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University of Oregon School of Law
Weiner, Merle H.


Professor Weiner

Fall 2013



Restatement: A battery is an act which directly or indirectly is the legal cause of a harmful contact with another’s person; such act makes the actor liable to the other, if the act is done with the intention of bringing about a harmful or offensive contact or an imminent apprehension thereof to the other or a third person, and the contact is not consented to by the other or the other’s consent if procured by fraud or duress, and the contact is not otherwise privileged.

The elements of battery:

1. an act: voluntary muscular movement

2. intent: MUST have intent (negligence does not apply)

a. touching or causing offensive contact with purpose OR

b. knowledge with substantial certainty that such a result will occur

c. dual notion of intent: MUST be intent to touch AND intent to cause harmful OR offensive contact to impose fault

d. motive is irrelevant

e. Intent freely transfers between intentional torts.

f. Extended liability rule: if someone commits a conscious, intentional tort, that person is going to be liable for all consequences of the action even if they did not foresee those consequences

3. Harmful or Offensive

a. To a reasonable sense of personal dignity

b. Unintended contact presumed offensive

c. π need not be aware of the touching at the time

4. Contact

a. Extended person: touching that is indirect contact with the person (a car while someone is inside it, smoke hitting someone’s face, snatching an object)

b. Contact can result directly or indirectly via transferred intent

c. **an act must coincide with intent

Case examples

5. Van Camp v. McAfoos 1968 Case demonstrating no liability without fault: fault is necessary because you cannot be liable without fault (must show intentionally wrongful). The plaintiff in this case didn’t even allege fault. So the defendant caused harm but was not legally responsible. Burden to plead and prove fault is on the π.

a. Note: Age 7 younger is minority rule for kids incapable of having intent

6. Snyder v Turk: Case demonstrating: Result (offense or harm) + touching = tort. (rather than considering the ∆’s intent) offensive contact (as opposed to just actual harm; in this case ∆ harmed π’s sense of personal dignity) reasonable minds could conclude that Dr. Turk committed offensive contact as a reasonable inference from the evidence (a reasonable person would be offended) (to overrule directed verdict for Defendant)

7. Cohen v Smith: Case demonstrating: offensive contact (consider getting a kiss while you are asleep) offensive contact is not a reasonableness test, it is subjective (intent is not an issue here because the π communicated her scope of consent) consider that a reasonable person is not offended by male nurse in the room, but this π was offended by it

a. Holding: demeaning person integrity is a basis for battery and since the facts show that her personal integrity was violated and that it was done despite the understanding of her wishes otherwise

8. Garratt v Daily 1955 (kid moves chair case): Case defining intent: knowledge = understanding the result of the act (substantial likelihood of outcome) = intent in committing the act = liability for the injury

a. Holding: there must be proof the defendant recognizes/knows with substantial certainty that the act may bring about the result (injury)

b. Notes:

i. Motive is irrelevant (ie ∆ could have intended to pull a prank

ii. Child has to have some design to hurt someone else, willful or wanton behavior (utterly indifferent to consequence of harm), liability is hart to prove with kids

c. Liability of the Parent: parents are generally not liable, but can be if:

· The parent is at fault

· The parent encourages the child’s conduct (aiding and abetting)

· The parent is the child’s employer: vicarious liability (parent himself has not done anything wrong). Employers are vicariously liable for their employees.

· There is a relevant statute (also vicarious liability) typically the tort must be committed by the child willfully or wantonly.

ORS: legal obligation of the parent liability is limited to $7,500


9. White v Muniz 2000 Case: requisite of dual intent: An insane person can be liable for an intentional tort.

a. Insanity is relevant to whether the defendant:

2. 1) committed an act AND

3. 2) had the requisite intent

4. *note that juries may rely on circumstantial evidence to figure out the mind of the person

b. Minority Rule: removed the dual requirement: requires only that the tortfeasor intend a contact with another that results in harmful or offensive touching. (under this view, victim need only prove that voluntary movement by the tortfeasor resulted in contact which a reasonable person would find offensive or to which the victim did not consent.) removed the required intent specifically to injure

10. Common Policy Considerations

a. Morality (corrective justice): who was really the wrong doer? Do we have two morally innocent parties? If you caused someone’s harm whether or not you intended it, should be liable?

b. Social Utility (compensation, risk distribution, deterrence)

c. Administerability (formal realizabiality v. equitable flexibility)

d. Rights

e. Institutional Competence: court or legislature?

f. Paternalism v. Self-Determination: government telling us what to do vs individual autonomy.

g. Holding: duel intent, in this case there was intent to contact but no intent that the contact be harmful or offensive

11. Stoshak v East Baton Rouge Parish School 2007 (kid fighting hits teacher accidentally) Case showing transfer of intent.

a. Holding: someone who acts with intent to injure may be held liable for injuries unintentionally inflicted upon a victim if the tortfeasor committed the act with intent to injure, even if the intent was to injure someone else (defined battery using the doctrine of intent)

12. How substantial certainty differs from negligence

a. Substantial certainty: drive car downtown with eyes closed for 5 mins

b. Negligence: back car out of driveway without looking and get hit by a car passing (there is a chance the outcome would not have occurred)

use assault

c. Imminence: must be imminent (ie not assault if someone calls from across the country) ie the only thing to interrupt the act and the harm caused is the person running away or someone intervening

i. Factually intensive

1. Consider: time, geography, conditions

2. Tort law has to balance to allow people to act how they want while still protecting others

ii. Apprehension in the mind of a reasonable person

False imprisonment

Elements of false imprisonment:

1. confinement

a. physical restraint is not necessary (mere threat of confinement is sufficient)

b. examples: threat of physical force, claim of lawful authority, duress of goods or property

c. escape must be reasonable: must not put the escapee in physical risk of harm

i. plaintiff may recover for humiliation, lost time, inconvenience

ii. false imprisonment is a trespassory tort, so π can recover damages even if there is no actual harm

2. intentionally

a. did they act with the purpose or knowledge, transfer of intent is possible (if someone intents to commit battery but actual result is imprisonment. Ex: someone attempts to falsely imprison but actually hurts the person.

b. intent is merely to confine, motive does not matter

3. without lawful privilege

a. lawful privilege can dissipate over time

4. against his consent

5. within a limited area

a. keeping someone within any space

6. for any appreciable time, however short

a. there is no ‘imminence’ issue

7. π must be aware of the confinement at the time OR suffer harm

Case examples:

* McCann v Walmart Stores 2000

a. Holding: mere threat of physical confinement or claim of lawful authority to confine when the actor is conscious of the confinement constitutes false imprisonment.

b. the direction to the McCanns that they must come with walmart employees, the reference to police, and the presence of walmart employees = reasonable people would believe that they would be physically restrained if they tried to leave or that the store was claiming lawful authority to confine them until police arrived.


Intentional Infliction of Emotional Distress

one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Catch all for people who deserve recovery but don’t meet other prima facie