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Torts
University of Toledo School of Law
Rapp, Geoffrey C.

University of Toledo

Geoffrey Rapp, Torts, Fall 2011

I. Intentional Torts

a. Battery

1. Battery is harmful or offensive contact with intent.

2. Contact can be direct or indirect. The least touching of another constitutes battery.

3. Intent can be dual or single depending or jurisdiction

I. Single intent jurisdiction only requires you intend the contact, not that you intend it to be harmful or offensive.

II. Dual intent jurisdiction requires you intend the contact and you intend it to be offensive.

III. A tap to the knee not meant as offensive would be battery in a single intent jurisdiction but not in a dual intent jurisdiction.

IV. When a piano teacher taps his student on the back and causes thoracic outlet syndrome, he is liable if in a single intent jurisdiction, but not in a dual intent jurisdiction.

4. Crazy people can form intent, intending to do an act for an irrational reason is no defense (Polmatier).

5. Does not matter what the consequences of your battery are, you are responsible

for them. If you intentionally kick your friend’s leg as a joke, not knowing it is rotting, and it falls off, you are responsible for it. Battery only requires general intent, not specific.

6. The law is likely to frown on contact with no socially redeeming value. So a loan shark pistolwhipping a tardy client and then accidentally shooting him in the process would be liable for battery for shooting him.

7. What is offensive is generally shaped by societies definition of offensive.

I. If you know someone to be particulary sensitive to something, and you do it anyway, it can be considered offensive (Leichtman v. WLW Jacor).

b. Assault

1. Assault is intentionally giving someone the apprehension of imminent harmful or offensive contact.

2. You can commit assault and battery in the same act. You can also commit battery without assault if the victim does not perceive the attack coming.

3. Person must actually perceive the imminent contact.

I. If you say “I’m going to give you a knuckle sandwich” to a German immigrant, and they think they are going to get a delicious sandwich, no assault has occurred.

4. The conduct must be such that would give a reasonable person the belief that are in danger of imminent h/o contact.

I. It also applies to people who you know to be especially sensitive.

5. Conditional threats qualify as assault.

I. If you say “If you don’t say im the best chess player in the world, I will punch you in the face”, you are liable for assault.

II. People such as police officers or those engage in things like slap bets are allowed to make conditional threats.

6. Mere words are not actionable

I. If you say “I’m going to punch you in the face” but your hands are in your pockets, no assault has occurred.

II. If you say “I’m going to come across the room and punch you in the face” and then you start walking across the room, assault has occurred.

III. If you threaten to shoot someone but leave the room to get your gun, it is not assault, unless you come back waving the gun (then the waving would be the assault).

7. An incomplete battery can be an assault.

I. If you throw a punch and miss, it can be assault but not battery.

c. Defenses to Intentional Torts

1. Consent to contact (DO NOT USE RESTATEMENT DEFINITION)

I. Express consent: “Go ahead and hit me, I dare you!”

II. Implied consent: Your playing football, wrestling, etc. and assume the risk.

a. Showing up for a fight (Richard v. Mangion).

III. Scope of consent/excessive force

a. If you consent to a fistfight, but you get shot, does that go beyond your consent? Yes.

b. When your horsing around in a pool, its okay to splash. Its not okay to hold their head underwater for five minutes.

c. If a girl consents to go lay out under the stars with a boy, she does not consent to a kiss, even if she inwardly resists.

d. If A says to B, “im going to punch you in the nose” and B stands his ground, B did not consent.

e. You consent to circumcision but surgeon amputates penis. It would exceed scope of consent if surgeon gave you no indication that full amputation was a possibility. Could be battery but would more likely be pursued as negligence.

2. Consenting to contact but not harm

I. Consenting to sexual contact but not herpes. Applies if you didn’t know the other person was infected but they knew that they were and you weren’t. This would be battery (Hogan v. Tavzel).

3. Self Defense

I. Self defense is all about proportionality of threat and outcome of your response.

II. Balances interest the actor is protecting with the injury or harm threatened by another. Thus you can use more force to defend a person than a car, and more force to prevent a stab than a slap.

III. Does not allow for retaliatory violence or viole

II. Compensatory damages: intended to make the plaintiff whole.

III. Punitive damages: Intended to punish the defendant for their actions.

IV. If you get nominal damages, you can also get punitive damages if you qualify for them.

Unintentional Torts

a. Negligence

1. Elements of negligence

I. Duty. Did the defendant have a duty to prevent harm?

II. Breach. Did they fail to live up to that duty?

III. Causation. (Cause in fact vs. Proximate cause).

IV. Damages. Did P suffer actual harm as a result of D’s actions?

2. Learned Hand Formula

I. Bà(probability of loss)(magnitude of loss)

II. Do not use the hand formula verbatim on exams. Use it as a guide.

3. Reasonable person

I. It is an objective test. You cannot consider special skill when considering the reasonable person except for self-regulating professionals.

4. Standards of care

I. Disabled people are held to the reasonable standard of care of a person with the same disability.

II. A drunken person cannot have their state of intoxication used against them when their drunkenness was not the cause of their injury (Can sue for drunkenly tripping over a pothole, can’t sue for crashing their car while driving drunk).

III. If you have a heart attack/seizure while driving, but had no reason to expect it, you are not negligent. If you have a history of heart attacks/seizures, the mere act of driving could be considered negligence.

5. Defenses to negligence

I. Emergency Doctrine

a. This is viable defense if you were not negligent immediately prior to the incident (you are not liable if you are run off the road and hit someone. You are if you were texting and thus wasted valuable reaction time that could have been used to avoid the accident).

II. You cannot sue someone for negligence if you assume the risk of the injury (Can’t sue alzheimers patient for kicking you if you are hired caregiver)