Select Page

University of Denver School of Law
Doberneck, Megan

Professor Doberneck – Torts – Spring 2013

Chapter 2 – Intentional Torts

I. Battery

· Battery: intentional infliction of a harmful or offensive contact with the person of the P.

· RST definition:

o 1. The D must act;

o 2. Her act must be intentional (in the restricted sense peculiar to tort law);

o 3. The act must cause a contact with the victim (poking the D with a stick works even though the P did not physically touch the D); and

o 4. The intended contact must be EITHER harmful or offensive to the victim.

A. Harmful Contact

· RST: Bodily harm: “any physical impairment of the condition of another’s body, or physical pain or illness. (Of course, if harm is minor à P will recover very little)

B. Offensive Contact

· RST: Conduct is offensive if it offends a reasonable sense of personal dignity.

o What a reasonable person finds offensive varies greatly with the circumstances à ex: frequent horseplay at work between A and B. All of a sudden, B cannot find A’s horseplay offensive because of their previous history.

C. Transferred Intent

· Legal principle that intent can be transferred from one victim or tort to another.

· A intends to hit B with a rock, misses and hits C. A’s tortious intent to hit B transfers to C.

· If X tries to frighten Y by shooting her, but the bullet hits her instead, she will be liable for battery (among the criminal charges) even though she intended to commit an assault instead.

II. Assault

· Assault protects against the apprehension of immediate physical aggression.

· RST: D must

o 1. Act with intent;

o 2. To place the victim in apprehension [the perception or anticipation of a blow, not fright itself] of a harmful or offensive contact or to make such a contact; and

o 3. The victim must reasonably be placed in apprehension of such contact.

· There is an imminence element to assault à conditional threats are only assaults if they suggest immediate harm. (ex: “if you try out for the football team next month, I’ll beat you up” is not imminent enough)

III. Defenses to Battery and Assault

A. Consent

· This defense arises when a person voluntarily relinquishes his right to be free from harmful or offensive contact or imminent apprehension of such contact.

· Most courts hold that the D is privileged to make a contact where the P’s words, gestures, or conduct reasonably manifest consent to it, even if she was not actually willing to be touched.

B. Defense of Self

· The proportionality principle: an actor may use force proportionate to 1) the interest the actor is protecting; and 2) the injury or harm threatened by the other.

· The victim is not licensed to extract an eye for an eye, but rather only to use the force that she reasonably believes is necessary to avert the threatened harm.

· Self-defense is authorized solely to prevent a further intrusion that cannot be avoided by waiting for legal redress.

C. Defense of Others

· Basic premise: an intervenor has the right to use the same force to defend the victim that the victim could use to defend himself.

o Thus, if G was about to batter D with nondeadly force, A could use reasonably nondeadly force to prevent that battery. If G was using deadly force, A could use deadly force in defense of D, if necessary to forestall the battery.

D. Defense of Land and Personal Property

· Also based on the proportionality principle.

· Because the law values human life more than land or possessions, there is less justification for the use of deadly force in these cases than in cases involving defense of people.

Chapter 3 – Negligence: The Duty of Reasonable Care [Negligence defined as the BREACH of the standard of due care]

I. The “Reasonable Person” Standard: an actor will breach her standard of care if she did not act like a reasonable person would under the circumstances.

A. Defining and Justifying the “Reasonable Person” Standard

· The reasonable person considers:

o The foreseeable risks of injury that the conduct will impose on the community in light of the utility of that conduct (EE).

o The extent of the risks posed by her conduct. (EE)

o The likelihood of a risk actually causing harm. (EE)

o Whether alternatives to her proposed conduct would achieve the same purpose with lesser (or greater) risk. (EE)

B. Reasonable Conduct as a Balancing of Costs and Benefits


o B = burden of prevention or avoidance

o P = probability of loss

o L = magnitude of the loss that would be avoided with the possible prevention or avoidance.

o Actor is negligent is B is less than PL; not negligent is B is greater than PL.

II. The Range of Application of the RPS

A. Especially Dangerous Instrumentalities

· “The standard of reasonable care under the circumstances” AKA

· “The highest degree of care practicable.”

B. Emergencies

· The emergency doctrine is NOT an independent rule.

· An emergency is simple one of the circumstances faced.

C. An Actor’s Knowledge and Skill

· Persons with a specialized knowledge are NOT held to a higher standard of care than others: their standard, like that of others, is reasonable care under the circumstances.

o The fact that an actor is a professional or assumed the role of an expert in an activity is a “circumstance” that colors the meaning of reasonableness.

o A professional will be expected to possess and employ the skill and knowledge of her profession, not of the “ordinary reasonable person.”

D. Youth: Special Treatment for Minors

· Children are not held to the adult standard of care, but rather the standard of a “reasonable person of like age, intelligence, and experience under the circumstances.”

· The child standard does make allowance for their mental ability and development.

o Rationale: children have to learn to be careful, and ought not be exposed to tort liability for conduct that is reasonable in light of their stage of development during the learning process.

E. Physical and Mental Disabilities

· PHYSICAL (generally): a person with a physical disability is required to act as a reasonable person with that disability would act.

o Ex: It is not negligent for a blind person, while walking the streets, to occasionally bump into people.

o It might be a closer call if the blind person ventured without a cane, but his conduct will be judged against that of other actors in the same “circumstances,” not against the population at large.


· Not really a separate principle, but rather a special form of CE.

· P’s subsequence negligence should be accounted for under a comparative negligence analysis, not by barring her from proving the other party’s negligence through RIL.

· RIL permits the jury to infer negligence, but it does not require them to do so.

· RIL merely provides evidence sufficient to support an inference that the D was negligent, but does not compel a finding for the P even where there is no rebuttal evidence.

· Most courts hold that the P can make a RIL case by showing:

o 1. P was injured by an accident that would not ordinarily occur without negligence.

§ P’s burden of proof is not to eliminate all possible alternative causes of his injury, but show that the more probable cause was negligence.

o 2. The negligence is more likely that not attributable to the D, rather than to the P or a third party.

§ D need not have exclusive control.

§ P just needs to demonstrate that the negligence was likely of the D rather than himself or other parties.

· What should the defendant do in the tricky position of RIL?

o Most effective approach: prove the actual cause of the accident.

o D can attack each of the foundation facts necessary to support RIL (ex: question the second foundation fact by showing that other persons mishandled the product that caused the injury after it left his hands.

o D can prove that he generally exercised due care.

§ Could backfire: the more careful the D’s procedures, the less likely that an accident would happen if they had in fact been followed.

Chapter 5 – Legal Cause: Cause-In-Fact (CIF)

I. Basic CIF: The But-For Test

· There are TWO causation requirements, CIF and proximate causation (PC).

· CIF: As a factual matter, the D’s act contributed to producing the P’s injury.

· PC deals with limits on liability for remote or unexpected consequences of tortious conduct (see below).

· But-For Test:

o Test used to determine whether the D’s act was the cause in fact of the P’s harm.

o The court asks whether the P would have suffered the harm “but for” the D’s negligence.

o “If we go back and replay the accident, but take away the D’s negligent act, would the P have escaped injury?”

o “But for the D’s negligent conduct, the P would not have been injured.”

o Test invites us to look at what did happen and compare it to what would have happened if the D had not been negligent.

§ There is a slight jury issue of reconstructing history, but the jury can usually make a reasoned judgment as to whether the negligence contributed to the outcome.