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University of Toledo School of Law
Rapp, Geoffrey C.


What is the basis for the continued prominence of the tort system?
·         Provide a process of dispute resolution
·         Prevent private violence
·         Reinforce social norms

Functions (Guiding Principles):
·         Compensation – make the injured P whole
·         Optimize the legal incentives re: expenditure of resources in prevention of injuries
·         Punishment – punitive damages for wrongdoing, so as to deter future wrongs
·         Generate and reinforce norms

Compensation Deterrence

·         Need balance b/w the two. Bias toward compensation can lead to over investment in safety precautions, negatively impacting economic interests. Bias toward deterrence can lead to under-compensation for P’s.

·         Intentional – Tortfeasor must have intent (intent to do the act, intent to do the harm)
·         Battery
·         Assault
·         Infliction of Emotional Distress
·         Unintentional – Accidental, no intent
·         Negligent – Unreasonably risky conduct
·         Reckless – Knowing disregard of high risk
·         Strict Liability – liability without fault

Intentional Torts

§7(1): Injury is the invasion of any legally protected interest of another.

§7(2): Harm is the existence of loss or detriment of any kind resulting from any cause.

§7(3): Physical harm is the impairment of the human body, or of land or chattels.

**P must prove only that D caused injury. Damages are measured by amount of harm suffered.

§2: Act is the external manifestation of the actor’s will, not including any of its results.

§8A: Intent – actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result. Intent is applied to the result/consequence and not the act.


Harmful or offensive
Contact – direct or indirect
With intent – to bring about harmful or offensive contact (or to do an act believing that harmful and offensive consequences are substantially certain to result), or to create apprehension of imminent harmful or offensive contact.

Only requires general intent. Liability even if particular type of harm was not intended. Ex. Striking someone, unintentionally causing them to fall on a spike. Liability extends to actual harm done.

Offensive battery – touching or contact without physical harm. Utilizes an objective standard of what is considered “offensive”. However, if the actor knows that someone is hypersensitive, a touching that would not normally be offensive may be actionable. Note: A victim need not be aware of an offensive battery taking place. Ex. Sleeping beauty/Prince Charming.

Dual intent – Intent to commit the act; intent that the contact be harmful or offensive.


Intentional creation of
apprehension of an
imminent harmful or offensive contact

Apprehension – subjective and objective components. Note: A victim must be aware of the assault to claim apprehension.
P must actually have been apprehensive.
Actions must be sufficient to cause apprehension to a reasonable person.

Transfer of intent:
Transfer between torts – Intent to commit assault, but resulting in a battery.
Transfer between victims – Intent to strike A, but missing and striking B. Rationale: Focus on result over intended victim.
Liability to third person – If act was privileged, actor is liable to third person for resulting harm only if the actor realizes or should have realized that his act creates an unreasonable risk of causing such harm (i.e. was reckless).

Defenses to Assault and Battery

Defenses are not responses, as statements disavowing an element of assault / battery would be. Rather, defenses are efforts to show that even where each element of the tort exists, there are other factors that should negate liability.

Consent – voluntarily relinquishing right to be free

Severe emotional distress.
Evidence of P’s suffering of emotional distress

Transfer of intent: Typically there is no transfer of intent, with the exception of a close relative of the intended victim who witnesses the conduct.

Defenses: Constitutional limits (free speech/obscenity cases)

Policy Implications:
Art – Consent may be an implied defense.


Duty – obligation to act
Breach – failure to meet that standard to act
Tools to determine whether there was a breach:
Reasonable person standard
Hand formula
Negligence Per Se
Causation – direct and proximate cause of injury
Damages – suffering of harm

The “Reasonable Person” does not make these errors of negligence.
Standard of a reasonable, prudent person is objective.
A person of higher skills, perception, memory, knowledge or judgment is held to a higher standard of care.
Can ascertain standard of the reasonable person through expert witnesses or by use of an economic analysis (cost vs. benefit; Hand formula).
Standard procedures or ordinary practices, as well as “innocent ignorance”, can impose or relieve liability on an actor.
Hand formula: Sought to achieve higher level of precision in judgment. Liability should only be imposed for negligence if the burden of preventing the injury does not exceed the magnitude of the injury multiplied by its likelihood of occurring (B < P * L). P - probability L - gravity of injury caused by accident B - burden of adequate precautions Exceptions: Emergencies: