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University of Illinois School of Law
Hurt, A. Christine

Intentional Torts

1)      Intent
o        Requirement common to all intentional torts
o        Elements:
·         Purpose or desire for result
·         Substantial certainty of result
§         Higher standard than recklessness
§         Approx 90% (for estimation purposes only – not really the rule)
·         Measured subjectively – what was in the person’s mind?
§         But can be proven circumstantially – did X do things that indicate he hated Y?
§         Intoxication no excuse – by drinking/drugging, you take on risk of tortious activity (reasonable people don’t get drunk)
o        Transferred Intent:
·         Intent for one tort on one victim can be transferred to same tort on a different victim
·         Intent for one tort on one victim can be transferred to same and/or different intentional tort on same victim and/or another victim
§         Example: X wants to scare Y, throws stone at Y. Stone instead hits Y and scares Z who is standing next to Y. X had intent for assault on Y only, but goes down for battery on Y and assault on Z.
o        Policy:
·         Deter people from purposefully invading legal interests of others and assign blame when they do
·         Transferred intent: person is still blameworthy, they just missed on end goal of their culpable intent
2)      Battery
o        Elements:
·         Voluntary action
·         With intent
§         “Idaho” rule: the “result” that must be intended is only the contact, not that it be harmful or offensive. 
¨       Example: X intends to help Y off the ground, Y does not want to be touched. When X grabs Y’s arm, X has battered Y, even though he was only trying to help.
§         “Dual-Intent” rule: the “result” that must be intended is both the contact and the harmful/offensiveness of it.
¨       Example: same as above, but X has not battered Y because he “intended” to help.
¨       Note: even mentally disabled people must be shown to have dual intent – so negligence may be easier to prove… However, if they are found guilty of an intentional tort, their guardian may be found liable
§         RST uses “Dual-Intent” rule
·         To cause harmful or offensive contact
§         Harmful: physical impairment of another’s body, or pain or illness
§         Offensive: offends a reasonable sense of personal dignity
§         Harmful/Offensive is judged by the objective test
¨       Reasonable person in the same circumstances
§         Contact: direct (person touching person) or indirect (cigar smoke, bullet, CO gas, tripwire, trench, etc.)
¨       Such contact was not permitted
·         With another person
§         Pets, property, etc. can never be battered.
§         However, a person can be battered if it is a breach of the victim’s personal space
¨       Knock off a person’s hat; kick their car when they’re in it; etc.
§         What if X shoots Y, thinking/intending that it is Y’s cat? My initial thought is transferred intent, but X did not meet this element – he did not intend to contact another person.
·         Contact occurs
§         Again, the contact must be with the person (or property in the personal-space invasion)
¨       Example: X intentionally shoots and kills Y’s cat, thinking it is really Y. No battery.
o        Notes:
·         Van Fossen Test:
§         Proving intent in a case of battery of employee by employer, employer must:
¨       Know of a dangerous task
¨       Know to a substantial certainty – not merely a high risk – that employee would be injured by doing task
¨       With such knowledge, employer must require employee to perform the task
§         Ailiff v. Mar-Bal (solvent)
§         Keep in mind that intentional torts are not covered by insurance, but in the workplace, workers comp will pay without any showing of intent or negligence. Why go for a tort claim instead of collecting the automatic work comp claim? More money in torts…
·         Professional Risk-Takers Rule:
§         In some jurisdictions, firefighters/cops/etc. injured in the line of duty typically cannot sue
·         3rd parties who encourage/incite commission of a batter by words can be liable as a principal (Leichtman v. WLW Jacor Communications – smoking battery)
3)      Assault
o        Elements:
·         Voluntary action
§         Words alone do not suffice
¨       Conditional threats? (sleep with me or I’ll throw you out window)
§         RST allows words w/ circumstances, though
·         With intent
§         The “result” that is intended is that the person be put in apprehension
¨       Or battery in transferred intent cases
·         To put another person in apprehension
§         Apprehension =/= fear, just anticipation
§         In battery transferred intent cases, the person must still be in apprehension
·         Of imminent physical harm or offensive touching
§         Imminent = “with no significant delay,” not necessarily instantaneous.
§         Future harm does not count – not even one hour later
¨       But: could be IIED
·         Apprehension occurs
§         Attempted batteries (or assaults) that victim does not know about until after the fact, if at all, are n

RST factors to determine seriousness of offense to qualify it as conversion:
·         Extent and duration of exercise of dominion or control
·         Intent to assert a right inconsistent with other’s right of control
·         Good faith
·         Extent and duration of interference with other’s right of control
·         Harm done to chattel
·         Inconvenience and expense cause to other

Defenses to Intentional Torts

1)      General Notes
o        Even if all elements of a tort are met, a defense allows the defendant to avoid liability.
·         On exam, always set out tort first
§         X battered Y, Y battered X in self-defense. Be sure to set out that Y battered X before setting out the defense.
o        Justification from defenses follows – i.e.: if an assault is justified to protect property, and the other person ends up dying of fright, there is no liability
o        Reasonable Person Test as used in defenses
·         Does it take into consideration distinct volitional defects like in Crim law?
§         Physical limitations
¨       Can be factored in because they can’t be faked – i.e.: Down’s syndrome, age, etc.
§         Mental limitations
¨       Not factored in because too easy to fake, too hard to test, and do not put those around you on notice
2)      Consent
o        Words or actions (express); silence or inaction (implied) when reasonable person would act or speak up if not consenting
·         Is it words, actions, silence, inaction that a reasonable defendant would construe as consent?
o        Only valid when consent is thoughtful – consent from minors, drunks, and mental incompetents is not valid if the defendant knew that consenter was a minor, drunk, or incompetent
o        Consent is implied in cases of emergency if “help” was the tort and reasonable person would consent.
·         However, medical procedures that go beyond scope of consent are tricky
o        Do not confuse consent with, for example, failure to establish the element of “unpermitted offensive or harmful touching” in battery.