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Villanova University School of Law
Brogan, Doris DelTosto


Professor Brogan – Fall 2013

Final Grade = A



A. Battery

· intentionally causing another to suffer a harmful or offensive contact

1. Prima Facie Case

i. A acts,

ii. Intending to cause contact with P;

iii. The contact with P that A intents is of a harmful or offensive type; and

iv. A’s act causes P to suffer a contact that is harmful or offensive

2. Harmful of Offensive Touching

i. Can be harmful or

a. i.e. the beating in Cecarelli (guy gets beat up after dance) or

ii. Offensive

b. violates prevailing social standards of acceptable touching for a normal person (objective)

i. Unless you know that a person is sensitive to touching (germophobe, Howard Hughes), then it is more subjective

ii. If they are sensitive and you don’t know it, might be negligence

c. can also depend on who is doing the touching, their relationship, and the setting

d. i.e. shoulder rub in Paul v. Holbrook (coworker rubbing shoulders; touching was more than just a casual touching)

iii. Can be direct (flesh-on-flesh) or

iv. indirect (shooting, attack dog)

v. Extended personality – anything so connected with the body with body as to be regarded as part of the person

a. Fisher v. Carrosel – Af. Am. Man gets plate

snatched out of his hands

3. Intent

i. accidental touchings do not count

ii. When you act for the purpose of; or

a. Need to intend unlawful contact not harm

(Cole v. Hibberd – playful kick at party constitutes battery)

(Wagner – mentally handicapped man attacked her, intended to make contact, not harm her; mentally handicapped people are still responsible for the torts they commit)

b. Eggshell skull rule – you take the plaintiff as they are; responsible for all the injuries caused by the act even if they have a condition that makes them more vulnerable (Vosburg v. Putney)

a. Not responsible for preexisting injuries i.e. sprained ankle)

b. But you are responsible if the accident worsens it (i.e. fracture turns into a break)

iii. With substantial certainty (Dailey case)

a. know with substantial certainty that some offensive or harmful contact will occur because of action

b. Dailey case – 6 yr old pulled chair out from aunt to sit on chair, but knew with substantial certainty it would cause her to fall, intent is met

c. Subjective test – person has to actually know that his act will cause a contact (cause a result)

a. If I pull the chair out from underneath her, it is substantially certain she will fall (but the intent was to sit in the chair)

iv. Transferred Intent – A intends action for D1 but instead injures D2, the intent transfers

a. In re White – D intends to shoot C but instead hits P; liable for battery

b. Talmage v. Smith – man threw a stick intending to hit a boy but instead hit another and blinded him in one eye

c. Can transfer from victim to victim or tort to tort and also victim to victim and tort to tort (across victims and torts)

i. Same victim, different intentional tort (intend assault for P, but instead batter him);

1. Nelson v. Carrol – intended to hit P with the gun, when it accidently fired)

ii. Across victims (intent to shoot P1 but hit P2);

iii. Across torts and victims (intend battery for P1, but instead commit assault against P2);

iv. From things to persons (aim at dog or tire but hit person)

d. Only applies to assault, battery, false imprisonment, trespass to land, and trespass to chattel

B. Assault

· intentionally causing another reasonably to apprehend an imminent harmful or offensive contact

1. Prima Facie Case

i. A acts

ii. Intending to cause in P the apprehension (belief that something is about to happen) of an imminent harmful or offensive contact with P; and

a. Transferred intent applies

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

a. Paradigm case – Beach v. Hancock – D waves unloaded gun in Ps face; there is an assault because P reasonably apprehended that D would shoot him

i. D must have the capacity to complete the battery

ii. If they don’t see the battery coming then there is no assault

b. A threat of future harm or a conditional threat will not suffice unless it is imminent

i. Booker v. Silverthorne – Man threatened operator over the phone

1. Conditional threat – If I were there, I would kill you

a. Physical distance

b. No imminence

c. Words alone do not constitute an assault but if together with acts or circumstances put the other in reasonable apprehension of imminent harmful or offensive contact than there is an assault.

i. Vetter v. Morgan – Woman stopped at traffic light, teenagers spit and rev engine

d. No need for physical contact

e. Need to reasonably believe that D has a present ability act upon the threat

i. Western Union Tel. Co. V. Hill – clock pervert; man was in position to reach across counter and touch her (present ability to act upon it)

C. Standard Defenses for Assault and Battery

1. Consent – P cannot prevail because he has agreed, under appropriate conditions, to endure a bodily contact or an apprehension of contact or a confinement that would otherwise be tortious

i. Can be express (explicit)

a. i.e. signing a waiver or a consent form

b. Example: body builder to girl in bar – “punch me as hard as your can in the stomach”; as a result Ps spleen ruptures and sues for battery; P has prima facie case – D puts on the affirmative defense of consent

ii. or implicit

a. infer consent from certain facts/actions

i. When you partake in certain activities you give implicit consent to contact that is part of the normal context of that behavior

ii. Koffman v. Garnett – Coach tackles boy during practice to demonstrate; coach was liable because it was outside the s

deadly force to protect your property except when there is a felony endangering human life

ii. You can only use reasonable force to scare off trespassers and only if you are there

a. Katko v. Briney – intentionally put loaded spring gun as a trap for trespassers in an empty farmhouse; no defense because they intentionally used serious force to protect their property

b. No mechanical traps

c. Different when P is breaking into a place where D lives

iii. Recapture of Property (p. 661)

a. Owner may use reasonable force to remove someone who is occupying the property momentarily

i. Absent an imminent threat of bodily harm or death, an owner may not respond to a trespasser in a way that risks imminent and bodily harm to the trespasser

ii. Exception to peaceable (continuous possession) nontransitory tenants

iv. Recapture of Chattel (p. 662)

a. May use reasonable force to recapture from other if has obtained only momentary possession of chattel (repo man as long as there is no force or b&e)

b. Privilege to recapture does not extend to owner who mistakenly seizes property (grab something you think is yours, but actually is not)(except shopkeepers privilege)

II. False Imprisonment

A. Prima Facie Case

1. A acts;

2. Intending to confine P;

i. Confinement = victim bounded in a physical space (freedom of movement is restricted)

ii. P must show that D intended to confine or had knowledge that the action would confine

a. Amount of time does not matter

b. Ps feelings are irrelevant, reasonable person standard

3. A’s act causes P to be confined; and P is aware of her confinement

i. Can be a small or larger space

ii. Threats can count, but P must show fear of injury to his person, property or reputation

a. I.e. threat to detain children or your property

b. Threats to call the police don’t count

c. Court will look at person’s size, age, sex, etc.

d. Fojtik v. Charter Med. Corp. – alcoholic in a rehab facility was not false imprisoned because he was allowed to leave at anytime

iii. Must be aware of confinement, no knowledge = no false imprisonment (cannot be asleep or unconscious)

iv. Have to be confined and willing to escape, but you don’t have to do anything to escape that is unsafe

B. Investigative Detention and Arrest – Defenses

1. Shopkeepers Privilege