Michael Hayes Torts Outline Fall 2010
I. Battery
a. An act by defendant
b. The defendant intended contact with the plaintiff
c. Defendant intended to cause harmful OR offensive contact
d. Contact was harmful or offensive
e. The contact was not consented to (consent can be a defense).
f. Elements of Battery Broken Down
i. Intent
1. Acting with deliberate purpose or substantial certainty (80-90%) to cause Harmful or offensive touching
2. Must allege fault/intent( all elements of tort must be proved) to claim liability
ii. Transferred Intent Revisited
1. When defendant meant to touch one person but touches another
2. When a defendant intends to commit one tort, but ends up committing another
iii. Extended Liability
1. Even if consequences of harmful or offensive act are worse than the tortfeasor intended or thought would occur, he/she is liable
2. No extended liability to third party
iv. Touching: Harmful or Offensive (Result)
1. Harmful Touching- not necessarily flesh to flesh, but can also include more indirect touching
a. Touching something intimate to the person’s body or what they are wearing (hat, glasses)
b. Causing someone to make contact with floor, or object
c. Smoking as battery?
i. Intangible vs. Tangible touching
ii. Normally smoke is intangible and doesn’t meet touching requirement
iii. Exception — Deliberate blowing with deliberate purpose
1. Courts are unsure how far this extends, whether it covers light or sound waves
d. Even if the batterer is not around when the contact occurs, it can meet the contact element.
i. Leaving sulfuric acid on sliding board
e. Offensive Contact
i. Reasonable person standard: Plaintiff must prove that contact would be offensive to a reasonable person in same situation. Contact that offends a reasonable sense of personal dignity.
ii. If the Plaintiff informs the tortfeasor that certain contact would be offensive/unwanted that would ordinarily be acceptable to a reasonable person, then that touching is offensive. Tortfeasor must be aware that the victim has objected to offensive contact.
iii. Exceptions– unavoidable touching in halls or subways
g. Battery in Medical Treatment
i. Refusal – one has a right to refuse medical treatment
ii. Consent – one must consent. Unconsented touchings are battery.
1. Consent invalid if obtained through fraud or misrepresentation
2. Emergency exception.
h. Children Liability in Intentional Torts
i. Children may be held liable for intentional torts, if all elements are proven (included intent)
1. Intent in children difficult to prove – must prove deliberate purpose or substantial certainty
2. No true parental liability for torts of children; under the common law – parents are not vicariously liable for the torts of their children
3. Children are liable for intentional torts in MD
a. State doesn’t assume children incapable of harmful intent
b. MD statute only allows up to $10,000 for child liability damages
i. Remedies
i. Certain injuries that automatically couple battery. Once battery is proven, then plaintiff should be awarded for any harm that results as a natural consequence to battery
1. Bodily pain, humiliation, mental anguish etc.
II. Assault
a. Intentionally or Substantial certain that will place another in
b. Apprehension (not necessarily fear) or awareness
c. of an imminent (without significant delay)
d. touching
e. that would be battery (harm/offense), if completed
i. Reasonable person standard – apprehension must be one which would normally be aroused in the mind of a reasonable person (normally for the jury to decide)
1. Reasonableness may be decided during motions of summary judgment
a. Court may find that no reasonable jury could find this act was rea
ly member, must suffered severe bodily harm as a result of conduct to recover
ii. Intentional and Reckless
1. Intentional
a. Intent to engage in the conduct
b. Have desire to inflict serve emotional distress, or substantially certain distress will result from your conduct
2. Reckless
a. Deliberate disregard for a high degree of probability that such distress will occur
iii. Severe
1. no reasonable person expected to endure it
2. highly unpleasant mental reactions
a. detail symptoms (missed work, headaches)
b. evidence of medical treatment usually necessary
c. most jurisdictions don’t require expert testimony, but helps case
d. bodily harm also helps (i.e. ulcer)
3. intensity & duration of stress considered
e. Maryland Recovery Rules
i. No double damages/recovery for same harm
1. If you suffer severe emotional stress from a battery and sue for battery, can’t sue for intentional infliction of emotional distress
IV. Defenses and Privileges in Intentional Torts
a. Negate any of the elements that plaintiff has the burden of proving
b. Affirmative Defenses –accept plaintiff’s claims but something in law that excuses behavior
V. Defenses based on plaintiff’s conduct
a. Consent
i. A person can consent to contact that would otherwise be tortuous
ii. Types of consent:
1. Actual consent (subjective standard) – said very clearly, expressed, manifested
2. Apparent or effective consent (objective standard) – circumstances would indicate consent to a reasonable person
