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Wayne State University Law School
Gable, Lance



FALL 2012

If the facts turn out to be A, then we get that conclusion, if B then we get this.”

-“in some states, we find there is no duty of care, in others we find there is so now we must find if that duty applies.

-mention the elements of each tort.

-don’t be afraid to talk about policy

-don’t be shy to talk about relevant facts that are not mentioned.

-different states have different approaches “it depends on which state you are in”

-you can have an A+ answer without mentioning a case. (prob should though)

II. Introduction

Theories of Tort Liability

Pg. 2-11, 17-24

Torts: wrongs recognized by law as grounds for a lawsuit.

· Conduct falls below legal standards

· Must result in a harm

Goals of Tort Law

· Social Policy Arguments – even if the person is not at fault, we may feel the need to shift the loss to them à fairness

o Deterrence

o Compensation – system will provide a mechanism for people to recover for their loss, re-establishes the status quo

· Corrective Justice Theories – find a way to have a corrective remedy for the person who was harmed, find just compensation

Much of torts is concerned with three questions

1. What conduct counts as tortious or wrongful?

2. Did the conduct cause the kind of harm the law will recognize?

3. What defenses can be raised against liability if the defendant has committed a tort?

Justification for Tort Law:

· Compensate victims

· Impose retribution (social disproval/consequence)

· Promote fairness/justice

· Achieve deterrence

· Promote Stability

· Encourage efficiency


· Process

· Litigation

· Legislation

· Rulemaking

· Negotiation

· Social Norm Making

II. Intentional Torts

Elements of Intentional Torts:

1. Act – must be voluntary

2. Intent – to invade the interest (whether it’s bodily safety, interest in law, or interest in chattels)

3. Result – where intentional torts differ – trespass to land is the only one that does not need to show damages

a. Plaintiff bears the burden of proof on each element. IF the plaintiff fails to prove a prima facie case, the defendant will win w/o putting on a defense

b. Intentional TORTS – P MUST SHOW: Prima Facie Case: case good on its face


Pg. 27-35, 35-43

An actor is subject to liability for a battery if he acts intending to cause a harmful or offensive contact to a person, or an apprehension that such a contract will imminently occur, and that person or another person suffers such a contact as a result.

3 Elements of Battery

1. Intent: Intent to cause actual harm is a sufficient intent but not necessary one. It is enough the the D intends bodily contact that is “offensive”

o Bodily contact that does not appear acceptable to the plaintiff and that is not permitted by rule of law

o Any touching that violates ordinary social usages may be a battery unless the P has given signs that it is acceptable

2. Contact: The contact need not actually be with the body of the victim. It is enough that contact is made with something that is attached or closely related to a person’s body.

o D may be responsible for a battery if he directly causes other persons to effectuate or complete the harmful or offensive bodily contact with the P

3. Harm/ Offense: Damages: Assault and Battery do not require that the P prove actual damages in order to state a cause of action. Thus, spitting in someone’s face has been held to constitute a battery.

[Offensive Contact]

=What a reasonable person would deem offensive

– Objective test

– Doesn’t have to be harmful

Snyder v. Turk è No need to intend injury

· P, a nurse, kept making mistakes in the operating room. D became frustrated, grabbed her head and pulled it down toward the surgical table and said “cant you see I am working in a hole? I need long instruments”

· Issue: Was there evidence to show the D intended to conflict personal injury or was trial court correct in motion for direct verdict?

· Rule/Holding: Reasonable mind test – a reasonable person would find his actions offensive which is why he is liable.

o Battery is an intentional uncontested-to contact w/another. Dr. intended to commit an offensive contact.

· Court applied the objective reasonable person standard.

Cohen v. Smith è Offensive (defined by Plaintiff)

· Facts: P came to hospital to deliver baby, before her C section she informed the doctor that it is against her religious beliefs for a male to see or touch her naked. The surgeon agreed to this request. During surgery a male nurse viewed and touched her naked body.

