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University of Illinois School of Law
Wasserman, Melissa Feeney

Torts – Wasserman – Spring 2011


I. Intentional Torts

Section A. Battery

1.) Intent and Volition

What is a Tort? A civil wrong the resolution of which isn’t governed by contract

Arise in absence of contractual relationships

Common law (judge made law) v statutory law

Vosburg v Putney—Intentional Torts: Intention and Volition (kid taps kids puss filled knee)

80 Wis. 523, 50 N.W. 403 (1891)

An intentional tort—different from negligence b/c of intent

Unlawful act—impermissible act, or not allowed under the circumstances

Reciprocal reciprocity (risk)—doesn’t apply to the classroom—but would be an expected risk to either parties if they played soccer (assumption of risk)

Inevitability- stuff happens day to day—jostled on a bus per se

Presence of intent to harm does lead to liability, lack of intent leads to liability if act was unlawful, sort of a weaker indicator of liability.

Actor is subject to liability if he/she intends harmful or offensive contact or if harmful or offensive contact results.

Offensive contact—if it offends a reasonable sense of personal dignity

Damages—rule for torts is different from contracts. Torts—you pay actual damages. Contracts you pay average expected damages (could be more or less than actual). Contracts have an implicit price and average expected damages is a policy move for full disclosure in entering contract.

It takes 2 to Tort—plaintiff’s conduct. Matters less in intentional torts cases.

Egg shell skull—you take the π as you find them

Knight v. Jewett (touch football gone awray)

California 1992

Facts: K. and J. playing a game of touch football w/friends. J gets a little rough with K and K tells J that is he doesn’t watch it, she won’t play anymore. Later in game, J knocks K down and unintentionally steps on her finger. K’s finger is crushed and later amputated. K sues J for battery.

PP: Trial court gave ruled for J.

Holding: Supreme Court affirms

Rule: Requisite element of assault and battery is intent.

Reasoning: J did not intend to step on K’s hand and injure her.

Class Notes: Why is it different from Vosburg?

-issue of intent

-implied consent in participating in the game

-reciprocal risk

-inevitability- stuff happens (within reason—degrees of conduct: ie hockey-beating down

with a stick is battery)

White v. University of Idaho (piano teacher touches student)

Idaho 1989

PP: Trial court rules for W granting damages

Facts: Piano teacher instructing W in her home. Teacher comes up behind W and touches her on her back with both hands to demonstrate a piano technique. W is seriously injured. W claims act was unpermitted and offensive and took her by surprise. W sues prof and University for battery

Holding: Affirms

Rule: Intent element doesn’t require a desire to bring about a specific injury or result. Intent is satisfied if act causes intended contact that is unpermitted and harmful or offensive.

Class Notes:

-Why is this different from Knight?

· touching was intentional although the harm wasn’t, unlike in Knight

· Offensive contact case: contact is offensive if it offends a reasonable sense of personal dignity; Restatement: in order to be offensive, must be one that would offend the ordinary person, be unwarranted by social uses present at the time it was inflicted—see notes page 4

-Subjective test vs. Objective test

· Subjective: was it unwanted

· Objective: would a reasonable person find offensive

· language suggests that court in White used a subjective test-White wouldn’t have consented to touching.

Polmatier v Russ (crazy man shoots father)

Connecticut 1988

PP: Trial court found not guilty by reason of insanity. The decedent’s wife (victim) then brought suit for wrongful death in civil trial. Trial court ruled for plaintiff (wife)

Facts: R kills father in-law with a shotgun. R suffers from extreme case of paranoid schizophrenia and thought his father in law was a spy that planned to kill him. Russ claims act involuntary and insanity trumps intent (not capable of making reasonable choice)

Holding: Affirmed

Rule: Rational choice not required to form intent. Insane person may have intent to invade the interests of another even though his reasons/ motives may be irrational.

Reasoning: Insane held liable as public policy point to push/secure efficient custody and guardianship (public policy stance).

Class Notes:

– Act: a voluntary act- doesn’t cover reflexive, automatic, epileptic or thing done while asleep

– Two issues: voluntary act and intent

– Crazy person can have requisite intent

Laidlaw v Sage (bank bomber and the human shield)

NY State 1896

PP: Case tried several times due to court errors. Trial court finds for π. Δ appeals

Facts: Man holds up bank with threat of bomb explosion. Δ used clerk π as a human shield (distracts man w/ bomb and denies req. for money while moving towards π and placing π btwn him and the bomb). Man detonates bomb killing himself, damaging building and injuring π severely. Δ unscathed.

Holding: Reversed for S.

Rule: An act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily—ie. intent not established—not intent.

Class Notes:

-Similar to Polmatier in an irrational act.

-Time element matters—imminent danger-no time to think abt. Consequences/ reflexive

– Torts usually used to defer bad behavior—have a greater policy impact or change in

Behavior (social deterrents)

-No time for torts to have an impact in Laidlaw case or create incentive for future behavior

-If crazy person thought they were in imminent danger but were not and acted, court might

rule for liability—public policy issue

Garret v Daley (kid tricks old lady)

Facts: (kid moves chair. Old lady trips over chair, falls and makes contact with floor)

Reasoning/ Rule: Don’t need to touch but cause contact btwn plaintiff and something elseto be liable for battery

-Knowledge that contact has potential to occur is enough for liability

Keel v. Hainline (eraser tosser hits bystander)

Okla. 1998

PP: Trial court rules for Plaintiff against all of the defendants. One defendant, K, appeals saying trial court erred in judgment on jury verdict

Facts: Kids in class are engaged in horseplay and throwing wooden erasers and chalk. Victim not a participant. Victim is hit by eraser that may or not have been thrown by defendant who was a participant in horseplay. Victim loses an eye. Victim sues several of boys engaged in horseplay

Holding: Held for plaintiff-trial court did not err. Keel was liable


-If the act causing the injury was unlawful/ wrongful, the intent is necessarily wrongful.

