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University of North Carolina School of Law
Daye, Charles Edward



Fall 2011

Intentional Torts Against the Person

Things to look for in all intentional torts:

· Intent

· Duress – almost always the difference between “immanent” and future duress

· Transferred intent

· Eggshell victim rule

· Reasonable person

· Mental state for Battery, Assault, and False Imprisonment is “substantially certain” BUT for IIED it’s “reckless”

· Look for (1) battery, (2) assault, (3) false imprisonment, (4) IIED

(1) battery

a. Harmful / offensive contact

i. If offensive (dignity harmed), no injury necessary

ii. If person “exceeds a privilege” – if they have a right to self-defense but take it too far

iii. Can be caused by thing – car, dog, etc…

b. Intent

i. Desire to cause contact

ii. Desire to frighten with contact resulting

iii. “substantially certain” that contact will occur (desire irrelevant) – subjective test

iv. If person wants to cause one harm but causes another, still liable

(2) Assault

a. Apprehension of immanent harmful or offensive contact

i. Does not mean apprehension of battery. Can believe the event was a natural occurrence and, if it was not, still assault (D puts fake spider near P and P thinks it’s real. P had apprehension of harm even if not apprehension of battery)

b. If there’s a battery, if P saw it coming, there’s an assault

c. Intent

i. Intend but fail to commit battery

ii. Intend to put in apprehension but not intend to contact

d. Words alone not enough but words with small act (like threatening punch and raising fist) are enough

e. Contact must be immanent

f. Apprehension


ii. Must be apprehension of harm to oneself, not to someone else

g. Can go beyond privilege with assault as well

(3) False Imprisonment

a. Intentionally confines within boundaries

i. Keeping someone “out” instead of in is not false imprisonment

b. Store, bus/train, arrested

i. Possible privilege

c. Against will

i. Must be aware of confinement

1. Unless person suffers harm while confined

ii. Actual force not necessary, words alone enough (threats)

iii. Saying you have legal authority enough for liability

iv. If there is “choice” between staying and going but there are negative consequences for going, if reasonable person would have stayed, it would be FI

(4) Intentional Infliction of Emotional Distress (IIED)

a. Conduct is outrageous

b. Suffers “humiliation” or “great stress” and sought medical attention

c. Business dispute where one parts harasses or spies

d. Debt collection who goes too far

e. D commits crime against P like kidnapping child

f. If practical joke, often not enough for conduct to be “outrageous”

g. Mental state

i. D intended to bring out emotional state

ii. D knew with substantial certainty that result was likely to occur

iii. D recklessly disregarded possibility that distress would result

h. Outrageousness

i. Insults not enough

ii. P’s sensitivity, if known, play a role, otherwise not

iii. Publication of a true story probably not enough

i. Harm

i. P usually must seek medical attention

ii. some courts require P to have some sort of physical reaction (although modern courts and Rest. 2d don’t require it if anguish, sought help, and conduct was outrageous)

· Doctors could commit battery if procedure is not consented to



· An actor must have substantial certainty that his act will cause harm before liability applies in a case of intentional torts – Garrett v. Dailey

o When a person cannot foresee the exact consequences of their actions, they are not committing assault and battery, merely acting in a negligent fashion, though both cause liability – Spivey v. Bataglia

If one has a purpose to cause harm there is no need to prove substantial certainty for a tortious consequence that something would happen

· If a person causes more harm than they were intending OR than a reasonable person would have expected, they are still liable. “Eggshell victim rule”

o If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable – Restatement (Second) § 435(1)

· New Rule for workers comp.: When there is an “exceedingly high probability” that an event will occur, a company is liable– Woodson v. Rowland

o Only under very specific circumstances as court has denied most post-Woodson cases

· If the intent is not to cause harm to one’s body, the action i

e to be aware of the contact – Rest. (2d) § 18

· Liable for all unforeseen consequences from act

· Always has an assault in it

· Not necessary to have malice Rest. 2d § 34

· Touching must be unprivileged


· Restatement (Second) of Torts § 21

o Intentional causing of an imminent apprehension of harmful or offensive contact (Battery)

o Can either intend contact OR intend merely apprehension of contact

§ If contact is intended but not carried out, that is still an assault, even if person did not have an apprehension of contact

· Usually assault brought out by overt movement or gesture

· Transferred intent applies

· Words alone are USUALLY not sufficient to assault

o BUT if coupled with reputation (gangster says he’s going to shoot you) that may be enough – Rest. 2d § 31

· Words can also negate assault

o If person makes it clear they were not going to harm the other

· P must REASONABLY BELIEVE that D has the PRESENT ABILITY to commit the assault – Rest. 2d § 29

o Threat of harm must be immanent, not future threat

o P must believe D is actually capable of carrying out the threat

§ Although D does not actually have to be able to carry it out

· Apprehension is not fear (assault deals more with idea that one should never have to apprehend being harmed in a society- mental dignitary tort)

o Person only has to believe that, if they do not act, harm will result Rest. 2d § 24

· Conditional threats, like if you don’t do X I’ll do Y, is still assault as long as it’s not a threat of future harm

· If P has apprehension, D can abandon and still be liable


· Unusually timid people do not get assault suits in situations where reasonable person would not have apprehended harmful or offensive contact

o Some room for subjectivity

If P announces they are unusually timid, they may have a cause of action