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Torts
Wayne State University Law School
Browne, Kingsley R.

Tort: acivil wrong committed by one person against another. (Criminal is defined social harm which compensates the victim while tort punishes tortfeasor). When question of reasonableness, goes to jury.
Three types of torts à intentional, negligent, strict liability

I. INTENTIONAL TORTS
– Are ones where the D desires to bring about a particular result.
(Battery, Assault, False Imprisonment and Infliction of Emotional Distress)

A. BATTERY
– The intentional infliction of a harmful or offensive bodily contact.
(Ex. A intentionally punches B in the nose. A has committed battery.)

1. Intent
– It is not necessary that D desires to physically harm P just that his purpose/desire was to make contact. D has the necessary intent for battery if it is the case either that: (1) D intended to cause a harmful or offensive bodily contact; or (2) D intended to cause an imminent apprehension on P’s part of a harmful or offensive bodily contact. Knowledge doesn’t fulfill requirement.
– Intent is Subjective – what actually was in the mind of the actor, not what he “should” have thought.
(Ex.1:D shoots at P, intending to hit him with the bullet. D has the necessary intent for battery.)
(Ex.2: D shoots at P, intending to miss P, but also intending to make P think that P would be hit. D has the intent needed for battery. (i.e., the “intent to commit an assault” suffices as the intent for battery.)

i. Intent to commit different tort
– The rule that a person who intends to commit one intentional tort and in fact commits another is liable for the tort actually committed.
(Ex. A intends to frighten B by shooting at him and missing (assault), but she accidentally hits him (battery), she will be held to have had the intent necessary for a battery, even though she intended an assault.)

ii. Substantial certainty
– An occurrence is “intentional” if the actor desires to bring it about. It is also intentional if the actor didn’t desire it, but knew with substantial certainty that it would occur as a result of his action.
Garratt v. Dailey
(D pulls a chair out from under P as she is sitting down. The evidence at trial shows that he did not desire that she hit the ground, but that he may have known with substantial certainty that she was trying to sit, and would hit the ground. Therefore, if D knew with substantial certainty that P would fall, he meets the intent requirement for battery)

iii. Less than substantial certainty
– If it is not “substantially certain” that the invasion of the P’s interest in his person will occur, but merely highly likely, the act is not an intentional tort. This is true even though it may be “reckless,” and may give rise to liability for negligence.
(Ex. Same facts above but D thought it was very probable but not “substantially certain” that P would hit the ground when he pulled out the chair. His act is not “intentional” and cannot give rise to battery. It might, however, give rise to a cause of action for negligence, if D in acting had failed to meet a reasonable standard of care for one of his age.)

iv. Transferred Intent
– (Applies TORT-wide) D intends to commit a tort against person but instead (i) commits a diff’t tort against that person, (ii) commits the same tort as intended but against diff’t person or (iii) commits a diff’t tort against a diff’t person.
Talmage v. Smith
(D threw stick at friends, stick hit P instead on accident)
D liable b/c he had intent to hit somebody and inflict the unwarranted injury (stick carries intent of battery) – the fact that the injury resulted to another than was intended does not relieve the D from responsibility.

v. If no intent, could still be negligence.

2. Harmful or offensive contact
– If the contact is “harmful” – i.e., it causes pain or bodily damage – this qualifies. But battery also covers contacts which are merely “offensive,” i.e., damaging to a “reasonable sense of dignity.” Use reasonable standard for “offensive”. [Whether “an ordinary person not unduly sensitive as to his dignity” would have been offended.] (Ex. D spits on P. Even if P is not “harmed” in the sense of being caused physical pain or injury, a battery has occurred b/c a person of average sensitivity in P’s position would have her dignity offended.)

i. The contact can be by indirect means, i.e., D throws an object at P, or hits P with his car, or lets loose an animal to attack P.

ii. The use of “mechanical devices” to protect property is often tested, and will typically involve battery unless the property owner had a privilege.

3. P need not be aware
– It is not necessary that P have actual awareness of the contact as the time it occurs.
(Ex. D kisses P while she is asleep. D has committed a battery.)

