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Wayne State University Law School
Calkins, Stephen



Fall 2017


What is a tort?

Civil or private wrongs evolved which are legally enforceable.

Three Categories of Tort Law based on D conduct:

Intentional torts
Strict liability— when ∆ engages in “ultrahazardous” activity where danger to others exists that can’t reasonably be guarded against, then if injury occurs, ∆ will be liable.



Prima Facie Case – To establish a prima facie case for intentional tort liability, it’s generally necessary that π prove the following: (i) Act by the D (ii) Intent and (iii) Causation.

Act by D—the “act” requirement for intentional tort liability refers to a volitional movement on D’s part.
Intent— A person acts with the intent to produce a consequence if: (a) the person acts with the purpose of producing that consequence OR (b) the person acts knowing that the consequence is substantially certain to result.

Restatement 3rd, §1. Intent

You have the purpose or desire to cause consequences, OR
that the consequences are substantially certain to result from act.

– Comment c. purpose and substantially certain knowledge: coverage and relationship

a purpose to cause harm makes the harm intentional even if harm is not certain to occur
knowledge that harm is certain to result is sufficient to show that harm is intentional even in the absence of purpose to bring about the harm

Rest 3rd § 2. A person is said to be engaging in “reckless” conduct if:

a. the person knows of the risk or harm created by the conduct or knows facts that make that risk obvious to another in the person’s situation, and
b. the precaution that would eliminate or reduce that risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk

May be either specific or general:

Specific Intent – An actor “intends” the consequences of his conduct if his purpose in acting is to bring about these consequences.
General Intent – An actor “intends” the consequences of his conduct if he knows with substantial certainty that these consequences will result.
Actor Need Not Intend Injury – A person may be liable even for an unintended injury if he intended to bring about such “basis of the tort” consequences.

Vosburg v. Putney – ∆ kicks π in wounded leg while in school. Held 4 π

ISSUE: Is ∆ guilty if act was intended but resulting harm was unintended?

RULE: If the intended act is unlawful, the intention to commit it must be unlawful and wrongdoer is liable for all consequences resulted from intended act. I.e. Intent to harm is irrelevant, only need intent to act.

Beauchamp v. Dow Chemical – Chemist sues employer for exposure to agent orange. ∆/remand
Garratt v. Dailey- π alleged D, a 5-year old boy, had deliberately pulled a chair out from under her as she was sitting down.

RULE: D. In an action for assault and battery a D may be held liable if he did not intend to cause the resultant harm, but knew with substantial certainty that his actions would likely cause the harm.

True intentional tort is one in which the injury as well as the act was intended.
Substantial Certainty – act intended but injury substantially certain.
Worker’s Comp act indicates that it is for accidental and not intentional injuries. Worker is exempt from Worker’s Comp only if employer had an “actual intent” or “substantially certain” intent to injure.

White v. Muniz – (INSANITY) – Nursing home patient with dementia struck nurse.

Insanity is not a defense to intentional torts however it may make it harder to prove the element of intent.
If an insane person is capable of forming intent to do harmful act than he is liable.
Single v. Dual intent model:

Dual intent – actor must intend contact AND harm
Single intent – actor need only intend contact


A intends to push B and does so. B falls and breaks his arm. This conduct gives rise to a cause of action for battery. The “consequences” that are the basis of this tort are harmful or offensive contact to the plaintiff’s person. In this case, the actor intended to bring about harmful or offensive contact to B. Hence, he will be liable even though it was not intended that B break his arm.

Transferred Intent – Applies where the defendant intends to commit a tort against one person but instead (i) commits a different tort against that person, (ii) commits the same tort as intended but against a different person, or (iii) commits a different tort against a different person. In such cases, the intent to commit a tort against one person is transferred to the other tort or to the injured person for purposes of establishing a prima facie case.

Singer v. Marx – ∆ throws stone at one girl and hits the other.

Limitations on Use of Transferred Intent – Transferred intent may be invoked only where the tort intended and the tort that results are both within the following list: Assault, Battery, False imprisonment, Trespass to Land, Trespass to Chattel.

Minors and Incompetents Can Have Requisite Intent – Minors and incompetents will be liable for their intentional torts.

Causation— The result-giving rise to liability must have been legally caused by the defendant’s act or something set in motion thereby. The causation requirement will be satisfied where the conduct of defendant is a substantial factor in bringing about the injury.


Harmful or offensive touching without consent or privilege

Prima Facie Case:

Intent: for harmful or offensive touching. In analyzing, always distinguish between the intent to act and the intent to cause a harmful or offensive contract.
Act: harmful and/or offensive contact. However, D actually does not have to contact the victim
Causation: The D voluntary action

le: If you have the necessary intent for one person, the intent transfers to the person who suffers the harm.

Even if someone is mentally ill, or a child, they may able to form the intent needed to commit a battery
Motives are irrelevant—good intentions, lack of actual harm, and beneficial results are not a defense if a reasonable sense of personal dignity would be offended.
Reflexive or involuntary act—this does not constitute a battery; no intent
Heightened sensitivity—if contact that was known to be offensive to a person with an abnormally heightened sensitivity would qualify as battery.


Prima Facie Case:

An act by D creating a reasonable apprehension in P of immediate harmful or offensive contract to P’s person
Intent on the part of D to bring about P apprehension of immediate harmful or offensive contact with P’s person OR intent to cause harmful or offensive contact;

Nature of Threat: Must be reasonable and imminent


Aware of Threat—P must be aware of threat or threatening contact
Fear not required! Only apprehension (May not be afraid but contact still offensive)

Apprehension need not be of contact caused by D (“a snake is behind you”)
D need not be able to carry out act as long as apprehension exists.

Knowledge of D identity not required
D apparent ability to act is sufficient (even if he’s not capable that’s ok)
Effect of words

Overt act required (e.g. clenching fist)

“Word Alone” Rule: Words alone usually not sufficient unless circumstance puts P in apprehension of imminent contact. Usually you need a gesture or overt act as well.

Conditional threat is sufficient


Future Harm—threat of future harm is not assault

Dickens v. Puryear—Dad tells P, that was having sex with his daughter, that if the guy doesn’t leave the state, Dad will kill him.

Rule: Not assault since it was not imminent.


To cause apprehension of such contact; or
To cause offensive or harmful contact
Another person is put in apprehension that such contact will occur imminently


P apprehension must have been legally caused by D act or something set in motion thereby, either directly or indirectly

Special Rules:

Doctrine of Transferred Intent: intent need not be directed at P (P must feel apprehension for him/herself)
Unlawful Avoidance: Threat that can be avoided by agreeing to an unlawful act is assault