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University of North Carolina School of Law
Ardia, David S.

Ardia- Torts- Fall-2016-Torts

Intentional Torts

Battery: An actor commits an 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 contact and (b) a harmful or offensive contact results.

The Act

Requires Volition: voluntary contraction of the muscles
Involuntary movements that do not satisfy the requirement include

Intention: To produce a consequence as either a purpose to produce that consequence or knowledge that the consequence is substantially certain to result.

Purpose: intent to cause contact for purpose of injuring or offending is sufficient—D doesn’t need to intend to injure.
Knowing that act will cause a certain result, Or

understanding the offensiveness of contact is necessary (dual intent)

mentally handicapped or very young person is not excepted from this tort but may have a better argument for not understanding offensiveness (Van Camp v. McAfoos)
The person must be informed of desire not to if it’s standard practice or custom to touch (Mullins v. Parkview – med student had no reason to suspect the standard consent form had been modified)
Factfinder must ascertain the defendant’s state of mind

It has to be reasonable that the person not understand

Does not cover someone who does not “understand” why an unwanted kiss would be unwanted.

Substantial Certainty that an action will cause a certain result

Garret v. Dailey – 5 year old pulls chair away knowing with substantial certainty the person would fall, even if it was not his intent.
Intention to cause injury is not the question. Does not matter that 5 year old did not want to break his caretaker’s hip – Egg Shell Skull Doctrine.

Transferred Intent

Intent can be transferred, for instance, accidently hurting the wrong person while trying to punch the another guy is battery (Stoshak v. East Bat Rouge HS)

Offensive contact

Offensive contact is an objective test – depends on what the factfinder would deem reasonable given the circumstances

violation of the scope of consent (Cohen v. Smith)
violation of a reasonable sense of personal dignity (smoke blowing case or asshole doctor pulling nurses face down – Snyder v. Turk)

Can involve invading a person’s physical space. though touching still has be an aspect—by say, grabbing a plate (Fisher v. Carrousel)
Policy justification: Preventing injury to personal dignity is the original reason for battery – preventing dueling.

Contact is also offensive if D has notice that P’s subjective sense of personal dignity would be offended.

Good motive does not matter (Cohen case – most people wouldn’t find touch from a male nurse offensive)
However, still has to be reasonable – as determined by the fact finder by looking at context and policies

Harmful Contact

Contact requires some physical touching,

No requirement that contact causes physical injury
could be as little as smoke particles (Leichtman v. WLW Jacor

Contact can be transferred – for instance, a car crashing into another.


Assault: when one acts intending to cause harmful or offensive contact with the person of the other or an imminent apprehension of contact of such contact.

Harmful or offensive contact

Words alone cannot constitute assault…true but misleading

Words always happen in context—a person with a gun saying words, or a person with a cocked fist.

Can you have a battery without assault?

Yes. Person need warning for assault to occur. Surprise attack would be merely battery

Imminent Apprehension

Objective test – must be based on what a reasonable person would think is imminent
Imminent does not mean immediate, rather “no significant delay”
Bomb in car dismantled and threat to beat up the following day are not assaults – no imminent contact

Tranfered contact

An assault can be transferred to assault on another person or even into a battery

A person throwing a rock to scare but ends up striking could be charged with battery

False Imprisonment

False Imprisonment: Conduct that is intended to AND does, in fact, confine another within boundaries fixed by another AND victim is either aware of confinement or harmed by it


The test is whether a REASONABLE person would interpret the actions as confining

Fact finder examines facts like to size of guards, reference to police, continued

ependent basis for a claim–would not use this if you had an assault or battery claim)

Intentionally – again, has to be volitional.

Broadens law for those who want to find for defendants

Extreme and OutrageousConduct – Restatement does not define. Up to the courts to determine

Narrows law to make sure law does not become too broad – especially due to the reckless language
Courts determine whether it meets this test using context

Extremity of language
Regularity and repetition
Whether abusive person is in a position of authority
Whether victim is in a vulnerable position and thus more helpless to remove themselves from the situation

First Judges decide whether the conduct meets this test—whether a reasonable person could conclude this conduct was Extreme and Outrageous.

If there’s even a sliver of possibility –he passes on to the jury

Mere insults and petty oppressions do not count as outrageous
Special leniency for…

freedom of speech (especially about public interest topics)

Policy: public interest opinion is not the kind of thing that IIED was meant to address

Freedom of religion – tradition in this country to respect people’s religious convictions

Severe Emotional Disturbance –

Generally, on the party that has immediate relationship with the actor (the patient for instance) can make this claim
3rd parties rarely have success with IIED

Narrowing principles:

Only when you’re a family member present or if you were present and got physically harmed would you have a claim.
Policy: you don’t want every witness of a crime or every spurned lover trying to make claims.

No transfer of intent with IIED

Why? There just isn’t. narrowing principle. Policy and process considerations