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Torts
Wayne State University Law School
Browne, Kingsley R.

Torts
Brown 2008
 
I. INTENTIONALLY INFLICTED HARM: Prima Facie Case and Defense
 
A. Battery: act by the D which brings about (1) harmful or offensive contact to P, (2) intent [subjective] to bring about harmful or offensive contact to P* (or anything connected to P’s person) AND (3) causation.
            * D doesn’t necessarily intend injury, intent to commit assault suffices for intent for battery             (transferred intent). Controlling intent is the one that accomplishes act NOT accomplish result*
 
BATTERY : Intentional Tort to person.
 
–          Battery: (actual harm…physical contact required àcould be direct or indirect
o   Prima Facie Case for batteryàP must prove all elements
§ Elements: D’s act brings about harmful or offensive contact to P; (2) Intent; (3) Causation
·         (1)Acts by Defendant; (2) Intent; (3) Harmful or offensive touching; (4) Causation; (5) (lack of consent)
Battery: Harmful Contact
An actor is subject to liability to another for battery if
(a)    he acts intending to cause a harmful OR offensive contact the person of the other OR a third person, OR an imminent apprehension of such a contact, and
(b)   a harmful contact with the person of the other directly or Indirectly results.
·          
o   (1) Acts by D
§ Willed movements. “volitional movement” àarms, legs, hands etc.
·         NOT willed=Not acts by D =not liable for Battery but may be liable for Neg.
o   Unconscious acts:
§ Epileptic seizure or persons asleep or under influence of drugs.
o   Reflex actions
§ Blinking eyes
§ (willed=someone stretch hand when falling is not reflex b/c mind grasped situation.
o   Act by incompetents person=suffice the “acts” b/c insane, minor are capable of volitional conduct.
o   (2) Intent:
Intent
A person acts with the intent to produce a consequences if:
(a) the person act with the purpose of producing that consequnces; or
(b) the person acts knowing that the consequences is substantially certain to result.
§  
§ P must show that ∆ did the “ACT” with the “INTENT” to inflict a harmful or offensive touching on the P or third person. (Note: Must be actual physical contact “coming close”=NOT battery
§ Intent-layman Puropos and desire.
§ Intent can be knowledge “substaintial certainty)
§ Intent to Act v. Produce consequences (Intent to Act is enough to suffice)
§ P need not be aware of battery (D kisses P while she’s asleep still battery)
§  
·         Vosburgà4 yr old kick to fragile leg; intention unlawful, stipulate deliberate; liable for actual harm, eggshell skull theory = Liable for all damage (not just reasonably foreseeable)
·         (1) Test—Desire or belief in substantial certainty (subjective test)
o   The ∆ must have desired a harmful or offensive touching OR believed that such a touching was substantially certain to result. (50/50 or highly likely is not enough…must be like 90%)
o   Garretà 5 yr old ∆ pulled chair from old lady…child was substantially certain that result would occur.
o   Test=subjective: the basic q is not what a reasonable person would have desired or believed, but what the particular ∆ in fact desired.
·         Motive is immaterial: Only have to intend the action, not the harm – motive irrelevant (See Mohr v. Williams)
o   Motives can be pure and contact can be beneficial, D maybe liable 4 battery.
·         Transferred Intent doctrine: applies to 5 categories total:
o   Assault; Battery; False Imprisonment; Trespass to land; and Trespass to Chattels.
o   Transferred Intent – D intends tort against one person, but instead
§ ELEMENTS
§ (i) commits a different tort against that person,
§ (ii) commits the same tort against a different person,
§ (iii) commits a different tort against a different person; intent is transferred to resulting tort (A&B); some authorities – all intentional torts transfer, others: ex – trespass to chattels (shooting at animal) cannot transfer to battery (hit person)
o   Talmageà ∆ threw stick struck P in the eye…∆ intend to hurt X not P=∆ liable for Battery to P. maybe liable for assault to X.
o   Hypo: if P saw the stick and ducked, there’s apprehension =∆ liable for assault.
o   Note: No such as attempted battery.
o   Generalized knowledge insufficient.
o   Shawà P sued tobacco company for lung cancer resulting from secondhand smoke from his driving partner. D knew it would cause harm to a person but not to specific person. Cant be transferred.
o   Hypo: smoking at bar. There’s offensive contact (smoke is tangible) it could be battery if ∆’s intended and with purpose to annoy you. But P must prove that. 
 
