Tort Law Outline
Professor Whitman – Fall 2006
As advocate:
Consider statute of limitations, insurance covers negligence, who has the money,
I. INTENTIONAL TORTS
Intent – Act – Result
1. BATTERY
a. Intent
i. To cause bodily contact (which turns out to be offensive/harmful)
1. Vosburg: don’t need intent to harm
ii. Knowledge with a substantial certainty that contact will occur
1. do not have to desire the result
iii. If you did not intend harmful contact or contact that is offensive, not battery (friend playful kick in the ass – not battery, no intent)
b. Result
i. Contact which society deems offensive
1. A pat on the back is not normally battery no matter how harmful
2. P has to prove either:
a. D intended to cause harm OR
b. D knew P didn’t want to be touched OR
c. Society deems it offensive in those circumstances
ii. Egg-shell skull rule
1. You are responsible for all harm that results directly from the contact
2. It doesn’t matter what harm you expected to result
iii. Physical harm is not necessary
1. Alcorn – spitting on adversary
a. Intended an offensive touching, and said touching occurred
2. Objective test: Would a reasonable person be offended?
iv. Slightest touching is enough, no matter how trivial
1. Leichtman case – smoking in face
a. Particulate
b. Nominal or punitive damages
v. If you have reason to believe that someone has a special exception to an act, etc., and do it anyway, that is a tort…even if it is normally okay
1. E.g. smoking near someone who asked you to stop
2. Glass Cage Defense:
a. You cannot change the rules for everyone else because you have an aversion to certain, legal actions
c. Battery vs. Negligence (Newland v. Azan)
i. Dentist sexually assaults patient. She wants to sue in medical malpractice (negligence), but ct says it is a battery.
1. P thi
. Conditional threat
i. Where conditions are not met, is not assault
1. E.g. “I would kill you if I were there.”
ii. Requires more action/proximity
iii. The threat does not need to be real as long as P believes it is real
d. Guy in bed w/ girl after she has been raped – assault
3. FALSE IMPRISONMENT
a. Prima facie case:
i. A acts,
ii. Intending to confine P;
iii. A’s act causes P to be confined; and
iv. P is aware of his confinement
b. Sometimes lack of intent and causation are considered affirmative defenses
i. P has the burden to prove a prima facie case, D has the burden to prove an affirmative defense
So, D would have the burden to prove he didn’t intend to confine or that he didn’t cause the confinement.
