INTENTIAL TORTS
Intent: Restatement (2nd) Torts § 8A: “the actor desires to cause consequences of his act, OR that he believes that the consequences are substantially certain to result from it.
1. BATTARY
(a) act intending to cause a harmful or offensive contact with the person of the other or a third person, AND
voluntary, conscious act
(b) a harmful contact with the person of the other directly or indirectly results
Restatement View: “Harmful/offensive contact” (Majority View)
o Minority Ct: if you are intending what the society deemed is wrongful action, you are liable. (More persuasive)
Doesn’t need to be harmful and the P doesn’t have to know about it, P does not have to prove damages
D doesn’t have to contact victim’s actual skin, just touches anything that is close to P’s body
D’s act is offensive to a reasonable person’s sense of dignity (Alcorn v. Mitchell)
Causation may be “direct” or “indirect”
Include “a third person”: doctrine of transferred intent/torts
“a harmful contact … results” not that or the harmful contact
Vosburg v. Putney (No intent to do harm, but still intent to do the act and unlawful act &for Intentional Torts, liable for all damages)
2. ASSAULT
(a) act 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
voluntary, conscious act
(b) the other person is thereby put in such imminent apprehension
No physical contact required
Reasonable apprehension of P is enough, D’s secret mind cannot count (RST § 24, comment b).
RII: words alone are insufficient, unless accompanied by some overt act causing reasonable apprehension of imminent contact (b/c no immediate apprehension. But sometimes words and given circumstances => assault)
A conditional threat on conditions may also constitute an assault (Is that condition likely to be met immediately/actor has control over?)
de S. and Wife v. W. de S (Words can amount to an assault if they create reasonable apprehension)
Tuberville v. Savage (By saying “if it were not” D made it clear that there was no intent to cause harm. Assault much be accompanied by intent to cause harm.)
3. FALSE IMPRISONEMENT
(a) act intending to confine a person w/in certain fixed boundaries, AND
(b) the act directly or indirectly results in such a confinement of the other, AND
(c) the other is conscious of the confinement or is harmed by it
Intention Requirement: Restatement §§ 35-45(A) (“accidental confinement” is not included and must be addressed under negligence or strict liability)
The necessary elements are personal dignity and bodily integrate have been interfered
Are there boundaries fixed by the actor? Bird v. Jones (Also including: Physical barriers; Force or threat of immediate force against the victim, the victim’s family or others in her immediate presence, or the victim’s property. Coblyn v. Kennedy’s Inc.)
Is victim excluded from an area of greater freedom to an area of less freedom? Is the restraint significant? (In an absolute sense)?
The conditions of imprisonment can be used as basis for Measure of Damages
Exceptions:
o No confinement if there is a reasonable means of escape AND P knew of—subjective standard by RST2 § 36(2) (Some courts read it should know of—objective standard).
o P consents to confinement
o Protection of person and property
o Parental control and discipline
4.
be liable for that result)
· George v. Jordan Marsh Co. (Debt collection: D by extreme and outrageous conduct, intentionally causes severe emotional distress to P, with bodily harm resulting from such distress, is subject to liability for such emotional distress and bodily harm)
· Sexual Harassment as a Tort (also can recover under: Battery; Assault; False Imprisonment; Intentional Infliction of Emotional Distress) in addition to Statutory Provisions
DEFENSES
1. CONSENT
· where a P is wiling that the D invade her interests, she is said to consent
o Actual consent
o Implied Consent: implied in fact (inferred from conduct)
o Constructive consent: implied in law (Emergency Rule. Kennedy v. Parrott: can get consent but only by incurring significantly more risk than if there was an extension of the consented operationà no liability)
· Is there a duty to disclose?
o If it is the standard of care in the community, a physician has a duty to disclose. This view is unacceptable since it does not take into account the patient’s right to self-determination. Majority view.
o Objective Standard: “A risk is thus material when a reasonable person, in what the physician knows or should know to be in the patient’s position, would be likely to attach significant to the risk or cluster of risks in deciding whether or not to forgothe proposed therapy.” Minority View: not specific area rule but a “national rule”
