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Torts
University of Kentucky School of Law
Healy, Michael P.

Torts Outline

Trespass vs. Trespass on the case

Trespass

Immediate
Direct
Actual injury to P did not have to be shown

Trespass on the case

Consequential
Indirect
Must show actual injury to P
D must show that P either intended injury or carelessly caused injury

Most intentional torts arise out of the trespass cause of action.

Intentional Torts

Intent

Desire/purpose of causing tortious consequence
Acting while knowing with substantial certainty that a consequence will result
Substantial certainty—knowing something will happen, not merely a chance that it will happen (used when desire cannot be found)

Object of Intent: what must be intended
§ Determined by Legal Basis for Claims
§ Tortious Consequence—determined by particular tort

Not just intent to pull a trigger but intent the bullet hit something

Battery (must have both elements)

Intent to cause harmful or offensive contact or intent to cause apprehension of an imminent harmful or offensive contact
Harmful or offensive contact

This tort does not protect apprehensions. It protects your bodily integrity. It does not matter if you are cognizant at the time of the touching.

In general, it is not the unreasonably sensitive person that determines offensiveness. However, if the D knows about this unreasonableness, it might constitute offensiveness

Assault
§ Intent to cause apprehension of imminent batter or intent to batter
§ Apprehension (based on perception) of an imminent harmful or offensive contact (i.e. imminent battery)
o Apprehension of imminent battery must be reasonable under the circumstances
o Apprehension=perception, not fear
o
Do not justify that there isn’t an assault just because of the saying, “words alone cannot create an assault.”

If the perception that contact is goi

or Privileges to Intentional Torts

Insanity

General American Rule is that insanity is not a defense (inconsistent with corrective justice because we would not call the conduct of the insane person blameworthy conduct)

Consent

Often lack of consent is part of P’s prima facie case so that P has the burden of proof
Consent is determined by a reasonable (objective) view of the circumstances, including P’s words and conduct
Consent to illegal tortious consequences (i.e. illegal prize fight)

Majority: Consent is not a good defense when activity is illegal

Argument is that it allows tort law to supplement criminal law