§ Voluntarily bringing about an un-consented harmful or offensive contact with a person or to something closely associated with them. This requires actual contact.
§ Battery Elements
· (1) Act
o Must be a voluntary muscular movement that coincides with the intent.
· (2) Intent
o Dual Intent
§ Intent to (1) Harm and (2) Touch
o Purpose or Knowledge that a harmful or offensive contact is substantially certain to result
§ Substantial Certainty: Actor knew (with substantial certainty) that effect would occur as a result of his action, even if the actor did not intend the result.
· (3) Offensive or Harmful
o Reasonable Person Standard
o Un-consented is offensive, if person knew of unwanted touching this is offensive
· (4) Contact or Touching
o Direct or Indirect contact or touching
o Can be plaintiff or anything connected with plaintiff
§ Proving Battery:
· Proof of contact required
· Contact was harmful or offensive
o Need intent in order to harm or offend.
§ Intent: (1) Purpose or (2) Knowledge that a harmful or offensive contact is substantially certain to result.
· Majority Rule: Children are liable for their intentional torts.
· Minority Rule: Rule of 7’s / Children under 7 are not presumed capable of the intent to commit intentional torts
· General Rule: Parents are not liable for the torts of their children
o Except when the parent is somehow at fault or there is vicarious liability (Directs child to commit the tort, if the parent is the child’s employer, if there is a statutory claim of action which usually require the tort by the child to be willful or wonton and damages may be capped. OR has one of these).
· Doctrine of Transferred Intent
o Intent to commit tort against one person will transfer to another person if that other person is hit.
o Intent to commit one intentional tort (assault) will transfer to another tort (battery) if battery occurs instead.
§ Possible Exception: Transfer for emotional distress.
· Extended Liability Rule
o Liable for damages never intended and not foreseen
o Aka Thin Skull Rule
§ Take your plaintiff as you find them
§ An act intended to cause an immediate apprehension of a harmful or offensive contact and such apprehension occurs.
§ Assault Elements
· (1) Act
o A voluntary muscular movement
· (2) Intent to Create an Apprehension
o (1) Purpose or (2) Knowledge or (3) Substantial Certainty
o Of creating an apprehension of a harmful or offensive contact
§ Generally words alone are not enough.
§ Provocation is not an assault.
§ The apprehension must be objectively reasonable
· Would a reasonable person think that an apprehension of a harmful or offensive contact would occur?
· Reasonableness is a question for the jury
· (3) Imminence
o Without significant delay
o Factually sensitive, consider the timing and geography.
o Conditional or negating language is not an assault.
§ Chris Rock: “I would shoot ya, but I gotta get a second job, get some bullets on layaway…but then you’re a dead man!”
· This isn’t imminent
o False Imprisonment
§ Occurs when a person confines an
Actor is not aware of there being a high probability of emotional distress will follow but knows of facts that would lead the reasonable person to realize there is a high probability that emotional distress will follow.
§ IIED Other:
· Third Party Presence Rule (Restatement 2d §46):
o Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
§ (a) To a member of immediate family who is present at time whether or not distress results in bodily harm
§ (b) To any person present at time, if such distress results in bodily harm.
· In most jurisdictions, the D must know the third party is present.
· Intent does not transfer in the case of IIED.
· Parents can sometimes recover where there is sexual abuse of a child, even when not present.
· No IIED for divorce, firing at-will employee, etc.
· Intentional Torts to Property
o Trespass To Land
§ Trespass To Land Elements
· (1) Intent to Enter
o Purpose to just enter, or acting with Substantial Certainty of just entering the land.
o Strict Liability: Intent to enter is enough
§ Involuntary Entry: will not suffice for intent to enter but accidental entry + willingness to remain/refusal to leave is considered intent to enter.