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Torts
University of Connecticut School of Law
Macgill, Hugh C.

Torts Outline
Hugh MacGill
Fall 2010
University of Connecticut School of Law
 
 
 
The Tort of Battery
1.      RST §13
a.       Battery; the intentional infliction of a harmful or offensive contact with the person of the plaintiff
                                                              i.      The D must act
                                                            ii.      The act must be intentional
                                                          iii.      The act must cause a contact with the victim
                                                          iv.      The intended contact must be either harmful or offensive to the victim
b.      Rational
                                                              i.      Imposing cost serve deterrent purpose
                                                            ii.      Provides a civilized alternative to retaliation
2.      Intent Requirement
a.       No contact is intentional if it is not the result of a voluntary act
                                                              i.      RST §2; defines an act as an “external manifestation of the actor’s will”
b.      The D must not only intend to act; must act for the purpose of  inflicting a harmful or offensive contact on the P, or realize that such a contact is substantially certain to result
c.       RST § 8a
                                                              i.      Intent; used to denote that the actor desire to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it
d.      Purpose of intent requirement
                                                              i.      Confine intentional tort liability to cases in which the D acts with a higher level of culpability than mere carelessness; where acts with a purpose or with knowledge that the act will cause harmful or offensive contact to the victim
e.       Purpose to cause contact or substantial certainty that a contact will result
3.      Clayton v. New Dreamland Roller Skating Rink, Inc.
a.       Employee attempted to set P’s broken arm against protests; knew that she found contact unwelcome (protested); so met intent requirement
4.      Transferred Intent (RST §16(2))
a.       Actor intends to commit a battery on one person and actually inflicts one on somebody else
b.       RST §16(2)
                                                              i.      Where the actor tries to batter one person and actually causes a harmful or offensive contact to another, she will be liable to the actual victim
c.       Rational
                                                              i.      Act is just a culpable; would be unconscionable if exonerated just because hit wrong person
d.      Transferred intent allows recovery where the actor attempts one intentional tort but causes another
5.      Harmful or offensive contact
a.       RST §15
                                                              i.      Bodily harm; “any physical impairment of the condition of another’s body, or physical pain or illness”
b.      RST §19
                                                              i.      Offensive; if it “offends a reasonable sense of personal dignity”
1.      A contact is offensive if a reasonable person in the circumstances of the victim would find the particular contact offensive
a.       It is not a defense that did not mean to give offense, or that did not realize the victim would be offended
6.      Intent and consequences
a.       RST § 8(a)
                                                              i.      Must intend the consequences of the act; refers to the harmful or offensive contact, not the injuries that result
1.      Ex. Intended to trip; because intended “consequence,” liable for the unintended fall down the stairs as well
b.      Lambertson v. US
                                                              i.      Inspector ran up behind worker; pulled bag over head; hit face on meat hooks; did not intend to suffer injury or hit hooks; spirit of horseplay
                                                            ii.      Court concluded; battered worker since reasonable person in victim’s circumstances would find contact offensive; held liable even though did not intend to cause them
7.      Contact requirement
a.       D need not actually touch P, or even be present at time of contact to commit a battery
b.      Extended to include object intimately associated with victim’s body (knocks off hat)
Assault
8.      Unlike battery which requires a tangible, physical invasion; assault protects one form of mental tranquility; the right to be free from fear or apprehension of unwanted contact
a.       Authorizes damages for threatened invasion
b.      Protects against one narrow type of mental distress; apprehension of immediate physical aggression
9.      Cucinotti v. Ortman
a.       Held; “an assault may be described as an act intended to put another person in reasonable apprehension of an immediate battery, and which succeeds in causing an apprehension of such battery  
10.   RST § 21; elements of assault
a.       Actor is subject to liability to another for assault if
                                                              i.      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
                                                            ii.      The other is thereby put in such imminent apprehension
1.      IE; (i) must act with intent; (ii) to place the victim in apprehension of a harmful or offensive contact or to make such a contact; (iii) the victim must reasonably be placed in apprehension of such a contact
11.  Intent Requirement
a.       Must act with the purpose to cause contact or substantial certainty that the apprehension will result (RST §8(a))
b.      Also provides; one who attempts to batter the P but misses is liable for assault if the P is placed in apprehension of a blow (RST §21(1))
                                                              i.      Principle; intent to batter can also suffice for assault (akin to transferred intent doctrine)
1.      P must prove; feared type of contact that would support a battery claim if it actually occurred
12.  Apprehension (not fear)
a.       Mean perception or anticipation of a blow, rather than fright
                                                              i.      Protects against the fear of an unwelcome contact, but also against the mere expectation or anticipation of one
b.      Imminence is required
                                                              i.      RST §29 cmt. b
1.      Suggests imminent means; no significant delay; not necessary that within striking distance or the weapon can be instantly discharged
                                                            ii.      Fear of a future contact will not support liability
c.       Turns on whether D’s act would place a reasonable person in apprehension of an unwanted contact, not whether the aggressor is in fact able to make the threatened contact
13.  Mere Words
a.   

efense of consent (RST §892C(2)
e.       Mohr v. Williams
                                                              i.      Obtained patients consent to operate on right ear; found left more diseased; operated on it instead; carefully done
                                                            ii.      Held; battery; touching went beyond scope of contact patient had consented; exceeded consent
f.       Limited privilege to surgery; based on situation; may allow to choose what a reasonable patient would consent to if could be consulted
g.      Emergency; render treatment reasonable person would consent to
h.      Recognize right of competent adult to refuse treatment; even life-saving
i.        Circumstances; family members may exercise “substituted judgment” for a patient
Reasonable Person
20.   Negligence is a tort with four elements; must prove all four to “recover on a claim for negligence”
a.       Duty of reasonable care
b.      Breach of that duty
                                                              i.      Term “negligence” can be used to refer this term; to say “was negligent”; is to say that he failed to exercise reasonable care under the circumstances
1.      A D may be negligent without necessarily being “liable for negligence”
2.      P does not suffer damages from D’s failure to exercise due care
c.       Causation
d.      Resulting damages
21.  Rational
a.       Owe our fellow citizens a duty to exercise reasonable care in the conduct of our won affairs; avoid injuring others by carelessness; duty is breach by failing to exercise reasonable care
22.   RST §283
a.       To avoid being negligent, an actor must act as “a reasonable man under like circumstances”
23.   How the Reasonable Person Thinks
a.       Considers the foreseeable risks of injury that conduct will impose on person
                                                              i.      Considers risks in light of the utility of that conduct (RST §291)
b.      Considers the extent of the risks posed by conduct (RST §293)
c.       Considers the likelihood of a risk actually causing harm
                                                              i.      Vaccine example; reasonable if 1 in 1000 die, not 1 in 10 (RST §293(d)
d.      Considers whether alternatives to proposed conduct would achieve same purpose with lesser (or greater) risk (RST §292(c))
e.        
24.  Hand formula
a.       United States v. Carroll Towing Co.
                                                              i.      Duty in controlling barged a function of three variables
1.      Prob that barge will break away
2.      Gravity of the resulting injury if it does break away
3.      Burden of adequate precautions
b.      Suggests the factors the Reasonable Person considers and how he balances them
                                                              i.      B