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West Virginia University School of Law
Weishart, Joshua E.

Fall 2014
Joshua Weishart
–        Intentional Torts
o   Battery
o   Assault
o   Battery & Assault Defenses
§  Consent
§  Self-Defense
§  Defense of Others
§  Defense of Property
o   IIED
o   Trespass
§  Privileges
·         Public Necessity
·         Private Necessity
–        Negligence
o   Duty/Standard of Care
§  Reasonable Person Standard
·         Hand Formula
·         Dangerous Instrumentalities/Emergencies
·         Special Skills/Knowledge
·         Minors
·         Physical Disabilities
·         Mental Disabilities
§  Professional Standard
§  Special Duties
·         Firefighter’s Rule
·         Rescue Doctrine
·         Protecting Third Party from Criminal Attack & Disease
o   Breach
§  Negligence Per Se
§  Industry Custom
§  Res Ipsa Loquitur
o   Causation
§  But-for Test
§  Multiple Sufficient Causes
§  Concerted Action
§  Alternative Liability
§  Market Share Liability
§  Loss of Chance
§  Increased Risk of Harm
o   Limitations on Liability/Proximate Cause
§  Foreseeability
§  Restatement (Third)
§  Intervening/Superseding Acts
§  Assumption of the Risk
STEP 1: Make a list of all the people/entities in the exam
STEP 2: Identify the injured
STEP 3: Identify any relationships between the injured and all other persons/entities
STEP 4: Determine whether anyone identified (injured and noninjured) acted intentionally or potentially breached a duty of care
STEP 5: With respect to every potential plaintiff who has been the victim of negligence, determine whether the defendant(s) can argue that he did not owe the plaintiff a duty of care
STEP 6: If not, determine whether the defendant has an argument that he did not breach a duty of care
STEP 7: If not, determine the cause-in-fact theory for each breached duty
STEP 8: Determine whether the conduct of the defendant is related to the conduct of any other defendants
STEP 9: Determine what the defendant will argue as to proximate causation
STEP 1: Identify duty
STEP 2: Identify breach
STEP 3: Identify causation
STEP 4: Identify proximate cause
STEP 5: Identify any intervening or superseding causes
«Intentional Torts
–        Battery
–        Assault
–        IIED
–        Trespass
1. Act requirement—whether the defendant “intended the act that produced the injury”
            a. External manifestation
            b. Involvement of the will
2. Intent requirement—whether the defendant “intended the resulting injury to the decedent.” Polmatier v. Russ.
–        “Intent denotes that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” R 2d §8A
o   Intent is subjective test but, absent defendant’s concession, only way for trier of fact to determine intent is to look at external, objective evidence
Harm—“denotes the existence of loss or detriment in fact of any kind to a person or property.” R 2d §7
Injury—“denotes the invasion of any legally protected interest of another.” R 2d §7
Elements of Battery
To prevail on an intentional tort claim of battery, the plaintiff must prove that
1. the defendant intended to cause either
            (a) a harmful contact; or
            (b) an offensive contact; or
            (c) imminent apprehension of a harmful or offensive contact
2. with another’s person.
3. Defendant acted
4. and harmful or offensive contact resulted (directly or indirectly).
5. [Plaintiff did not consent to the contact and contact was not otherwise privileged.] R 2d §13
A person acts with the intent to produce a consequence if:
(a) the person acts with the purpose of producing that consequence; or
(b) the person acts knowing that the consequence is substantially certain to result. R 2d §1
Overall RuleààAn actor is subject to liability to another for battery if he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and a harmful contact with the person of the other directly or indirectly results. R 2d§13.
In a dual-intent jurisdiction, the plaintiff must prove that the defendant not only intentionally made contact, resulting in a harmful or offensive contact, but that the defendant intended the contact to be harmful or offensive. White v. Muniz.
Intentàà“Intent denotes that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” R 2d §8A. Intent can be satisfied even if the defendant did not intend the harm the plaintiff actually suffered. Waters v. Blackshear. The intent element of a battery requires not a specific desire to cause a certain result, but rather a general intent to unlawfully invade another’s well being through a contact. Nelson v. Carroll. As long as a contact was intended, an insane person can still commit a battery. Polmatier v. Russ. Personal characteristics are irrelevant in determining whether the defendant intended to cause the harmful or offensive contact. Polmatier v. Russ.
ContactààA battery may occur through a defendant’s direct or indirect contact with the plaintiff. Nelson v. Carroll. Purely accidental contact does not give rise to liability for battery. Nelson v. Carroll. Contact between plaintiff’s body and an object put in motion by the defendant is sufficient to prove battery. Nelson v. Carroll.
OffensivenessààA contact, which is offensive to a reasonable sense of personal dignity, is considered an offensive contact. Leichtman v. WLW Jacor Communications, Inc. Intent to contact with particulate matter, such as tobacco smoke, can be an offensive contact. Leichtman v. WLW Jacor Communications. Offensiveness is based off of the surrounding environment or community. Andrews v. Peters.
Bodily HarmààBodily harm is any physical impairment of the condition of another’s body, or physical pain or illness. R 2d§16.
Extent of Liabilityàà If the intent requirement is met, liability extends to unintended and unforeseeable consequences of the intended act. Nelson v. Carroll.
PUBLIC POLICY – With two innocent people, the one who caused the loss should be held liable. Polmatier v. Russ.
Intent—subjective test; focuses on what the defendant knew or desired

actor is faced with a battery or assault that does not involve serious bodily harm, he or she is entitled only to use moderate or reasonable force. Slayton v. McDonald. Young v. Warren. Self-defense does not negate intent. Hall v. McBryde.
Serious Bodily HarmààA bodily harm which is so grave or serious that it is regarded as differing in kind, and not merely in degree, from other bodily harm, is considered serious bodily harm. A harm which creates a substantial risk of fatal consequences is a “serious bodily harm.” . . . The permanent or protracted loss of the function of any important member or organ is also a “serious bodily harm.” R 2d §63 cmt b
Defense of Family MemberààAn assault on a third party in defense of a family member is privileged only if the defendant had a well-grounded belief that an assault was about to take place by another on the family member. Young v. Warren.
Consentàà An actor who consents to an invasion of an interest does not thereby consent to all possible harmful contact. The scope of consent is established by the game. McQuiggan v. Boy Scouts of America. Consent, as well as withdrawal of consent, can be expressed or implied. McQuiggan v. Boy Scouts of America. Silence can be consent, depending on the situation’s circumstances. McQuiggan v. Boy Scouts of America. When a person voluntarily participates in an altercation, he may not recover for the injuries he incurs, unless force in excess of that necessary is used and its use is not reasonably anticipated. The use of unnecessary and unanticipated force vitiates the consent. It is irrelevant who makes first contact in an altercation with mutual assent because there is no aggressor with consent. Richard v. Mangion.
A defendant would be barred from relying on plaintiff’s consent to avoid liability for battery (1) where the plaintiff was mistaken about the nature and quality of the invasion intended or (2) where the defendant concealed an important fact that would have affected the plaintiff’s decision to consent. Hogan v. Tavzel.
Defense of PropertyààForce in defense of property must be reasonable and non-deadly. R 2d §77. If possible, an intruder must be removed without the use of force. However, one can use deadly force if there is a reasonable belief that the intruder is likely to cause death or serious injury if the intruder is not removed from the property. Woodard v. Turnipseed.
Unlike/like Hogan v. Tavzel, where the court held that the plaintiff did not consent because the defendant concealed an important fact that would have affected the plaintiff’s decision to consent, here . . .