· Rule/Holding: Offensive contact offends a reasonable sense of personal dignity

o Restatement (second) of Torts – actor commits battery if

§ A. Intends to cause harmful or offensive contact with the other person, and

§ B. A harmful or offensive contact with the person if the other directly or indirectly results.

§ Cardozo: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages”

· You don’t need intent to harm or even offend, intent to touch is enough.


Ø Dual Intent

¨ Requirements

§ Intent to contact,

§ Intent that the contact be harmful or offensive, and

§ Required only that the tortfeasor intend a contact w/ another that results in a harmful or offensive touching.

¨ Here, a victim need only prove that a voluntary movement by the tortfeasor resulted in a contact, which a reasonable person would find offensive or to which the victim didn’t consent.

§ How would a reasonable person find the actor’s conduct?

Ø Single Intent (harder for the victim/plaintiff to prove)

¨ The actor would be civilly liable for his conduct only if he intended to harm or offend the victim. So long as the actor could show that he meant no harm, the victim must be subjected to it and will find no protection for her bodily integrity in our civil law. The victim must prove tat the Defendant intended contact.

§ What was actor’s thinking? If harm, he’s in trouble. If not harm, he’s safe.

Mullins v. Parkview Hospital, Inc [32] è Dual Intent

§ Facts: Mullins requested that no students participate in her surgery. The anesthesiologist permitted a medical student. Filed suit for battery.

§ Rule: Dual intent requirement = 1) intent to contact and 2) intent to offend/cause harm

§ Holding: Dual intent, there is insufficient evidence to indicate that VanHooey intended to harm the patient. He did intend to cause the contact but no intent harm because she didn’t know about the patient’s wishes.

§ The D did not know of the P lack of consent, therefore she did not intend to harm P (no dual intent)

White v. Muniz è Dual Intent

§ Nurse hit by patient suffering Alzheimer’s, sues for battery

§ Did the tortfeasor intend to cause contact and intend that contact to be harmful? (DUAL INTENT)

§ Note è Dementia/insanity is not a defense to an intentional tort but it is an element that may make it more difficult to prove the intent element of battery.

Leichtman v. WLW Jacor Communications Inc. è (smoke as contact)

§ If a host blew cigar smoke in the face of an anti-smoking advocate to humiliate him, it’s touching. Tobacco smoke has the physical properties capable of making contact.

INTENT DEFINED: Restatement (3rd) of torts defines intent to produce a consequence as either a purpose to produce that consequence or knowledge that the consequence is substantially certain to result.

(Substantial likelihood that offensive contact will occur)

Garratt v. Dailey è Direct v. Indirect Contact, Defining Intent

§ Facts: When P (aunt) started to sit down, D (5-yr-old nephew) pulled the chair out from under her & she felled. P faced serious injuries. Battery could be established if D knew w/ substantial certainty that P would attempt to sit down where the chair had been.

§ Rule if D has the intent to injure P or has the knowledge that such contact is certain to result in injury, D is liable. If D has no knowledge, there’s nothing wrongful. Being a child is irrelevant unless there’s experience, capacity, and understanding of the course material.

[Transferred intent]

Transferred Intent – if a person intended to inflict serious bodily injury while trying to hit another person, but missed & accidentally hit someone else instead, such intent is transferred to the actual victim. If D intends to commit one tort & ends up committing another, that’s transferred intent .

Extended Liability Principle-defendant who commits an intentional tort, at least if it involves conscious wrongdoing, is liable for all damages caused, not merely those intended or foreseeable.

Extended Personality Rule-even if a person wasn’t impacted directly on their body, but close enough to body to serve as extension of themselves.


Pg. 44-48

Elements of Assault:

§ (1) Intent

§ (2) Impact (imminent apprehension of contact/touching of the mind)

§ (3) Harm or offense (fear, intimidation, threat)

(1) Intent: to cause a harmful or offensive contact or by an intention to cause an imminent apprehension of such a contact; or the belief that such consequences are substantially certain to occur.

