Select Page

Wayne State University Law School
Lund, Christopher C.

Prof. Lund
Spring 2010


· TORT: Private or civil wrong or injury other than a breach of contract for which the court will provide a remedy in the form of an action or damages
o Civil, private law about civil harms that are not contractually based


· BATTERY: The act of intentionally making physical contact with someone that is harmful or offensive
o Key: INTENT requirement (only goes to the contact – must intend the contact, but don’t have to intend any harm or offense)
o If you intend to make physical contact w/ someone and it turns out to be harmful, then you have battery
o (1) Intended Contact + (2) Actual Contact + (3) Harmful/Offensive Contact = Battery
§ Harmful/Offensive: Objective Test/Reasonable Person Standard
· HOWEVER if you have knowledge of an extrinsic, idiosyncratic or unusual quality in a person that makes them more susceptible then you are liable for the tort
o Restatement 13

o Facts: Plaintiff is teacher who gets a chair pulled out from under her by a student -She sues the student for negligence – Student says she intended for teacher to fall, but did not intend for her to be harmed – Court gives jury a battery instruction – Plaintiff objects to the jury instructions because she had not brought forth battery claims and therefore could not recover if the jury found battery and NOT negligence
o Held: Battery because defendant intended the contact. Plaintiff loses because she only brought a negligence claim – her arguments that battery can overlap with negligence are waived (thrown out) because she didn’t raise them in the trial court
o RULE: Intent to harm is not essential for battery – you only need intent to contact/touch
§ NB: Plaintiff could not bring a separate battery claim because of res judicata
· Markley v Whitman – 1890
o kids playing the rush game. PL gets pushed and suffers injuries
o first time battery ruled on in the USA
o just need to intend the contact.

o Facts: Defendant is a five year old who pulled a chair out from an arthritic old woman. She sues for battery, claiming that the child intentionally did this to harm her. Kid was taking the chair just to sit on, tried to push back in when saw the PL would fall – Trial judge says that Dailey’s intent was merely to sit down (as per his testimony)
§ Dailey seems less culpable than Schafer – did not have the intent/purpose to perform a prank
o RULE: If defendant knows with substantial certainty that his actions will cause harmful contact, then he is liable for battery
§ Restatement 13: act must be done for the purpose of causing the contact or with knowledge on the part of the actor that such contact is substantially certain to be produced
· Helf v. Chevron –
o Helf worked at Chevron as a chemical engineer in a refinery which was particularly dangerous – worked with sludge that was ultra-toxic. Chevron pours sludge into a pit and it causes a pseudo disaster – Helf comes to work and Chevron tells her to neutralize this sludge. Helf vomits and passes out upon contact and then begins suffering severe side effects. She sues for battery. (can’t generally sue your boss because of Workers Comp, which is basically no-fault insurance)
§ RULE: When you have an intentional tort, however, you may sue your employer and will not run into problems with workman’s comp
o HOLD – Chevron knew with substantial certainty that this would be the result and thus found battery

· Note 4 pg. 17 – Intent to battery is intent to touch
o MINORITY VIEW -few courts, however, have held that there must be an intent to injure (White v. Muniz – White had Alzheimer’s and hit her caretaker – court said that there must be an intent to injure) <- this is the minority view (don’t apply this standard on an exam)
· Note 3 pg. 17 – Torts of young children –
o At a certain age, kids arent really making choices
§ can’t weigh the pros/cons, dont know if conduct harmful or offensive
o Tort Immunities for children vary from state to state
§ Majority – parents responsible for kids intentional torts
§ Minority – kids are on their own – jgmt from a kids trust fund
· parents liable up to a limit – ex up to $10K
o Tender Years Doctrine: Children cannot commit intentional torts until they turn 7 (after 7 they face legal liability)
§ Most states follow this
§ Children as young as 2 or 3 CAN commit acts of negligence, however.
· Note 6 pg. 18 – Transferred Intent
o (1) Tort-Tort: Means that if you intend one intentional tort, but accomplish another intentional tort, then you are liable for the tort that you accomplish
§ IE: you intend imminent harm (assault), but you cause actual harm (battery) then you will be charged with battery
o (2) Person-Person: If you intend to cause a tort to one person, but instead hit another, you cannot claim that you were lacking intent – Your liability and intent will transfer from one person to another
§ -‘intent follows the bullet’

o Facts: Fisher went to lunch at the Carrousel Motor Hotel – Fisher is black and an employee at Carrousel smacked his plate down and said that they didn’t serve blacks and then told him to leave. Fisher was not physically touched, nor was he afraid. Trial court rejects battery argument because there was no physical contact.
§ Assault requires that the victim be afraid
o Held: Invasion of the plaintiff’s person (something closely identifying with the victim’s body) can constitute as battery
§ Doctrine of Personal Autonomy: Contact with anything reasonably connected to the person is the same as contact with the person’s body
o RULE: The basis of an action for battery is the “unpermitted and intentional invasion of the plaintiff’s personal autonomy and not the actual harm done to the plaintiff’s body.

· Note pg. 20 – Damages for mental suffering are recoverable without the necessity for showing actual physical injury in a case of willful battery
· Note pg. 20 – Vicarious Liability – Employer is generally liable for intentional torts of employees w/in scope of employment
o So Hotel is held responsible for the intentional tort of its employee
o Encourages employers to properly train/watch their employees
§ parents to watch their kics
§ gives PL’s a deeper pocketed party to recover from.
· Note 2 pg. 20 – Leichtman – anti-smoking advocate went on a radio show to talk about the effects of second hand smoke – radio show wanted to clown on him so one of the hosts lit a cigar and blew smoke in his face – Leichtman sues for battery –
o Ohio Supreme Court said that blowing smoke on him was contact with his personal autonomy – remanded to lower court for findings consistent with this
o Further, if you know a person has sensitivities


· Assault – an intentional threat to do bodily harm that results in reasonable apprehension of bodily harm
o 1) intentional threat to do bodily harm
o 2) that ACTUALLY results in apprehension
o 3) that apprehension (anxiety) is REASONABLE
· Distinguished from battery insofar is it is psychological –does not require physical conduct
o Knowledge with substantial certainty can replace intent
· Restatement 21

o Facts: Morgan pulled up in a car next to Vetter – Morgan was in the passenger seat and proceeded to make obscene gestures towards Vett

o Note 4 pg. 28 – Plaintiff must prove that he was aware of the imprisonment at the time OR that the confinement caused actual harm
§ Harm must be a proximate result form the confinement – cannot be a later developed medical condition
§ Any amount of time will do – no minimum time requirement


· IIED – Extreme and Outrageous conduct that intentionally or recklessly causes severe emotional distress
o 1) Extreme and Outrageous Conduct
§ sometimes it’s extreme AND outrageous, sometimes extreme OR outrageous – they both essentially mean the same thing
§ Behavior that is beyond all possible bounds of decency – R46
· Relevant Factors for liability: Social Standing of the defendant, Frequency, Premeditation, Reason to know of plaintiff’s hypersensitivity
o 2) Intentional or Reckless disregard of the probability of causing ED
o 3) Cause Emotional Distress
o 4) ED was severe
· Restatement 46

o Facts: Husband takes out insurance policy and then gets murdered – Company pressures widow into settling and forces her into economic hardships – DIVERSITY CASE (state law governs – Federal Ct is trying to apply the law that IL courts would apply)
o Knierim – first case of IIED in IL – courts were reluctant to enforce IIED because of the potential for abuse –Args against allowing IIED
§ Frivolous claims
§ Mental consequences would vary
§ Mental disturbance are incapable of financial computation
§ Mental disturbances can disappear at any time
o Held: IIED, but no punitive damages in this instance (although punitive damages were found to have been expressly allowed in Knierim, court merely decided not to award here)

o Facts: Chuy signed a contract for 3 seasons and was injured during the first season. He did not play for the rest of the contract, and he is suing for the rest of his salary. The Eagles told him that he had to see their team doctor – the team doctor leaks information stating that he has a life-threatening disease, which turns out to be false. Chuy reads this in the paper before hearing it from the team. He becomes very depressed and sues for IIED. Team argues that his reaction was exaggerated and unreasonable.
o Held: Eagles lose – They are liable for the recklessness – no liability for mere negligent or honest mistake infliction of emotional distress, however.
§ 4 Part Test for IIED under Restatement 46:
· 1. Extreme and Outrageous conduct
· 2. Intentional or Reckless
o Recklessness requires you to know of a substantial risk that your actions might cause emotional distress
· 3. Causing Emotional Distress
· 4. That is Severe (mental anguish, fright, horror, grief, worry)
o Reasonable Person standard
§ Subjective AND Objective Test for Distress
· PL must actually feel the distress – subjective
· Reasonable person in PL’s shoes must feel distress (objective)