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University of Pennsylvania School of Law
Austin, Regina

Torts – Fall 2015
Professor Austin
I.            General Principles
What is a Tort?
Tort: a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability.
Three Broad Categories of Torts: Intentional Torts, Fault or Negligence, Strict liability (liability without fault)
Intentional Torts: an intent to harm or offend is required
Fault or negligence: based on a failure to use due care or to act as a reasonably prudent person
Strict liability or liability without fault: requires causation and a social purpose to compensate or deter; the liability on a party without a finding of fault
Categories of Policy Concerns:
Efficiencies regarding deterrence
Efficiencies regarding compensation
Morality, particularly notions of moral blameworthiness and responsibility to others
Cultural or social norms or expectations
Practical politics
Judicial Administration
Policy Approaches to Torts:
Law and Economics
Legal Philosophy
Law and political Science
Legal History
Legal practice and process
Law and society – cultural studies
Basic Tort Elements:
The act
The intent
Harmful or offensive conduct
Subjective v. Objective
Subjective: a value to a single person, but still protected by the law
Objective: a world value
Whenever the word reasonable appears, there is the objective requirement.
II.            Intentional Torts
Two Elements of Intent:
(1) Acting with knowledge that contact is substantially substantially certain to occur (not just highly likely), with that conduct being harmful or offensive; and/or
(2) Acting with the desire of bringing about contact that is harmful or offensive
The focus is on the consequence of the defendant’s conduct. The nature of the intent is inferred from the nature of the consequences.
One has a relatively important, though not absolute, right to bodily integrity
It is irrelevant that the actor does not appreciate the legal significant or wrongfulness of her/his act
Policy Concerns:
The common law of intentional torts originally dealt with violence between individuals. Such tort actions prevent breaches of the peace.
Intentional misconduct is considered evil and is not socially sanctioned
Though violence is still a concern, intentional torts increasingly address dignitary or emotional wrongs. They remedy illegitimate exercise of social power, abuses of public and private authority, and improper attempts to control the perception or standing of members of other status groups
The common law of intentional torts operates on a terrain where group norms or culture influences behavior. Conflicts arise when the group norms are stronger than the law
Conflicts arise where the norms or culture of different groups conflict. In such cases, the law may be called upon to settle disputes
The question remains, however, whether torts directed at behavior that offends societal or group norms reinforce the status quo hierarchy or alters it.
Don’t care about the motive in tort law, just the intent/knowledge that the particular defendant has
Van Camp v. McAfoos (Iowa, 1968)
Facts: Van Camp(π) appealed a decision dismissing her action for battery against McAfoos (∆), a 3-year-old, who drove tricycle into π’s right leg, causing an injury to the Achilles’ tendon. Tendon needed surgery, which π claims was a direct and proximate cause of the accident.
Rule: In order to establish a cause of action for battery, π must plead and prove facts establishing ∆’s wrongful acts
Although ∆ won in this case, children may still be liable in tort law for battery
Disposition: Affirmed in favor of ∆
Policy Concern: Children may still be liable in tort law for battery. Culturally, parents have a duty to help children understand right from wrong
Battery: an intentional infliction of a harmful or offensive contact or touching of a person of another or anything attached to or identified with another’s body
1 Restatement Torts, 29, §13: A person is liable for battery if an act, directly or indirectly, is the legal cause of a harmful contact with another’s person. The act is done with the intention of bringing about a harmful or offensive contact
Elements of Battery: (1) An act by the defendant (2) that intended to cause, (3) and did cause, (4) offensive or harmful contact (5) with the person of another
Intent: (1) acting with knowledge that contact is substantially certain to occur, with that contact being harmful or offensive; and/or (2) acting with the desire or purpose or bringing about contact that is harmful or offensive
Contact: the touching must involve contact with the person of something closely associated with the person
Harmful or offensive contact: if the contact is “harmful” (causes pain or bodily damages), it is considered a battery. Battery also covers contact which is merely “offensive” (damaging a “reasonable sense of dignity”)
Π need not be aware: It is not necessary that π have actual awareness of the contact at the time it occurs
Ex. ∆ kisses π while she is asleep. ∆ commits a battery
Contact beyond level consented to: Battery can occur where π consents to a certain level of bodily contact, but ∆ goes beyond the consented-to level of contact. At that point, the consent becomes invalid, and battery results. Common in sports and medical procedures.
2d §19: Contact is offensive if it offends a reasonable sense of personal dignity. It must be a contact unwarranted by the social usages prevalent at the time and place at which it is inflicted.
Damages: can have actual damages, but they are not required to recover; compensatory and punitive damages are recoverable (punitive only if act done with malice)
Garratt v. Dailey (Washington Supreme Court, 1955)
Facts: π started to sit down in a lawn chair when ∆, a five-year-old boy, pulled the chair out from underneath her. Π fell to the ground and broke her hip, among other injuries.
