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West Virginia University School of Law
Weishart, Joshua E.



Fall 2015

Chapter 2 – Intentional Torts

: To prevail on an intentional tort claim of battery, the plaintiff must prove that:

The defendant intended to cause either

a harmful contact; or
an offensive contact; or
imminent apprehension of a harmful or offensive contact

With another’s person.
Defendant acted; and
Harmful or offensive contact resulted (directly or indirectly). Liechtman

Policy Argu: What is the policy behind battery? The tort of battery is intended to prevent unwanted touching. Thus touching that one is unaware of, and discovers later, should still be covered in order to avoid an injustice. E and E

Intent (element)

Test for intent is disjunctive: defendant either (1) desired the contact or (2) was substantially certain it would occur. Labadie v. Selmer (Defines intent)

In evaluating intent, we cannot always equate it with motive. Defendant can still intend to make a contact even with good motives.

SINGLE INTENT—-Defendant intended (had the desire or substantially certain) that his or her act would cause a contact or imminent apprehension of a contact.
Rule: DUAL INTENT—- Defendant intended (had the desire or substantially certain) that (1) her act would cause a contact or imminent apprehension of a contact AND (2) Defendant intended (had the desire or substantially certain) that the contact or imminent apprehension of a contact be harmful or offensive. White v. Muniz (Grandma in assisted living slaps the care taker.)

The individual must appreciate the offensiveness of her conduct. White

Intentional conduct cannot be negligent conduct and negligent conduct cannot be intentional conduct. Water’s v. Blackshear
Rule: If intent requirement is met, liability extends to unintended and unforeseeable consequence of the intended act. Nelson v. Carrol
Purely accidental contact does not give rise to liability for battery. (D claims he accidently shot P.) Nelson v. Carrol

Re: If there was intent to make a contact, and the Defendant set in motion a force that will produce a contact, the contact was no accident, no matter the type of contact or harm which resulted.

Generally, there is not a special difference in establishing intent for a minor. However, because intent is a subjective test, (established by objective means) the minor’s particular ability to appreciate the cause and effect is relevant to the intent requirement. Water’s v. Blackshear (7 year old gets burned by a slightly older kid who puts firecracker in his left sneaker)

Re: “the defendant may not have intended to cause the injuries… [nor] understood the seriousness of his conduct and all the harm that might result from it. These facts are not significant… defendant [still] intended an unpermitted contact.”

Act (element)

Two pronged analysis for an Act (1) external manifestation (2) involvement of the will. Polmatier v. Russ (guy goes crazy. Shoots father-in-law. Def. argues his acts were not an external manifestation of his will.) (Page 19. Rest. 2nd Torts §2)

Re: may infer that will was involved from known motivations or from a complex series of movements.
as long as the defendant desired the harmful or offensive contact or knew to a substantial certainty that a harmful or offensive contact would result, and defendant is still able to exercise will, then it does not matter that his thoughts were irrational or the product of delusion.
Policy Argu: Purpose of External Manifestation? To ensure that liability isn’t delegated to those who have thought of intent, but never acted.

Harmful (element)

Rule: An injury causes a harm if the injury actually has a detrimental effect on the plaintiff. Rest. 2nd Torts §7

Injury- denotes the invasion of any legally protected interest of another.
Harm- denotes the existence of loss or detriment in fact of any kind to a person.

Offensive (element)

Contact which is offensive to a reasonable sense of personal dignity is offensive contact. Leichtman v. wlw Jacor Communications. Inc. (guy blows smoke in another man’s face) and Andrews v. Peters (guy knees girl in back of her knee causing her to fall)

Re: In order for a contact to be offensive to a reasonable sense of personal dignity, it must be one which would offend the ordinary person, and as such one not unduly sensitive as to his personal dignity. Rest. 2nd Torts §19

Damages for Intentional Torts

Punitive Damages- may be awarded when the defendant is malicious, or “oppressive, evil, wicked, guilty of wanton or morally culpable conduct, or shows flagrant indifference to the safety of others.”
Compensatory Damages- damages sufficient in amount to indemnify the injured person for the loss suffered.
Nominal Damages- a trifling sum awarded to a plaintiff in an action, where there is no substantial loss or injury to be compensated, but still the law recognizes a technical invasion of his rights. Taylor v. Barwick (inmate is poked with a stick by a prison guard.)

The elements of Intent, harmful, act, and offensive are all the same compared to battery.

the plaintiff must prove that:

The defendant intended to cause either

a harmful contact; or
an offensive contact; or
imminent apprehension of such a contact

of another’s person
Defendant acted.
The other was thereby placed in imminent apprehension.

Brower v. Ackerley

Imminent (element)

Rule: To constitute civil assault, the threat must be of imminent harm. Brower v. Ackerley (harassment via phone calls. Brower tries to get billboards removed. CoA dismissed for lack of imminence.)

The imminence of the contact means that the contact will occur without significant delay.
Apprehension is enough. There is not necessary to be fearful.
Re: Conditional threats can still be assault as long as there is apprehension and that apprehension is imminent.

Apprehension (element)

The apprehension must be one which would normally be aroused in the mind of a reasonable person. Cullison v. Medley (whole family shows up in house of flirt. Father of the daughter has gun in holster. Never draws it, but touches it.)

If a reasonable person finds the apprehension to be not at issue, there still maybe liability if the defendant actually knew of the special sensitivities.

Transfer of Intent Between People and Torts

Transfer of intent between Torts—-(1) if an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact, or of putting anot

the future, will not justify the privilege. Young v. Warren (Father shot daughter’s boyfriend in back after he assaulted her and is leaving the house. Court says there is no immediate risk of harm, thus no immediate need for defense.)
Non-deadly force: “an actor is privileged to use reasonable force (not intended or likely to cause death or serious bodily harm) to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.” Rest 2nd Torts §63

Re: There is no duty to retreat under these circumstances.

Deadly force: “an actor is privileged to defend himself against another by force intended or likely to cause death or serious bodily harm, when he reasonably believes that: (a) the other is about to inflict upon him an intentional contact or other bodily harm, and that (b) he is thereby put in peril of death or serious bodily harm or ravishment, which can safely be prevented only by the immediate use of such force. Rest 2nd Torts §65

Re: There is a duty to retreat, if it is safe to do so (unless attack occurs in home of the self-defender – “the castle doctrine”)
Re: 33 states have stand your ground statutes. Eliminating the duty to retreat, and sometimes meet force with force, even if the force would be deadly. Some of those states also have civil immunity associated with its stand your ground statutes.

Defense of Land and Personal Property

Force in defense of property must be reasonable. Woodward v. Turnipseed (milk farmer hits young worker with a broom stick for not leaving the property. Kid suffers sever damages.) & Rest. 2nd Torts §77

If an intruder can be removed without force, any force used would be unreasonable.

Cannot used deadly force in defense of property. Rest 2nd Torst §77-82
If intruder has some privilege or right to be on the property at the time (e.g., necessity), even reasonable force cannot be used Rest 2nd Torst §77-82
Landowner must first ask intruder to leave unless he reasonably believes “the request will be useless or that substantial harm will be done before [the request] can be made.” Rest 2nd Torst §77-82
Rule: Landowner can assault or arrest intruder to prevent or terminate the intrusion but cannot use unreasonable or excessive force in doing so. Rest 2nd Torst §77-82
Landowner can expel intruder by reasonable force unless the landowner knows that expulsion is likely to cause the intruder serious bodily harm or death unless the intruder intends to do serious bodily harm to the landowner if he is not expelled. Rest 2nd Torst §77-82