Prof. Bob Ackerman
Torts Fall 2015
Intentional Torts
Battery
Elements of battery:
Acts intending to cause a harmful or offensive contact with another or a third person, or an imminent apprehension of such a contact; and
a harmful or offensive contact with another or third person directly or indirectly results.
Restatement (Second) of Torts Section 8A. The word “intent” is used… to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.
Components of intent. (Snyder v. Turk)
Snyder v. Turk 627 N.E.2d 1053 (Ohio. Ct. App. 1993) pg 30
Facts: Defendant was becoming agitated while performing gall-bladder surgery. When the plaintiff handed him an instrument he deemed inappropriate, the defendant grabbed her by the shoulder and pushed her face toward the opening.
A person intends acts intending to cause a harmful or offensive contact and the harmful/offensive contact results.
Holding: Trial court erred in ordering a direct verdict for the defendant. Could reasonably find that the defendant intended to harm/offend.
Desire/purpose of contact or knowledge with substantial certainty.
I fire a shotgun in the Alamogordo Desert. I don't see anyone around. A bullet strikes someone. Is that a battery?
No intent for contact. Why?
Because I didn't have knowledge that the person was there to intend contact.
If I knew the person was there and aimed and fired, without certainty that I would hit that person, am I liable?
Yes, because I had a desire to make contact with the person.
Dual intent. (White v. Muniz)
The dual-intent rule: “the actor had to understand that his contact would be harmful or offensive.”
Transferred intent. (Baska v. Sherzer) pp. 44.
Example: Baska v. Scherzer 156 P.3d617 (Kan. 2007) pg 44
Facts: A fight breaks out at the plaintiff’s party. The plaintiff stepped between them and received injuries as a result of their fight.
Rule: Transferred intent doctrine “…battery may be committed, although the person struck or hit by the defendant is not the one whom he intended to strike or hit.”
In this case, better to ask for negligence because insurance companies usually have exceptions for intentional torts.
Based on the Second Restatement of Torts, “Under the doctrine of transferred intent…the fact that the defendants struck the plaintiff does not change the fact that their actions (punching) were intentional.
“The defendant who commits an intentional tort, at least if it involves conscious wrong doing, is liable for all damages caused, not merely those intended or foreseeable.”
Extended Liability Principle: The 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.
Result (Contact): a harmful or offensive contact with another or third person directly or indirectly results.
General rule of contact:
that would not have been authorized by the ordinary/reasonable person & offends a reasonable sense of personal dignity (Cohen v. Smith).
Cohen v. Smith 648 N.E.2d 329 (Ill. App. Ct. 1995) pg 30
Facts: The plaintiff was informed she must have a C-section and informed her physician that during the procedure, she didn’t want to be seen unclothed by a male. A male nurse observed and touched her naked body.
Rule: Acts intending to cause harm/offense and actually causes offense that “offends a reasonable sense of personal dignity.”
Policy: Protect personal integrity.
Holding: Trial court erred in dismissing the case.
With regard to medical procedures:
Consent to contact is obviated when condition to medical procedure is violated.
Example: Cohen v. Smith 648 N.E.2d 329 (Ill. App. Ct. 1995) pg 30
Facts: The plaintiff was informed she must have a C-section and informed her physician that during the procedure, she didn’t want to be seen unclothed by a male. A male nurse observed and touched her naked body.
Acts intending to cause harm/offense and actually causes offense that “offends a reasonable sense of personal dignity.”
Policy: Protect personal integrity.
Holding: Trial court erred in dismissing the case.
Variations (not quite battery)
Negligence: Conduct that creates an unreasonable risk of harm; possible harm/offense
Willful/Wanton: Conduct that shows utter indifference to or conscious disregard for safety. A hybrid between acts considered negligent and behavior found to be intentionally tortious.
Recklessness: Conduct that creates a known risk that can be reduced with modest precautions. Strong possibility of harm/offense.
Young children:
Kids under 7 are presumed incapable of harmful intent & some states hold that children under 7 are conclusively presumed incapable of committing any tort.
Common law rule
Parents are not vicariously liable for torts of their children.
Most states impose liability on parents for their children’s torts, but they are limited by:
The child’s tort must have been committed willfully or wantonly
Damages that may be obtained are capped at a very low amount.
Parental liability
The court asks whether the child’s act fits the statutory definition of the kind of conduct that will give rise to parental liability, NOT whether or not there was “intent.”
General rule: Insanity is not, in itself, an excuse from tort liability.
Assault
The elements of assault:
An assault:
to cause
Imminent apprehension of harmful or offensive contact.
means “the battery will occur without delay unless an intervening force prevents it or the plaintiff is able to flee. Future d
y.
Intentional Infliction of Emotional Distress pp. 467
The rule of IIED
An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional harm to another is subject to liability for that emotional harm and, if the emotional harm causes bodily harm, also for the bodily harm. Restatement Third of Torts, Section 46.
In determining whether certain conduct is extreme and outrageous, courts consider the context and the relationship of the parties.
Pattern of outrageous behavior is key. (GTE Southwest, Inc. v. Bruce) pp. 468.
Example: GTE Southwest, Inc. v. Bruce 998 S.W.2d 605 (Tex. 1999) pg 468
Facts: Over the period of several years the defendant exhibited repeated acts of grossly abusive, threatening, and degrading conduct. He would physically charge at employees, yell and scream, and even forced a woman to stand in his office for 30 minutes while he stared at her.
Rule: Considered the context and relationship between the parties to determine if his behavior was outrageous and extreme.
Abuse of power
Knowledge of the plaintiff’s vulnerability.
The defendant’s actions caused the plaintiff “severe” emotional distress;
Physiological manifestations
Psychological manifestations
Evidence of medical treatment and diagnosis
Evidence of duration and intensity
Impairment to daily functioning
The plaintiff must be present or experience the emotional harm.
Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress:
to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or
to any other person who is present at the time, if such distress results in bodily harm.
Recovery in such cases is limited to plaintiffs who are not only present at the time, but are known by the defendant to be present, so that the mental effect can reasonably be anticipated by the defendant. (Homer v. Long) pp. 472.
Example: Homer v. Long 599 A.2d 1193 (Md. Ct. Spec. App. 1992) pg 472
Facts: The plaintiff’s wife was hospitalized for depression and her therapist “…took advantage of her dependent, needy and vulnerable condition to seduce her.”
