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Southern Illinois University School of Law
McClellan, Frank M.

Torts, McClellan, Fall 2010
Chapter 2
Intentional Torts
-a mistake of fact is not a defense for intentional tort.
A prima facie case is the minimum sufficient proof for each element of a tort cause of action if the court disregards evidence to the contrary.
A. Intent
An injury is intentional only if the defendant did some volitional act and intended the consequences.
Single intent jurisdiction:…will be held responsible for the harm caused, because you intended the invasion (you intended the contact)
*If you intend the contact then you are guilty in a single intent jurisdiction…
Dual intent jurisdiction:
Intend contact….but did not desire or know that they would cause a harm. Or
Intend contact…and did desire the harm…
*You have to intend the contact and desire or know/reasonably should have known that it would cause the harm in a dual intent jurisdiction…
–   Bazley v. Tortorich: Garbage man hit by car while getting on the back of a garbage truck, says the accident was caused by his co-employee’s intentional acts in operating the truck with defects(back up buzzer broke). Bazley did not assert that the D did not intend harm, but tried to relate intent to a “voluntary act”, court struck this theory down, ruling that the 2 elements of intent, desire to cause harm or believed with substantial certainty acts will cause harm, necessary. 
–    McGuire v. Almy: P nurse attacked by mentally ill D patient with the leg of chair. Crt ruled that an insane person is liable for their intentional torts. When a mentally ill person does intentional damage to person or property of another he is liable for the damage just as a normal person would be liable. Mentally ill person is not liable for torts requiring malice, defamation, or malicious prosecution.
–   Children are liable for their intentional torts, parents are not, unless:
–   Parental Liability: (1) child had a propensity to commit the particular act which caused the injury; (2) parent knew of the child’s propensity; (3) failed to restrain child from committing the act that caused the injury.
–   Alcohol: Voluntary intoxication, leads to impaired judgement is no defense, but  an aggravating offense. 
Res ipsa loquitur:
After surgery:
The sponge was left in the body…
You were responsible for counting the sponges….
We don’t know what happened, but we know it is your fault…
In the common law of negligence, the doctrine of res ipsa loquitur (Latin for “the thing speaks for itself”) states that the elements of duty of care and breach can be sometimes inferred from the very nature of the accident, even without direct evidence of how any defendant behaved.
*Upon a proof of res ipsa loquitur, the plaintiff need only establish the remaining two elements of negligence—namely, that the plaintiff suffered damages, of which the accident was the legal cause.
B. Battery: intended offensive or harmful touching of another. (2 types:1.harmful, 2. offensive touching)
-Brzoska v. Olsen: Dentist who knew he had AIDS continued to treat patients, they sued claiming battery (also mental anguish and cost of testing). Court held, incidental touching of a patient by an HIV-infected dentist performing ordinary, consented-to dental procedure is insufficient to sustain a battery claim. The contact while intended, was not ‘harmful’ or ‘offensive’. Contact is only offensive “battery” if it results in actual exposure. No exposure, thus, fear is unreasonable and does not evidence battery. 
*Takes Victim You Find Them (“Thin-Skull Rule”) – The fact victim, because of preexisting condition, is hurt worse than a typical person would be is not grounds for reducing tort damages. Under the “thin skull” or “eggshell” rule, the D is fully liable for the results of the intentional tort.
C. Assault: creating the apprehension that one will be the victim of a harmful or offensive touching.(imminent battery)
*Doesn’t matter if you have apprehension or not, it only matters if a reasonable person would have apprehension.
-Holcombe v. Whitaker: P&D had relationship problems(was already married), when the P threatened to take the D to court. He responded “if you take me to court, I’ll kill you”, also, he repeatedly called and even broke into her apartment. Court held D’s words and actions, constituted an assault, because he had the ability to bring about the threatened act and placed her in reasonable apprehension of an imminent battery.
-Hall v. McBryde: D(in bad area) shot at other youths approaching his home. P(3rd party was struck by shot) Court ruled that McBryde’s intent was transferred to the third party that was hit by the bullet, as he did intend to put the youths in an apprehension of a harmful contact, his intent was enough for battery against the plaintiff. 
