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Wayne State University Law School
Lund, Christopher C.

Torts/Winter 2010, Professor Lund

Table of Contents

Chapter 1. Trial Court Procedure in Tort Cases

· Tort- private of civil wrong or injury, for which the court will provide a remedy in form of action or damages. Civil/private law, civil harms that are not contractually based. There is a common remedy- damages ($) or an injunction.

· Tort overlaps with criminal law and other areas of law: contracts, con law (libel/slander lawsuits)

· Tort law moved from being common law to being statutory.

Chapter 2. Intentional Harms to Persons and Property


Battery- intentionally making physical contact with someone, which is harmful or offensive.

· Harm- physical, emotional, neither (property related), has to be intentional

· Intent- at the heart of battery

· For it to be battery you have to intend contact, you don’t have to be intending harm.

Elements of Battery:

· Intended Contact

· Actual Contact

· Contact was harmful or offensive

o Harmful or offensive- NOT subjective standard, if reasonable person would find it offensive is what matters (objective standard)

Ghassemiah v. Shaeffer

· 13 year old girl pulls a chair away from her teacher, who fell to the floor and hurt her back.

· The teacher files a negligence action against her former student. Problem- defendant did not bring this as a batter but as negligence. If this is battery- defendant wins. Plaintiff claims that it could be negligence and battery at the same time, court says that that argument was waiver because not raised at trial court.

Modern Example: Markley v. Whitman

Intent of contact- enough to constitute battery, intent to harm does not matter

Garrant v. Dailey

· Defendant (5 years old) pulled a chair from under plaintiff as she was about to sit down. Did Brian’s actions constitute Battery?

· Restatement § 13:

o Battery= intentional act+ realization that to a substantial certainly the contact will result

Battery would be established if, in addition to plaintiff’s fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. W/out such knowledge there would be nothing wrong about Brian’s act.

Modern Example of Principle of Substantial Certainty: Heft v. Chevron

· Heft sues Chevron for battery. Normally one cannot sue one’s employer for something that happened at work (that’s what workman’s comp is for). BUT, when the tort is an intentional tort, like battery, employees may sue the employer.

· Negligence is NOT an intentional tort. In this case Chevron knew with substantial certainty that the purple cloud would most likely appear again when Heft will go there.

Restatement explained:

· There was no single authority on tort law

· Restatement was formulated to fix the problem

· Courts take the Restatement seriously, but they are free to go against it

The court in Dailey decided that Restatement was the right way to go about it

Intent of Battery- intent to touch, not intent to injure

White v. Muniz- Alzheimer’s patient struck a nurse in the face. Court did not find the intent to injure, BUT in most cases, intent of battery would be intent to touch.

Torts of young children

· Parents are found liable- can take money out children’s trust fund

· Tort immunity varies from state to state

· Most states hold 7 to be the age below which one cannot hold a child accountable

· When it comes to negligence, however, standards are different, kids are liable.

Transferred Intent

· Tort to Tort

o If you intend one intentional tort, but accomplish another- you are liable for that tort which you accomplish. Ex. If you don’t intend to punch someone, you just want to scare themà transferred intent

· Person to Person

o Intent follows the bullet. If you aim for one person, but punch someone elseà transferred intent.

Fisher v. Carrousel Motor Hotel, Inc.

· Plaintiff sued for actual and exemplary damages growing out of an alleged assault and battery. His plate was snatched from him at the banquet and his was called a negro.

· Was there evidence that batter was committed?

o Forceful dispossession of plaintiff’s plate in an offensive manner was sufficient to constitute a battery.

o “doctrine of personal autonomy”- contact with something closely related to the body

Damages for mental distress- recoverable without any showing of physical injury (only true with intentional torts)

· With negligence- must show physical injury

Vicarious liability- employer liable on the basis of conduct of one of its employees.

Leichtman v. WLW Jacor Communications- the court found it to be battery to blow smoke into someone’s face. Court found batter on the basis of: intended contact, actual contact, harmful contact.


Assault is purely psychological tort. Intentional threat to do bodily harm that r

ing someone with one’s own body

3. Confinement by submission

a. Must be a plausible threat confinement (if you leave this room, I’ll shoot you)

4. Confinement when taken into custody when someone is impersonating a law enforcement officer

a. It is a tort and a crime. Ex. Former NBA player impersonating a police officer

5. Threats of something other than physical threats

a. If you leave this room I will make sure you lose your job. Economic threats.

i. Traditionally courts do not recognize this as false imprisonment unless individual’s health is at question.

Modern Example: Molko v. Holy Spirit Association.

· Universal Church- belief in universal God

· Plaintiffs were interested in joining the church. Encouraged to live in a commune in the middle of nowhere, they don’t like it, defendant’s pressure them to stay, plaintiffs agree, their parents kidnap. After the plaintiffs are deprogrammed, they sue the church for false imprisonment.

· Court rejects the false imprisonment claim. Threat must be physical. To make the Church liable would violate the 1st Amendment.

Confinement must be within a bounded area. Barring someone from a place does not constitute false imprisonment.

Ex. Prof Lund has his assistant lock the door to his classroom. Students did not know about it until the next class. Can students claim false imprisonment?

-Plaintiff must prove that he was aware f the imprisonment at the time or that the confinement caused actual harm

-Any amount of time will do to satisfy a false imprisonment. You grab someone’s wrist for 20 secondsà false imprisonment.

Intentional Infliction of Emotional Distress (IIED)

Extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress.

Elements of IIED:

1. Extreme or outrageous conduct

2. Reckless disregard or intent in causing emotional distress

3. Emotional distress

4. Emotional distress that is severe

Extreme and Outrageous Conduct: