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Temple University School of Law
Monroe, Andrea



· Purpose of torts is to compensate Plaintiffs for unreasonable harm they sustain.

o Unreasonableness is measured from broad social utility standpoint. Utility (use or purpose) of the action (ex. running a railroad) is taken into account.

· Courts trying to impose incentive for Defendant that outweighs benefit of harmful conduct.

· Courts will often burden shift to parties able to afford the cost and best bear it.

Considerations of Tort Law

· Prevent people from taking law into their own hands.

· Deter wrongful conduct.

· Encourage social responsible behavior.

· Restore injured parties to original condition.

· Vindicate individual rights of redress.

Scope of Liability

I. Intentional v. Negligence – D in negligence only liable for consequences that are somewhat foreseeable. Intentional torts liable for every result stemming directly/indirectly from conduct regardless of probability.

Ex. D intentionally hits P and sends him to hospital à P dies from treatment à D liable for DEATH

– If negligent tort à D only liable for initial injury. (Rest. 2d 435)


Defendant desires to bring about a particular result

· Intent requires voluntary “volitional” act AND defendant has knowledge the result will occur.

Types of Intentional Torts

Intentional infliction of a harmful or offense bodily contact with person or attached property


· Intent to bring about some sort of physical or mental effect upon another person

· Not necessarily to harm that person à further injuring Ps broken arm while trying to help

· Intent to Commit Different Tort? Still held to have intent and liable for tort committed, regardless of the tort involved. (ex. A accidently hits B in attempt to false imprison B à A liable for battery)

· Act is Intentional if actor desires it or has SUBSTANTIAL CERTAINTY that result would occur.

o Substantial Certainty – greater certainty than highly probable

§ Less than substantial certainty à not intentional tort // may be negligence

· Unforeseeable Consequences – the consequences do not have to be intentional or substantially certain to occur, or even foreseeable.

Act v. Consequences à Intent is based on the act producing result // not resulting consequence

(tapping another on the chin à CONTACT (w/ intent) // tapping chin à BREAKS CHIN (D liable)

Intent to Harm Not Necessary à Intent for conduct important // not harm

I. Ignorance of law no excuse

II. Insane persons are still liable for torts

TRANSFERRED INTENT: If D had necessary intent to injure A, but injures B –> still liable for intentional tort [Talmage] assault/battery, intent to cause physical contact with one party can be considered intent to commit assault/battery against second party when unreasonable force is used, because D has no right to commit such act.

Reckless v. Intent

1. Reckless à knowledge to a substantial degree of certainty that something could happen and a disregard for whether or not it actually happens

2. Intent à knowledge to a substantial degree of certainty that something could happen and a distinct action made to produce that something

Damages – measure of damages

I. Actual Damages (Compensatory) – compensate the party for loss or injury

a. Nominal (token sum) – awarded even if P shows no actual harm

b. Not awarded in negligence torts

II. Punitive – awarded to punish a wrongdoer for outrageous or malicious conduct

a. Not awarded in ordinary negligence torts (Rest. 2d 908)


è Intent (examples of Intent)

o “Desire to cause contract”

o “Desire to frighten” even if contact is intended – just to make P think it would

o “Substantially certain that a harmful or offensive contact will occur” – test is subjective”


(p. 31-37)

skip notes 1-2 on p. 33/34 & notes 6-8 on page 35


Intentional infliction of a harmful or offensive bodily contact

Battery will always include assault

Elements: conjunctive

· Intent to commit the act

· Contact à non-consensual with individual or personal effect (clothing)

· Harm/Damage – battery caused actual injures, not limited to physical harm

Casual, everyday touches are inevitable and consent is assumed. Time, place, and circumstances will affect permission of the act // as will relation between parties.

Intent à necessary intent if either

I. D intended to cause harmful/offense contact (D shoots at P) OR

II. D intended to cause imminent apprehension (D shoots at P intending to miss buy actually strikes P)

“Prank Gone Bad” – D pranks P creating intended apprehension, but if harmful contact occurs à battery (Rest. 2d 13)

Harmful or Offensive Contact – Infliction of contact that’s offensive, but possibly not harmful à battery (D during surgery operates to heal other ear à liable for offensive)

“Offensive Contact” – Ordinary person not unduly sensitive

· Casual contact (pushed on train) à not battery

· Knowledge of Sensitivity à not clear [Spivey]

· Beyond contact consent à battery if D goes beyond the contented level

Personal Effects à battery inc. clothing, objects held, or closely identified (Rest 2d 18)

Indirect Contract à Not necessary D touch P, can be indirect contact (Rest 2d 18)

Ex: ordering a dog to attack P, giving P peanuts despite knowing allergy

P’s awareness of contact à not necessary to be actual awareness (Rest 2d 18)

Ex: Sleeping beauty not aware of kiss, still battery

Unforeseen Consequences – if act has intent, D liable for any consequence despite not intending consequence or foreseeing consequence

Damages: recover nominal damages even if no physical injury

– Mental Disturbance – pain, suffering, embarrassment [Fisher]

2. Action results in unlawful confinement of the person

3. The confined person is aware of the confinement

Unlawful Confine – Involves use of force either physically or through words to restrain, words would be around the threat of future physical harm.


P must show that D intended to confine. D knew with substantial certainty that confinement would result. Transferred Intent will apply.

Nature of Confinement à definite physical boundaries, blocking path not enough

Confinement – held within certain limits (Rest. 2d 36)

– Use of Threats – explicit (told)/implicit (display gun) – Rest 2d 40

– Threat to Harm Others à will still count as valid threat – Rest 2d. 40

– Threat to Property à if immediate (taking purse) to dissuade leaving

– Purely Verbal à If P voluntary submits to threats with no force à no false imp.

Escape: Irrelevant if P doesn’t know escape – escape route be reasonable (Rest2d 36)

– Reasonable Escape à not physical dangerous, harmful, offensive to “reasonable sense of decency or personal dignity,” or dangerous to 3rd person.

Assert Legal Author: Tort if D asserts legal authority & P reasonable believe (Rest. 2d 41)

– Right to detain may be valid defense // must be for stated offense

– Submission Necessary: P MUST submit to authority

– Instigation in Arrest: D liable for participation (telling Security to falsely arrest P)

X à D not for filing a complaint or taking proper legal channels unless D takes active role and police do illegal arrest

Elements Instigator Liability: 1) unlawful arrest 2) D actively aided arrest

Duty to Aid in Escape or Release: false imprisonment even if P first consents, then desires to leave and D doesn’t or help escape.

Privilege à detaining a shoplifter

Awareness: P has to be aware at the time of confinement, doesn’t have to remember

[Parvi] – Consciousness of confinement is necessary element of false imprisonment, collection of that consciousness if not. Possible to maintain action even if don’t remember


– Nominal Damages – even if suffered no actual physical or mental harm.

– Mental Suffering, humiliation, loss of time, inconvenience, etc.

– Punitive à if malice is shown