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Wayne State University Law School
Gable, Lance

Torts Outline – Gable Fall 2012

Torts: Conduct that amounts to a legal wrong and that causes harm for which courts will impose civil liability

· Conduct falls below legal standards

· Must result in a harm

v 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?


(1) Battery

(2) Assault

(3) False Imprisonment

(4) Intentional Infliction of Emotional Distress

Elements of Intentional Torts:

(1) Impact

(2) Intent – to invade the interest (whether it bodily safety, interest in land, or interest in chattels)

(3) Harm or offense

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

· Intentional TORTS- P MUST show: Prima Facie Case: case good on its face:

BATTERY p. 37-43

1. An intentional unconsented-to contact with another that causes harm or offense

2. A person is subject to liability for battery when he acts intending to cause a harmful or offensive contact, and when a harmful contact results. (Snyder v. Turk)

3 Elements of Battery

· Intent

· Contact (impact)

· Harm/offense

o Actual damages are not required*

(1) Intent: Intent to cause actual harm is a sufficient intent but not a necessary one. It is enough that the ∆ intends bodily contact that is “offensive” (bodily contact that does not appear acceptable to the π and that is not permitted by a rule of law.)

· Any touching that violates ordinary social usages may be a battery unless the π has given signs that it is acceptable.

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

· ∆ may be responsible for a battery if he directly causes other persons to effectuate or complete the harmful or offensive bodily contact with the π

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

Þ Van Camp v. McAfoos [27] (tricycle to woman’s knee) – (Prime Facie Case): Not a prime facie case, doesn’t meet elements. No intent, essential to prove liability. Case illustrates the need to prove intent in battery claims.

[OFFENSIVE CONTACT] = What a reasonable person would deem offensive

– Objective test- whether or not a reasonable person would find the conduct offensive or not. Even though the conduct was NOT meant to be harmful would a reasonable person find that conduct offensive?

– Not necessarily what the victim thought in that situation, BUT what a reasonable person would have thought.

Þ Snyder v. Turk [30] – Whether the contact is offensive to a reasonable person?

· Dr. grabs scrub nurse pushed toward surgical opening.

· 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.

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

· Court applied the objective reasonable person standard

Þ Cohen v. Smith [31] – Whether a reasonable person would be offended under the circumstances in this case?

· FACTS: Religious women didn’t want male nurse – got treated/touched by one while unconcious

· 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 of the other directly or indirectly results.

o 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”

· A defendant can be liable for offensive contact


· Depends on jurisdiction:

· Dual intent – have to prove intent to contact and intent to harm/offend

· Single Intent – intent to contact

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

· FACTS: P didn’t want any healthcare students to participate. Anesthesiologist permitted a medical student and patient was injured. 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.

o Characterization of events does not satisfy all elements required to show a battery.

· The D did not know of the P lack of consent, therefore she could not have intent to harm P (No dual intent)

Þ White v. Muniz [37] – Dual Intent

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

· Did the tortfeasor intended to cause contact and intended that contact to be harmful? (DUAL INTENT)

· NOTE à? Dementia/insanity: 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.

Þ Garret v. Dailey [35] – Direct v. indirect contact

· FACTS: D (5yrs) pulls chair out from P and injures – she brings battery charge. Did D “know” P would sit down and moving chair would cause harm?

· RULE/HOLDING: Knowledge that she was going to sit down would show intent… show a substantial certainty that Dailey had knowledge. D liable not only for direct conduct but also indirect conduct

o Substantial certainty test – if there was proof that he knew with substantial certainty that the P get hurt when she attempted to sit down, intent can be established.

o Knowledge that he knew she’d sit down, he’d be certain she’d get hurt – indicates intent.

o Conduct can be indirect

· Court used a broad definition of intent – A SUBSTANTIAL CERTAINTY

o Court determines to a substantial certainty that D knew the harm/offense would occur


Þ Stoshak v. Eaton Baton School [42] – Transferred intent

· FACTS: teacher hurt while breaks up fight, sues school for battery.


o Transferred intent: if a person intended to inflict serious bodily harm while trying to hit another person, but missed and accidentally hit someone else, such is transferred intent to the actual victim.

o Extended Liability Principle: The D who commits an intentional tort, at least if it involves conscious wrongdoing, is liable for all damages caused, not just merely those intended foreseeable. Also where the D intends a battery to one person and then accidentally cause a battery to another as well.

ASSAULT p. 44-48

al physical restraint is too high of a burden, court says we shouldn’t apply this too literally


“An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional disturbance to another is subject to liability for that emotional disturbance and, if the emotional disturbance causes bodily harm, also for the bodily harm.” Restatement (Third) of Torts, § 45

Elements of IIED

· (1) Intent or recklessness that is extreme or outrageous

· (2) Mental or emotional distress

· (3) Severe Emotional Distress

(1) Intent: D must have intended to cause severe emotional distress or mental anguish to the P

§ Reckless conduct will suffice – D acts in deliberate disregard of a high probability that his actions will cause emotional distress.

o Person knows there is a likelihood of harm and fails to take a reasonable precaution

(2) Acts by D – Extreme and outrageous conduct: Must exceed all bonds of decent behavior

(3) Harm: Causing harm of an emotional or psychological nature that caused SEVERE emotional distress. More than a reasonable person could be expected to endure.

Þ GTE Southwest v. Bruce [406]

· FACTS: Employer was abusive and threatening to employees.

· RULE: What facts show extreme or outrageous conduct – repeated/on-going behavior, abuse of power, vulnerable person,

· HOLDING: Ct. determined the element of extreme or outrageous conduct by examining the relationship between the employees and the manager. His management style of the employees went beyond the normal workplace conduct. The severity and regularity of his behavior placed it in the realm of extreme and outrageous conduct

· The relationship between the parties is a material element

Þ Homer v. Long [410] – can third parties recover from IIED?

· FACTS: man sues therapist for seducing wife and subsequent divorce

· RULE: Restatement 2d of Torts § 46 – Where such conduct is directed a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (a) to a member of each person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or (b) to any other person who is present at the time, if such distress results in bodily harm.

o Actor is liable to a 3rd party when:

§ (1) P is present and D must be aware they are present

§ (2) D Intentionally or recklessly causes severe emotional distress

§ (3) P is member of victim’s family or if not related must suffer physical bodily harm

o Exceptions – waives presence requirement

§ 1. Relationship of the target of the conduct to the plaintiff

§ 2. Relationship of the defendant to the plaintiff

§ 3. the egregiousness of the conduct

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