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Southern Illinois University School of Law
Koehler, Michael



I. Battery= Intending to make contact with another that is harmful or offensive

a. Act

b. Intent, or transferred intent doctrine of transferred intent:

If an actor intends to inflict an intentional tort upon one party and accidentally harms a second party, the actor can be held liable to the second party for battery.

The transferred intent torts under common law are: assault, battery, false imprisonment, trespass to land, and trespass to chattels. If an actor has the intent to commit any of the transferred intent torts, the actor will be liable for all other transferred intent torts that result from that act. The actor’s liability extends to all parties harmed, not merely the original intended victim.

Policy: -Imposes liability on an actor, even for harm to an unforeseeable plaintiff.

-The law does not look kindly upon intentional acts, an alleged tortfeasor can be liable for resulting harm, even as to unintended victims.

i. Purpose, or

ii. Knowledge with substantial certainty,

1. That harmful or offensive contact or imminent apprehension will result.

c. Contact/Injury

i. Harmful, or

ii. Offensive – must offend reasonable sense of personal dignity

1. Direct contact, or

2. Indirect contact – clothing or something closely associated with the body

Assault = -Intending to cause imminent apprehension of harmful or offensive contact.

-While every battery includes an assault, an assault does not necessarily require a battery to complete it. (Alabama SC decided) but not necessarily true. If someone who is asleep is battered, they obviously did not apprehend the actions and is NOT an assault.

II. Consent given under false pretenses is not valid consent and will not operate as a defense to a subsequent action. (De May v. Roberts)


a. Act

b. Intent, or transferred intent

i. Purpose, or

ii. Knowledge with substantial certainty, or

1. That harmful or offensive contact, or imminent apprehension will result

c. Imminent Apprehension that battery is about to immediately occur

i. Reasonableness – a reasonable person in the same situation would experience apprehension

1. Generally, words are not enough to claim assault

ii. Concurrence – victim must be aware of the apprehension during the event

False Imprisonment: -Intending to confine a person within boundaries set by the actor, Confinement occurs; Person is conscious of confinement or is harmed by it,

-Applicable defenses


-Operation of law


a. Act

i. Direct, or

ii. Indirect

b. Intent, or transferred intent

i. Purpose to confine, or

ii. Knowledge with substantial certainty that confinement will occur.

c. Confinement

i. Actual, or

ii. Constructive – confining someone without physical boundaries; must be reasonable (ex. holding a gun to someone)

1. there must be awareness of confinement, or

2. Harm must come from confinement

Intentional Infliction of Emotional Distress (IIED) = A plaintiff faces an “uphill climb” to avoid the slippery slope.

1. -Intentional conduct directed at plaintiff.

2. -That is extreme and outrageous.

3. -Which causes emotional distress.

4. -That is severe.


a. Act

i. Extreme and outrageous conduct, or

1. As to go beyond all reasonable bounds of decency, not just mere insults or jokes

2. Judge has gatekeeper role, and decides if this is applicable in the case

ii. Special Knowledge

1. The defendant has special knowledge of the plaintiff’s weaknesses and sensitivities

b. Intent

i. Purpose, or

ii. Reckless

1. As determined by a reasonable person

c. Causal Connection between wrongful conduct and the emotional distress

d. Severe Emotional Distress

i. Requires plaintiff to show that he suffered a severely disabling emotional response to the defendant’s conduct.

o occur

b. It may be manifested by action (expressed consent) or inaction (implied consent) and need not be communicated to the actor.

c. Apparent Consent: If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.

III. Invalidating Consent


i. P expressly consents by mistake;

ii. It is still a valid defense

iii. unless D caused the mistake or knows of the mistake and takes advantage of it.


i. Generally not a defense

ii. Misrepresentation must be about something that affects the intrinsic nature and quality of the invasion or the harm.

iii. Misrepresentation about collateral facts will not invalidate consent.


i. Types of duress that courts recognize as sufficient:

1. Immediate physical harm/force to the individual or the individual’s loved ones is usually sufficient

2. Economic pressure usually fails



1. Generally, minors lack capacity to give consent

2. However, it is often ‘context specific’ in case of older minors

a. Courts recognize emancipated minors

b. Many courts consider the “mature minor” doctrine

i. By which courts measure a child’s age, ability, experience, education, training, and degree of maturity or judgment to determine if child has the capacity to consent.


1. Temporary (such as intoxication), or

2. Permanent (mental retardation)


i. Going beyond the scope of consent given.