Torts McGowan Fall 2014
· Battery- Intentional harmful or offensive contact to the person of another.
· Elements of Battery:
1. Person acts intending to commit harmful or offensive contact with another
2. Harmful or offensive contact has to actually occur
· Intent- Purpose to cause harmful or offensive contact OR Knowledge that such contact is substantially likely to occur
· Garratt v. Dailey- Does not have to intend to harm, just have to have knowledge that harmful or offensive contact would occur.
· Parental Liability-
· Only if statute authorizes suit, and if it does the statutory requirements for recovery must be met. OR
· If parents were at fault in some way
· Limited to:
· The child's tort must have been committed willfully or wantonly
· The damages that may be obtained are limited
· White v. Muniz- Question of whether woman with Alzheimer's had knowledge of substantial certainty that harmful/offensive contact would occur. Can't just have knowledge that there would be contact, it needs to be proven that there was knowledge that harmful/offensive contact would occur, even though it is not the harm that actually resulted. NEED BOTH (Dual Intent)
· Liability of the Mentally Impaired-
· When a (D) intends to harm the (P) but does so because of insanity, the ordinary rules of battery apply.
· Insanity is not an excuse from tort liability.
· Polmatier v. Russ- (D) shot his father in law. Was found guilty in the tort action. An insane person may have an intent to invade the interests of another, even though his reasons and motives for forming that intention may be entirely irrational.
· Damages for Battery-
· There does not have to be actual physical harm, (P) must prove that he has suffered an invasion of his protected interest and is thereby entitled to damages to compensate for an invasion of that loss.
· Leichtman v. WLW Jacor Communications Inc.- Was harmful contact when a talk show host blew cigar smoke in the face of an anti-smoking advocate to humiliate him.
· Fisher v. Carrousel Motor Hotel, Inc- (P) was at a hotel about to be served when the manager snatched the plate from his hand and shouted that a negro could not be served in the club. Intentional grabbing of the plate constituted a battery since it was a clearly offensive invasion of his person as would an actual contact with the body.
· Snyder v. Turk- Doctor offended nurse and grabbed her. Nurse had to prove that offensive contact would be offensive to a reasonable person's sense of dignity.
· Cohen v. Smith- Informed physician that she did not want to be touched by a male. Would have to show that it was offensive to a reasonable person's sense of dignity. She would have to prove that there was knowledge in order to prove intent
· Nominal Damages (trivial harm)
· Economic Damages
· Pain and Suffering and Emotional Distress Damages
· Punitive Damages (Against tortfeasor who is guilty of malice)
· Transferred Intent- The (D) who commits an intentional tort, at least if it involves conscious wrongdoing, is liable for all damages caused, not merely those intended or foreseeable. (extended liability principle)
· Baska v. Scherzer- (P) got in the middle of a fight and was struck by both boys. Under the doctrine of transferred intent, the fact that the fighters struck the injured party did not change the fact that their actions were intentional.
· Assault- Is committed when an actor intends to cause a harmful or offensive contact with the person of another or intending to cause an imminent apprehension of harmful/offensive contact and apprehension occurs.
· Apprehension must occur to a reasonable person
· Apprehension not always fear, rather an awareness of an imminent touching that would be a battery if completed.
Elements:
· Actor intended to cause
A.) Harmful or offensive contact and missed while (P) was aware OR
B.) 1.Imminent apprehension in (P) of harmful/offensive contact.
2. Imminent apprehension of harmful/offensive contact occurred.
· Words Alone- do not count as an assault. Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension [of imminent contact].
· Words can negate intent to effect immediate touching (If the officer were not here, I'd punch you)- Not an assault
· Assault Under Duress-
· Cullison v. Medley- Father threatens to “Jump straddle” the (P) . Impact rule did not apply to prohibit recovery for emotional distress when sustained in the course of a tortious trespass. Also it was for the jury to decide whether the (P)'s apprehension of being shot or injured was one that would normally be aroused in the mind of a reasonable person.
· Raess v. Doescher- (D) aggressively and rapidly advanc
a statute since they did not summon the police, did not give reasons as to cause of detention, Didn't ask him if he took the item, did not ask to frisk him. Did no ground work.
· Self Defense- To prove self-defense:
· 1. Actual or reasonably apparent threat to plaintiff's safety.
· 2. Force is neither excessive in degree/amount or kind (force.) [congruence]
· Touchet v. Hampton- (D) goes to the place of work of (P) since the (P) had been calling and leaving threatening voicemails. (P) was in his chair and (D) goes to him and hits the (P) for 20 sec. before co-workers intervened.
No act, no advance, no immediacy. Hampton's version of the facts negates imminent fear, went to work instead of the house. Provocation not enough for self-defense. Not about retribution or revenge, it's about protecting yourself. If you are in reasonable apprehension of harm, you can retaliate, can flee, avoid the contact, or can use deadly force in certain situations.
· Consent- Words or acts that indicate to a reasonable person agreement to the act or through silence and inaction that would indicate to a reasonable person, agreement.
· Robins v. Harris- Inmate (P) flashed (D) corrections officer in jail. (D) officer later took inmate (P) to shower room where she performed fellatio on him. (P) sues for battery, and (D) claims it was consensual (consent).
· SC states that consent was not a defense in this situation.
· A jailer cannot claim consent with a prisoner b/c an inmate has a lack of autonomy.
· Minors: Can't consent to sexual conduct, so can't be a defense, for criminal or civil.
· Adults incapacity to consent: Incapacity of adult usually established only by showing that the particular adult could not manage his own affairs.
· Kaplan v. Mamelak- Patient (P) sued (D) doctor for med malpractice and battery. (D) operated on wrong disk in back. (P) consented to have certain disks operated on, but did not consent to the disks the (D) operated on.
