Torts
2014 Fall
Prof. Bohannan
ü &13. Battery: Harmful Contact (P3~11)
An actor is subject to liability to another 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 an imminent apprehension of such a contact, and
(B)A harmful contact with the person of the other directly or indirectly results.
· Knowledge of Substantial Certainty
· Harmful OR Offensive contract OR imminent apprehension of such a contact directly OR indirectly results
· With person (or close personal effects) or 3rd person
· Harmful contract directly or indirectly results
*Assault: The same as intention but the result is different. (Imminent apprehension of contact: Fright or Fear is not required. It is just acknowledgement. Some action will happen)
ü Vosburg v. Putney (1 & 2) (boy’s kick in classroom)
· 1st Issue: Did Trial court err in granting plaintiff motion on the verdict given that ….intend harm? No. Intent to harm is not required for battery→Only intent to cause wrongful contact (Easy to prove, Subject desire or substantial certainty)
· 2nd Issue: Did trial court err in refusing to instruct jury that only damage that could result of foreseeable as a kick could be award? No. Liable for all damage resulting from wrongful contact regardless of whether harm was foreseeable
· Holding: We are holding that a 11 year old student intentionally taps the P, a 14 years of student, with his foot inside of class after class is called to order and the tap causes the harm. The tap was wrongful even though the D did not intend to harm. The defendant is liable for battery for all of the harm regardless of the harm is foreseeable or not. (Relevant Fact: School, Age)
· Transfer of intent: is incorporated into battery itself. Restatement &13. “A harmful contact with the person of the other directly or indirectly results.
-In case of throwing a punch, P dodged and hit the wall
-In case of A shoot, B dodged and hit C: C: the other, B: a third person, because it requires the contact with the person. It used to be called the transfer of intent
*Special Verdict: Causation, Intention???(Issue of Law & Issue of fact: Only Clear Error→Court)
*Restatement is not a law until it is adopted in court or in legislative. However, once the legislative adopt the restatement, it binds the court just like other statutes. The difference between 2nd and 3rd is mainly about party liability. The court just started to adopt 3rd.
*Male Nurse: Offensive Battery
ü Garratt v. Dailey (little boy pulling chair from arthritic woman)
· Can infer subject desire or substantial certainty
· Consequence→ Contact with ground
· If boy was not substantially certain that harm would result (woman would make contact with ground), then no intent and no liability
ü &18. Battery: Offensive contact(P59~60)
(1)An actor is subject to liability to another 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 an imminent apprehension of such a contact, and
(B)An offensive contact with the person of the other directly or indirectly results.
(2)An Act which is not done which the intention stated in Subsection (1)(a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves ab unreasonable risk of inflicting….
ü Alcorn v. Mitchell (spitting in face): Difference between Battery and Offensive Battery is the contact (Harmful vs. Offensive)
· People need to be protected from malicious acts, Such conduct not tolerated in society
· Non-harmful offensive batteries
-Insult is more to be considered than the actual damage.
-Anything so closely attached to the Plaintiff (Cane, Striking the Horse, Seizing an Object, Glabbing plate)
-Knowledge that unpermitted conduct has taken place is not necessary to establish the battery.“ A kisses B while asleep but does not waken or harm her. A is subject to liability to B.
· Battery requires Act!!!!
-Fall Hazard, No Report, No responsibility → Normally no duty and negligent for Battery
-Patient does want to be touched by any male nurse or doctor (Offensive but it is defensed by implied consent.)
ü &21. Assault (P55~59)
(1)An actor is subject to liability 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 apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension
· Act
· Intent to cause physical contact, either harmful OR offensive contact OR imminent apprehension of such a contact(Same as Battery)
· Other is put in imminent apprehension(Result) of such a contact (transferred intent possible)
*Not required of the result of contact. Imminent apprehension of contact: Fright or Fear is not required. It is just acknowledgement. Some action will happen
ü Tuberville (man said if it weren’t day with judges present…)
· Conditional threat is not act, Normally insufficient but depends on circumstances
· But if conditional threat “if you don’t leave, I’ll hit you” – here, P has to abandon a right in order to avoid battery – thus, liable for assault UNLESS D is privileged to say so: ex: P on D’s property, D says “if you don’t get off my land, I will put you off” – D had right (Exception)
ü Allen v. Hannafor (pointing pistol to P’s head)
· Whether there is an assault in a given case depends more upon the apprehensions created in the mind of the person assaulted than upon what may be the secret intentions of the person committing the assault
ü Brower v. Ackerley
· Imminent apprehension (Phone Call Threatening→ Not Imminent Apprehension, No Action)
· Mere Words Rule: Required sufficient act, talking is not enough(Do not put the person in imminent apprehension, When people get angry, they do speak what they do not really intent, Freedom of Speech: Constitutional Law: Another example is presented in IIED case, If there is any past history, it could be one factor to be considered, Could be understood as contextual evidence)
ü Assault & Battery can occur simultaneously: Spring Gun. Dodged and Fall Down
ü &35. False Imprisonment (P61~68)
(1)An actor is subject to liability to another for false imprisonment if
(a) he acts intending to confine the other OR a third person within boundaries fixed by the actor, and
(b) his
on trespass)
· P sues D’s employer; liable b/c should internalize this cost
· Emotional Distress as parasitic on a recognized tort. If there is another tort, it could be incorporated in that Suit. In this case, rather than charging IIED independently, they include as a part of trespass. If it was not trespassed, the result would not be same.
*Assault?: No intention to contact. No Assault. Nurse might be, Transit of Intent (If it satisfies the intent and imminent apprehension), Probably not. Too far.
ü Wilkinson v. Dowton (practical joke, husband legs jammed up in accident)
· Though D did not intent to cause emotional distress, still liable
· D’s acts were so “plainly calculated to produce a some effect” that an intention to cause harm should be found
· D has willfully done an act calculated to cause physical harm to P and has caused in fact physical harm
ü Recognize as independent tort, not parasitic. Concerned about Subjective Issue.. Conduct must be sufficient egregious that reasonable person suffer physical harm. More Objective → Recognize IIED but need expert testimony → Recover IIED without expert testimony (A lot of Adjectives: Extreme, Outrageous, Severe….)
· Development History of IIED
1. Parasitic
2. Independent, Conduct must be sufficient…
3. IIED with Expert Testimony
4. IIED without Expert Testimony
*Reckless: Between Intention and Negligence, highly likely cause
*Intent: Subjective Desire, Substantial Certainty
*Negligence: Reasonable Standard
ü Rockhill v. Pollard (ER)(Outrageous professional Conduct): Willfully or recklessly failed to perform that duty
ü George v. Jordon (Bill Collector): Continue of the repeated act
ü Rubbish Collectors Association v. Siliznoff (Strong-arm Tactics): The evidence does not establish an assault against defendant because the threats made all related to action that might take place in the future and that there was no threat of immediate physical harm but it could be established IIED.
ü Important Factors: Repeated Act, Some who is especially vulnerable
ü Racially Motivated: Harassment, Leasing Apartment (Not Amount to reach the stringent requirement.
ü Hustler & Snyder: Most of cases are ignored at Supreme Court
· First Amendment: Matters of Public Concerns
· Huge Distinction: Not Private Speech v. Public Debate, Religious, Politics, Social Issues, Not concern about the content of speech, The nature of speech: we cannot suppress the content of speech) – Robust: Very Serious Defense, Even though it is public matter, if it is directed toward just one person, It could be a different Story.(Wilkinson Case)
