystander. Here because Jim was acting in self defense, his act was not tortuous hence transferred intent wouldn’t apply. But on a policy level, why should Mark have to pay for his own injuries? Some courts may take that into account.
3. Intent and Mistake—case by case
a. The fact that a D makes a mistake in good faith, and perhaps even reasonably so and unavoidably, does not by itself serve to absolve the D of liability so long as the result was intended (Ranson: intended for bullet to make contact with animal)
b. Policy: between two equally blameless parties, the loss should be placed on the party who made the mistake and intended the act (Ranson)
4. Intent and Insanity:
a. In general, someone must bear the loss and, as between the tortfeasor, the injured party, and the general public, sound public policy favors placing the loss on the person who ca
armful or offensive contact (RSTM 2nd of torts 31)
· A verbal qualification may negate assault
o Verbal qualitifications attached to what otherwise would be a threat may prevent P from proving a well-grounded apprehension of contact (if you weren’t so old I’d kill you)
· Words may also clarify the meaning of otherwise ambiguous conduct
o D reaching into pocket: “I need comb” vs “I will kill you”
iv. Well grounded apprehension of immediate unconsented harmful or offensive contact with the P’s person
· Imminent = no significant delay
· Threats of future contact insufficient, or if D is too far away
b. Conditional Threats
i. Dependant on the right of the D to carry out the threat if the condition isn’t met
ii. This one has to do with policy à don’t want to “ok” contact that diminishes P’s legal right to do something
· “if you don’t get off the track, I’ll punch you in the face” à even though P can avoid the injury by complying, courts don’t want to let bullies get away with making unlawful demands and there is still apprehension of the punch
· Robber points gun and says your $ or your life =conditional assault
c. Damages are not necessary for plaintiff to prove assault.
i. Proof of assault may support an award of nominal damages, if actual comensatory damages not proved, and of punitive damages if the assault is egregious.
d. Defendants cannot use contributory/comparative negligence as a defense.
