Select Page

University of Toledo School of Law
Rapp, Geoffrey C.

Let’s Talk Torts
Professor Rapp

Tort Law Generally

a. Objectives of Tort Law
i. Create civil liability in others
ii. Civilly redress wrongful acts
iii. Compensate the wrongfully injured
iv. Every wrongfully injured Π should be compensated
v. The law always strives to be predictable, uniform, and certain
b. Definition
i. A Tort is –
1. A civil proceeding
2. In which the law provides a remedy
3. For a wrongful act
c. “Wrongful” Acts
i. “Wrongfulness” is a relative concept
ii. Torts wrongfulness must be based on one of three theories of culpability:
1. Intent – The oldest form of wrongfulness
2. Negligence
3. Strict Liability

Intentional Torts

a. Intentional Interference With Person or Property
i. Intent –
1. Background:
a. Intent is a element of all intentional torts
b. Intent DOES NOT exist in a vacuum
c. Intent refers to a state of mind → culpability
i. Motive/Ill-will ≠ Intent
ii. Volition ≠ Intent
iii. Mistake will NOT negate Intent
iv. BUT all of the above may aggravate/mitigate the damages involved
d. Capacity & Intent
i. Minors will be held liable for there intentional torts
ii. Mentally Incapable people will be held liable for their intentional torts
1. Exceptions:
a. Where the tort requires a specific state of mind, OR
b. Where the injured party is employed as the caretaker of the insane person
2. Two Tests:
a. Acting for the Purpose of Causing –
i. The ∆ acted in a manner that indicates, OR
ii. It was the ∆’s express desire to cause
iii. The harm complained of
b. Substantial Certainty –
i. “Knowledge on the part of the actor that such contact or apprehension is practically certain”
1. Knowledge beyond knowledge
2. Mere knowledge is NOT sufficient
3. Courts will infer this from the ∆’s actions
c. BOTH tests must be applied in EVERY analysis
3. Transferred Intent:
a. Intent can be transferred victim to victim in Tort law
b. Intent can also be transferred tort to tort unlike Criminal law
i. Requirements:
1. The tort must be “traditional”
a. Battery
b. Assault
c. False Imprison
d. Trespass (Land or Chattel)
2. ∆ must complete the tort
a. Without completion Intent CANNOT be transferred
b. Accidental completion will transfer intent
3. Transfer CANNOT occur if one of the torts involved is IIED or Conversion
ii. Battery –
1. Background:
a. Protects an individual’s dignity and right to personal autonomy
b. Every Battery is a completed Assault
i. ∆’s actions are an Assault UNTILL
ii. Contact – At contact the Assault merges into a Battery
c. Damages
i. Π’s do NOT need to prove actual harm to recover, BUT
ii. Where there is NO actual harm, only nominal recovery is allowed
2. Definition:
a. An intentional harmful or offensive touching of another without legal justification
3. Prima Facie Elements:
a. Intent –
i. Acting for the Purpose, OR
ii. Substantially Certain
b. Harmful OR Offensive Actions –
i. Harmful:
1. Any action that injures, disfigures, impairs or causes pain to any bodily organ or function
ii. Offensive:
1. Any action that would offend or humiliate a reasonable person with ordinary sensibilities
2. Factors to consider –
a. Time
b. Area
c. Place
d. Surrounding circumstances
e. Relationship between parties
3. Exceptions –
a. Ordinary, everyday contact is considered to be consented to
b. The law does NOT protect the hypersensitive, UNLESS ∆ knew of the hypersensitivity
iii. A person does NOT have to be conscious to be Battered
c. Contact –
i. Two types:
1. Direct – Actual physical touching of another’s person
2. Indirect –
a. Touching of something so closely associated with the person as to be customarily regarded as part of the other’s person
b. Examples:
i. Anything held in the hands
ii. Clothing
iii. Anything the person is standing/sitting/riding on
iii. Assault –
1. Background:
a. The right to mental tranquility and protection from physical harm
b. An Assault is a failed Battery
i. Every Battery contains an Assault, BUT
ii. An Assault may NOT contain a Battery
2. Definition:
a. An intentional attempt at touching that creates the imminent apprehension of contact where there is the apparent ability to effectuate the attempt
3. Prima Facie Elements:
a. Intent –
i. Acting for the Purpose, OR
ii. Substantially Certain
b. Imminent Apprehension –
i. Must be conscious of the Assault or impending Battery
ii. Reasonable Person test:
1. If a reasonable person of ordinary sensibilities would construe the threat, it will lie
2. Fear is NOT a factor, only whether the person had concern for their safety
iii. Words and Future Threats:
1. Generally words and mere threats are NOT enough to carry the burden
2. BUT where the words are such that a reasonable person would fear to disregard them, they WILL BE sufficient.
c. Apparent Abili

could be easily faked
iii. 1950’s – 60’s Psychiatry begins to bloom and recognize mental ailments
iv. Now recognized as a unique tort and NOT just a “piggy-back” tort
2. Definition:
a. Intentionally or recklessly causing one severe emotional distress through one’s extreme or outrageous acts.
3. Prima Facie Elements:
a. Intentionally or Recklessly (Same tests) –
i. Purpose of Causing, OR
ii. Substantially Certain
b. Extreme or Outrageous Conduct –
i. Outrageous → Must exceed ALL bounds of decency tolerated by society
ii. Factors to consider:
1. Personalities of the parties involved
2. Surrounding circumstances
3. REMEMBER: The law does NOT protect the hyper-sensitive, UNLESS the ∆ knows of those sensitivities
iii. Words or Threats:
1. Language must be calculated to cause severe emotional distress to someone of ordinary sensibilities
2. Common carrier = Higher Standard –
a. Hotels, Cabs, Trains, Airplanes, etc.
b. When the Π is paying for a service offensive words alone will be sufficient to carry this burden
c. Causation –
i. The ∆’s conduct must be directly linked to the alleged emotional distress
d. Severe Emotional Distress –
i. Actual physical contact between the parties is NOT required, BUT
ii. The Π must have suffered some physical ailment or harm from the emotional distress, AND
iii. This harm must have been physically manifested
4. Special Exceptions:
a. NO transferred intent with IIED
b. Ө Witnesses
i. Generally Ө witnesses CANNOT recover for IIED, UNLESS
ii. ∆ knew of the Ө presence, AND
iii. Proceeded with the action in order to harm the Ө in some way
vi. Trespass to Land –
1. Background:
a. Protects the Π’s possessory interest in land
b. Nuisance v. Trespass
i. In analyzing a potential problem ALWAYS distinguish between Nuisance and Trespass
1. Nuisance –
a. Protects the quite enjoyment of land
b. If the harm is temporary but interferes it is a nuisance
2. Trespass –