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University of Toledo School of Law
Rapp, Geoffrey C.

Professor: Rapp              
Fall 2010 

I.                        Introduction
A.      Tort:
1.         Tort Law is a collection of principles describing the legal system’s civil (noncriminal) response to injuries one person inflicts on another.
2.         Tort is an actionable wrong
a)         Does the D’s conduct satisfy the elements of a tort?
b)        Determination of tort liability, or lack thereof
c)         Damages suffered affect level of recovery by P
d)        Typically a “preponderance” standard
e)         P usually has the burden of proof
B.       Categories of Tort Law
1.         Intentional Torts (Worst kind of tort)
a)         For some types of harm, in order to recover damages a P must prove that the D intended to affect the P in some way that the law forbids.
(1)      Ex. Battery; Assault; Intentional Infliction of Emotional distress; False Imprisonment
2.         Unintentional Torts
a)         For other types of injuries,  a P may recover without proof that the D meant to cause a prohibited effect if the P proves that the D’s conduct was less careful than the law requires.
(1)      Ex. Negligence; Recklessness
3.         Strict liability (Liable even if not at fault)
a)         A P may may sometimes recover for an injury without proving either that the D meant to cause harm or that the D’s conduct lacked some required degree of carefulness. So here the D can  be liable even if he acted with whatever care the law requires.
C.       How Tort Law Serves Society
1.         Compensation (For injured persons)
2.         Deterrence (Prevention and Punishment)
3.         Optimize incentives
4.         Express our views of right and wrong
II.                     Intentional Torts
A.      Battery: Elements (1-3):
1.         Harmful or Offensive
2.         Contact
a)         Can be Direct OR
(1)      Ex. Laying on hands
b)        Can be Indirect
(1)      Ex. Laying on with a baseball bat
3.         With Intent
a)         to bring about the harmful or offensive contact OR
b)        to do an act believing that harmful or offensive consequences are substantially certain to result OR
(1)      Substantially Certain = Almost Certain.
c)         to create an “apprehension” of imminent harmful or offensive contact
4.         Damages are required for a battery
a)         Nominal damages can suffice such as emotional damages.
5.         Causation is also required for a battery
a)         The act complained of must have caused the contact.
6.         Waters v.  Blackshear (harmful battery)
a)         Intent to cause injury not needed
7.         Polmatier v. Russ (harmful battery)
a)         Intent to do the act even for irrational reasons counts/ “no insanity defense to battery”
b)        No need to desire harm
8.         Nelson v. Carroll (harmful battery)
a)         Battery requires only “general intent,” not “specific intent”
b)        Intent to do a harmful/ offensive act is usually enough, even if harm exceeds the scope the wrongdoer expected.
9.         Offensive Battery (no harm was intended)
a)         Here, there is touching/ contact but it does not (on its face) cause physical harm
b)        When is touching “offensive” enough to amount to a battery?
(1)      ANSWER: Generally, it’s society’s definition of “offensive,” rather than a particular victim’s definition that counts- RS2d Section 19
(2)      BUT, touching someone you know is hypersensitive may be actionable even if society would not define such touching as offensive (RS “Caveat”)
10.       Leichtman v. WLW Jacor Communications, Inc. (offensive battery)
a)         “Nauseating” contact like blown smoke might be actionable
11.      Andrews v. Peters (offensive battery)
a)         “Horseplay” which invades another’s “legally protected space” may be actionable even if one does not understand the harm.
b)        “A bodily contact is offensive if it offends a reasonable sense of personal dignity.” (RS).
12.      White v. Muniz (offensive battery)
a)         Dual vs. Single intent jurisdiction
(1)      DUAL INTENT: If you don’t understand the harmfulness or offensiveness of your contact, you may escape liability for battery in a dual intent jurisdiction lik

ily relinquished his right to be free of an assault/battery
b)        Must be knowingly and willingly given (knowing and voluntary consent)
c)      McQuiggan v. Boy Scouts of America
(1)      Consent to conduct within “rules” of games
d)      Hogan v. Tavzel
(1)      Misrepresentation/ deceit vitiates consent
e)      Richard v. Mangion
(1)      Scope of consent in mutual combat cases are limited to “necessary” and “reasonably anticipated” force
f)       Slayton v. McDonald
(1)      Analyze whether a reasonable person would have felt that a particular level of force was necessary
g)        Some level of awareness or information is required
(a)      Ex. “Are you hungry? May I offer you a knuckle sandwich?” That Would not be consent for Hand, the German exchange student, who thinks its an offer for lunch not to be beat up.
h)        Consent must be “manifested”
(1)      Manifestation like offensiveness in battery, is judged according to social norms (from the “reasonable” person’s perspective)
(2)      P has to manifest consent, it can’t be assumed.
i)          Consent is limited to the scope of the event
(1)      Ex: Mike Tyson biting off ear while boxing not part of the consent when boxing
j)          Can be Express or Implied Consent
(1)      Ex of Express Consent: Going to the Dr’s office and signing a consent paper before going into surgery
(2)      Ex of Implied Consent: A fight or sport
k)        Method of withdrawal of consent can be different method than consenting in the beginning
(1)      Ex: If I sign a contract of consent I can withdraw by saying “no.” Don’t need a contract to say no.
(2)      Consent can only be withdrawn when notice has been given.