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Villanova University School of Law
Moreland, Michael P.

Torts Outline


Fall 2011

TORTS –> A civil wrong not arising out of contract for which the law provides a remedy.

Three approaches to liability:

1. Intentional Torts: purposely causing harm

2. Negligence Carelessly causing harm

3. Strict Liability Not intentional; but also not carelessness –> ie. Behavior that is ultrahazerdous

Functions of Tort Law:

1. Corrective justice –> restoration of right order ( ex post)

2. Deterrence –> deter people from doing wrong things (ex anti)

3. Loss distribution –>

4. Compensation –> to make whole (ex post)

Walter v. Wal-Mart Stores Inc. –> Walter received wrong prescription from pharmacists working for Walmart which causes injury –> sued Walmart respondeat superior = an employer is held vicariously liable for wrongful acts of its employees committed within the scope of their employment.

Elements of claim for negligence were amply satisfied:

(a) standard of care was breached, and

(b) (b) Wal-Mart’s negligence caused harm to Walter. Court rejects comparative negligence and mitigation of damages, need for expert testimony, comments by Walter’s lawyer and excessive damages/bias. (reasonable damages from Fotter v. Butler)


• Share the requirement that the D intentionally committed the elements that define the tort

• Most courts adhere to the Restatements definition which defines intent to mean either that the D desires or is substantially certain that the elements of the tort will occur.

Cecarelli v. Maher –> beating = battery

Paul v. Holbrook –> inappropriate / sexual touching = battery


Elements of Battery:

Actor A is subject to liability to other person P for battery if:

1. A acts,

2. intending to cause harmful or offensive contact; and

3. A’s act causes such contact.

Restatement 2d §13 Battery: Harmful Contact

An actor is subject to liability to another for battery if;

1. He acts intending to cause a harmful or offensive contacts with the person of the other or a third person, or an imminent apprehension of such a contact, and

2. A harmful contact with the person of the other directly or indirectly results.

(Contact to which no reasonable person would consent)

Fisher v. Carrousel Motor Hotel —> taking plate from man in buffet line counted as an offensive touching of “extended personality”

Nelson v. Carroll –> D hit P on the side of the head with gun, went to hit him again and the gun accidentally went off mad hit P

• Issue = intent –> D did not intend to shoot P, so was intent to strike him enough to prove intent for battery?

• Holding –> Even though a battery involves an intentional harmful or offensive contact it is not necessary for P to prove that D intended to cause harm or that D intended to cause offense

• It s not necessary that the precise consequences (i.e., the shooting injuries) were intended, so long as there was “a general intent to unlawfully invade [the plaintiff’s] physical well-being through a harmful or offensive contact or an apprehension of such contact.

• So, intending to punch him was enough to pove battery

Intentional Torts v. Negligence

1. Intentional = shorter SOL than negligence (1 yr v. 2 or 3)

2. Punitive damages = more available/comfortable with intentional

3. Vicarious liability = better with negligence

4. Liability insurance often excludes battery; moral hazard

5. Comparative fault = not in intentional; no self defense in negligence

6. Sovereign immunity = reserves some immunity for intentional torts

7. No discharge of debt in bankruptcy for intentional torts

Wagner v. State –> Wagner attacked by mentally ill patient of the state.

• Issue = is state immune form liability for Giese’s conduct? –> SOVEREIGN IMMUNITY

• Applicably of sovereign immunity depends, in this case, on whether the conduct arose out of a battery becausestate has partially waived their immunity for negligence but not for intentional torts

• Holding = “[A]ctor need not intend that his contact be harmful or offensive in order to commit battery so long as he deliberately made the contact and so long as that contact satisfies our legal test for what is harmful or offensive.”

• The court largely justifies its view by noting (correctly) that the Restatement, the Prosser Hornbook, and the majority of courts take the view that an intent to inflict harm is not necessary to satisfy the intent element of a battery claim —> just intent to cause touching

• A batterer is subject to liability if he acted with the subjective intent to make contact with the victim and did make such contact; if such contact in fact resulted in harm or was in fact offensive under prevailing standards; and if the victim did not expressly or impliedly consent to the contact

Spivey v. Battaglia

• The Florida Supreme Court reasoned that the defendant did not intend to harm plaintiff, and that therefore the case was an unexpired negligence claim rather than an expired battery claim

• Spivey is an OUTLIER in holding that intent to cause harm must be proven.

Mathewson v. Pearson

• Battery is where there is an “intent to cause harm”

• Is also an OUTLIER


Prima Facie Case:

1. A Acts

2. Intending to cause in P the apprehension of an imminent harmful or offensive contact with P and

3. A’s act causes P reasonably to apprehend such a contact

[1] Intent Requirement

Assault is an intentional tort. The defendant must desire or be substantially certain that her action will cause the apprehension of immediate harmful or offensive contact. The transferred intent doctrine is applicable to assault. [See § 1.01 [B], supra.]

[2] Apprehension

The victim must perceive that harmful or offensive contact is about to happen to him. Fear not required; enough that he believes that the act is capable of immediately inflicting the contact upon him unless something further occurs

[3] Conditional Assault

An assault made

vaccinated and not voicing an opinion not to be vaccinated is communicated that ¶ consented.

• If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.

Koffman v. Garnett –> Football coach picks up P and slams him to the ground at practice

• Coaches has not tackled players in the past

• P consented to conduct with players “of like age and experience.” –> did not consent to getting thrown down by a much larger, and experience man

• This was a case of implied consent –> voluntary participation in sports

Two Forms of Consent


Consent which is expressly stated, either in writing or by oral statement (in words or in pictorial gestures)

EX. —> NFL player consents to violence within the game and perhaps general customs (i.e. incidental contact and customarily tolerated behavior) of the game. League rules specifically indicate what conduct is ok and not ok.

Patient consents to operation of right ear.(not left)


Inaction implies manifestation of consent

EX. –> voluntary participation in contact sports is common example of implicit consent to harmful touching, riding a crowded train, history of dealings supports consent beyond ordinary, everyday contacts

O’Brien v. Cunard S.S. Co. –> D could reasonably believe consent when P holds up her arm to a doctor who is vaccinating. Consent is implied when, under the circumstances, the conduct of the individual reasonably conveys consent.

Mullins v. Parkview Hospital –> patient didn’t consent to presence of healthcare learners, received assurance that the doctor would handle her anesthesia personally, esophagus lacerated by student, plaintiff sues student, anesthesiologist, gynecologist for negligence, medical malpractice, and battery

• Trial Court: summary judgment for defendants, appellate court: reversed in regards to battery, Indiana Supreme Court: affirmed except for student (didn’t touch her with intent to cause harm (SUBJECTIVE), and had no reason to suspect plaintiff had modified standard consent form)

Mohr v. Williams –> P underwent surgery to improve hearing in one ear, Doctor ended up performing surgery on other ear as well.

• Court ruled that surgeon had exceeded the scope of P’s consent by operating on a different part of the body than the part that she has consented to have touched —> prevailed on the battery claim.