Select Page

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

I. Intentional Torts
a. 5 specific intentional torts
i. Doctrine of Transferred Intent implies to all 5 (2 ways) – imposes liability when defendant has requisite intent to commit one of 5 specific intentional torts but actually ends up doing one of two things instead
1. Transferred to another “victim”
a. Even if unforeseen
2. Transferred to constitute requisite intent required for any of the 5 intentional torts historically evolving from the writ of trespass (when on the same person)
a. Battery
b. Assault
c. Trespass to chattels (personal property)
d. Trespass to land (to real property)
e. False Imprisonment
3. POLICY purpose of doctrine – liability for intent should still be actionable regardless of unintentional collateral damage
b. Torts to which Doctrine of Transferred Intent Applies
i. Assault – protects mental integrity
1. Elements
a. Act
i. Voluntary or intentional (overt)
ii. Words are not enough but can color the act and show intent
iii. Creates apprehension
iv. Up to the fact finder
b. Intent
i. Harmful or offensive contact OR imminent apprehension of harmful or offensive contact
ii. Violation of the mind (battery is violation of body and includes assault automatically)
c. Imminent Apprehension
i. Awareness at time of assault
ii. Fear is sufficient but not necessary
iii. Conditional threat may be enough if it creates imminent apprehension
iv. Future threat is not enough because it’s lacking immediacy
v. Transferred intent applies because assault is one of 5 specific intention torts
2. Important cases
a. Western Union Telegraph Co. v. Hill – employee that made inappropriate comments towards customer, saying if she allowed him to do certain things ‘he’d fix her clock’, court said assault yes, respondeat superior no
ii. Battery – protects physical integrity
1. Elements
a. Act (voluntary)
i. Contact
1. Harmful OR offensive
2. Contact with clothing/anything closely identified with body = sufficient
ii. Volitional
b. Intent
i. Purpose, OR knowledge with substantial certainty that harm/offense likely to occur
1. Children & adults of limited mental capacity can still be held liable so long as they can form required intent
c. Damage/Injury
i. Harm, OR
ii. Offense
1. Reasonable Person Standard
a. Does not account for extreme sensitivity
2. Fact that offensive nature of contact NOT discovered until later does NOT bar recovery
3. “Fear of AIDS cases”
a. Majority Approach
i. MUST prove actual contact
b. Minority Approach
i. Need NOT prove actual contact and can recover for “window of anxiety”
iii. Role of Privilege
1. Property Owner’s Privilege against trespassers = a defense
a. Does NOT extend to use of excessive/unreasonable force
iv. Types of Damages
1. Actual
a. Always get these if plaintiff that proves case and there are no defenses
2. Punitive/Exemplary
a. Only awarded for egregious behavior to punish/deter
b. Trend against police departments – disfavored
2. Other Rules
a. Minors & those with diminished mental capacity can be held liable for battery & other intentional torts so long as they can be capable of forming the legally required intent
b. Employer can be held liable for acts of employee under respondeat superior under certain circumstances (need only prove 1)
i. Employer authorized act and manner, OR
ii. Employee unfit and employer was reckless in employing him/her, OR
iii. Employee is a manager acting within “scope of employment”, OR
iv. Employer or employer’s manager ratified/approved act
3. POLICY purpose of battery
a. Puts plaintiff back @ status quo ante (put plaintiff in position that he/she would have been in but for the defendant’s action)à most important purpose of tort law
b. Deterrence
c. Protects physical integrity
d. Protects dignity (personal)
e. Deters self-help measures (physical retaliation) that would also be battery
4. Important cases
a. Garratt v. Dailey – kid pulls chair out from under old lady, kid capable of forming legally required intent
b. Talmage v. Smith – guy protecting his property throws rocks at kids on shed, hits a different kid he didn’t mean to hit and knocks his eye out, Landowner’s Privilege claimed, Doctrine of Transferred Intent holds guy liable for battery on unintentionally hit kid
c. Fischer v. Carrousel Motel – battery based on snatching plate out of hand, respondeat superior because employee said ‘you’re not allowed in here’
d. Brzoska v. Olson – AIDS case, doctor not required to divulge health status, no actual infection, no claim for battery (no reasonable expectation of infection, minority does not apply “window of anxiety”)
iii. Trespass to land (not discussed beyond privilege)
1. Privileges/Defenses
a. Landowner’s Privilege
iv. Trespass to Chattels & Conversion
1. Trespass to Chattels – deals with minor interference & damage with personal property
a. Elements
i. Act
1. Exercise of dominion, OR
2. Control over chattel
ii. Intent
1. Intent to control, OR
2. Intent to exercise dominion
iii. Harm
1. Actual interference with the someone else’s right to control/use
b. Remedies
i. Return chattel & recovery value of harm
2. Conversion – deals with serious interference & damage with personal property
a. Elements
i. Act
1. Exercise of dominion, OR
2. Control over chattel
ii. Intent
1. Intent to control, OR
2. Intent to exercise dominion
iii. Harm
1. Actual serious interference with the someone else’s right to control/use
2. Factors (tie together harm & remedy)
a. Extent/duration of control
b. Intent of defendant
c. Good faith shown by defendant (if any)
d. Extent & duration of interference
e. Harm to chattel
f. Inconvenience/expense caused to plaintiff
3. Damage is at time of incident
a. Remuderation for value differences (additional damages can be requested due to element limitations)
b. Ability to repay can be taken into consideration for damages
c. Sentimental value argument (you want thing back!)
b. Remedies
i. Return chattel & recovery value of harm
ii. Relinquish control of chattel to defendant & recover fair market value of chattel (FORCE SALE)
3. POLICY purpose of harm element
a. Restrict floodgates of litigation
b. Reduce waste of judiciary resources
c. No restoration
d. Weaker opinion for personal property, stronger for land
4. Additional Rules
a. Mistake is NOT a defense
5. Important cases
a. Intel Corp. v. Hamidi – guy soliciting Intel employees and angering Intel, Intel sues for trespass to chattels, no harm can be proven
v. False imprisonment – meant to protect physical freedomà VERY fact sensitive
1. Elements
a. Act
i. Willfully confining someone
b. Intent (different from assault, etc.)
i. To confine
1. Actual/Physical means
2. Constructive/Implied means
c. Harm
i. Confinement within a bounded area (can be moving or stationary)
ii. Actual physical boundaries or constructive boundaries
1. Actual/Physical barriers or force
2. Constructive/implied barriers via duress, coercion or color of law (assertion of legal right/authority where none

