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Wayne State University Law School
Ackerman, Bob



Keep in mind while analyzing intentional torts:

The defendant must have acted with intent
The defendant’s act must fall within one or more of the seven intentional torts
The defendant may have a defense, which would make the defendant not liable for the tort.

The Seven Intentional Torts

False Imprisonment
Infliction of Emotional Distress
Torts to Property

Trespass to land
Trespass to chattels

Defenses to Torts

Self Defense
Defense of third parties
Defense of Property
Defense of private necessity
Defense of public necessity


To show the defendant acted with intent, plaintiff must prove:

Defendant acted with the purpose of producing the consequence of the act; OR
Defendant acted with knowledge that the consequence would occur with substantial certainty.
Special Issue: Dual Intent

The general view is that the defendant intended the act, but not the consequences of the act.
However, some jurisdictions require the defendant intended the act and the harm that was the consequence of the act.

Battery: An intended act by the defendant, which brings about harmful or offensive contact to the plaintiff’s person.


R 2d § 13

(1) An actor is subject to liability for another if:

He acts intending to cause harmful or offensive contact with other or a third party, or an imminent apprehension of such contact, AND
A harmful or offensive contact with the person directly or indirectly results.

Harmful or Offensive Contact

Contact is harmful if it causes actual injury, pain, or disfigurement. Contact is offensive if it would be considered offensive by a reasonable person of ordinary sensibilities.
Contact is deemed “offensive” if the plaintiff has not expressly or impliedly consented to it.


An actor is liable for direct and indirect contact, it will be sufficient

Apprehension not necessary

A person can recover for battery even though he is not conscious of the harmful or offensive contact when it occurs. (Ex. Surgery on an unconscious patient).

R 2d § 16 – Character of Intent Necessary (Transferred intent)

(1) An act is done with the intention of inflicting upon another an offensive, but not a harmful bodily contact, OR of putting another in apprehension of either a harmful or offensive bodily contact, AND such act causes a bodily contact to a third party, the actor is liable for battery although the act was not done with the intention of bringing about the resulting bodily harm

(2) If intent was to inflict harm on the third party, but causes harmful bodily contact to another, the actor is liable to such as if he fully intended to harm the other.

Garrat v. Dailey – D (child) pulled the chair out from under P

Issue – was there intent?

Rule – The intent necessary for the commission of a battery is present when the person acts knowing with substantial certainty that the harmful contact will occur.

A harmful bodily contact is inflicted intentionally when the person knows with substantial certainty that the contact will occur

White v. Muniz – D sued P (dementia) for injuries she received when White hit her

Issue – Does an intentional tort require some proof that the tortfeasor not only intended to contact another person, but also intended that the contact be harmful or offensive to the other person.

Rule – (Dual intent rule): There must be an intent to contact and an intent that the contact be harmful or offensive

The dual intent rule makes it more difficult to prove the intent element of battery

Wagner v. State – P asserts mentally disabled man who committed contact could not be held liable for battery because he did not intend to cause harm or offense; wants to hold state accountable for negligence

Issue – Is intent to cause harm necessary for battery?

Rule – Intent to cause harm is not necessary to be held liable for battery under R 2d § 13

Baska v. Scherzer – Baska was harmed when trying to break up fight between two guys; cause of action for negligence, not assault and battery

Issue – Is D liable for damages even though he did not intent to hit P?

Rule – Transferred intent: The tort of battery or of assault and battery may be committed, although the person struck or hit by the defendant is not the one whom he intended to strike or hit.

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.

Snyder v. Turk – Scrub nurse, brought an action for battery against D following incident during surgery in which Turk grabbed and verbally reprimanded her.

Issue – Is Turk subject to liability for grabbing and insulting Snyder?

Rule – A person is subject to liability for battery when he acts intending to cause a harmful or offensive contact, and when a harmful or offensive contact results. Contact, which is offensive to a reasonable sense of personal dignity, is offensive conduct.

Cohen v. Smith – P’s religious beliefs prohibited her from being seen unclothed by a male, sued a male nurse who observed and touched her naked body during a cesarean section.

Rule – Offensive contact is said to occur when the contact offends a reasonable sense of personal dignity; also there was no consent for the touching (Defenses)

Assault: An intended act by the defendant creating a reasonable apprehension in plaintiff of immediate harmful or offensive contact with the plaintiff’s person. R 2d Torts § 21.


Requirement of Reasonableness: The apprehension of harmful or offensive contact must be a reasonable one. Courts usually will not protect exaggerated fears unless the D knew about it prior and used it against the plaintiff.

Apprehension must be one of imminent contact -there will be no delay in contact R 2d Torts §29(1)(b)
Knowledge of Act required – Plaintiff must be aware of the threat from the defendant’s act
Knowledge of defendant’s identity is not required.
A person must be in apprehension of immediate harmful or offensive contact and the D must have the apparent ability to bring about such contact.
Words alone generally do not constitute assault because they cannot create apprehension of an immediate harmful or offensive contact. R 2d Torts § 31

Different result if words are accompanied by an overt act.
Words may negate an assault by making unreasonable any

ommitting the conduct and P
Egregiousness of the conduct

Markers of outrageous behavior:

Repeated or carried out over a period of time
An abuse of power by a person with some authority over the P or
Directed at a person knowing to be especially vulnerable.

State Rubbish Collectors Ass’n v. Siliznoff – P goes into rubbish collecting business and collects in the state rubbish collectors association area; association members go to P’s house and induce him to sign a note with threats to commit battery and burn down his trucks; P defaults on signed notes and association sues him for breach of contract.

D cannot countersue for assault because the threat was not imminent
California Supreme Court created intentional infliction of emotional distress

GTE Southwest, Inc. v. Bruce – Pattern of abusive and outrageous behavior of employer to employees.

Rule – In determining whether conduct is extreme and outrageous, courts consider the context and relationship between the parties.
Held – Once conduct such that is shown here becomes a regular pattern of behavior and continues despite the victim’s objection and attempts to remedy the situation, it can no longer be tolerated.

Fisher v. Carrousel Motor Hotel – The intentional grabbing of P’s plate constituted a battery. The intentional snatching of an object from one’s hand is clearly an offensive invasion of his person as would be an actual contact with the body

Distinguished from State Rubbish Collectors, this court did not create intentional infliction of emotional distress, but instead expanded the definition of battery
Texas court reasoned that as long as the act is egregious enough, it does not have to fit into a specifically named tort.

Homer v. Long – P’s wife was seduced by D, a therapist in position of authority with medication; changed wife’s personality and caused divorce; P sues for intentional infliction of emotional distress

Issue – whether a third party can recover for intentional infliction of emotional distress where the behavior is extreme and outrageous, but directed toward the second party.
Rule – Restatement 3d Torts § 46 (2) The essence of the requirement is that the conduct must not simply be extreme and outrageous from the perspective of someone else, but must be so as to the plaintiff.
Held – a Third party may not recover for intentional infliction of emotional distress unless the court qualifies you under the restatement rule, and P does not qualify.

Anti-heart balm statutes – most states created statutes abolishing these claims in the 1960s and 1970s moving toward a no fault tort systems. Ex. Alienation of affection, criminal conversation, seduction, breach of promise to marry.