Torts Outline

Takacs

Torts

Fall 2011

Intentional Torts

1. Battery – invading the integrity of another person with a harmful or offensive contact.

a. Elements

i. Element 1 – A acts

1. Minimal level of control

2. NOT accidental

a. Ex: Bus stops and you bump into someone.

ii. Element 2 – Intent to cause a harmful or offensive contact with P

1. What constitutes “harmful” or “offensive” is defined by the reasonable person standard not actor’s belief.

2. Actual Intent

a. A’s purpose was to cause contact

3. Substantial Certainty of Knowledge à Subjective Standard

a. A knows the act will cause contact

i. Ex: shooting a gun into a crowd (no specific target)

ii. Counter-Ex. – shooting a gun into a desert and hits a random person far away.

4. Specific intent for a specific result is not required.

a. General intent suffices, even if the actual, specific harm was accidental

b. Nelson v. Carroll – D didn’t specifically intend to shoot P, but still had general intent to commit battery by pistol-whipping P.

i. A’s act sets a force in motion which ultimately produces a result.

5. Under the Restatement (Wagner): The only intent required is intent to make contact. Actor need not intend harm, only needs to intend contact.

a. Unexpected kiss example: actor did not intend harm or offense, so he would not be held liable under the other standard, but his act did undoubtedly offend his victim and he should be held liable.

iii. Element 3 – A’s act causes such contact

1. Character of the Contact

a. Harmful; OR

b. Offensive

i. Paul v. Holbrook – massaging shoulders, suggestive comments

ii. Subjective Standard

1. B is unduly sensitive AND

2. A knows about this sensitivity and takes advantage of it.

iii. Objective Standard

1. Violates prevailing social standards of acceptable touching

a. Prosser: “Unless the actor has special reason to believe that more or less will be permitted by the individual P, the test is what would be offensive to an ordinary person not unduly sensitive as to his dignity.” (Holbrook)

2. Based on the circumstances

a. Who is doing the touching?

i. A’s behavior leading up to the contact

b. Who is being touched?

i. B may be unreasonably sensitive

c. Relationship between A and B

i. Prior history of shenanigans?

ii. Intimate friend vs. stranger

d. Setting in which touching occurs

i. Time and place

ii. Office, house, bar, etc.

2. Scope of Contact

a. Direct Contact

i. Flesh-on-flesh OR flesh-on-clothes

b. Indirect Contact à Extended Personality

i. Object or anything A has control over that is so connected to the body that it is regarded as an extension of the body

ii. Examples: Shooting gun, stabbing, filling room with gas, and shooting bullets into the air.

iii. A grabs plate from B à offensive touching

2. Assault

a. Elements

i. Element 1 – A acts

ii. Element 2 – Intending to cause in P the apprehension of an imminent harmful or offensive contact with P; AND

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

1. Apprehension – knowledge that something bad is going to happen to you.

2. Requires awareness – attacking an unconscious person does not warrant assault, but you do have a case for battery.

b. Assault is an emotional crime.

c. Threats

i. A threat only promises a future injury, and usually gives ample opportunity to provide against it. Both words and an action are necessary (Cooley on Torts).

d. Proximity and Timing – “Imminent” is important in element 2

i. “If I were there…” (Brooker v. Silverthorne). D was not present at P’s location. Use of future tense did not specifically state an intent to perform the action.

e. Ability to avoid the harmful action through preemptive measure can also negate a threat of imminent harmful action.

i. Law does not look favorably on your case if you have the ability to escape an injury or threat and you do not take the opportunity to do so.

f. “Words can constitute assault if together with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or offensive contact with his person.” (Vetter v. Morgan, 2nd Restatement).

g. Circumstances are important:

i. Woman alone in her car (Vetter v. Morgan) has a better case than if she had 2-3 men in the car with her.

h. Fear vs. Apprehension

3. Intent

a. Transferred – applies across torts and victims

i. Assault à battery

1. Intended to scare someone by shooting at the ground, but shot the person instead.

ii. Battery à Assault

1. Raising a hammer to hit someone but you miss, which placed B in apprehension of a harmful contact.

iii. Actor à Another Actor

1. A intended to shoot B, but shot C instead.

2. A’s intent to shoot B trans