Torts Outline
Intentional Torts
Battery:
Defendant must act
Act à an “external manifestation of an actor’s will”
(1) Contact
a. Contact does not have to be contact to the person àcan be a jacket or anything that can be thought of as an extension (something closely identified with a body that contact with it is offensive as contact with the body would be)
(2) Intent à must have intent à subjective standard
It is not necessary for the defendant desires to physically harm, only need intent to make contact
a. Not only intend to act, must act for the purpose of inflicting a harmful or offensive contact on the plaintiff
i. Desires to cause consequence of his acts
b. OR realize that the contact is substantially certain to result (the contact can be harmful OR offensive) subjective test
i. the contact offensive
c. Note à if a defendant intends to commit an assault and accidently makes “harmful or offensive contact”, a battery has been committed
Purpose of intent liability: to confine intentional tort liability to case where the defendant acts with a higher level of culpability than carelessness
(3) Causation/Violation
(4) Intended contact must cause harmful or offense to the victim
a. Offensive à objective standard
i. “offends a reasonable sense of personal dignity” Restate 19
ii. offensive if a reasonable person in the circumstance would find
Policy reasons for battery tort:
(1) the interest of physical integrity à freedom from harmful contacts
(2) a dignitary interest
(3) protects the public peace by substituting for private retribution
(4) places unexpected losses on the wrongdoer rather than the innocent party
Unforeseen consequences:
– when it is found that the defendant intended to cause a harmful or offensive touching, the defendant is liable for any consequences which ensue
**actual awareness of the contact at the time it occurs is not needed**
**punitive damages available**
Assault:
Whenever a battery, look to see if you have an assault first
(1) Affirmative voluntary act
a. Words alone are not sufficient
i. HOWEVER: words can negate an assault, can show that there was no intent
b. Defendant must act with the purpose (desire) of causing apprehension
c. OR substantial certainty that the apprehension will result
(2) Intent (subjective test)
a. Defendant’s purpose or desire was to cause the apprehension
b. OR desires to commit a battery, but fails
c. DOES NOT need to intend to cause the contact itself
i. Distinguished by just contact in the future
d. Substantial certainty
e. Intent must be related to the plaintiff’s distress
(3) Reasonable (reasonable person standard) apprehension of immediate battery à apprehension =awareness
a. Imminence of threat à no significant delay of harmful or offensive contact
b. Plaintiff must have been aware of threat
c. The defendant must have had the present ability to commit the threatened contact à it would be apparent that the defendant did not have the ability to commit the treatened harm
d. Fear is not necessary, just awareness
e. Act must cause apprehension that the person themselves will be harmed à can’t be a third party
f. Conditioned threats: ???
Do not need complete contact
Damages: can recover for:
· nominal damages
· mental suffering
· punitive damages à if conduct is sufficiently outrageous or malicious
**A mere threat, unaccompanied by an offer or attempt to show violence, is not assault**
· If a person attempts a battery and misses à liable for assault if the plaintiff has apprehension
Purpose behind doctrine:
· To protect against the fear of unwelcome contact
· Against the mere expectation or anticipation of one
Transferred Intent:
· When a person intends to commit a battery on one person and actually harms another à person will be liable to the actual victim
· Makes a person liable for invasions of interests beyond express intent’
· Applies to both battery and assault
Intent with Assault and Battery: single v. dual not used in IIED
Single Intent (only need one)
Dual Intent
Battery: Defendant must desire a contact which turns out to be offensive or harmful
Battery: Defendant must desire to:
(1) make contact
(2) desires contact t
ii. Others – extreme violence and strong likelihood of shock
f. How can this be shown?
i. Medical effects à the plaintiff sought medical aid
ii. Physical harm à some physical harm in addition to emotional distress
iii. The conduct is such that a reasonable person would suffer emotional distress
** TRANSFERRED INTENT NOT USUALLY APPLIED**
Privilieges (mostly) Defenses to Intentional Torts
-generally, up to defense to prove
Defenses in dealing with criminal conduct: two views
1. no consent defense à were not allowed to do the activity, therefore will not allow a defense
2. will allow defense à the activity is illegal, but the injured party should be allowed to collect on their activities
(2) Consent
a. Expressed Consent: burden of proof on plaintiff
b. Implied Consent (apparent): a reasonable person would assume they were consenting
1. Can be implied from the plaintiff’s conduct, from custom, or other situations
2. Objective test is used à don’t look at plaintiff’s state of mind à reasonable standard used, is reasonably seemed to the defendant that the plaintiff consented?
3. OR if plainitiff subjectively consents and this can be proven
4. Custom:if the defendant can prove that it was customary for someone in the plainitff’s position to consent even if the plaintiff did not make an objective manifestation of consent
c. Exceeding Consent: a certain amount of consent is given, go out of the realm of what you consented to
1. If the defendant invades the person’s interests to something that is substantially different than what they consented to, the defendant is liable
d. Effective consent: the capacity to consent
