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Torts
Southern Illinois University School of Law
Mekel, Michele L.

TORTS
Professor Mekel

Direct Intentional Wrongs

¨ What is Tort Law?
Torts are wrongs recognized by law as grounds for a lawsuit.
Harm required
Criminal Law vindicates Public Rights; Tort Law redresses individual rights
¨ Aims and Approaches in Tort Law
Some Broad Aims
(a) Morality or corrective justice: Hold D liable for harms they wrongfully committed
(b) Social Utility or Policy: The good-for-all-of-us view
(c) Process: Must be the kinds of rules judges and juries can understand.
1) Battery:

Elements for Prima Facie Case
(1) Act by Defendant
(2) Intent
(3) Harmful or Offensive touching
(4) Causation
(5) Lack of Consent

(a) Requiring fault

Van Camp v. McAfoos
3 yr. old D driving bike hits lady (P). P sues stating she was injuriously stuck and that should be enough. P pleads neither willful nor wrongful acts or negligence. Court disagrees.

Court states that there must be fault. Where an essential element of the cause of action is missing, the question is not what may be shown under pleading but whether a cause of action has been pled.

(b) Elements of Battery

Snyder v. Turk
Dr. (D) pulls nurse (P) toward surgical opening, “Can’t you see were I’m working?”

Person is subject to liability for battery when he acts intending to cause harmful or offensive contact and when a harmful contact occurs. Contact, which is offensive to a reasonable sense of personal dignity, is offensive contact. (Offensive contact as a form of battery)

Cohen v. Smith
Couple’s religious beliefs prohibited P from being seen naked (or touched) by a male. D was a male nurse involved in cesarean operation of P. P had expressed belief prior to surgery, everyone knew.

Battery can be necessary contact that is unwanted. Offensive contact is not judged by a reasonable standard, but by a subjective standard. Remember: Couple communicated this belief prior to touching. (Contact that has been forewarned as offensive is a tort)

Leichtman v. WLW Jacob Communication
Broadcaster (D) blows smoke in P’s face. P is a nationally known anti-smoking advocate.

Contact which is offensive to a reasonable person’s sense of dignity – is offensive contact. Tobacco smoke, as “particle matter” has the physical properties capable of making contact. (Offensive contact as a form of battery)

Garrett v. Daily
5 yr. old boy (D) moves chair on woman (P). Question is did D know that the action would cause harmful contact.

An act which directly or indirectly is the legal cause of a harmful contact with another’s person makes the actor liable if the act is done with the intention of bringing about a harmful or offensive contact. (Children can be liable for battery)

Walker v. Kelly
5 yr. old girl (D) throws rock at boy (P). D does so at the instruction of 12 yr old. Trial court receives conflicting testimony and accepts that D did not intend to strike P.

Where a tort requires a particular state of mind, and an infant is incapable of forming such a state of mind, he cannot be found guilty of the tort. Remember: Rule of sevens. (Children may not be liable for torts, because of state of mind)

Polmatier v. Russ
Insane man (D) kills father-in-law with a shotgun.

A rational choice is not required since an insane person may have intent to invade the interests of another, even though his reasons and motives for forming that intention may be entirely irrational. (Insane are liable for torts, regardless of state of mind)

White v. Muniz
Alzheimer patient (D) punches nurse (P) who is attempting to change her diaper.

A jury can find a mentally deficient person liable for an intentional tort, but in order to do so, the jury must find that the actor intended offensive or harmful consequences. (Mentally deficient may or may not be liable for torts, because of state of mind/mental grasp)

Doctrine of transferred intent: If the D acts intending to cause any of these five harms to one person and instead injures another person, D has caused tort to that other person.

Davis v. White
White (D) shot at one person (Tipton), instead hit Davis (P).

Under the doctrine of transferred intent, one who intends a battery is liable for that battery when he unexpectantly hits a stranger instead of the indented victim.

ii) Harmful or Offensive Touching:
iii) Causation
iv) Lack of Consent:
2) Assault
Elements for Prima Facie

(i) Threats or demands
(ii) Assertion of authority
(iii) Duress of Goods

McCann v. Wal-Mart Stores, Inc
P and her two children were shopping in Wal-Mart. As they were leaving store, two Wal-Mart employees (security). D said they had records of children as shoplifters and they had to come with them, that the police were being called. At one point Dtold one of the children, he could not leave to go to the bathroom.

False imprisonment: Mere threats of physical force can suffice. Threats may be implicit as well as explicit. Confinement can be based on a false assertion of authority

4) Torts to Property
Only three tort may involve direct application of force:
Trespass to land
Conversion of chattels
Trespass to chattels
a) Trespasses to Land:

Elements for Prima Facie Case:

(1) Act by defendant
(2) Intent
(3) Invasion upon land
(4) Causation
(5) Plaintiff in possession or Immediate Possession

(a) Intentional Entry: Usually requires an intentional entry upon land of another (e.g., personal entry, throwing a rock, driving a car onto)
(b) Intent: it is enough that D intended to enter the land, does not escape merely because believes it is his own land or has a right to be there
(c) Damages without harm: D is liable for damages even if no harm is done
(d) Punitive damages without harm: Punitive damages if trespass is deliberate or malicious
(e) Extended liability: Trespasser is liable for damages even if he intended harm and could not foresee it.

An example in class was throwing a shoe at a howling cat on a fence between two neighbors. The shoe lands in the other’s yard. That is trespass to land.
b) Conversion of Chattel

Elements for a Prima Facie Case:

(1) Act by defendant
(2) Intent
(3) Invasion of Chattel Interest