o Requirement common to all intentional torts
· 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.
· 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
· 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.
· 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)
· 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
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.