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University of Toledo School of Law
Rapp, Geoffrey C.

Torts, Professor Rapp. Fall 2006

–         a tort is an actionable wrong
–         4 policy reasons for making something a tort
o       compensate injured persons
o       optimize incentives
o       punish injurers
o       helps lawmakers express a view of right & wrong

Intentional Torts
–         Committed by someone acting with general or specific intent

–         The intentional infliction of a harmful or offensive contact (Restatement §13)

Elements of a Battery
–         Intent Requirement §8A
o       D must not only intend the act but must act for the purpose of inflicting a harmful or offensive contact on P or
o       that such a contact is substantially certain to result
o       Dual Intent – some states require that D both intend the contact and intend it to be harmful or offensive
–         Harmful or Offensive Contact §7, §18, §19
o       Bodily harm is “any physical impairment of the condition of another’s body, or physical pain or illness”
o       Offensive Contact is determined if it “offends a reasonable sense of personal dignity”
o       Contact need not be actually touching, ex: weapons
–         Contacts vs. Consequences
o       D is responsible for any unintended consequences when committing a battery, even if those consequences were unforeseeable
o       Purpose is to deter such unauthorized contacts from the outset
–         Cases
o       Walters v. Blackshear – did not intend injury but intended contact
o       Polmatier v. Russ – any intent is sufficient, even without understanding
o       Nelson v. Carroll – specific intent not required, only general intent
o       Leichtman v. WLW Jacor Com. – offensive contact that offends a reasonable sense of personal dignity
o       Andrews v. Peters – no offensive intent, but contact resulted in offensive consequences
o       White v. Muniz – did not meet requirement for dual intent

–         An act intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and thereby the other is put in such imminent apprehension (Restatement §21)

Elements of an Assault
–         Intent Requirement
o       D must act with the purpose to cause apprehension of a contact or substantial certainty that the apprehension will result
o       An attempted battery satisfies the requirement for assault if the P is placed in apprehension of a blow
–         Imminent Apprehension
o       Apprehension means the perception or anticipation of contact and imminence means without significant delay
o       Assault turns on whether the D’s act would place a reasonable person in apprehension of an unwanted contact
o       Mere words do not constitute an assault unless coupled with an action §31 
o       Must be in imminent apprehension of a harmful or

sponse exceeds the threat
o       Law generally allows one to use force to defend a 3rd party to the same extent that 3rd party could use force to defend themselves §76
o       Duty to Retreat & Deadly Force §65
§         Don’t have to retreat first before using non-deadly force
§         Duty to retreat before using deadly force
§         May only use deadly force when threatened with deadly force
§         No duty to retreat from your own home
§         Different states have different interpretations
–         Cases
o       McQuiggan v. Boyscouts – manifested consent to participate in game
o       Hogan v. Tavzel – although consent to sex, there was deceit in concealing the STD, deceit or fraud override the consent
o       Richard v. Mangion – mutually manifestation to the fight by showing up, thus consented to necessary, reasonable, or anticipated results
o       Slayton v. McDonald – although used gun, not in deadly fashion thus his level of force was authorized to prevent battery against him
o       Young v. Warren – no immediate threat when victim killed so level of force is excessive under the totality of the circumstances