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University of Pennsylvania School of Law
Austin, Regina




Contact or a touching committed with an intent to harm or an intent to offend
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.”
Intent is acting with the desire or purpose of bringing about a harmful or offensive contact or
Acting with knowledge that such contact is substantially certain to occur

The focus is on the consequences of the defendant’s conduct. The nature of the intent is inferred from the nature of the consequence.
One has a relatively important, though not absolute, right to bodily integrity.
It is irrelevant that the actor does not appreciate the legal significance or wrongfulness of her/his act.
Substantial certainty: in order to prove intent you must show the party realized with substantial certainty that their acts would result in the contact it produced “the act must be done for the purpose of causing the contact or apprehension or with knowledge on the party of the actor that such contact or apprehension is substantially certain to be produced.”

· Transferred Intent: the fact that D meant to hit A, but instead hit P doesn’t relieve him of liability, as long as there was an intention to hit someone P can collect. Can transfer b/t people and torts (ie: if you throw a rock to scare someone and hit their car the intent transfers from assault to trespass to chattel)
Transferred intent applies to 5 intentional torts:
§ battery
§ assault
§ false imprisonment
§ trespass to land
§ trespass to chattel

· Gassemieh v. Schafer- action was brought as a negligence suit and not a battery claim and was therefore dismissed. 13 year old girl pulled chair out from under her teacher as a “joke”. Lays out what a battery is: touching that is harmful (causes physical pain, injury or illness) or offensive. Says that it is necessary to show that D intended to harm P.
· Garratt v. Dailey-small boy (5 years) pulled a chair out from under a woman in her back yard, resulting in her hip being broken. Court says that playing a joke or meaning to merely embarrass someone, if you intend to harm P in any way, does not preclude you from a claim of battery. Still counts as battery. Child’s age comes in in determining what he knew, what his experience was, his capacity for understanding, etc.
· Fisher v. Carousel Motor Hotel, Inc.- Man sued hotel company for battery when a white employee snatched a plate out of his hand and told him he could not be served there because he was black. While P incurred no physical injury, he was embarrassed and upset. To commit battery, court holds, offensive touching (not even necessarily of P’s person, as here it was of his plate) can constitute a battery without actual physical harm.
· Vosburg v. Putney- P sued for battery because D kicked him in the shin in school. Resulted in permanent loss of leg because of a preexisting condition. Court says that it doesn’t matter if you can foresee the extent of the harm you will cause, if touching is inappropriate and you cause tons of harm, you are still liable because that’s the risk you take when you commit a harmful/offensive touching. Also talks about settings and standards for appropriateness. Schoolyard might have been less inappropriate for kicking but in a classroom there is no way it can be considered appropriate to kick someone.

Policy Concerns
· Efficiencies in Deterrence
· Efficiencies in Compensation
· Morality, particularly notions of moral blameworthiness
· Cultural Norms or Expectations of Social and Political Solidarity or Cohesiveness
· Judicial Administration


Ability to harm
Immediate apprehension of harm


Vetter v. Morgan-Woman sued for assault when her car ran off the road. Alleges that Morgan frightened her so much with gestures from another car that it caused her to swerve and run off the road in her van.
Jones v. Fisher-Woman sued for assault and battery for pulling out of her dentures against her will. Court found assault and battery but reduced amount of damages as excessive because the assault did not last but a few moments.

· the direct restraint of one person of the physical liberty of another without adequate legal justification
· you must know you are being restrained, and you should be able to leave without embarrassing yourself, but if there is another reasonable way of leaving there is no imprisonment.
· it is not reasonable if the P doesn’t know of it and it isn’t apparent
2 elements:
1. restraint of an individual against his will
2. the unlawfulness of such restraint

· Herbst v. Wuennenberg


Extreme and OUTRAGEOUS! Conduct
Done intentionally or recklessly
Causing severe emotional distress
Causal relationship between conduct and distress

The tort of outrage is most successfully invoked where the parties occupy statuses that involve a well-recognized superior/subordinate relationship or where the standards of behavior are well defined and not in a state of flux.


