Torts Outline

· Eggshell Plaintiff Rule—“take the Π as you find him”—if you have a physically vulnerable Π and you cause him more harm, you have to pay. This rule doesn’t not apply to emotional injury.
· Respondeat Superior—an employer may be liable for the acts of its employees

I. INTENTIONAL TORTS

· Battery
· Assault
· False Imprisonment
· IIED

A. Prima Facie Case—to establish a prima facie case for intentional tort liability, the Π must prove the following elements:
1. Act
2. Intent
3. Effect
4. Causation
5. Harm/damages (linked to effect)
B. Battery—an intentional harmful or offensive bodily contact
1. Prima Facie Case—the following elements must be proved:
a. Act—defendant must commit a volitional act. Generally, we will assume the act is volitional, because an act is a voluntary muscular movement and nothing more. An act can also be a failure to act if there is a legal duty to act. Whittaker. Some acts are not volitional:
i. Δ was under hypnosis
ii. Involuntary muscle contraction (e.g., epileptic seizure)
iii. Δ was possessed by an alien
iv. Δ accidentally dropped something
b. Intent—it must be the intent of the Δ to make harmful or offensive contact or create imminent apprehension of harmful or offensive contact. The intent must be inextricably linked to some consequence, effect, purpose, goal, or mission. Thus, it does not modify the act; don’t say, “She intended to act.”
i. There are 3 ways to establish battery-type intent:
1. Restatement—it’s Δ’s subjective purpose or desire to bring about the harmful or offensive contact.
2. Unlawful Act—if an act is unlawful, we can infer that the intent is unlawful (i.e., an unlawful kick in a classroom is an unlawful act because there is no implied license to kick in the classroom). Vosburg v. Putney. Always specify what the unlawful act was and why it was unlawful.
3. Knowledge with Substantial Certainty—Δ intends the consequences of his conduct if he knows with substantial certainty that these consequences will result. Garratt v. Dailey. This rule applies to minors. It does suffice to establish intent in passive smoking cases.
ii. Transferred Intent—the doctrine of transferred intent applies in battery cases.
iii. Actor Need Not Intend Injury—the intent of the actor that is relevant for the purposes of intentional torts is the intent to bring about the consequences that are the basis of the tort. Thus, a person may be liable even for an unintended injury if he intended to bring about such “basis of the tort” consequences.
iv. Minors Can Have Requisite Intent—under the majority view, minors will be liable for their intentional torts because they are held to possess the requisite intent.
1. Minority View—children under 7 are immune from tort liability.
v. Motive—motive focuses on the reasons for desiring consequences to occur. Motive is not a requirement of any tort, but it can have a significant impact on someone’s liability. It can aggravate, mitigate, or excuse a tort. For example, if you shoot someone because they’re running at you with a knife, your motive is self-defense, which is a valid affirmative defense.
c. Effect—a harmful or offensive contact must occur.
i. Contact Generally—contact can either be with the Π’s person or with something very closely associated therewith, like a plate. Fisher v. Carousel. It can also be by something almost microscopic or not readily visible, like cigarette smoke. Leichtman v. WLW Jacor Communications.
d. Causation—the act must directly or indirectly cause the effect. The answer is usually straightforward in intentional torts.
e. Damages—those damages are associated with the harm done. Π can be compensated for her physical and emotional harm.
2. Harmful Battery—Harmful Contact
a. Harmful Battery Liability—An actor is liable for harmful battery if: (1) he acts intending to cause a harmful or offensive contact with another or an imminent apprehension of such contact; and (2) harmful contact results. Restatement §13.
b. Type of Harm Required—The threshold of harm or pain for “harmful contact” is quite low. Harm means only a contact that causes some pain or damage. The extent of the pain or damage done goes to the damages to be awarded.
i. There is no minimum amount of physical harm required. Restatement §4.
ii. Examples of harmful contact
1. Touch from a kick (Vosburg)
2. Woman hitting the ground (Garratt)
3. Ingestion of poisonous food
4. Particulate matter from smoke (Leichtman)
5. Striking the horse that Π is riding
3. Offensive Battery—Offensive Contact
a. Offensive Battery Liability—An actor is liable for offensive battery if: (1) he acts intending to cause a harmful or offensive contact with another or an imminent apprehension of such contact; and (2) offensive contact occurs. Restatement §18.
b. Analyzing Offensiveness—a bodily contact is offensive if it offends a reasonable sense of personal dignity (objective standard). Restatement §19. It must be one which offends the ordinary person and not one unduly sensitive as to his personal dignity.
i. Context Matters—It must be a contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted. Ignorance of social rules is not a defense.
ii. Examples of offensive contact
1. Spitting in someone’s face
C. Assault—the intentional creation of an apprehension of imminent harmful or offensive contact.
1. Prima Facie Case—the following elements must be proved:
a. Act
b. Intent
c. Effect—apprehension results; Π must be aware of the threat/harm
d. Causation
e. Damages
f. *Note—all elements are the same as battery except effect
2. Assault Liability—an actor is subject to liability to another for assault if: (1) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact; and (2) the other is thereby put in such imminent apprehension (rather than actual contact). Restatement §21.
3. Effect Element—different from battery
a. Construction of Apprehension—the victim must be apprehensive that imminent contact will happen against his own person.
i. There is a two-part test for apprehension:
1. Subjective Inquiry into Apprehension—the inquiry into apprehension is subjective, so we ask “did he feel apprehension?” Thus, it doesn’t matter if a reasonable person would feel differently. The Δ will be liable so long as he intended the apprehension, especially if he knew of a particular timidity/vulnerability of the Π.
2. Objective Inquiry into Imminence—the inquiry into imminence is objective, so we ask “would a reasonable person feel imminent apprehension?” This will trump subjective apprehension. Thus, if the contact is not reasonably imminent