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West Virginia University School of Law
Weishart, Joshua E.

Intentional Torts

· Elements of Battery that the plaintiff must prove

o Defendant intended to cause

§ As long as the defendant desired the harm or offensive contact, or knew to a substantial certainty that a harm or offensive contact would result, and defendant’s personal characteristics do not prevent him from forming the intent and exercising his will, then the intent requirement is satisfied. (Polmatier v. Russ)

· Substantial certainty

o In a single intent jurisdiction, the intent from the defendant must involve having the desire to cause, with substantially certain knowledge, that the act would put the plaintiff in imminent apprehension of contact. (Andrews v. Peters)

§ Subjective test is done for this because the plaintiff must prove that the intent requirement was met.

o In a dual intent jurisdiction, the defendant must intent the contact, and must intend that the contact be harmful or offensive. (White v. Muniz)

§ The first part of this is a subjective test because the intent is something that must be proved. The second part is considered subjective/objective because the intent is subjective but the harm caused is objective.

§ Intentional conduct cannot be negligent conduct and negligent conduct cannot be intentional. A trier of fact may infer an intent to cause a contact that is harmful or offensive from evidence that defendant knew the potential consequences of his act. (Waters v. Blackshear)

· Generally, the law affords no special treatment to minors who commit intentional torts. The minor’s ability to appreciate the cause and effect is relevant to the intent requirement.

o With another person

§ Animals are not people

o Defendant acted

§ Meaning there was an external manifestation and the movement or failure to move resulted from the actor’s will

· External manifestation is something that can be perceived R2d § 2

· The actor’s will can be rational or irrational

o Harmful or offensive contact resulted in (direct or indirect)

§ All that is required to commit a harmful contact is intent to violate legally protected interest of another in his personal domain (Nelson v. Carroll)

§ If intent requirement is met, liability extends to unintended and unforeseeable consequences of intended act. (Nelson v. Carroll)

§ The actor needs not have intended the specific harm that results.

§ For single intent jurisdictions and dual intent jurisdictions, this is always an objective test.

§ Intending a contact to be offensive – contact, to be offensive, must be offensive to a REASONABLE SENSE OF PERSONAL DIGNITY – Leichtman v. WLW Jacor Communications

o Plaintiff did not consent to contact and was not otherwise privileged

Recoverable Damages: compensatory damages, punitive damages, nominal damages

-Compensatory damages involve awards for harm suffered

-Punitive damages – damages intended to punish the defendant – generally awarded when the defendant acts maliciously or “oppressive, evil, wicked, guilty of wanton or morally culpable conduct or shows flagrant indifference to the safety of others”

-Nominal damages – may be awarded instead of compensatory damages when the plaintiff has suffered an injury but no harm – awarded when there is a technical invasion of plaintiff’s rights. The motivation to seek nominal damages is to vindicate a right because the awards are generally less than one dollar. (Taylor v. Barwick)

· Assault

o Elements

§ Defendant intended to cause a harmful or offensive contact with another person or an imminent apprehension of such a contact (elements of battery)

§ AND the other is thereby in such imminent apprehension

· If you believe you are not in imminent apprehension, even if you are mistaken, assault is not an option.

· Imminent contact means contact without significant delay. Words constituting a threat in the “near future” is a different concept than from the imminent future. (Brower v. Ackerley) ALSO R §29 — the law cannot protect all people at all times

· Words are not enough; has to be coupled with acts or circumstances – Brower v. Ackerley

§ All elements of assault are satisfied in Cullison v. Medley. Ernest Medley says he will “jump astraddle” of Cullison, and he repeatedly touches his gun and shakes it at Cullison. There was an invasion of Cullison’s mental peace.

o The difference in battery and assault is that battery says a harmful contact resulted, and assault says plaintiff reasonably apprehends contact.

o Assault recovers mental damages (Cullison v. Medley) and battery recovers physical damages

o Transfer of intent

§ There can be a transfer of intent between torts which allows the plaintiff who suffers harmful or offensive contact to recover for a battery, even if the defendant only intended an assault. Also, the plaintiff can recover for assault, even if the defendant intended only a battery.

§ There can be a transfer of intent among people if the defendant intends to assault or batter one person, but ends up assaulting or battering another. The defendant is liable for the other as if he was not the intended target.

§ Hall v. McBryde demonstrates both types of transfers. The court held that if Hall fired the bullet that struck the plaintiff, Hall would be liable for battery, even though Hall did not intend t

nt than personal property.

§ Force in defense of property must be reasonable.

§ Landowner must ask intruder to leave unless he reasonably believes that the request will be useless.

§ You can expel an intruder by reasonable force unless landowner knows expulsion is likely to cause the intruder serious harm or death, unless the intruder intended to cause serious harm to landowner if not expelled.

§ Woodard v. Turnipseed demonstrates disproportionate force in the protection of personal property. Turnipseed hit Kenwyon Woodard with a broomstick because he didn’t clean the cows properly for the milking operation.

· Intentional Infliction of Emotional Distress (IIED)

o Elements of IIED

§ Defendant intended to cause emotional distress or recklessly disregarded the probability of causing emotional distress;

§ Defendant engaged in extreme and outrageous conduct; and

§ Plaintiff suffered severe emotional distress as a result of the defendant’s extreme and outrageous conduct.

o Intentional infliction is the desire to cause or defendant is substantially certain his actions will cause emotional distress. Reckless IED is a high probability that emotional distress will happen.

o Zalnis v. Thoroughbred Datsun demonstrates IIED. Zalnis was bullied into giving up the car she just purchased, and the car dealers knew she was susceptible to emotional distress because she watched her husband commit suicide.

§ It is the totality of the conduct that must be evaluated to determine if outrageous conduct is present.

§ The Restatement §46 says conduct may become extreme and outrageous if it is an abuse by the actor who has actual or apparent authority over the other – used in Zalnis

§ R2d §46 – particular susceptibility, abuse of power/authority

o Strauss v. Cilek demonstrates what constitutes outrageous conduct. This case is where Cilek had an affair with Strauss’s wife, and Cilek was bff with Strauss.

§ To be outrageous, the conduct must be so extreme in degree as to go beyond all possible bounds of decency to be regarded as atrocious and utterly intolerable in a civilized community R §46