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Temple University School of Law
Hollister, Gail D.


Fall Semester 2016

Professor Hollister

Goldberg, Sebok, and Zipursky, Tort Law, Third Edition

– Introduction: Purposes of civil liability:

– Deter bad conduct

– Compensate P who has been injured

– Correct a wrong

– Spread losses

– One act may result in both criminal and civil liability – (double jeopardy only applies to gvt)


– P’s carelessness does not count in a suit for an intentional tort.

A. BATTERY: Intentionally causing another to suffer harmful or offensive contact.

– Purposeful touching – intentional invasion of personal space, tort law requires actual touching.

– Purpose: to protect freedom from unwanted touching, ability to control our own bodies and what contact we’re willing to permit.

– Doctrine of Extended Personality: battery can be established by contact with anything so connected to the body as to be customarily regarded as part of the other’s person.

Prima facie Case (need to prove at minimum):

A is subject to liability to P for battery IF:

1. A acts;

2. Intending to cause a contact with P;

3. P suffers a harmful or offensive contact

– Offensive Contact Test: Test is objective rather than subjective – must violate prevailing social standards of acceptable touching (i.e. getting spat on by a stranger is almost always offensive.)

– Paul v. Holbrook: D massaged P’s shoulders without her consent. Issue – was D’s touching harmful or offensive. Court found intent existed and that the touching could be deemed offensive to a reasonable person.


– Intent: To act with the purpose/ desire to accomplish something or the substantial certainty you’re going to accomplish something.

Substantial Certainty – even though D did desire for something to happen, D was substantially certain that it would happen. Courts are split on whether this is sufficient to prove intent.

E.g. 1: D throws bomb into a crowded room to hurt A, knowing everyone else would be injured. Intent is satisfied for all the other parties injured.

E.g. 2: D drives down Broadway at 80MPH and hits P. No intent here and D may have known that could hurt someone but was not substantially certain.

– Battery: Actor must have intended to cause a contact with P. Accidental touching of someone cannot be a battery due to lack of intent

– Majority Rule: D did not need to intend the consequences behind the contact, just intended the contact itself. Therefore, we do not inquire if D intended to harm, offend with the precise consequences that occurred just whether D intended to make contact.

E.g.: Kissing someone random on the cheek; D may not have intended this contact to be offensive however it is D’s (reasonable person) freedom to protect from unwanted touching. This could be a battery.

E.g.: Not battery: D waves at P across the street, P walks into lamppost

E.g. Not battery: D attacks P but believes he is attacking a plant and not P; D never actually intended to come into contact with P.

– Variations of Intent:

1. Intent to cause contact with a person:

– Predominant Rule in most states

– D not required to know or believe that the contact would be considered harmful or offensive

– Wagner v. State: Mentally handicapped Geise attacks P, she sues state for negligence of caretaking under respondeat superior. State argues it’s a battery so they can benefit from sovereign immunity. Court – using this definition of intent, they found Geise intended to cause a contact with P

2. Intent to cause contact AND that contact is harmful or offensive

– Our Torts book – middle ground – rarely used

– D does not necessarily intended that the contact be offensive or harmful but said contact IS harmful or offensive.

3. Intent to cause contact AND intent for that contact to be harmful or offensive.

– New York and some other states.

– 1. Intent to cause contact 2. Intent for that contact to be harmful or offensive.

– Hardest intent for P to prove.

Hypo 1:

American Tourist D arrives in Thailand. In Thailand, unbeknownst to D, it is offensive to be touched by hand. D touches P by hand to ask P a question. Is it battery?

A: In 1: Yes

In 2: Yes

In 3: No

Offensiveness is evaluated by social usages at the time and place of the contact

Intentional Tort Doctrine – modern courts recognize liability based on Defendant’s knowledge at the time of acting that the contact would cause certain kind of contact.

– Vosburg v. Putney: D kicks P in the leg at school, P suffers injury that causes leg to fall off. D argues he didn’t intend to harm P like that and it was just horseplay and that he couldn’t foresee P’s strange injury. Court rule: D did have requisite intent as if the intended act is unlawful, the intention to commit it must necessarily be unlawful.