4. Unforeseen consequences
– The D is liable for all consequences which result, even though he did not intend them, and in fact could not reasonably have foreseen them.
– The act must be intentional or substantially certain, but the consequences need not be.*
(Ex. D intends to frighten P but not hurt him and swings his golf club at him but stops inches from P’s head. The head of the club flies off and hits P in the eye. D could not have known the club had a defect, nonetheless, he is liable to P for the injury, since he intended to commit an act which would have been an assault.)
Vosburg v. Putney
Facts: D kicked P in leg, as a result P lost use of leg.
RULE: In an action to recover damages for an alleged assault and battery, the victim must only show either that the alleged wrongdoer had an unlawful intention to produce harm (i.e., an unlawful intention in committing the act which occurred) or that he committed an unlawful act.
a. Kick (against classroom rule) = Unlawful Act à Battery
b. Thin Skull Doctrine: D takes P “as he finds him.” Liable for all injuries directly resulting from wrongful act, even if not foreseeable.

5. Damages
i. Nominal damages
– When an intentional tort has occurred, even if the P cannot show that he suffered any actual physical harm. (Not awarded for negligence)

ii. Punitive damages
– Awarded for intentional torts where the D’s conduct was outrageous or malicious. (Not awarded for negligence)

iii. Mental disturbance
– Recover compensation for any pain, suffering, embarrassment, or other mental effect, even in the absence of physical harm.

B. ASSAULT
– The intentional causing of an imminent apprehension of harmful or offensive contact.
· The interest being protected is P’s interest from apprehension of the contact; thus the tort can exist even if the contact itself never occurs.
· It must appear to P that the harm being threatened is imminent, and that D has the present ability to carry out the threat. Threats of future harm cannot constitute assaults.
· P must be aware of the threatened contact.
· P must have an apprehension that she herself will be subjected to a bodily contact. She may not recover for her apprehension that someone else will be touched.
· Where D threatens the harm only if P does not obey D’s demands, the existence of an assault depends on whether D had the l

1. Defense of valid arrest: If a party asserting legal authority in fact has the right to make an arrest, this will serve as a defense.

D. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
– The intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even in the absence of physical harm.
(Ex. D threatens that if P, a garbage collector, does not pay over part of his garbage collection proceeds to D, he will severely beat P. Since D’s conduct is extreme and outrageous, and since he has intended to cause P distress, D is liable for infliction of mental distress.)

1. Intent
– There are three possible types of culpability by D: (1) D desires to cause P emotional distress; (2) D knows with substantial certainty that P will suffer emotional distress; and (3) D recklessly disregards the high probability that emotional distress will occur.

i. Reckless
– The D’s conduct must be in the face of risk that is significantly higher than the risk of harm that would make her conduct “negligent.”
a. R3d: A person “recklessly” causes harm if (1) the person “knows of the risk of harm created by his conduct, or knows facts that make that risk obvious to anyone in the actor’s situation”; and (2) 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 highly blameworthy the actor’s failure to adopt the precaution.

ii. Transferred intent
– Ex. If D attempts to cause emotional distress to X (or to commit some other tort on him), and P suffers emotional distress, P usually will not recover.
a. Immediate family present: The main exception is that the transferred intent doctrine is applied if: (1) D directs his conduct to a member of P’s immediate family; (2) P is present; and (3) P’s presence is known to D.
b. R2d: Extends the category for persons who can recover for conduct which they witnessed being directed at others.
1. Bodily harm: Any person who is present at a beating, attack, threat, etc. made to another may recover if he suffers “bodily harm” from watching the episode.
2. Relative: If the witness is a member of the victim’s immediate family, he may recover even if he suffers no bodily harm.

iii. Emotional distress where other tort attempted: If D attempts to commit some other tort, and the only effect on P is emotional distress, the tort of intentional infliction of emotional distress has not occurred.

iv. Extreme and Outrageous: P must show that D’s conduct was extreme and outrageous. D’s conduct has to be “beyond all possible bounds of decency.”
a. Ex. D, as a practical joke, tells P that her husband has been badly injured in an accident, and is lying in the hospital with broken legs.

v. Actual severe distress: P must suffer severe emotional distress.