INTENTIONAL TORTS
BATTERY
o Elements:
§ Intentional infliction
§ Harmful or offensive contact
§ Bodily contact results
· Must intend harmful OR offensive contact, need not have both
· Offensive element: if it offends a reasonable sense of dignity
o Intent Element
§ Fault or faulty intent required
· Van Camp v. McAffoos – boy hits woman with tricycle, no intent so no liability
· Intent can be formulated 2 ways:
o 1) A Purpose to achieve an invasive result OR
o 2) A Substantial Certainty that harmful or offensive contact will result
§ Garratt v. Dailey – Boy pulled chair out when woman was sitting. He was substantially certain she would sit and fall.
· Awareness Rule: Must be aware of offensiveness of conduct
o White v. Muniz – Old woman in nursing home not aware of offensiveness of hitting nurse, so not liable
§ Intent can’t be formed out of merely reckless conduct
· Matheson v. Pierson – boys throwing tootsie pops & hit janitor, reckless b/c there is no purpose to cause injury, but the act had a high degree of risk.
§ Minors usually liable for torts
· Some so young though, they can’t form tortious intent (Walker v. Kelly)
· General Rule: no parental liability for kids torts unless
o Statute – Vicarious Liability – parents liable for child that willfully and maliciously caused injury
o Employer of child, gave encouragement to child, negligence, insurance
o Few jurisdictions excuse kids under age 6 or 7
§ Insane can be liable for torts (broad holding)
· If proven they formed any intent or purpose (narrow)
· Polmatier v. Russ – If they can form a choice, even if it is a crazy choice, they will still be liable for their torts
§ Transferred Intent
· Intent to commit tort against a person can be transferred to another tort or another person, or both
o Only 5 torts available – Battery, Assault, False Imp., Trespass to Land, Trespass to Chattels
o Davis v. White – Man shot another man instead of one he intended. Intent to shoot other transfers
· Hypo: Tinkers pushes Evers into Chance (T-E-C)
o T has committed 2 batteries
o E did not commit battery since there was no intent & not a voluntary act
o Harmful OR Offensive Contact Element
§ HARM – can be any physical impairment of someone else’s body even if the result is objectively beneficial, Cohen v. Smith (religious beliefs, etc.)
§ OFFENSIVENESS – contact is offensive if it offends a reasonable sense of personal dignity (Snyder v. Turk)
§ P has a right to refuse a touching and a touching against known wishes if an offensive type is battery (Cohen v. Smith)
· Non-consenting contact, repugnant to P, especially if coupled w/ negative intent (like ridicule), is sufficient
o With Bodily Contact Resulting Element
§ Indirect Contact
· Fisher v. Carrousel Motor – D grabbed plate out of P’s hand, along with racial comments
· Ex. Kicking the Ps dog – the leash could be considered an extension of P, but this is a weak case since it is twice removed from P compared to P holding a plate in Fisher.
§ Look for relations among the elements of battery, a heightened offense may relax the bodily contact requirement – can be indirect contact (Fischer v. Carosel Motors)
· Leichman v. WLW Comm. – Purposely blowing smoke in someone’s face is offensive contact.
o Offensiveness of act was enough to lessen the bodily contact element
o The “particulate matter” is sufficient for contact(the smoke)
§ Eggshell/Skull Rule
· Physical frailties/sensitivity is applicable
o Must meet all elements of battery tort
o As long as the D has the right intent the D is responsible for all the physical consequences if the P if physically fragile (ex. All harm done to someone w/ brittle bones disease)
· Mental sensitivity protected only if D knows and preys on it. Hard to prove this.
– ASSAULT
o Elements:
§ Intent
§ Reasonable apprehension
§ Imminent
§ Harmful or offensive bodily contact
o Intent Element – can be formulated 2 ways: (Garratt v. Dailey)
§ 1) A purpose to achieve an invasive result OR
§ 2) A substantial Certainty that P would be apprehensive of a harmful or offensive bodily contact
o Harmful or Offensive Element – Look at Battery
o Apprehension (Expectation) Element
§ Apprehension does not mean person has to be fearful of contact
§ The P must have been aware of D’s act, unlike battery
· Ex: If someone is pointing a gun at someone’s back & that person doesn’t know, then no assault.
§ Words usually not enough to create apprehension
· Dickens v. Puryear –D told him to leave the state; otherwise he would be killed.
· Unless accompanied by apparent present ability to carry out or in extreme cases, or when there was an overt act like making a fist, which when coupled w/ threatening words is sufficient for assault (Cullison v. Medley)
· Words may negate an assault by making unreasonable any apprehension of immediate contact
o Ex: Guy shakes a clenched fist and says, “If that cop wasn’t standing there, I’d punch you” – no apprehension
§ Conditional Threatsare assaults, b/c the condition is one that D had no right to impose. (Robber poi
nsitive and vulnerable, intent can be inferred
§ NO Transferred Intent BUT special provision
· Third Person Liability
o D can be liable to a 3rd party if the 3rd party witnesses outrageous conduct towards close family members OR those who are unrelated 3rd parties incur bodily harm
§ Homer v. Long – No 3rd Person b/c husband not present at time of seduction
o Extreme and Outrageous Conduct Element
§ Outrageous – conduct which exceeds all bounds of decency
§ Courts consider totality of circumstances, not each individual incident
· GTE Southwest v. Bruce – Supervisors total behavior over time constituted extreme and outrageous behavior
§ Misuse of authority/power position (GTE Southwest)
§ Markers of outrage, such as repetition or abuse of power over a vulnerable person then IIED (Samms v. Eccles)
§ Mere words alone/Petty Insults usually don’t suffice (Hustler v. Falwell)
· EXCEPTION: Known sensitivities like racial or gender slurs can suffice (Taylor v. Metzger)
§ Violations of special relationship situations like a fiduciary relationship
· Winkler v. Rocky Mountain United Meth. Church – D had a fiduciary duty, P thought she was in a “safe place” at the church
· Homer v. Long – Therapist took advantage of woman while hospitalized for depression.
o Severe Emotional Distress Element
§ MO Standard – Must be medically significant and diagnosable (Ford v. Aldi)
§ Universal Factors – Intensity of symptoms; medical diagnosis; duration of symptoms, change of lifestyle and loss of productivity
o Remember the 1st AMENDMENT DEFENSE
§ The first amendment freedom of speech clause is a defense if the assault is based upon mere words, particularly if P is a public figure
§ Satire and parody are protected by the 1st amendment, Fallwell v. Flynt(Where Jerry is made fun of for a scene w/ his mom in a “Hustler” magazine)
o Extended Consequences Doctrine
§ Liability extends to all damages & consequences, as long as they follow like dominos, uninterrupted by 3rd party action, and not just reasonably foreseeable damages (Alteri v. Colasso)
