Torts Outline

Torts

Ardia

Fall 2014

Policies of Tort Law:

(1) Deterrence

(2) Social Utility

(3) Justice and Fairness

(4) Compensation

(5) Administrability

Intentional Torts:

Burden of proof is on plaintiff.

Elements of Battery: (always consider assault whenever a battery claim is present)

(1) An act by Defendant with

a. Requires Volition: Voluntary contraction of muscles.

b. Involuntary movements that do not satisfy the requirement include movements while unconscious, seizure, and reflective movements.

c. Insanity and infancy do not negate volition BUT could be relevant to determining intent.

(2) Intent to cause a harmful or offensive contact and

a. Intent to cause contact for purpose of injuring or offending is sufficient – Defendant doesn’t need to intend to injure.

b. Purpose: Desiring to cause harm or offense is sufficient

c. Knowledge: Intent sufficient if Defendant knows the act is substantially certain to produce harmful or offensive contact.

i. Good motive doesn’t matter. See Cohen v. Smith (male nurse touched patient for purposes of helping still has intent because knew contact was offensive to her since patient told hospital she didn’t want males involved with procedure).

1. Policy justification: protection personal integrity and medical autonomy are important bases for battery

ii. Must ask what the defendant knew (subjective test). See Garratt v. Dailey (child who moved chair could have intent even if he didn’t pull chair away for purpose of making plaintiff fall, if he was substantially certain that she would fall and make offensive contact with ground).

d. Transferred Intent: Intent to cause an intentional tort to one person that resulting in a tort to another is sufficient (and intent to cause one intentional tort results in a different intentional tort is sufficient).

i. The defendant who commits an intentional tort, at least if it involves conscious wrongdoing, is liable for all damages caused, not merely those intended or foreseeable.

ii. Intent is the same for all torts.

(3) Harmful or offensive contact resulted.

a. Contact: Defendant doesn’t need to make direct physical contact with Plaintiff.

i. Defendant may merely invade Plaintiff’s body space or use instrumentality under his/her control to do so.

ii. Contact with things intimately connected to Plaintiff will suffice. See Fisher v. Carrousel (pulling plate out of Plaintiff’s hand sufficient contact for battery)

iii. Relatively trivial contact will suffice. See Lichtman v. WLW Jacor (smoke blown in face of anti-smoking advocate)

1. Policy: Deter retribution. These actions are just as insulting and we want to reduce the need for self-help (e.g., dueling).

b. Harm: Trivial contact will suffice if it causes any harm (eggshell skull doctrine).

c. Offensive: If contact doesn’t harm, it must be offensive. Contact is offensive if it offends a reasonable sense of personal dignity (objective test).

i. Must be offensive to the plaintiff, but need not be offensive to everyone. See Cohen v. Smith (naked woman touched by male nurse)

1. Policy: person’s right to control his/her own body.

ii. Plaintiff’s subjective sensitivities are not unlimited. Highly dependent on context and policies (what kind of contact does the law want to encourage/discourage)

Elements of Assault:

(1) An act by Defendant with

a. Requires Volition: Voluntary contraction of muscles.

b. Involuntary movements that do not satisfy the requirement include movements while unconscious, seizure, and reflective movements.

c. Insanity and infancy do not negate volition BUT could be relevant to determining intent.

(2) Intent to cause a harmful or offensive contact or

a. Intent to cause contact for purpose of injuring or offending is sufficient – Defendant doesn’t need to intend to injure.

b. Purpose: Desiring to cause harm or offense is sufficient

c. Knowledge: Intent sufficient if Defendant knows the act is substantially certain to produce harmful or offensive contact.

i. Good motive doesn’t matter. See Cohen v. Smith (male nurse touched patient for purposes of helping still has intent because knew contact was offensive to her since patient told hospital she didn’t want males involved with procedure).

1. Policy justification: protection personal integrity and medical autonomy are important bases for battery

ii. Must ask what the defendant knew (subjective test). See Garratt v. Dailey (child who moved chair could have intent even if he didn’t pull chair away for purpose of making plaintiff fall, if he was substantially certain that she would fall and make offensive contact with ground).

d. Transferred Intent: Intent to cause an intentional tort to one person that resulting in a tort to another is sufficient (and intent to cause one intentional tort results in a different intentional tort is sufficient).

i. Intent is the same for all torts.

e. Negating Words:

i. Words that clearly mean the defendant is not going to make contact, can negate the actions that seem to lend themselves to an assault.

1. Defendant raise arm as if to strike and says “If the police officer were not here, I’d punch your nose.”

a. Does not appear to be an assault.

See Battery for Harmful or Offensive

(3) Intent to cause imminent apprehension of such contact; and

a. Imminent: If the danger or threat of danger is immediate and likely to occur.

i. If there is no delay from the threat to the potential harm. See Cullion v. Medley (A man is accosted at his home by an entire family, later he is intimidated by the father, however in the second encounter the threat was not imminent and therefore not an assault.)

b. Apprehension: a belief that the harm will occur.

i. Fear is not required to have apprehension.

(4) Plaintif