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Torts
West Virginia University School of Law
Taylor, John E.

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.