Rule: The intent necessary for the commission of a battery is present when the person acts knowing with substantial certainty that the harmful contact will occur.
Act must be intentional, but the harm nee not be. We care about that he knew with substantial certainty that she would sit down.
Substantial certainty: knowing that with great possibility (75-100%) that π would sit in the chair. Knowing the possibility that something grave would happen and knowing that she might make contact with the ground
∆ is still liable if there was a lack of motive or purpose. In this case, ∆ had knowledge that π would fall, even at the age of five. The law of battery does not make a distinction as to age
Other Notes:
Under Garrett, a battery will occur despite a lack of an offensive intentional touching when the person has knowledge to a substantial certainty that harmful or offensive contact will result from a certain action. ∆ committed a battery even though he never actually touched π.
Some jurisdictions accept the Washington rule on battery, but many other still require an actual touching of the battery victim
Policy Concerns:
A defendant can still commit harm even if they do not touch the other person. Children can also be liable for committing crimes that are meant to be harmless
Cohen v. Smith (Ill. App. Ct., 1995)
Facts: π (Cohen) needed a c-section to deliver her baby. She informed the hospital staff and physician that he religious beliefs prohibited her from being seen unclothed by a man, and the physician assured her that her beliefs would be respected. ∆ (Smith), allegedly observed and touched π’s naked body during surgery. Π sued for battery.
Rule: The right to refuse medical treatment, if violated, can serve as the basis for a claim of battery or intentional infliction of emotional distress
Restatement Torts §9: ∆ is liable not only for contacts which do physical harm, but also those that are merely offensive and insulting.
Although many people in society accept the necessity of being seen unclothed or touched by members of the opposite sex during medical treatment, π had not accepted the procedure and had informed hospital staff
Court have consistently recognized an individual’s right to refuse medical treatment even if it would increase the individual’s likelihood of death
Disposition: Reversed in favor of π
Restatement § 19. Offensive Contact
Contact is offensive “if it offends a reasonable sense of personal dign

ent threat.
Π does not have a claim for assault if they are unaware of the threat
Intent: It is not necessary that ∆ bear malice toward π. No hostility is required.
There are two different intents, either of which will suffice for assault:
Intent to create apprehension (intent to commit assault): ∆ intends to put π in imminent apprehension of the harmful or offensive contact, even if ∆ does not intent to follow through
Ex. ∆ threatens to shoot π, but does not intent to actually shoot π
Intent to make contact (intent to commit a battery): ∆ intends to cause a harmful or offensive bodily contact
Ex. ∆ shoots a gun at π, trying to hit him. ∆ hopes π won’t see him, but π does. Π is frightened, but the shot misses.
∆ has the requisite intent for assault if he either “intends to commit an assault” or “intends to commit a battery.”
Damages: Same as available for battery; does not require actual damages in order to recover
Cullison v. Medley (Indiana Supreme Court, 1991)
Facts: After the Medleys 16-year-old went to π’s trailer home after an encounter at the grocery store, the family came to the home and berated him. The father was wearing a holstered gun and threatened to “jump astraddle” of π if he did not leave the daughter alone. Π continued to feel threatened by the father. Because of his fear, π received counseling and medication because he suffered from nervousness and depression that prevented him from working.
Rule: Summary judgment on the claim of assault is not sustainable where a jury could conclude that ∆ intended to frighten π and that π’s apprehension of being injured was one that would normally be aroused in the mind of a reasonable person.
Kline v. Kline ruled that an assault constitutes “a touching of the mind, if not the body.” In this case, there is a touching of the mind, as opposed to the body, and thus, the damages which are recoverable for an assault are damages for mental trauma and distress.
False Imprisonment
False Imprisonment: the intentional infliction of a confinement against π’s will.
(1) Confinement within actual or apparent physical barriers
(2) Intent to restrain or confine
(3) Use of physical force, threats of force, duress, or assertion of legal authority
: π must be restricted to a limited area without knowledge of reasonable means of escape and must be aware of the confinement
: π must show that ∆ either intended to confine π, or at least ∆ knew with substantial certainty that π would be confined by ∆’s actions. Cannot be committed by negligent or reckless acts
: If threatens to use force if π tries to escape the requisite of confinement exists
Assertion of legal authority: Confinement may be caused by ∆’s assertion that he has legal authority to confine π. This is true even if ∆ does not in fact have the legal authority, so long as π reasonably believes that ∆ does, or is in doubt about whether ∆ does.
False imprisonment is a trespassory tort, which means π can collect damages even if not actual harm is done
Contemporary Claims of False Imprisonment:
In the employment context:
(1) Investigations of rule breaking and theft by employees
(2) Physical confinement of employees in the workplace to prevent theft of escape
In the retail context:
(1) Confinement of suspected shoplifters that exceeds the privilege of reasonable detention