Intent for Trespass to Property:
Intent to be where you are. Trespass can be w/o knowledge (No damages needed) Can get nominal damages.
 
o   -Prima Facie Case: Elements: is P in Possession of land or entitled thereto, an act by D with intent to invade the land, an intrusion upon the land, and Causation.
·         Act by Defendant
o   Must be volitional (same as battery) voluntary
o        Ex: D pushes X on P’s land, there is invasion of P’s land but D and NOT X is the trespasser (b/c there was no volitional movement by X).
·         Intent
o   D must intend to Intrude on the land, but need not know the land belongs to another. (transfer intent doctrine applies)
o        Hypo: I trip and fall on P’s land: no intent
o        Hypo: If no signs but the owner says “go away” if you don’t=trespass
à         (1) Distinguish – Negligence
§ D is liable for negligent entry if damages are shown, but not when trespass is intentional. 
à         (2) Distinguish –Strict liability
§ Certain invasions are actionable on a strict liability theory
§ Ex: rocks hurled on P’s land as a result of D’s exploding dynamite on other property.
·         Intrusion upon land
o   D must personally enter the land or cause entry by third person or object.
o   Failure to leave or remove object after consent is withdrawn is =trespass
·         P in possession or entitle to immediate possession
o   (1) The person actually in possession may bring suit. (including adverse poessor)
·         Causation
o   Trespass must be caused by D’s intentional acts  or some force set in motion thereby. 
o   Trespasser liable for harm to person or property caused to the owner even if the harm was not foreseeable. (cofortation with trespasser caused the owner heart attack.
 
·         No requirement of damages:
o   If intentional then =trespass =Actual injury to the land is not an essential element of the cause of action.
o   If A accidently but negligent

o him. He excersied dominion control over the property of another. Intent is the main thing to show.
o    
 
II. Defenses to Intentional Torts: reasonable person under like circumstances
A. Consent
            1. Express. Mohr: D’s action beyond scope of consent (left ear), unauthorized touching = battery
 (even though P was unconscious, kissing case). 
            2. Implied by law: Consent reasonable to infer in emergency situations. Objective- Did MD reasonably                              believe circumstances required emergency care?
                        – Emergency rule: requires immediate attention to preserve the life of the patient. But must have
                         Prior consent. Ex. Had consent for inspection for ears, can’t look at breast even if life in danger
                         b/c that would be Battery=or at least offensive contact.
            3. Implied in fact by custom/conduct: (objective manifestation) minor bumping in crowd not battery,                                  consent by custom, P sticks her hand out to receive vaccine in O’Brien
            4. Illegal acts: CL=consent to illegal act bars recovery UNLESS P member class of person law protects;                             inability to appreciate consequences (restatement=can consent to illegal acts) . 
Majority. 
a. Hudson v. Craft: Promoter liable (battery) for fight bc P is class legis intended to protect. § 60 minority view=says it’s not tort if both boxer consented. § 61: tort does apply, can consent to illegal acts. – If the P didn’t have a battery claim then P would still have a negligence harm claim
                        c. Athletic injuries:
                                    1. No consent outside boundaries of sport. D liable for injury if reckless disregard of rules
                                    HackbartàD struck a blow with his knee to P’s head when game was over. Held: P’s consent
                                    Injury from blows within the game rules not when injury(blows) are deliberately illegal.
 
B. Insanity/Minors. Subjective standard
– Insanity = not defense
            1. D held liable if can form the intent (as desire), intended offensive/harmful contact.
McGuire: P sued D for injures while caring for D, insane pt. Insane person (like others) is liable for torts when does intentional acts/intended offensive contact. Held=P won. “reasonable person under like circumstances”
            While intention may be result of delusion, it’s intention nonetheless (if throw grenade, thinking it’s a                                   ball with no intent to injure, not battery)