Torts Outline

Torts Outline

Professor Wagner – The University of Texas School of Law – Spring 2010

Tort: Wrongful conduct, that causes, harm

Intentional Torts

Assault

I. Generally

a. Assault: intentional causing of an apprehension of harmful or offensive contact, which in fact causes such imminent apprehension

b. Elements

i. Credible act – words generally insufficient (but then maybe IIED), unless impact of words alone creates sufficient apprehension of immediate harm

ii. Intent – D must either have intended to cause the apprehension of contact, or the contact itself

iii. Reasonable apprehension – of an imminent harmful or offensive touching

1. P must be aware of threat at time

a. C.f. battery: in battery, apprehension not required, and P need not have knowledge of the touching at the time

2. P must be apprehensive of a touching to her own person (threats to home, property, family, not enough)

a. C.f. IIED: those threats may be sufficient to impose liability

b. C.f. false imprisonment: threats to family members may create false imprisonment

II. History

a. I de S: guy banging on tavern door with hatchet, wife sticks her head out the window, guy perceives her, swings and misses, but wife is frightened.

i. First finding of assault claim. Even though there was no physical contact, there was a claim b/c there was a “harm”

ii. Adds: emotional/mental fear enough

b. Tuberville v. Savage: P says, “if it were not assize time, I would not take such language from you,” then reaches for sword. D then attacks P and injures him.

i. P has made no assault b/c his words make it clear he had no intention of a present battery or assault.

ii. Adds: intent as an element of assault. No intent, no assault.

c. Hannaford: D threatened with unloaded pistol.

i. Adds: Intent to cause reasonable apprehension enough

d. Brooker: D verbally abused P, telephone operator, when she couldn’t connect him.

i. Adds: threat must be credible, must be imminent

III. Policy rationale: why punish assault?

a. Protect against mental injury – make us secure as long as fear is reasonable

b. Deterrence value

c. Victims have damages, can’t fix as before

d. Freedom/liberty, making sure people behave in civil society

Battery

I. Elements

a. Harmful or offensive touching/contact (law prof: bank on lack of this element)

i. Reasonable person in victim’s shoes find contact offensive

ii. Indirect contact sufficient

b. Intent – D (a) acted with purpose to cause tortious contact, or (b) believed with substantially certainty such conduct will result.

i. Transferred intent: If you intend to batter one person but instead contact another, the intent for the first person is sufficient for liability

1. Also allows recovery when D attempts one intentional tort but causes another (e.g. tries to hit but misses, battery => assault, or tries to scare and actually hits, assault => battery)

ii.

II. Vosburg v. Putney (Wis. 1891): schoolboy D kicks P’s shin, leg bad forever

a. Rule: what matters is intent to complete the physical act, not intent to cause injury/damage. Wrong-doer liable for all injuries resulting directly from the wrongful act, whether or not it is foreseeable (Thin skull rule: take victim as you find them)

i. Pros:

1. Hard to show degree of harm that was intended.

2. Wrong-doer should pay blameless victim

3. Think v. think skulls: for every thin skull there is a think skull, so net perfect deterrence

ii. Cons: why unfair?

1. Thin skulls benefit greatly

2. Victims should take some measures if they know they are especially vulnerable

3. Lead to exaggeration of injuries

b. Vosburg test for battery: The intention to do harm is the essence of the wrongful act. P must show either that the intention was unlawful or that D is at fault. If the act is unlawful, there’s an inference that the intention is unlawful. The court ruled that in this case the act was unlawful since it took place during class rather than on the playground and Putney was liable for all personal injuries sustained as a consequence of his wrongful act.

i. Note that courts will consider circumstances in determining whether contact was “unlawful.” E.g. here, if it took place on playground kick might not be unlawful.