– Eggshell rule: You take the P as you find him. Special defects of the P do not mater; D is liable for all injuries stemming from battery. The fact that victim is particularly susceptible to serious injury does not mitigate the tortfeasor’s liability

– Cole v. Hibbard: D kicks P in the rear; D was drunk and “joking.” Statute of limitations problem. If it is negligence, P is out of luck so she argues that b/c ∆ was joking, no intent. Holding: It was a battery b/c contact itself was deliberate and would have been considered offensive to a reasonable person. Intention to cause injury is irrelevant in an assault/battery case if the contact itself was intentional and offensive to a person of reasonable dignity.

Implied Consent Doctrine: In a public space, one consents to a certain unavoidable contact – e.g. in a subway.

– Mistake of identity is not a defense: D intends to punch P but punches his twin – still a battery.

B. ASSAULT: Intentionally causing another to reasonably apprehend imminent harmful or offensive contact.

– Versus battery: assault protects against certain apprehensions of contact rather than contact itself. – It protects mental tranquility. Mental state of mind.

– Imminence is required – theory is that otherwise the victim should/can take steps to protect themselves.

* Prima Facie Case: (need to prove at minimum)

A is subject to liability to P for Assault IF:

1. A acts;

2. Intending to cause in P the apprehension of an imminent harmful or offensive contact with P; and

3. A’s act causes P reasonably to apprehend such a contact

RST 21– an A is also subject to liability to another for assault if he acts intending to cause a harmful or offensive contact (not just if the intent is to

– Examples of implied consent: voluntary participation in contact sports, entering a crowded subway

– Koffman v. Garnett: P injured during football practice when tackled by coach. Since football is inherently dangerous, what batteries has P consented to by virtue of voluntarily participating?

Held: Circumstances here – experience, difference in sizes of P and D, coach going beyond wat is considered scope of consent of football – cannot say P gave implied consent to this – sent to jury as rules of game are not dispositive.

– Mistaken Consent: Implied consent exists even if D mistakenly inferred it, as long as the inference was reasonable. Restricted to mistakes made based on P’s actions; P bears risk of mistake here.

– RST: a reasonable but mistake inference of consent that derives from a source other than the conduct of the P will NOT suffice to establish a consent defense.

– O’brien v. Cunard: P sued doctor D for battery after adverse reaction to vaccination on ship.

Held: P gave her implied consent to be vaccinated by virtue of P standing in the vaccination line, holding arm out to doctor.

– Fraud and coercion: Negates consent only when it goes to essential matter, not a collateral one. Duress: Invalidates consent (take a fair amount of duress to invalidate consent.

– D cannot benefit from consent that he secures through misrepresentation or other forms of deceit.

– Hypo 1: D has HIV doesn’t tell P, they sleep together. P consented to sex but not sex with an HIV infected person. P sues for battery. D misrepresented his position so P did not give consent and P prevails.

– Hypo 2: D has HIV and tells P. P says she’ll take risk and have sex with D if he pays her $1,000. Unbeknownst to P, $1,000 is counterfeit. Liability? Consent defense prevails in favor of D as the mistake does not have to do with the conduct that could be battery (transfer of HIV virus) – this mistake and the misrepresentation/fraud (of counterfeit money) is collateral to the tort. P consented to sex with risk of become HIV+ D prevails on consent defense.

– D doesn’t know he’s HIV+. D and P have consensual sex. P contracts HIV. Liability? Consent is a defense despite mistake as the intent matches the consent – D didn’t make a fraudulent misrepresentation. D prevails.

– P and D consent to fight. P sues D for battery. D says no, P consented. Liability? Courts SPLIT:

– Majority rule: No, P cannot consent – you cannot consent to a crime. Purpose is to deter fights; evolved from criminal law.

– Minority Rule: Yes, P can consent. Purpose is to deter people from consenting to such conduct.

Exception to minority rule: Where P doesn’t understand the nature of the consent – statutory rape – kid doesn’t understand nature of consent therefore consent is invalid.