Restatement: An actor is subject to liability for battery if: (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person or [he acts intending to cause] an immediate apprehension of such a contact AND (b) a harmful or offensive contact with the person of the other directly results. [The burden is on the plaintiff to prove each element of the battery; to prove each element is known as the prima facie case.]
1. Element of Intent
a. Restatement: It MUST be knowledge to a substantial certainty
i. Garrett – kid knew to a substantial certainty that harmful contact would occur when he pulled the chair out as woman went to sit down
ii. Note that this act was performed by a child. Children can formulate the element of intent
iii. Know as the Doctrine of constructive consent
b. An intent to harm is not specifically needed
i. Vosburg – the intent to commit an act that social norms would not allow satisfies the intent for battery.
ii. The kid kicks a classmate after class has been called to order. Although he didn’t mean to harm the other, he did intend to break the social norm, thus satisfying the intent for battery.
c. Constructive Intent (as in Garrett) – actor knows to a substantial certainty that contact will occur to X. He knows that X is present or is likely to be present when he acts.
i. Doesn’t have to be towards a specific person. Like if you throw something into a crowd.
d. Transferred Intent – the actor need not know that another is there. He intends contact with Y and hits Z who is back behind him when he swings his hammer back. The intent to cause contact with Y transfers to his contact with Z.
2. Element of Harmful Contact
a. Restatement: physical impairment of the human body or of real property or tangible personal property including physical injury, illness, disease, and death
b. Restatement: If physical impairment exists, no minimum amount of physical harm is necessary. A change is enough, even though it may be considered “harmful” to the outside world. This change need not be major.
3. Element of Offensive Contact
a. Restatement: An offensive contact offends a reasonable sense of personal dignity. This means that the contact would offend the ordinary person and that means a person who is not unduly sensitive. An offensive contact is a contact which is unwarranted by the social usages at the time and place the contact is made. This is usually an objective standard, though some courts have found subjective sensitivity relevant.
b. Fischer – it was found to be an offensive contact when a restaurant manager yanked a plate out of a patron’s hands even though there was no physical contact.
i. “Personal indignity is the essence of an action of battery”
ii. Respondeat superior – He sues the employer, not the actual person who caused the harm.
c. Violating social norms – Vosburg
4. What constitutes adequate contact?
a. The a) intentional infliction of a b) harmful or offensive (wrongful) c) bodily contact with another
i. Restatement definition of physical harm – the physical impairment of the human body or of real property or tangible personal property. The physical impairment of the human body includes physical injury, illness, disease, and death.
b. Fall to the ground (Garratt)
c. Snatching of a plate (Fisher)
i. Offensive invasion
d. Sound? Smell?
e. Person does not need to be aware
i. If you kiss someone while they are sleeping, it is battery
5. Exception to Battery
i. i.e. Brushing up against someone in a crowded subway car is not battery
b. Mental capacity – have to be able to form the intent to cause the contact
c. Act must be voluntary
d. Glass cage rule – you cannot announce that there is a glass cage around you.
i. i.e. Person who tried to sue for contact from smoke in an environment in which smoking was acceptable.
ii. Does this fit here??????????????
OTHER INTENTIONAL TORTS
Restatement §21 ASSAULT
(1) An actor is subject to another for assault if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehensions of such a contact, and
(b)the other is thereby put in such imminent apprehension.
(2) An action which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatene
c. Reasonable amount of time
3. Intentional Infliction of Emotional Distress
a. Act must make average member of community exclaim “Outrageous!”
i. Must be severe
ii. Not necessarily physical harm
c. Jones (716) – Clinton’s hotel room encounter with Ms. Jones. Rule: In order for a claim of IIED
i. (1)the ∆ must intend to inflict emotional distress or reasonably know it is possible
ii. (2) conduct was extreme and outrageous
iii. (3) it was the cause of distress and
iv. (4) distress was so severe in nature that no one should be expected to endure it.
v. In this case, since the interaction was brief, it was not particularly severe (a mere sexual proposition in the words of the court) and there never seemed to be any damages (Ms. Jones never missed work) so there was no IIED.
DEFENSES TO INTENTIONAL TORTS
a. Consent – was there willingness in fact for an act to occur?
i. Express Consent
ii. Consent by duress is not valid consent
iii. Consent produced by fraud is not valid consent
1. i.e. If someone pretends to be a doctor and gets the consent of someone which is given because they believe themselves to be consenting to a doctor, that consent is not valid
iv. Bang – there is medical consent, but the patient was not informed of alternative possibilities.
1. Court says that absent an emergency, a patient should be informed of alternative possibilities
v. Hackbart (58) determined that consent should be determined by a jury, O’Brien said it was a matter of law
vii. Consent to something illegal
viii. Implicit consent – here you need to consider the custom/circumstances
i. Three Restatement Questions:
1. What is the reasonableness of the perception of the threat? (Objective Test)