Torts (Taylor) – Fall 2011
Intentional Torts
A. Intent
Assault, battery, false imprisonment, trespass to land, or trespass to chattels and harm results to another’s person or property
· Intentional vs. negligence
o SoL shorter
o Workers comp doesn’t bar int. torts
o Ins. Policies don’t likely cover intentional
o Comparative fault doesn’t matter in intentional torts
o Sovereign immunity more likely to apply if injury arose from int. tort
Garratt v. Dailey Washingtion pg 1(kid pulls out chair)
· To prove intent, must have purpose to cause harm or apprehension and know or be substantially certain a consequence (contact) would result
o If actor doesn’t realize the result, he has no intention
o Can have purpose without substantial certainty
§ Very tough to achieve, though
· Contact cannot be consented to or privileged
· P after home owner’s insurance policy here
· Must have intent of contact of nature that would be offensive by RPS
Ranson v. Kitner pg 10 (accidentally shot neighbor’s wolf/dog)
· Tort of conversion – deprivation of property
· Intentionally shot neighbor’s dog
o In good faith, thought it was a wolf
· Regardless of mistake, intentional tort of conversion resulted
Talmage v. Smith pg 11 (threw stick at trespasser, hit another in eye)
· Intent to commit any of the 5 intentional torts can be transferred for the intent of any of the others
· Court instructed that:
o If intended to scare only, and not hit – no liability by privilege
o If intended to hit, but reasonable force – no liability
o If intended to hit, and unreasonable force – liable even though hit the wrong boy (transferred intent)
· Hypo: if mugger scares person into hiding in store, then it is false imprisonment by transferred intent
o Can’t go too far though, due to proximate cause
B. Battery
· Actor is subject to liability to another for batter if:
o He acts intending to cuase a harmful or offensive contact with the person of the other, and
o A harmful or offensive contact with the other directly or indirectly results
o Doctrine of transferred intent applies
o It typically does not matter if intended harm, just need intent to contact to prove purpose and substantial certainty
§ Reasonability of contact applies
§ Need causation between intent and result
§ Think of eggshell P rule, don’t know it could happen
Brzoska v. Olson pg 16 (Dentist with AIDS)
· Could use consent as an affirmative defense
· Only need intent to contact to establish battery
o Doesn’t have to harm, but can offend person’s integrity
o Must be offensive to the reasonable person
· Ps were not actually exposed to AIDS so offense was not reasonable
Hypo: Sent box of chocolates, ½ ok ½ poison and tell after victim ate some but only chose regular chocolates.
· Battery or Assault?
o Can’t have assault for knowledge after the fact
o Battery here
§ No harmful contact actually, but offensive nonetheless
§ Intent to cause this contact is enough
Fisher v. Carrousel Mtr Hotel pg 21 (took black man’s plate, shouted and refused to serve)
· Can be battery without assault and physical contact is not necessary for battery
o Only need contact with something closely identified with body
o When snatching in offensive matter, that is sufficient
· Manager acting in scope of employment – vicarious liability
· Punitive damages deter bad actors
Hypo: shine light into a driver’s eyes with a mirror and wreck results.
· Purpose to shine light is enough for intent
· Light is probably not enough to establish contact here
· Causation is proven here
C. Assault
· An actor is subject to liability to another for assault if:
o He acts intending to put the other in apprehension of an imminent and harmful or offensive contact and
o The other is thereby put in such apprehension (not fear)
· Doctrine of transferred intent applies
Hill v. Wstn. U. Tel. pg 24 (drunk man makes advances at woman in clock shop)
· No vicarious liability, as man’s own motive, not the business’s, was advanced
· Need reasonable apprehension for assault
o May not have here, as man was behind counter and couldn’t reach her
· Must be imminent apprehension of bodily contact
· Conditional threats of future harm won’t suffice for assault
· Apprehension after act does not constitute violation of civil assault
D. False Imprisonment
· (1) An actor is subject to liability to another for false imprisonment if
(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and
(b) his act directly or indirectly results in such a confinement of the other, and
(c) the other is conscious of the confinement or is harmed by it.
· (2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm.
· Cannot be privileged
Grant v. Stop-N-Go pg 27 (hold suspected shoplifter but didn’t steal anythin)
· Violence, threats, or any other restraints can accomplish willful detention
· Shopkeeper’s privilege:
o Reasonable belief that person has stolen or attempting to steal
o Detention is for a reasonable time
o Detention is in a reasonable manner
· Reasonableness of belief was the issue here
o If judge wrong, guilty of false imprisonment – some state disagree
o Typically require witness of theft
Hypo: Make mom
se caused to the other.
Intel v. Hamidi pg 47 (D sent e-mails to employees that weren’t favorable to co)
· Must be an intentional interference with possession
· Interference must actually harm or be deprived of use for a substantial time
· In spamming cases, P must show actual interference with computer function
· Action must threaten service and inhibit operations
· Employees are not chattels
· Costs for avoiding spamming is not a consequence or harm of this tort
H. Umbrella Intentional Tort
· An actor who intentionally causes physical harm is subject to liability for that harm.
· Need extreme malicious intent for this
Privileges/Defenses to Intentional Torts
A. Consent
· An affirmative defense where the D alleges that P agreed to the action
o BoP lies on the D
O’Brien v. Cunard Steamship pg 58 (ship vaccinates woman when she doesn’t want)
· Subjective intent: heart thoughts, true intentions (jury question)
· Objective intent: explicit manifestation of intent to another
o Says she refuted her subjective intent by manifesting her intent to get the shot when she raised her arm and accepted the certificate
§ This rules out battery here
o Could argue pressure for consent
Hypo: Man mistakes a woman to be his wife, kisses neck, woman falls. Battery?
· Man intended to contacted offensively (only need intent to contact)
· She did not manifest consent by looking like his wife
o If she purposely dressed as the wife to try to get a kiss, then consent would be reasonably present, not the case here
Hypo: Dad takes son to vaccination, Dad wants vaccination but doesn’t tell nurse, nurse vaccinates both before Dad consented. Battery?
· If have subjective consent w/out objectively consenting, cannot seek for battery
o Matter is settled b/c wanted vaccination in his heart
o This dismisses the unreasonable action of the nurse
Meaning of Consent
· Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor
· If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.