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West Virginia University School of Law
Taylor, John E.

Torts Outline John Taylor Fall 2011
I. Intentional Torts       
A. Intent
i. Garratt v. Dailey
Facts: Five year old Brian Dailey (D) pulled a chair out from under Ruth Garratt just as she was about to sit causing her to fall and break her hip. Garratt brought suit for personal injuries and alleged that Dailey had acted deliberately. The trial court entered judgment for Dailey and found that he had not intended to injure Garratt. The court nevertheless made a finding of $11,000 in damages in case the judgment was overturned on appeal. Dailey appealed.
Issues: 1) In regards to the intentional tort of battery, is the element of intent satisfied if the defendant knows with substantial certainty that his act will result in a harmful or offensive contact? 2) Can a five year old child be liable for an intentional tort?
Holding and Rule: 1) Yes. In regards to the intentional tort of battery, the element of intent is satisfied if the defendant knows with substantial certainty that his act will result in a harmful or offensive contact. 2) Yes. A five year old child can be liable for an intentional tort.
*A minor is liable just as any other person when he has committed an intentional tort with force.
Remanded for clarification of findings regarding Dailey’s knowledge in order to determine whether the element of intent is satisfied.
Battery- the intentional infliction of a harmful bodily contact upon another.
1 Restatements, Torts, 29, §13
An act which, directly or indirectly, is the legal cause of a harmful contact with another’s person makes the actor liable to the other, if
(a)    The act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and
(b)   The contact is not consented to by the other or the other’s consent thereto is produced by fraud or duress, and
(c)    The contact is not otherwise privileged
*intent requires that the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially that a result will occur. The mere absence of any intent to injure, play a prank on, or embarrass the plaintiff, or to commit an assault or battery on her, would not absolve the defendant of liability if in fact he had such knowledge.

ii. White v. Muniz – Court held that a battery cannot be established by simply proving that the defendant intended  a contact with the plaintiff’s body that turns out to be offensive. The plaintiff must prove that the defendant intended the contact to be harmful or offensive to the other person.
iii. Ranson v. Kitner
Facts: During a hunting trip, appellants (Kitner) mistook Ranson’s dog for a wolf, as they claimed it resemblance, and shot it. The dog died as a result of the shooting.
Issue: How liable is a party for an action which causes harm to another party when there
Is no intention of causing harm to that particular party in question?
Holding: In the case, the harm to the dog could have been avoided, despite appellants’ contention they had no idea it was indeed a dog. They were held responsible and were instructed to pay $50 in damages to the appellee (Ranson).
Rule: Sometimes when there is no intention of injury to another party, the party still may be held responsible for damages if the injury to the other party was avoidable.

iv. Talmage v. Smith
Facts- Talmage and several other children were playing on the roofs of sheds on Smith’s property. Smith ordered the children to get down and threw a stick at one of the boys. The stick missed its intended target and struck Talmage in the eye. Talmage lost all sight in the eye and sued for battery to recover for personal injuries.
Issues: If an actor intends to inflict an intentional tort upon one party and accidentally harms a second party, can the actor be held liable to the second party for battery?
Holding and Rule: Yes. If an actor intends to inflict an intentional tort upon one party and accidentally harms a second party, the actor can be held liable to second party for battery under the doctrine of transferred intent.
If an actor intends an act against a party and the act impacts upon another the actor is liable for the injuries suffered. The fact that the injury resulted to a party other than was intended does not relieve the defendant from responsibility. Smith will not be relieved of liability because he intended to injure someone else.
*Transferred Intent: The transferred intent torts under common law are: assault, battery, false imprisonment, trespass to land, and trespass to chattels. If an actor has the intent to commit any of the transferred intent torts, the actor will be liable for all other transferred intent torts that result from the act. The actor’s liability extends to all parties harmed, not merely the original intended victim.

B. Battery
i. Brzoska v. Olson
Facts: 38 former patients of dentist who had AIDS are filing suit on the grounds of battery. In 1989, Dr. Olson was diagnosed with AIDS. He would perform dental procedures while having open wounds. Died in 1991. After findings of AIDS, former patients were informed of his condition, and all seeked testing. None of his former patients tested were tested positively for HIV.
Holding: The incidental touching of a patient by an HIV infected dentist while performing ordinary, consented to dental procedures is insufficient to sustain  a battery claim in absence of a channel for HIV infection.
*The fear of contracting a disease without exposure to a disease-causing agent is per se unreasonable. Thus, absent actual exposure to HIV, plaintiffs cannot recover for fear of contracting AIDS.
Rule: Restatement (Second) of Torts §19.
In order that a contact be offensive to a reasonable sense of personal dignity, it must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity. It must, therefore, be a contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted.
Reasoning: Aids has a widespread misconception based on the lack of knowledge concerning HIV transmission. To accept this argument would contribute to the phobia and be a slippery slope into lawsuits against those who are HIV positive.
ii. Fisher v. Carrousel Motor Hotel
Facts: While in line for aforementioned luncheon, a hotel employee for defendant approached plaintiff, took his plate and informed (shouted at) him “negroes” could not eat there. There was no touching involved, just words directed at plaintiff. Plaintiff claims he was verbally assaulted by the words, causing embarrassment and humiliation in front of his colleagues.
Jury found in favor of plaintiff for $400 damages actual, and $500 punitive. Trial court set aside verdict and ruled for defendants. Affirmed by Civil Court of Ap

ken into account. It is for a jury to decide whether or not Calhoun was reasonable in detaining Grant
Holding: Reversed and remanded.
E. Intentional Infliction of Emotional Stress
i. Harris v. Jones
Facts: Over a five month period (March- August 1975), Harris claims he was ridiculed over his nervous condition, which resulted in stuttering.  Harris stuttered through his entire life, having difficulty with long words or sentences. This caused him to shake his head up and down when trying to speak. Harris said other employees ridiculed his stuttering; Jones’ conduct made him more nervous, as he admitted to especially being nervous around “bosses.” When Harris asked for a transfer, Jones would not let him have one, calling him a “troublemaker.”
The original trial court ruled in favor of plaintiff. Reversed by Court of Special Appeals. Affirmed by Court of Appeals.
Issue: Was there enough of a consistent relationship and substantive proof Harris was in fact being harassed to the point of mental distress, and if so, what remedy does he have against his supervisor and employer?
What is extreme and outrageous? How severe?
Judge ruling: Affirmed the decision of the appellate court, ruling the humiliation suffered was not bad enough to relate to it an award for damages.
Reasoning:  Under the second restatement of torts, outrageous conduct causing severe emotional distress is defined as:
1.  On who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. 
The court, relying on precedent, found there are 4 major factors to this tort when determining damages:
1. The conduct must be intentional or reckless
2. The conduct must be extreme and outrageous
3. There must be causal connection between the wrongful conduct and the emotional distress
4. The emotional stress must be severe

The court found three of the four to be in accordance with Jones' and GM's behavior, but not the fourth.  While it is true Harris suffered some more problems while working with Jones and others during the five month period, its opinion was the stress was not severe enough to warrant damages.

The court added they just weren't sure how, or to what degree, Harris' speech impediment worsened during the five-month period.  In that, there was no way to deem Harris' stress as severe, or measure it relative to anything (his previous condition may, in fact, have hurt him here).

Significance:  Despite the presence of emotional stress in a certain case, it must be proven beyond a reasonable doubt at least, the stress inflicted, was in fact severe in order to receive damages.