I. Intentional Torts
A. Theory of recovery in which the plaintiff, in order to prove his case and recover, must prove that the defendant acted voluntarily with a particular mental state—intent
1. Intent—Desire Design and Purpose
2. Purpose or Knowledge to a substantial certainty that harm/consequence will follow
3. Substantial Certainty—substantial certainty language may be restated as “virtually sure” or “nearly inevitable”
B. Garrat v. Dailey—2 prong test to intent
1. Consciously desire to bring about consequences of an act OR
2. Know to a substantial certainty consequences will follow/result from the affirmative act
C. Caudle v. Betts—liability to consequence
1. In Louisiana, When intent is present, liability extends to consequences—foreseeable or not, and specifically intended or not
2. Intent element need not malicious, but have desire to bring about consequences
D. Davis v. White—transferred intent (common law doctrine)
1. Not a rule, courts do not always apply it
2. One who intends a battery is liable for that battery when he unexpectedly hits a stranger instead of the intended victim
3. Applies to all intentional torts—if attempt to commit any 1 of the 5 torts, and another one of the 5 results on an unintended victim, transferred intent applies.
4. A debt incurred from an action based upon a willful and malicious injury by thfe debtor to another may be nondischargeable in bankruptcy. 11 U.S.C. §523(a)(6)
E. Brown v. Diversified Hospitality Group—mere knowledge of a risk
1. Mere knowledge and appreciation of a risk does not constitute intent nor is a high probability of injury sufficient to establish under the intentional tort exception under workers’ comp.
*****TORTS AGAINST THE PERSON*****
II. Battery
A. Intentional infliction of a harmful or offensive touching of a person or an extension of that person without their consent.
B. The victim does not need to be aware of the battery, and must be offensive to a person of reasonable sensibilities.
C. Battery does not need to consist of the actor physically touching another, but can be committed with an attachment of the actor or an instrument under the control of the actor. (i.e. smoke, baseball bat, bullet, hamburger)
D. Burden of Proof—P has burden of proving:
1. Voluntary act
a. no act without a will; reflexes not applicable
b. an act—an external manifestation of the actor’s will
2. Intent to bring about harmful or offensive contact to person or extension of person
3. In some jurisdictions, P may have to prove (1) & (2) were done without consent.
E. Intent
1. Bazley v. Tortorich—Meaning of intent is person who acts either:
a. Consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; OR
b. Knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result.
c. Intent has reference to the consequences of an act rather than the act itself.
F. Harmful Touching or Offensive Touching
1. Leichtman v. WLW Jacor Communications—reasonable sensibilities of offensive contact
a. Contact which is offensive to a reasonable sense of personal dignity is an offensive contact.
b. no such thing as a smoker’s battery claim; this case went forward due to the continuous actions of the D toward a nationally known anti-smoking figure
c. Not harmful or offensive if someone has extreme sensibilities; however if actor knows of extreme sensibilities, it can constitute a harmful or offensive touching
2. Excessive Force
a. must be proportionate to the amount of force necessary to repel the harmful or offensive touching
b. If excessive force is used to retaliate, then the defendant would no longer have justification defense.
G. Extension of Person
1. Any object intimately associated with the actor or the victim’s person
III. Assault
A. Intentionally placing one in a reasonable apprehension of imminently receiving a battery.
B. Criminal assault ≠ Civil Assault
C. Reasonable Apprehension
1. One must be aware that they are about to be battered because they cannot reasonably app
es
D. Extreme—conduct of victim and circumstances between the actor and the victim
E. In exposure to disease, must be actual exposure not threat of exposure
F. Louisiana does not recognize alienation of affections/loss of consortium (love, sex, friendship), but similar facts could give rise to IIED.
G. Nickerson v. Hodges—established IIED as a tort
1. Pot of Gold case
2. Knowledge of past mental state was relevant in determining what conduct is extreme and outrageous
H. White v. Monsanto—definition of IIED & BOP for P
1. One who by extreme and outrageous conduct intentionally causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
2. BOP on P
a. Conduct of D was extreme and outrageous
b. Emotional distress suffered by P was severe
c. D desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct
3. Characteristics of conduct that is sometimes found outrageous include repetitious conduct (often increasing in severity) and an imbalance of power between the parties (or a particularly vulnerable victim, such as a child or pregnant woman). Sexual harassment cases have been the most successful type of IIED cases for P’s.
I. Nicholas v. Allstate—conduct must go beyond indecency
1. P terminated; evidence didn’t reach threshold; jury charge inappropriate and misleading
2. Conduct was not extreme and outrageous but was demeaning and did not go beyond indecency.
3. Court is reluctant to grant IIED to employees against former employers