teur/recreational sports
1. Plaintiffs often sue using both intentional tort of battery and negligence
a. Allege both intentional & unintentional actions by defendants
i. In the case of battery, implied consent comes into play as a defense in the case of negligence
ii. Assumption of the risk is used as a defense
ii. Hackbart v. Cincinnati Bengals – player that received neck fracture as a result of an after-play intentional, illegal hit, court ruled that liability existed and the case needed to be retried based on that fact
iii. Karas v. Strevel – High school hockey case, stop on the jerseys, Illinois Exception applied to contact sports, court ruled (at least as of right now) hockey is one of those sports where you expect to get hurt in all kinds of ways and because game has sanctions in rules, breaking the rules does not proximate strict liability
d. Invalidating Consent
i. Fraud
ii. Duress
iii. Lack of capacity
e. Important cases
i. Christman v. Davis – lack of consent claimed by dentist performing lesser procedure instead of one patient agreed to, patient had to have more invasive anyway later on down the road, court said couldn’t hold physician responsible for doing less than agreed when it was his sound judgment
ii. De May v. Roberts – pregnant lady called for doctor, he showed up with non-physician helper but didn’t tell people the helper wasn’t a physician, pregnant lady claimed consent wasn’t given to his presence, court agreed
iii. O’Brien v. Cunard Steamship Co. – girl claims to not have consented to vaccination, surgeon claims she stuff her arm out and didn’t tell him to stop, court found overt act qualified as consent
2. Informed Consent
a. Separate cause of action sounding in tort
i. Its own cause of action
ii. Only applies in medical consent
iii. Sounds in tort, related to negligence because duty of physician was breached
1. Cause of action does not allege that injuries were caused by negligence in actual treatment of physician’s lack of skill
a. Difference between lack of consent were cause of action sounds in intentional tort of battery
b. Generalized consent form, without more, is not enough
c. Physicians need not proactively disclose provider-specific risks (success rates, # of times procedure performed, credentials, disease status, etc.)
2. Jurisdiction matters
a. Will determine what “material risk” standard is to be followed
i. MAJORITY “reasonable patient” standard
ii. MINORITY “reasonable physician” standard
1. Expert medical testimony is needed to show what a reasonable physician would determine to be a material risk
iii. MINORITY “actual patient” standard
1. Generalized consent form is useless in this application
3. POLICY – patient autonomy, basic right to know and make own decisions is reason for disclosure of some flavor (depending upon jurisdiction)
b. Elements