Torts
Course Outline
INTENTIONAL TORTS
I. Battery
a. Elements
i. Action
ii. Intent
1. Adult
a. An act not done with intent does not make actor liable for mere offensive contact, even if the act involves an unreasonable risk of inflicting it, and would be negligent or reckless
b. Can be done either with:
i. Purpose, by actor, of causing harmful contact; or,
ii. Knowledge, by the actor, that harmful contact (or offensive contact) is substantially certain to result from his action
1. Substantially certain means more than a grave risk (negligence) but less than absolute certainty – does not require that you know the exact injury that will result (Garratt)
2. Hypo: 2 boys typically “horse around” in class – one kicks other on shin – kick is a light tap that would typically not cause any harm; however, the kick aggravates an infection that becomes serious – actor may have not known with substantial certainty that his kick would cause harm but he must know that it is offensive
2. Minor
a. Knowledge – in case of a minor, person’s experience, capacity and understanding are relevant (material) (Garratt)
b. Flexibility – court may apply the objective standard of what a similarly situated child of the same age would know
c. Constructive knowledge test
i. You possess knowledge, even if you actually don’t see the action leading to the contact, the courts find that you must have seen
ii. Knowledge that one, using reasonable care or due diligence should have, and therefore is attributed to a person by law
3. Mentally Ill (McGuire)
a. Requires
i. Person is capable of forming intent; and
ii. Did, in fact, entertain intent
b. Objective standard
i. D’s words – “kill you”
ii. Acts – picking up, holding, striking
ule that is not settled
a. Administrability argument – too difficult to determine the mental state of the mentally ill – objective argument more efficient, consistent results (Easy rules);
b. Social policy – want to encourage someone to change behavior – responsible party (sanction financially);
c. Fairness argument – one who caused injury should pay
iii. Counter 1 – no liability without fault – ability and capacity to form intent
iv. Counter 2 – fault not needed – knowledge is (Garratt)
v. SITS – similar interests /similar injuries treated same – like children
iii. Cause
iv. Injury
1. Harmful or offensive contact
Person of the other (or 3rd person) directly or indirectly
