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Torts
University of Oregon School of Law
Weiner, Merle H.

Weiner
Torts
2010
 
Intentional Torts
·        Battery
§  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.
§  Other:
·         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
o   Assault
§  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.