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Torts
University of Dayton School of Law
Laufer-Ukeles, Pamela

Torts
Laufer-Ukeles
Fall 2012
 
 
Intent:  The intent must be to bring about some sort of physical or mental effect upon another person, but does not need to include a desire to harm that person (applicable to all intentional torts)- intentionally acting in a wrongful way
·          Most culpable of 3 levels
·         There are parallels in criminal law
·         You don’t always need to prove damages
·         Can receive punitive damages
 
A.     Prima Facie Case- to establish a prima facie case for intentional tort liability, it is generally necessary that plaintiff prove the following:
a.     Act by the defendant
b.     Intent
c.     Causation
 
I.                    Act by the Defendant: the act requirement for intentional tort liability refers to volitional movement on defendant’s part
a.      A tripped and was falling. To break the fall, A stretched out his hand which struck B.  Even though the movement was reflexive, it was nonetheless dictated by the mind, and hence will be characterized as volitional.
b.      A suffered an epileptic attack.  During the course of it, she struck B.  This was not a volitional act.
c.       A pushed B into C.  A has committed a volitional act, B has not.
                                                                               i.      MISTAKE OF FACT IS NO EXCUSE
II.                 Intent:  the requisite intent for this type of tort liability may either be specific or general
a.      Specific intent:  an actor “intends” the consequences of his conduct if his goal in acting is to bring about these consequences
b.      General intent:  an actor “intends” the consequences of his conduct if he knows with substantial certainty that these consequences will result
c.       Substantial Certainty: an occurrence is obviously intentional if the actor desires to bring it about.  But tort law also calls it intentional if the actor didn’t desire it, but knew with substantial certainty that it would occur as a result of his action
                                                                               i.      Ex:  D, 5 yrs old, pulls chair out from under P as she is sitting down.  Even if D did not desire that she hit the ground, if he knew with substantial certainty that she was trying to sit and would hit the ground, he will have the intent necessary for battery
1.       If it is not substantially certain that the invasion of P’s interest in his person will occur but merely highly likely, the act is not an intentional tort- this is true even though it may be reckless and may give rise to liability for negligence
a.      Ex:  If D thought it was probable but not substantially certain that P would hit the ground when he pulled out her chair, it is not an intentional tort and therefore, not a battery
d.       No Intent to Harm Necessary:  a person can have the intent necessary for an intentional tort even though he does not desire to harm the victim, and does not have a hostile intent
                                                                              i.      Single v Dual Intent
1.       Single intent:  (majority), intent to commit contact that is offensive to a reasonable person, less culpability required here- incentivizes good behavior
2.      Dual intent: intent to commit contact that is offensive and intent to harm, more culpability required here
a.      Hypo:  A, a foreign immigrant, kisses B on the cheek- a normal farewell in A’s culture.  B is shocked and falls backward.  Is B liable for battery?
                                                                                                                                                       i.      Enough single intent for battery claim
                                                                                                                                                    ii.      Not enough dual intent for battery claim
                                                                            ii.      Ignorance of the law is no excuse:  it is irrelevant that D did not know his action would constitute a tort or a crime
                                                                          iii.      Insane persons are liable for their torts:  insane people do not automatically escape liability for committing intentional torts
e.      Transferred intent:  as long as D held the necessary intent with respect to one person, he will be held to have committed an intentional tort against any other person who happens to be injured (except in IIED- intent cannot be transferred)
                                                                               i.      Different kind of tort intended: Ex- if D had the intent to commit assault on P but instead hit P, D had to the intent necessary for battery
                                                                            ii.      Limitation

iable for a battery.  (A would also be liable if he had grabbed an article of clothing she was wearing, a cane she was holding, etc)
d.    Causation:  D is liable not only for direct contact, but also for indirect contact; i.e. it will be sufficient if he sets in motion a force that brings about harmful or offensive contact to P’s person
Ex:  A, intending to set a trap, dug a hole in the road upon which B was going to walk.  B fell in.  Causation exists.
Ex:  A struck a glass door so that the breaking glass cut B.  Causation exists.
e.     Apprehension Not Necessary: a person may recover for battery even though he is not conscious of the harmful or offensive contact when it occurs (e.g. unauthorized surgery performed on unconscious patient)
f.     Transferred Intent:  applies in battery cases; D acting with the intent to commit an assault who causes harmful contact to P has committed battery
g.    Actual Damages Not Required:  it is not necessary to sustain a prima facie case for battery that P can prove actual damages; P can at least recover nominal damages even though he suffered no severe actual damage.  In a majority of jurisdictions, punitive damages can be recovered when it is shown D acted with malice
h.  Hypo 1.  A gives B a box of 18 chocolates, 1 out of 6 are poisoned with arsenic (which A is aware of).  B eats 5 of the chocolate, unaware that some are poisoned, and does not get sick.  Is A liable for battery?
Yes- A knew the chocolates were poisoned, B had actual exposure to them (different from dentist with HIV case), B did not consent to risk exposure to arsenic, and the act was not otherwise protected.
      Hypo 2.  If a man hires a caterer for his daughter’s wedding and specifies only kosher sushi is to be served, can caterer be held liable for knowingly serving non-kosher sushi if man is unsure whether he ate non-kosher at the wedding?
Yes- this is not offensive to a reasonable person but caterer knew of man’s sensitivity