TORT LAW – NANCE
FALL 2015
INTENTIONAL TORTS
I. INTENT
A. No Intent to Harm – generally do not need to intend to harm
B. Substantial Certainty
i. If ∆ knows with substantial certainty that a particular effect will occur as a result of action, he is deemed to have intended the result
ii. Must show that ∆ actually knew his actions would cause such contact
iii. Act must be intentional or substantially certain, not the consequences
iv. Garratt v. Dailey
a. ∆, 5 y/o boy, pulls chair out from under π as she is sitting down. If ∆ knew with substantial certainty that π would hit the ground, ∆ meets intent requirement for battery, even if he did not desire that result.
C. Transferred Intent
i. Same Victim, Different Intentional Tort
a. Nelson v. Carroll
(i) ∆ attempting to collect debt from π, attempts to scare with gun, but accidentally shoots instead. Went from Assault à Battery.
(ii) Intent for assault transfer to battery
ii. Same Tort, Different Victim
a. Talmage v. Smith
(i) ∆ saw boys on roof of his building, throws stick attempting to hit A, hits B instead.
(ii) Intent to hit A transfers to B = Battery.
iii. Across Torts and Victims
a. White v. Davis
(i) π arguing with X a few houses down from ∆, π pulls out gun attempts to shoot X while driving off on motorcycle, instead hits ∆.
(ii) π says purchased gun with intent to scare X, not actually shoot him.
(iii) Intent transfers from X to ∆; also transfers from assault to battery
iv. From Things to Persons
a. Most courts will not allow
II. BATTERY
A. Intentional infliction of a harmful or offensive bodily contact
B. 4 Elements of Battery
i. ∆ acts;
ii. Intending to cause contact with π;
iii. Contact with π is of harmful or offensive nature; and
iv. ∆’s act causes π to suffer a contact that is harmful or offensive
C. Tests for Intent
i. Wagner v. State
a. Mentally ill man in custody of state, at K-Mart, attacks Wagner.
b. Test: Was there intent to make contact?
ii. Vosburg v. Putney
a. ∆ kicked π in leg in class, π previously injured leg, the kick caused permanent damage to leg.
b. Eggshell Skull Rule: Still liable for hidden vulnerabilities
c. Test: Was there intent to contact that tends to cause harm or is offensive?
iii. Spivey
a. Test: Was there intent to cause actual or specific harm that resulted?
D. Offensive Contact
i. Objective test: would a rsble person be offended?
ii. Must violate prevailing social standards of acceptable touching
iii. Certain kinds of contact can be offensive if π is averse to being touched in particular way (religious reasons)
E. Extends to personal effects
i. Contact with clothing or an object a person is holding will also constitute contact
ii. Contact can come in form of sound waves; spilling drink
F. π need not be aware
i. Not necessary that π have actual awareness of the contact at time it occurs
a. Ex., ∆ kisses π in her sleep = battery
G. Contact beyond level consented to
i. Ex., playing tag you consent to touching, but if try tagging and punch, knock out teeth = Battery
ii. Koffman v. Garnett
a. π = HS football player, coach wanted to teach how to tackle, picked up and slammed down on ground. Consented to play football, this is not in normal scope of football practice, was coach asking to participate so would say yes.
b. This is battery.
III. ASSAULT
A. Intentional causing of apprehension of harmful or offensive contact
B. 3 Elements of Assault
i. ∆ acts;
ii. Intending to cause in π apprehension of an imminent harmful or offensive contact with π; and
iii. ∆’s act causes π reasonably to apprehend such a contact
C. Not necessary for ∆ to intend to harm π
i. Ex., ∆ as practical joke points toy pistol at π, hoping π will falsely think that ∆ is about to shoot. This is assault if it caused apprehension in π of imminent contact.
ii. Beach v. Hancock
a. ∆ walked into π’s office, pointed gun and pulled trigger twice at π, but was unloaded. π did not know unloaded.
b. Created apprehension of imminent contact = assault.
D. “Words Alone”
i. Generally not sufficient, by themselves, to give rise to an assault
ii. Must be an overt action or gesture
iii. Exception: previous actions of ∆ or surrounding circumstances may make it
or outrageous; and
iii. ∆’s conduct must be the cause of severe emotional distress
C. Reckless = failure to heed to a very obvious and significant risk of serious injury
D. Intent
i. ∆ desires to cause π emotional distress
ii. ∆ knows with substantial certainty that π will suffer emotional distress
iii. ∆ recklessly disregards the high probability that emotional distress will occur
E. Gap-Filler Claim
i. Typically used if don’t have any other claim but have reckless/outrageous behavior
ii. If able to recover under another tort claim, IIED claim must be dismissed
F. “Extreme or Outrageous”
i. ∆’s conduct must be “beyond all possible bounds of decency”
ii. Dobbs’ 4 Markers of Outrageous Conduct
a. Abuse of power or position, exploiting a position of dominance
b. Taking advantage of or emotionally harming a π known to be especially vulnerable
c. Repeating or continuing acts that may be merely offensive and thus tolerable when committed only once
d. Committing acts of physical violence or economic harm to a person or property in which the π is known to have a special interest
G. Cases
i. Dickens v. Puryear
a. 31 y/o man + 17 y/o girlfriend. Father takes man out with 4 men, handcuffed, beaten, brandished knife, discussed whether to kill or castrate, then told to go home, pack up and leave otherwise he would be killed.
b. Threat to be killed if didn’t leave could lead to IIED given the past evidence of violence = makes very believable.
c. This can be IIED.
ii. Littlefield v. McGuffey
a. π signed lease at ∆’s apt. complex, ∆ found out she was dating interracially, kicked her out, left nasty messages, left notes at new apt., racist comments.
b. Physical manifestations are not required for IIED
