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Civil Procedure II
University of Toledo School of Law
Martyn, Susan R.



FALL 2011



1. Harmful Battery R2d § 13

2. Offensive Battery R2d § 18

3. Assault R2d § 21

1. D acts

2. Intending (R 3d § 1.)

1. The person acts with the purpose of producing that consequence (Vosburg v. Putney) ; or

2. The person acts knowing that the consequence is substantially certain to result (Garratt v. Dailey). CONSTRUCTIVE INTENT.

3. To Cause

4. Contact

– Contact does not mean that a part of defendant’s body must come into direct contact with a part of plaintiff’s body, it is sufficient if the D causes contact with sth very closely associated with the P’s person, such as the clothing, or object held by the P.

– It is enough that he intentionally causes his clothing or anything held or attached to him to come into contact.

– (Garrat, Fisher v. Carrousel Motor Hotel).

§ Harmful contact R 3d § 4

1. Physical harm – physical impairment of the human body. Bodily harm: physical injury, illness, disease, impairment of bodily function and death.

2. No minimum amount of physical harm.


§ Offensive contact,

R 2d § 19. A bodily contact is offensive if it offends a reasonable sense of personal dignity. It must be one which would offend an ordinary person, a contact that is unwarranted by the social usages prevalent at the time and place at which it is inflicted. (Vosburg v. Putney, Fisher v Carrousel Motor Hotel, Leichtman v. WLW Jacor Communucations )

(Harmful or offensive means unlawful)


§ Imminent apprehension of harmful or offensive contact

5. Harmful c. results

Offensive c. results

Imminent apprehension results

6. Directly or indirectly – do not need to contact directly, it’s enough that D puts sth in motion

7. to another or to a third person. (transferred intent)

R 2d §16(2) If an act is done with the intention of affecting a third person, but causes a harmful bodily contact to another, the actor is liable to the other as though he intended to affect him.

R 2d § 16: No harmful intention, but offensive or apprehension intention – liable for H.

No h/o/a intention – not liable for O, but might be liable for negligence or recklessness

No h/o/a intention – not liable for a, but might be liable for negligence or recklessness

R 3d §31 Scope of Liability. Preexisting Conditions and Unforeseeable Harm

(1) Tortious conduct

(2) Causes harm

(3) Greater than expected, because of preex. conditions or other reason

(4) A is liable for all the harm resulting.

(Fisher v. Carrousel Motor Hotel, Leichtman v. WLW Jacor Communication)

R2d § 31. Words do not make actor liable for assault unless together with other circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact.

Read v. Coker, Beach v. Hancock

Does not matter whether I was harmed/offended – whether a reasonable person would be. (I am big or tough)

It matters whether I was put in imminent apprehension.

– fear not needed, only imminent apprehension

– reasonable, not eggshell

4. False Imprisonment, R 2d § 35.

1. D. acts

2. Intends to

3. Confine

4. Within boundaries

5. Confinement results,

6. AND Other is conscious of confinement, (knows of it – §42

7. OR Other is harmed by it

8. (No knowledge – no liability)

– If no intention – no liability for F.I., but there might be liability for negligence or recklessness

R 2d § 36. Confinement

(1) must be complete

(2) The other knows of no reasonable means of escape

(3) No liability when A is intentionally preventing another from going in a particular direction in which he has a right or privilege to go.

Confinement may be by:

– Overpowering physical force or by submission to physical force. R2d§39

– Submission to a threat to apply physical force to the other person immediately upon the other going or attempting to go beyond the area of confinement. § 40

– Submission to duress other than threats of physical force, where such duress is sufficient to make the consent given ineffective to bar the action § 40A

– Under asserted legal authority R 2d § 41

o The custody is complete if the person against whom and in whose presence the authority is asserted believes it to be valid, or is in doubt as to validity, and submits to it.

e.g. Whittaker v. Sanford, Rougeau v. Firestone Tire & Rubber, Coblyn v. Kennedy

5. Intentional Infliction of Emotional Distress, R 3d § 46

1. D acts

2. Intentionally, OR

3. Recklessly

4. Extreme, AND Outrageous conduct

5. Causes

6. Severe emotional harm

7. Bodily harm if caused by the emotional harm

(1) Extreme and outrageous conduct: so outrageous in character and extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. (comment d) Whether the conduct is E & O depends on the objective facts of each case – no specific rules

(2) Intentionally or recklessly: R 3d §1(acts with the purpose of producing the consequence or knowing that the consequence is substantially certain to be result); R 3d §2 (knows of the risk created by the conduct or know facts that make the risk obvious to another in that situation, risk easy to avoid, and indifference to the risk).

(3) causes (chap. 2)

(4) Severe emotional distress (all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and nausea, but only if extreme, that is, no reasonable person should be expected to endure it.) comment j. Not a susceptible person

(5) Transferred Intent § 46(2): immediate family if present, and any other person present if bodily harm results.

Taylor v. Metzger, Brandon v. Richardson, Ford v. Revlon, Jones v. Clinton


1. Future threats of serious bodily harm

2. Debt Collection

3. Constitutionally protected rights (Fisher w/o plate)

4. Dead bodies: R § 868 Interference w/ dead body

5. False reports of serious bodily harm (Wilkinson, telegraph cases)

6. Insulting language? (Taylor, Brandon)

Note: this is one of the weaker tor

isrepresentation or Duress

– Consent not effective if given under duress or mistake/misrepresentation known to A or induced by the A. (because it will not be voluntary)

– State Farm v. SS & GW

d. § 892 (C) Consent to crime (statutory rape, illegal abortions, illegal flights, illegal purveying of intoxicants, etc…)

– Consent to criminal acts (which are made criminal to protect a certain class of persons) is totally irrelevant in civil cases – in such cases consent does not constitute a privilege. (p. 47 casebook)

– Otherwise, consent effective, even though it is a crime – is this a proper interpretation????

– Barton v. Bee Line

– Kennedy v. Parrot

– Barton, Bang, Kennedy, Hackbart

2. Self Defense, R2d § 63, § 65

By force NOT threatening Death or Serious Harm

By force threatening Death or Serious Harm

1. A privileged to defend himself when

2. He reasonably believes

3. D. is about to inflict intentionally

4. Unprivileged harmful, offensive c. or other bodily harm

1. A is privileged to defend himself when

2. He reasonably believes

3. D is about to inflict intentionally

4. Deadly contact or serious bodily harm, AND

5. It can only be prevented by the immediate use of such force

– Curvoisier v. Raymond

3. Defense of Others, R 2d § 76

1. A is privileged to defeat a third person

2. Under same conditions and by same means as defending himself, if:

3. He reasonably believes

4. Third person would have privilege of self-defense

5. His intervention is necessary for the protection of the third person.

4. Defense of Property, R 2d § 77

1. A is privileged to use reasonable force NOT intended to cause death or serious bodily harm if:

2. The intrusion is not privileged, OR

3. The other causes A to believe it is not privileged, AND

4. A reasonably believes intrusion can be prevented or terminated only by this force, AND:

a. A first requested other to leave and other disregarded request, OR

b. A reasonably believes request would be useless, OR

c. Substantial harm will be done before request can be made.

R 2d §84. Use of mechanical device NOT threatening death or serious bodily harm:

1. The use is reasonably necessary to protect land or chattels, AND

2. The use is reasonable under the circumstances, AND

3. The device is one customarily used for such purpose, OR

4. Reasonable care is taken to make such use known to probable intruders.

R 2d §85. Use of mechanical device threatening death or serious bodily harm:

1. Intrusion is such that

2. If the A was present