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Torts
West Virginia University School of Law
Weishart, Joshua E.

 
TORTS
WEISHART
FALL 2015


Intentional Torts
1.    List of intentional torts
A.    Battery
B.     Assault
C.    Intentional Infliction of Emotional Distress
D.    Trespass
2.    act requirement
A.    An intentional tort requires an act –whether the defendant “intended the act that produced the injury”
i.            External manifestation
ii.            Involvement of the will
3.    Intent requirement
A.    Whether the defendant “intended the resulting injury to the decedent.” Polmatier v. Russ
i.            “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.” R2 § 8A 
1.      Intent is a subjective test but, absent ∆’s concession, only way for trier of fact to determine intent is to look at external, objective evidence.
B.     Definition of harm – “denotes the existence of loss of detriment in fact of any kind to a person or property” R2 § 7
C.    Definition of injury – “denotes the invasion of any legally protected interest of another.” R2 § 7
4.    Battery
A.    Elements of battery: R2 § 13
i.            To prevail on an intentional tort claim of battery, the π must prove that,
1.      The ∆ 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.      [π did not consent to the contact and the contact was not otherwise privileged] B.     A person acts with intent to produce a consequence if:
i.            The person acts with the purpose of producing that consequence; or
ii.            The person acts knowingly that the consequence is substantially certain to result (R2 § 1)
C.    OVERALL RULE: An 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. R2 § 13
D.    In a dual intent jurisdiction, the π must prove that the ∆ not only intentionally made contact, resulting in a harmful or offensive contact, but that the ∆ intended his contact to be harmful or offensive. White v. Muniz
E.     Intent Element of Battery
i.            “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.” R2 § 8A
ii.            Intent can be satisfied even if the ∆ did not intend the harm π actually suffered Waters. V. Blackshear
iii.            The intent element of battery requires not a specific desire to cause a specific result, but rather a general intent to unlawfully invade another’s well being through a contact. Nelson v. Carroll
iv.            As long as a contact was intended, an insane person can commit a battery Polmatier v. Russ
v.            Personal characteristics are irrelevant in determining whether the ∆ intended to cause the harmful or offensive contact. Id.
F.      Contact Element of Battery
i.            A battery may occur through a ∆s direct or indirect contact with the π Nelson v. Carroll
ii.            Purely accidental contact does not give rise to liability for battery Id.
iii.            Contact between πs body and an object put in motion by the ∆ is sufficient to prove battery Id. 
G.    Offensiveness Element of Battery
i.            Offensiveness has been defined as “disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness.” Leichtman v. WLW Jacor Communications, Inc.
ii.            A contact, which is offensive to a reasonable sense of personal dignity, is considered an offensive contact. Id. 
iii.            Intent to contact with particulate matter, such as tobacco smoke, can be an offensive contact. Id.
iv.            Offensiveness is based off of the surrounding environment or community. Andrews v. Peters
H.    Bodily Harm à bodily harm is the physical impairment of the condition of another’s body, or physical pain or illness R2 § 16
I.       Extent of Liability à If the intent requirement is met, liability extends to unintended and unforeseeable consequences of the intended act. Nelson v. Carroll
J.      Public Policy à With two innocent people, the one who caused the loss should be held liable Polmatier v. Russ
K.    Battery Tests:
i.            Intent à subjective test; focuses on what the ∆ knew or desired
ii.            Offensiveness à objective test; focuses on general consensus rather than on what the individual ∆ desired or knew
iii.            Harmful contact à objective test
L.     Damages
i.            A plaintiff cannot recover compensatory damages unless there is existence of actual harm, physical or mental Taylor v. Barwick
ii.            A tortious claim may be allowed to proceed despite the absence of damages in order to allow for dispute resolution with civility Id.
5.    Assault
A.    RULE: “An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contract with the person of the other or a third person, or an imminent apprehension of such a contact and (b) the other is thereby put in such imminent apprehension.” R2 § 21
i.            Assault is a

because there is no aggressor with consent. Richard v. Mangion
vi.            A ∆ would be barred from relying on a π’s consent to avoid liability for battery: (1) where the π was mistaken about the nature and quality of the invasion intended or (2) where the ∆ concealed an important fact that would have affected the π’s decision to consent. Hogan v. Tavzel
vii.            “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…”
viii.            “Unlike/like Richard v. Mangion, where the court held that because the plaintiff voluntarily participated in the altercation he was barred from recovering damages for his injuries, here…”
B.     Defense of person (self and family)
i.            Self defense à the actor must act proportionately to (1) the interest the actor is protecting and (2) the injury or harm threatened to that interest. R2 § 63
1.      Deadly force may be used where another intends bodily contact or other harm and the actor reasonably believes contact may cause serious bodily harm or ravishment or death. R2 § 65
2.      One may use deadly force only to prevent serious bodily harm. When an actor is faced with battery or assault that does not involve serious bodily harm, he or she is only entitled to use moderate or reasonable force. Slayton v. McDonald; Young v. Warren
a.       “Unlike/like Woodard v. Turnipseed, where the court found that Turnipseed used unreasonable force to remove Woodard, here…”
3.      Serious bodily harm à A 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 seriously 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. R2 § 63 cmt B
4.      Self defense does not negate intent. Hall v. McBryde
ii.            Defense of a family member à an 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