INTENTIONAL TORTS
Intent
1. Meaning of “Intent”
a. Either the defendant desired to bring about the harm or knew to a “substantial certainty” that the harm would occur.-Garratt v. Dailey, Restatement Second
b. There need not be proof that the defendant intended to cause any serious injury.
c. Proof of mere reckless behavior is seldom considered sufficient to establish an intentional tort.
2. Liability of Children and the Insane
a. A child can be held liable for an intentional tort so long as the child has sufficient capacity to have the requisite intent, whether or not he or she understands the wrongness of the act.-Garrett v. Dailey
b. Insanity is not a defense to an intentional tortso long as there is an intent to commit the act.-Williams v. Kearbey
3. Policy Considerations
a. Should child be liable?
i. Vicarious liability (i.e. parent is liable)
1. Did not exist in common law-various states have instituted this
ii. Negligent supervision
b. Assume people involved in suits are insured
i. Can’t insure against intentional torts
Battery
1) RULE
a) A battery is an unconsented touching that is either offensive or harmful
i) No need to prove actual intent to injure
(1) Intent has to be desire to create harm or knowledge to a substantial certainty that harm will occur
ii) No matter how trivial incident is p is entitled to at least minimal damages
iii) Unconsented touching=Offensive touching
2) JURISDICTIONS
a) Usually to satisfy offensive must be deemed to offend personal dignity of an ordinary person
i) CA-burden of proof on p to prove there wasn’t consent as part of prima facie case
ii) Unconsented-see White v. University of Idaho (P. 14)-“Piano back”
(1) Unconsented touching is in itself a harm
3) Hypo-is touching of a shoulder in a friendly manner battery?
a) No, but why?
i) Legal fiction
ii) Implied consent
4) HIV cases
a) Robinson
i) Misrepresentation of safety
ii) Offensive, if not harmful, contact
b) Doe
i) Concealment of HIV status
ii) Failure to disclose HIV status adequate for claim of battery
5) Child/Insane persons
a) Garratt/Williams-Still battery even w/ infant or insane person
6) Defining “Contact”
a) Contact must be particulate matter
b) Exposure to radiation could be a battery (Corcoran (P. 16))
i) Even when based on substantial certainty rather than desire
ii) No intent to harm required
c) Leichtman-Cigar smoke case
i) Held liability for blowing smoke in anti-smoking advocate’s face
Assault
1) RULE
a) Intentionally placing another in imminent fear of a harmful or offensive touching
i) Imminence is key
(1) See Castro (P. 18), where the presence of others in a room made violence less likely
ii) The threat cannot merely be as to future action or conditional
(1) Mere words alone are seldom sufficient
(a) But see Campbell (P. 20), where given prior butt-slapping incidents, threat of butt-slap was held to be an assault
iii) p must be contemporaneously aware of the threat
2) JURISDICTIONS
a) Most jurisdictions-the fear must be reasonable
i) Unless knowledge of certain condition of person
3) Hypo-Sleeping person
a) No assault, because no apprehension of harm
4) Why is assault a tort?
a) Likely to lead to an escalation of physical contact and further damages
Transferred Intent
1) RULE
a) A D who intends to inflict an intentional tort upon one person, but who winds up inflicting it upon another, will be held to have the requisite intent to be liable for an intentional tort to the person
i) Alteiri (P. 21)-Where a boy threw a rock w/o specific intent to hit p
al distress must result
iii) Recklessness opens the tort
(1) Recklessness usually doesn’t satisfy intent requirement for intentional torts
3) JURISDICTIONS
a) CA and some other states-Mere reckless behavior sufficient to support cause of action
b) CA and most states-No requirement for p to prove physical injury
4) APPLICATIONS
a) CA
i) Alcorn (2 Cal. 3d 493)-racist statements held to qualify as extreme and outrageous
ii) Rulon-Miller (P.46) Sum of employer’s actions in course of firing p enough to satisfy “extreme and outrageous”
5) Policy considerations
a) In doctor-patient context, insurance code prevents insuring against intentional torts so negligence preferred avenue for recovery
b) Satire and parody can be protected by 1st amendment and preclude recovery for IIED
DEFENSES TO INTENTIONAL TORTS
1) The D has the burden of raising and proving affirmative defenses
a) Different from disproving p’s prima facie case
Self-Defense
1) RULE
a) Force used must reasonably appear to be necessary
i) Wounding force can only be used to prevent serious bodily harm
ii) Must D retreat if possible?
(1) Maybe
2) JURISDICTIONS
a) CA (Civ. C. 50) Includes defending family members under self-defense
b) In most states can’t use wounding force to defend against non-wounding force
3) Mistake
a) Can avail oneself of defense even if force used in mistake
Defense of Others
1) RULE
a) One is privileged to use force to defend another
b) You can do no better than stepping into shoes of one you are protecting