Common carrier/Innkeeper

Intentionally subjecting another to the mental suffering incident to serious threats to physical wellbeing whether or not the threats are made under such circumstances as to constitute a technical assault, no physical harm needed

· D’s behavior must be extreme and outrageous, and beyond socially accepted behaviors and intended to cause mental damage and cause severe emotional distress
· P’s sensitivities may be a factor in deeming D’s conduct extreme and outrageous, physical conditions can also be taken into account if D is aware of them
· in case where the dad was beaten in front of his daughter, the girl couldn’t collect b/c D had to have known she was there and that she was closely related to the father and must have intended by being substantially certain to cause girl harm)

· Eckenrode v. Life of America Insurance Co.
· Chuy v. Philadelphia Eagles


Trespass to Land/ Trespass QCF:

Trespass quare clausum fregit or qcf – direct unlawful entry or trespass upon the land of another

A person’s unlawful entry on another’s land that is visibly enclosed.

This tort consists of doing any of the following without lawful justification:
1. Entering upon land in the possession of another;
2. Remaining on the land, or;
3. Placing or projecting any object upon it.

· Invasion of possessor’s interest in the exclusive possession of the land (v. nuisance which is an invasion of possessor’s interest in the use and enjoyment of the land)
· No damages needed, but then you’ll only get nominal damages (in environmental cases you DO need damage)
· if something goes over your land it counts as a trespass (except airplanes)

Must intentionally be on the land and you must have unpermitted contact with the land.
If you don’t know you are trespassing but you are intent

to let them touch you. OR “Give me your best shot.”
Socially Acceptable – You must conform to the practices of where you are. If you are at a rock concert or in a subway you need to expect to be touched. If you are from Italy you can’t come to Miami and pinch girl’s bottoms b/c it is acceptable in Italy! But it is OK to kiss someone on the cheek when you meet them in Miami.

Limitations and Exceptions

Fraud or Deceit

Policy Concerns
· the need to deter illegal conduct, compensate the victim, allow for individual autonomy and responsibility, reinforce the legal systems exclusive control over the use of violence as a dispute resolution device, and assess the efficacy of the criminal law alone as a deterrent.

· O’Brien v. Cunard S.S. Co.
· Overall v. Kadella
· Hogan v. Tavzel
· Neal v. Neal

Self-defense and the defense of others
1. An actual and reasonable belief that force is necessary
2. Use of no more force than is reasonable (not excessive)
3. Cessation of use of force when the aggressor is disarmed or helpless, or when the danger has passed
4. Privilege – (shopkeeper or police) – Police have privilege to touch you when arresting you. Shopkeeper has privilege to touch you when detaining you reasonably if you are accused of shoplifting. OR Self-defense.
· Retaliation: threat has to be at the same time, you can’t wait til threat is gone and retaliate.
· Reasonable belief: the privilege exists when the D reasonably believes that the force is necessary to protect himself against battery even though there is in fact no necessity
· Provocation: insults and verbal threats aren’t enough to justify self-defense unless the threats are accompanied by an actual threat of physical violence
· Amount of force: the privilege is limited to the use of force that is a or reasonably appears to be necessary for protection against a threatened battery. Use of deadly weapon only allowed when there is an apprehension of loss of life or great bodily injury. (You are allowed to use force NOT calculated to cause death or serious bodily injury UNLESS you are threatened w/a threat reasonably calculated to cause death or serious bodily injury) D normally has to prove the amount of force used was reasonable unless D is a cop.
· Retreat: you don’t have to retreat you are allowed to stay and fight
· privilege of self-defense transfers to third party (ie: D is defending himself against A and accidentally shoots P, D protected by transferred privilege)

· Hattori-jury found that D could not use self-defense and defense of others because he did not have a REASONABLE belief that Hattori was going to cause him or his family harm. Man shot Japanese exchange student on his carport because he knocked on the door (he was looking for a Halloween party).