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Torts II
University of Mississippi School of Law
Percy, E. Farish

Percy

Torts 2

Spring 2012

Intentional Torts

I. Battery (children, handicapped, and insane can be held liable)

Knowing/intentional touching of one person by another in a rude insolent or angry manner

§13 Battery: Harmful Contact

– 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 a person of the other directly or indirectly results

§18 Battery: Offensive Contact

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 with the intention stated in Subsection (1,a) does not make an actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm

Test controlling battery is: what would be offensive to an ordinary person not unduly sensitive as to personal dignity

– any touching, however slight, may constitute an assault and battery

– may be recklessly committed where one acts in reckless disregard of the consequences, and the fact that the person does not intend that the act shall result in an injury is immaterial

Ex. Wallace v. Rosen (fire drill, broken leg, talking at top of stairs, turned by teacher and told to move it, slips and falls, is injured. Would this be offensive to an ordinary person?)

Big issue is what intent is necessary

– Prove specific intent (meant to hit someone)

– Prove intent that would cause contact to be harmful or offensive (did not mean to hit someone but knew with relative certain it would hit someone)

o Allows for transferred intent (Talmage v. Smith: threw stick intending to hit one person but hit another. Still liable because meant to hit someone)

o Is subjective because it examines this particular person

– Mistakes are irrelevant. If you possess the right intent and cause a tort, you are liable (Ranson v. Kitner: killed someone else’s dog that they thought was a wolf. Still intended to kill it)

What kind of contact is sufficient?

Ex. Fisher v. Carrousel Motor Hotel, Inc.

o Did not touch him…does it still constitute battery?

o It is not necessary to touch the plaintiff or anything connected with his person, knocking or snatching anything from his hand or anything connected to his person when done in an offensive manner

§ Contact between defendant or some extension of plaintiff’s body

§ Contact between an object and the plaintiff

§ Contact between a third person and the plaintiff

II. Assault: Intent to cause contact that is harmful or offensive/apprehension of contact that is harmful or offensive to a reasonable person. Plaintiff must be aware. (Must be imminent)

Battery must be actual contact but don’t have to have awareness. Assault does not require actual contact but does require awareness.

Ex. Western Union Telegraph Co. v. Hill (Sapp’s job is to fix clocks. He offers some unprofessional quid pro quo and reaches for her)

– Words alone are typically not enough for assault. Needs some physical conduct

– Actual contact is not necessary, must show they had apparent present ability and intent to make contact

III. False Imprisonment: Intent to physically restrict/confine someone within a boundary. Must actually confine them. Plaintiff must be aware of the confinement

Ex. Big Town Nursing Home, Inc. v. Newman (man sent to nursing home against will, tries to escape, locked in a chair, put in psyche ward, not visited by doctor, loses 31 pounds)

Ex. Hardy v. LaBelle’s Distributing Co. (accused of stealing a watch. Taken a “tour of the premises. Led to a back room and given an polygraph test. Said she would have stayed anyway but also stayed because she was afraid of losing her job.)

– If you would have stayed anyway for whatever reason, not false imprisonment

– Threat must be physical, not moral

IV. Intentional Infliction of Emotional Distress: §46 One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it

– Must prove conduct was severe and outrageous beyond the bounds of decent society

– thin skull rule applies in the event of pre-existing condition…allows for recovery

– No transferred intent. Must know someone is present and intend to cause THEM emotional distress. If you do not intend to cause them emotional distress, no grounds for liability

Requirements:

– Intended to cause or was substantially certain it would cause emotional distress

o Must know of susceptibility if it involves a fear, etc.

– Was extreme and outrageous behavior (beyond the bounds of decency)

– Extreme and outrageous behavior caused the emotional distress

o Proved with expert testimony if not obvious

– Must show emotional distress was severe

V. Trespass to Land: Don’t have to show intent to trespass, don’t have

Consent not valid so would be able to recover.

Consent in medical cases:

– Have limited privilege to exceed the scope but not always within that privilege. Best/safest alternative would be to get substitute consent

– Patient goes to emergency room unconscious, is implied consent/privilege because unable to consent because unconscious or incompetent.

o If a reasonable person would consent or there is no reason to believe this patient would not consent and if delay in the treatment would involve serious risk of bodily harm, have the privilege to go ahead and operate on implied consent

o If deemed psychologically competent, operating w/o expressed consent is battery

Self-Defense and Defense of others

– Someone threatening you with a battery. Are permitted to use force that is reasonable, deadly force if you reasonably fear serious bodily harm or deadly force.

– Does not extend to retaliation

– Verbal Provocation alone does not give rise to defense of self-defense

– If you reasonably believe and are mistaken about a threat, you can claim self-defense if the mistake is reasonable

– If you can safely retreat: minority jurisdictions and restatement say, if you can safely retreat instead of using deadly force you have a duty to

o Transferred intent can apply in situations involving self-defense. “if you are threatened, respond, and instead hit someone else, there is no claim if the force used was reasonable

– Same rules apply to defending others if you believe they are at risk of bodily harm

– If you are wrong/in event of a mistake: some say you may only claim acting in defense of others if you were correct and the person you were defending was acting in self-defense. Others say you may assert it if defense was reasonable.

– Force to protect property: reasonable force to protect property, most of time must give a verbal warning unless it is futile. Can you use deadly force? Generally no under common law. Would if used to prevented burglary of a dwelling. Some give you privilege to use deadly force to prevent any felony. Some only if it is a violent felony.

o Can never use deadly force to protect an unoccupied dwelling