-Transferred Transferred Intent: Accomplices who encourage, procure, instigate, abet or aid the act are also liable.

-Transferred Intent: If A attempts battery against B but mistakenly hits C instead, C can sue A for battery. A’s intent toward B are combined with the harmful nature of contact to C to create a battery.

Other Rules: Collecting Judgment

Common law doesn’t hold parent liable for their kid’s tortuous acts. (Rule modified by statutes of some jurisdictions

Respondent Superior: Employers can be sued for acts of negligence committed by employees in the course of their employment (think White v Univ. Idaho and hardware case too)

Class Notes:

-Act is unlawful in itself, despite when it occurred. Throwing hard erasers is reasonably considered harmful

-Transferred Intent- have to establish liability btwn the two parties before you can transfer to the 3rd.-

-Hypo: A throws eraser at B during horseplay, misses B and hits C. A is liable for injury to C. B also is liable for participation.

-B’s consent is implied through participation

-A and B could have sued each other too (if A if found liable, can sue B for his part of the judgment (jsl and apportionment)

Manning v. Grimsley (pitcher assaults fan)

1st Circuit Court 1981

PP: Trial court ruled for Δ. On appeal, appeals court ruled for Δ and Orioles. Π appealed again.

Facts: π was a spectator at baseball game. Δ, the pitcher for the Orioles, was heckled by people in stands. Hecklers may or may not have included π. Δ threw ball at 80mph in direction of hecklers into stands. Ball broke through barrier striking and injuring π.

Holding: Appeals Court reversed in favor of Manning–π.


-Actor subject to liability to another battery if intending to cause a 3rd party apprehension of a harmful contact and causes the other party to suffer a harmful contact.

-Assault: To intentionally cause someone to have imminent apprehension of being hit is to commit an assault.

Reasoning: G. intended to throw ball at hecklers. Battery claim is supported

ontact: In order to be liable, not necessary for the plaintiff to be knowledgeable of the offensive contact at the time it occurs. The actor’s liability based on the intentional invasion of the other’s dignitary interest and the affront of the other’s dignity. Example: A kisses B while B asleep but doesn’t waken or harm B. A is subject to liability to B.

-Necessity of intention: Example: A throws water out of window at night not intending to wet anyone. A knows B is walking down street and there is a strong likelihood that B may get wet. A is not liable to B if a small amount of water splashes B but doesn’t do B harm. Basically-no intention of harm and no real harm done then no liability. Versus: A throws dirty water out window at B on the street below. A few drops fall on B’s hand but don’t harm him. A is subject to liability to B.

-What constitutes offensive conduct: A bodily contact is offensive if it offends a reasonable sense of personal dignity. Example: A while walking in a crowded street, deliberately but not discourteously pushes against B in order to pass him. This is not an offensive touching of B. Example: A, who is suffering from a contagious skin disease, touches B’s hands, thus putting B in a reasonable apprehension of contagion. This is an offensive touching of B.

6. Cultural relativity-what is considered offensive differs over time and place in cultures.

Restatements are only generalizations not dictates

3) Consent and its Limits

Does consent to touching remove liability?

1. Grabowski v Quigley (ghost surgery—doctor switheroo)

PA Supreme Court 1996

Facts: π injured back when he fell on ice. Sought treatment from Δ, a surgeon. Π agreed to surgery after consultation w/Δ. Surgery performed. After surgery, π had foot problems and Δ suggested more surgery. Π sought 2nd opinion and medical records and discovered 1st surgery largely performed by a colleague of Δ and that he was out of town during most of it. Δ had not known and received call and opted for colleague to do operation rather than wake π. Π sued Δ and colleague saying they were liable for battery b/c he did not consent for the other doctor to do the surgery (“ghost surgery”)

PP: G sues for battery. Trial court rules for defendant

Holding: Reversed

Rule: Where a patient is mentally and physically able to consult about condition in the absence of an emergency, the consent of patient is required for a surgical operation by his doctor. An operation w/o consent is technically an assault.

Reasoning: G did not give consent to Q and colleague to do surgery in that manner or for colleague Bailes to do it at all, so the surgery amounted to batter.

Class Notes:

-Imposing liability may have a public policy motive- forces hospital to give relevant information to patients—Information forcing

-onus on patient vs onus on hospital

2. Brzoska v. Olson (HIV positive dentist doesn’t tell patients)

Delaware 1995

Facts: Owens, a dentist, tested positive for HIV and developed full AIDS a year later the entire time continuing his medical practice till 1 month prior to death. Group of patients who did not know sued estate for battery and sought damages for mental anguish and a refund. Also claimed lack of consent-had they known health status would not have consented.

PP: Suit for battery. Trial court ruled for defendant.

Holding: Affirmed.

Rule: Offensive character of contact or fear of contact is assessed by a “reasonableness” standard

Reasoning: Patient’s fear of contracting AIDS was unreasonable. No proof of actual exposure- ie. fluid to fluid contact. Consent in dental/medical setting limited to when doctor performs a procedure when the patient has not consented.

Class Notes: