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Torts
Wayne State University Law School
Lund, Christopher C.

I. Intentional Torts
– P must prove Prima Facie Case
– D must prove defense
– All about allocating and proportioning liability; whose at fault
– Can be physical, emotional or neither
– Must have intent and causation

A. Types of intentional torts

1. Battery:
– Intentionally making physical contact with someone that is harmful or offensive
– KEY: intent only goes to the contact; not the harm
– Elements: Intended contact; contact must actually happen and contact must be harmful or offensive
– Harmful conduct: objective standard; would a reasonable person find it harmful or offensive
o If uncommon harm or condition; can be liable if actor knows that his action will cause harm even if doesn’t meet a reasonable standard.
– Restatement §13: does not have to intend the contact if there is knowledge that the contact will occur; act must be done for purpose of causing contact or with knowledge/substantial certainty that will occur; intention or realization
– Examples
o Surgeon who does surgery on someone even if they say no
o Ghassemieh v. Schafer; Girl pulled teacher’s chair out; teacher gravely injured; (only have to intend the contact; can be a joke or prank- no intent of harm needed)
o Garrat v Dailey: 5 yr old pulls chair, P is about to sit and falls and breaks hip; Trial CT: no willful contact, no intent to injure; follow Rst: intent or knowledge of what could happen; can be liable regardless of intent.
o Most states will not find a child under 7 as committing intentional tort
o White v. Muniz: old Alzheimer patient; hits caregiver; CT finds here that battery requires an intent to injure (minority rule)
o Helf v. Chevron: sues employer for making her neutralize gas that they knew earlier had turned into a huge purple cloud; usually covered by workman’s comp; CT: employees can recover under intentional torts like battery
– Transferred intent: D still liable if he meant one harm or person but another harm or another person was harmed.
o Fisher v. Carrousel Motor Hotel: black man in a restaurant, worker smashed his plate, sued for battery, ruled can have battery even if there is no direct touch-
o Leichtman v WLW Jacor Comm: radio dj blows smoke in P’s face knowing that this will be offensive to him; blowing smoke constitutes contact with personal autonomy; if D knows of a particular idiosyncrasy of P – then counts towards intent (still objective but by the idiosyncrasies of P)
o Doctrine of Personal autonomy: contact with anything reasonably connected with the person is touching the person itself
– Mental distress can be recovered without a physical injury only for intentional torts
– Vicarious liability: employers can be held liable for intentional torts of employees as long as in the scope of employment. (sometimes covers parents too)

2. Assault:
– Purely psychological
– almost like trying to commit battery but fail/fall short
– Intentional threat to do bodily harm that results in reasonable apprehension of bodily harm
– Elements: intentional threat to do bodily harm, actually results in apprehension, and apprehension is reasonable (NEED FEAR)
o Threat must be intentional or made with knowledge with substantial certainty
– Examples:
o Vetter v. Morgan: woman driving at night, three kids (D) in car next to her, D tells her he is going to get her; D spits on her van, P drove up the curb; D says didn’t care how she felt but did not intend to scare her; CT: looks at elements: Element 1: met with knowledge with substantial certainty (since too hard to get to D’s actual purpose); Element 2: met when P was afraid ended up in an accident; Element 3: problem if fear was reasonable; Trial CT said no (van was locked); App CT says could be- it was night, she was a woman, in her perspective fear was reasonable; still objective reasonable person- but reasonable person in same circumstances.

3. False Imprisonment:
– Intentionally and unlawfully confines or restrains a person within a bounded area
– 3 Elements: 1) intent (not actual; can be substantial knowledge), 2) actual confinement (see below) or restraint, 3) bounded area.
o Actual confinement: RST §§38-41: 5 categories:
§ physical barrier (handcuffs, locked door)
§ physical force (physically restraining)
§ submission to plausible threat (if you leave I will shoot you..)
§ taken into custody by impersonating legal authority
§ submission to duress other than physical threat (you will lose your job or threat of physical violence to family member)
· most courts say economic threats don’t work
– P must be aware of confinement OR confinement must produce actual harm
– Threat must be considered as reasonable person objective standard; would a reasonable person have found this a plausible threat
– D has to have the ability and intention to carry out the threat
– Any amount of time works
– Examples:
o Herbst v. Wuennenberg: 3 guys looking at mailboxes for Republican party; landlady comes out and tells them to stay so she can call police; stands in front of exit; Ps never ask to leave or attempt to leave; CT: no false imprisonment- never asked to leave and threat not plausible under a reasonable person standard; D would have to have intention or ability to carry out threat
o KKK Example: Brought out gun but didn’t say anything; CT found implied threat
o Molko v Holy Spirit Assn: girl in a cult church; was physically able to leave at any time; but church said if she did, all her family would go to hell; CT: said not a legitimate threat, under Const. churches can have their dogma; she could have physically left**

4. Intentional Infliction of Emotional Harm (IIED)
– (Restatement §46) one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another; liable for emotional distress and for any bodily harm that may result
– 4 Elements Restatment §46:
o 1) conduct must be extreme and outrageous
§ Reasonable person standard; beyond all bounds of decency
§ Restatement §46, comment d: “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
§ does not extend to mere insults, indignities, threats, petty oppression, annoyances
o 2) conduct must be intentional or reckless (subst’l cert)
§ Intent can be established under recklessness
o 3) must cause emotional distress (subjective)
o 4) distress must be severe (objective)
§ Severity measured by whether “any reasonable man could be expected to endure it”
– Liability does not extend to mere insults or threats
– Court likely to find IIED when:
o P is vulnerable; D has authority over P; frequent and continuous conduct; premeditated; D knows of P’s hyper-sensitivity.
– Be careful in distinguishing recklessness and negligence** (honest mistake would be negligence)
– Examples:
o Eckenrode v Life of America Insurance Co: D refused to pay out on husband’ life insurance policy; P was in a bad economic position and tried to use this; CT: economic coercion; tried to get P to settle on smaller sum; court recognizes that IIED claims are problematic bc incapable of financial measure, menta

pes:
o Implied consent: no express consent but P does something that would indicate consent (objective standard)
o Express consent: verbal or written consent
– Exceptions to consent:
o Incapacity to consent (children)
o Duress
o Conditional consent
§ If you go beyond the conditions, there is a tort
– Examples:
o O’Brien v. Cunard S.S. Co.: Dr aboard ship gave P vaccine needed for any immigrant; she already had the vaccine; gave her arm to the doctor for shot; P tries to sue for battery and negligence for injuries that occurred from vaccination; CT says P gave her consent by giving dr. her arm/ implied consent
o Overall v. Kadella: hockey game; fight broke out; P badly injured from D; D says it was part of the hockey game and thus manifested consent by playing; rule against fighting in game; no consent- “an intentional act causing injury which goes beyond what is ordinarily permissible is an assault and battery for which recovery may be had; no defense here (objective standard)
o Hogan v. Tavzel: married couple on the outs; trying to fix marriage; H gives W genital warts; trial ct says there is consent in consensual sex- H has a defense; on appeal – consent to consensual sex is not consent to disease- can have a claim for battery
§ Restatement: A consents to sexual intercourse with B, who knows A is ignorant of the fact that B has a venereal disease. B is liable for battery
§ In MICH: same works if A has HIV and doesn’t tell
o Neal v. Neal: married; H moves for work and meets another woman; has sex with both women separately; H files for divorce; W sues for battery tort- says she would not have consented to sex if she knew of affair (no disease here); mistake issue here: ct finds that this mistake does not take away her consent; finds for husband
§ Where a person’s consent to physical contact is given based on a substantial mistake, known to or induced by the actor, concerning the nature of the contact itself or the extent of the harm to be expected therefrom, the consent is deemed ineffective and D can still be liable
§ Mistake must extend to the essential character of the act itself (not collateral)**

2. Self-Defense and Defense of Others:
– A person is privileged to use reasonable force against another when they reasonably believes that the other person is about to cause them imminent harm.
– Elements:
o 1. Has to be reasonably believe that other person is going to cause harm
§ Subjective and objective element (both must be met)
o 2. Harm must be eminent
§ Common sense element
o 3. Only can use reasonable force; not more force than what is necessary to stop the attack
§ Can only use deadly force if confronted with deadly force
§ Retaliation is prohibited
– Examples:
Tatman v. Cordingly: P is in 60s and D is in 20s; P suing for assault and battery for injuries during a fight; D says acted in self-defense; P has a bad reputation for being violent; jury