*Transferred Intent: When one intends one of the following action- battery, assault, false imprisonment, trespass to chattel, and trespass to land- aimed at one person, but another is affected, his intent transfers. 
E. False imprisonment: Restraining/confining someone against their will, while the person is aware of the restraint. (protects freedom of movement)
            -person must be aware or harmed of the confinement
Elements of False Imprisonment: (may be done by force, threat of force, or duress)
1.      the nonconsensual, intentional confinement of a person
2.      without lawful privilege
3.      for an appreciable period of time, however brief.
*False Arrest is committed by an official False Imprisonment is committed by a private citizen.
–   Dupler v. Seubert: Dupler went to bosses office and was told to resign or be fired, she was held there after work hours with the door blocked (by 3rd party) and she was scared to leave. Court ruled employers did intentionally “falsely imprison” Dupler. She was intentionally held against her will by an implied threat of actual physical restraint, without lawful privilege, and for an appreciable period of time. 
–   Wright v. State: Wright went to renew D.L., but did not have some papers he needed, got mad and called tester a “horses ass.” He was told not to come back that day, but he returned and caused a fuss and was arrested for refusing to leave. Court ruled no a false arrest, because no material fact to show that the arrest was illegal and there was probable cause for the arrest.  
F. Intentional infliction of emotional distress:
Elements for the intentional infliction of emotional distress :
1.      Intentional or reckless conduct;
2.      that is extreme and outrageous;
3.      a causal connection between the wrongful conduct and the emotional distress;
4.      sever emotional distress
“Liability for this tort has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. (upon hearing the story a normal person would exclaim “OUTRAGEOUS!”)
–   Todd v. Byrd: Tynesha(little girl) went alone next door to use store’s bathroom and was accused of stealing underwear and smearing poop in the restroom. Detained and questioned if she was on her period and to show underwear. Her mother came into the store and flipped out, Tynesha had nightmares and could not

ng an underlying criminal proceeding.
* Probable Cause- that quantum of evidence which would lead a reasonable laymen in the same circumstances to honestly suspect that another person had committed a crime.
-A P must prove 4 elements for a malicious prosecution based upon a prior criminal judicial proceeding:
            1. Existence of a criminal proceeding instituted against her;
2. Proof that the D was responsible for causing proceedings to be instituted;
3. Establish that the criminal proceeding terminated favorable to her (IE voluntary withdrawal, failure to indict, or abandonment) or
4. Demonstrates lack of reasonable or probable cause for the criminal prosecution.
Malicious Civil Proceedings: a P must prove 3 elements to prevail:
1.      Proof that the D instituted or caused to be instituted a civil lawsuit;
2.      Proof that the civil suit terminated favorably to her in a manner not adverse;
3.      Lack of reasonable or probable cause for the civil suit.
Abuse of Process: this tort is intended to limit wrongful adversarial conduct by clients and their attorneys.
-generally involves improper leverage “to compel the victim to yield on some matter not involved in the suit”
The abuse of process is for an improper use of legal process while the malicious prosecution tort is for instigating process to issue without probable cause.
Cult Awareness v. Church of Scientology: Plaintiff alleged that the defendant’s filing of 21 lawsuits were not legitimate, but rather, an exercise of malicious prosecution. The court held that malicious prosecution was committed because the 21 lawsuits lacked sufficient grounds/causes of action (probable cause) to be brought
Chapter 3
Defenses to Intentional Torts
P has the burden of proof of proving the prima facie case, the D has the burden of asserting and proving any affirmative defense that may negate the P’s claims.
– Even if the D has invaded a legally protected interest, the D will not be liable for her conduct if she establishes all the elements of an applicable affirmative defense.
            -Affirmative defenses are often called privileges.
A prima facie case is the minimum sufficient proof for each element of a tort cause of action if the court disregards evidence to the contrary.
B. Consent
*A person may expressly consent(release form) to conduct that invades legally protected interest or he may impliedly consent(sports, custom, etc) based on customs in the community or his particular action or inaction in a specific situation.
–   Consent obtained by means of fraud, duress, coercion, or general incapacity (child, mentally ill or insuficeint) voids the consent. 
Hackbart v. Bengals: Football player was seriously injured during game when another player intentionally struck him in the head after the play, resulting in his release from team. Court ruled that even though football is a violent