§ Intent does not mean the desire to injure

§ Transferred intent applies as long as the P is put in apprehension of an imminent harmful or offensive contact as a result.

(2) Impact: (imminent apprehension of contact/touching of the mind)

§ Act – must be voluntary – it cannot be the result of spasmodic bodily movement.

o Words alone DO NOT make the actor liable for assault unless they are together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful; or offensive contact with his person.

§ Apprehension must be of the REASONABLE PERSON

§ Future danger is not enough – not imminent = no assault

§ Courts will not protect P against exaggerated fears of conduct, unless D knows of those fears and intentionally does it

§ Ex:

usness of the conduct

§ 4. Must be undertaken in whole or part with the intention of causing ED to the plaintiff.

Intentional Torts to Property

Pg. 51-58

(1) Trespass

(2) Trespass to Chattel

(3) Conversion


Pg. 51

Requires the actor to have intent to enter the land. It requires also that the actor actually enter the land. Damages ARE NOT required.


· (1) Intent – intentional entry onto land

o Not a defense if you thought you were allowed to be there

· (2) Entry onto land

· (3) Harm or offense

Intentional entry – Usually requires an intentional entry upon land of another. This might be accomplished by personal entry or by intentionally causing an object to enter the land.

Intent – It’s enough that D intended to enter the land. D doesn’t escape liability merely b/c D didn’t intend to harm P’s property. D cannot argued that he reasonably believes that it’s his and or that he has a right to be there.

Trespass and nuisance – Trespass is an invasion of P’s interest in the “exclusive possession” of his land. Nuisance is an interference w/ his “use and enjoyment” of it

Extended liability – The trespasser is liable for damages inflicted even if he never intended harm and couldn’t foresee it. There are exceptions though.

(1) Intentional Entry – by person entry or by intentionally causing an object to enter the land. Do not Do not need intent to trespass, just intent to enter land

· One situation where intentional entry is not required…when a car goes out of control without fault and then refuses to leave, refusing to leave would be considered trespass**

· Mistake of trespass is not a defense

· Transferred Intent applies

(2) Caused harm – harm could be interference of controlling a possessory interest, if you have a possessory interest you can bring the cause of action

· Injunction and damages (no requirement of damages)

Þ When there is physical harm

1. Defendant is liable for damages measured either by cost of repairing

2. Or by the diminution in the value of the premises resulting from the tort

o When there is no physical or economic harm inflicted

1. Parasitic damages – for mental distress

2. Punitive damages – if trespass was deliberated or malicious

Extended Liability: The trespasser is liable for damages inflicted even if he never intended harm and could not foresee it.

Trespass to Chattel

Pg. 57


· Intent to interfere with property/knowledge that interference is substantially certain

· Invasion of Chattel interest

· Without Justification or Consent

· Plaintiff was harmed due to interference

*Doesn’t need to remove or exercise dominion, merely interfere with the use

Liability based on actual damages

(1) Intent: D intended to deal with the chattel in the manner in which he did even if he was acting under a mistaken claim that the chattel was his or knowledge that the interference was substantially certain to occur.

(2) Invasion of Chattel Interest: Physically interfered with the use and enjoyment of personal property

· Intermeddling: does not challenge the rightful owner’s interest but they may take it away. (ex: throwing a stone)

· Dispossession: Taking over, destructing something. Driving someone’s car w/o their permission.

(3) Without Justification or Consent

(4) Plaintiff was harmed due to interference

· Damages and harm must be actual (for intermeddling)

· Defendant is liable for the damage or diminished value of the chattel

School of Visual Arts v. Kuprewicz [57] è Trespass to Chattel

· Facts: D sent a lot of porn to the P and crashed the server, depleted hard drive

· Rule: Restatement: one who intentionally interferes with another’s chattel is liable only if there results in harm of the owner’s materially valuable interest in the physical condition, quality or value of the chattel, or if the owner is dereived of the use of the chattel for a substantial time.

o Harm caused by trespass of chattels have to be in the prima facie case è need to assert the harm