Torts Outline

Torts Fall 2009—Moreland

1. Battery: relies on purposeful touching, not necessarily physical harm
1. Prima facie case: A acts, intending to cause contact with B of a type that is harmful or offense; and A’s act causes such a contact. (ELEMENTS)
a. A acts—this is clear.
b. Intending to cause
i. This can be shown by purpose test or certainty test
1. Nelson v. Carrol—intent element here was broadened to say that it doesn’t require a specific desire to bring a result, rather a general intent to unlawfully invade another’s space by harmful contact
ii. Transferred intent: if the actor misses and batters/assaults someone else
1. Culpability Doctrine: tortfeasor’s act is just as culpable when his aim is good as when it is bad
iii. Direct and Intentional Interference with the Person
1. Liability is based upon the defendant’s intent to commit some act that will violate the plaintiff’s physical security or freedom rights of autonomy and self-determination.
2. Intent: defendant has intent to achieve a specified result when he either (FORK)
a. Has a purpose to accomplish that result or
b. The Purpose Test: Think about aiming and firing a gun, or all the motions that happen BEFORE your fist hits someone’s face.
c. Lacks such a purpose but knows to a substantial certainty that the defendant’s actions will bring about the result
d. The Certainty Test: purpose can be limited, but there is some indirect desired effect. Think about sleeping powder in the camp food that will be eaten later. Is there a substantial certainty that it will occur?
e. Intent can be:
f. Specific—Cecarelli v. Maher
g. Subjective—Wagner v. State
h. Objective—Katko v. Briney
i. Intent and Motive: concepts are different. Sometimes, a motive can be good but still trigger a tortuous intent.
j. Broadening Intent: Mental capacity usually does not excuse one from tortuous intent—Wagner v. State—not negligence, but battery—the state got immunity
k. Narrowing Intent: Spivey v. Battaglia—statute of limitations ran out for battery, but found that battery didn’t apply anyways so he got negligence (paralysis from touch)
c. Contact: can be skin-to-skin, object, poison or within the plaintiff’s “person”
i. Fisher v. Carrousel Hotel—establishes extended personality (def. snatched plate from pl.)
ii. Leichtman v. WLW Comm.—blowing smoke in plaintiff’s face for the purpose of causing discomfort and distress (intent element here)
d. Of a type that is harmful or offensive
i. Test for Offensiveness—would a reasonable person in those circumstances find the particular contact offensive? (objective standard)
ii. Paul v. Holbrook—Holbrook’s actions were intended based upon history of previous touching and communication. Offensiveness rested upon the MANNER in which she was touched—reasonable person inquiry established.
iii. If a person is hypersensitive, then they have an obligation to let it be known—this cannot be a basis for offensiveness
2. AssaultàAssault derives from a concern to protect individual bodily integrity. It differs from battery in that it gives effect to that right by protecting against certain apprehensions of contact rather than the actual contact itself.
1. Prima Facie Case for Assault: A acts, intending to cause in B the apprehension of an imminent harmful or offensive contact with A; and A’s act causes B to reasonably apprehend such a contact.
a. A acts—this is clear
b. Intending to cause in P—this can be intent to
i. Actually make contact
ii. Make it appear that it could happen, even though it’s not intended
c. Apprehension of an—can be fear or merely “seeing it coming” without expecting it.
i. Beach v. Hancockàsnapping the pistol is enough
d. Imminent—doesn’t have to be immediate, but without significant delay
i. Brooker v. Silverthorne—no way to say that a promise of future injury is imminent, narrowed by circumstances (phone)
ii. Conditional Threat—unless person is present in physical capacity to do harm, and victim has an option to avoid it, its not an assault
iii. Vetter v. Morgan—broadens imminence of threat by circumstantial considerations (actually present)
e. Harmful or offensive contact—hold to same standard as battery
f. AND A’s act causes P reasonably to apprehend such a contact.
i. Victim must be reasonably placed in such apprehension.
1. Brooker v. Silverthorne—alleged harassing phone call—must show that threat affects mind of person of ordinary firmness as to affect his conduct—mere threats of future harm, without more, are not enough (great distance and cooling off in this case)
2. Vetter v. Morgan—kids harassing lady in a van—reasonable person would apprehend fear because there was apparent, present abilityàchanges based upon circumstances
a. Western Union v. Hill—couldn’t have reached over the counter as Hill alleged (present ability)
b. Aiding and abetting (D’s may have done this)
i. Phelps v. Brossàno aiding and abetting because not enough evidence to show that Bross participated in the assault of Phelps.
ii. Rice v. Paladin EnterprisesàHitman book writer sued by family of person killed by another who had read the book—no 1st Am. Protection to book writers here, and Rice won
g. Conditional Threatsàsometimes, threats may be enough—e.g. person on the track and if they don’t get off D will hurt them.
h. Battery and assault need not go together
i. Mere threats do not construe assault (considered in circumstances, of course)
j. Assault is NOT properly described as an inchoate action; rather, it is a suit for a fully realized wrong that is completed when the requisite apprehension is generated in the victim.
i. In some cases, criminal law can penalize for an inchoate action that may not be construed as an assault (e.g. an assailant shooting for a target and nearly missing an unwitting bystander)

Standard Defenses to Intentional Torts (Consent, Defense of Self/Others, Defense of Property)
1. “Affirmative defenses” provide a failsafe for tortfeasors.
a. Privilige: in some cases, tortfeasor can engage in this conduct despite the fact that it was prima facie tortious.
1. Justifications: Claim that one was entitled to engage in the conduct, notwithstanding its apparent wrongfulness
2. Excuse: alleging something about your circumstances—mental deficiency—which may or may not work (in Wagner v. Wal-Mart, we see note).
2. No comparative fault clause in intentional torts (only in negligence torts)
a. However, if the victim acted with apparent disregard for his physical well-being, then sometimes there can be an implicit consent element (more later)
3. Burden of pleading and proving affirmative defenses is on the tortfeasor
4. Consent
a. Basically, a tortfeasor cannot be held liable because the victim agreed, under appropriate conditions, to endure bodily contact, or an apprehension of contact
b. Koffman v. Garnett
1. Facts: Koffman, a 13-year-old student, was tackled by a coach in the course of a demonstration in practice. (No coach had used physical force to instruct prior)
2. Issue: Did the coach commit assault? Battery? Did Andy consent to be tackled by Garnett in the manner alleged?
3. Holding: Battery. No implied consent to being tackled by coach—but should go to jury.
4. Reasoning:. Koffman could not have known that this was going to happen until the battery was in progress, so it is not an assault. It could have been a battery, depending on whether the jury finds that he consented to being tackled by coaches as well as the players.
5. Dissent: Disagrees with the battery only because taking part in such a game where bodily contact happens and that’s what happens during “instruction.”
c. Express consent—like signing a waiver
d. Implied consent—like playing on a football team. In these situations, courts rely on a history of dealing between parties to make assessments. Therefore, defenses based on implied consent rest HEAVILY on circumstantial factorsàfactual contextual implications (O’Brien v. Cunard—injections—“reasonable assumption” of consent to it)
1. From the Restatement