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Torts
Widener Law Commonwealth
Kearney, Mary Kate

Kearney

Torts 1

Fall 2012

Intentional Torts

I. Battery- intentional contact that is harmful or offensive without consent

A. “An actor is subject to liability to another for battery if:

1. He acts intending to cause a harmful or offensive contact with a person or a 3rd person, or an imminent apprehension of such a contact, &

2. A harmful/offensive contact with the person directly or indirectly results

B. Elements

1. Act

2. Intent

a. Acts with:

i Purpose to cause either harmful or offensive contact (does not need to be intent to cause harm), or

ii Knowledge that h/o contact is substantially certain to be produced by act

Ø Measures for knowledge

§ Objective (based on actions) -words/acts (don’t care about a ‘secret intent’ but care about what you did)

§ Constructive- what reasonable person must know

iii Substantial Certainty (subjective-looking at what you are thinking)

Ø Means more than a grave risk (negligence) but less than absolute certainty- requires more than recklessly

§ Does not require that you know the exact injury that will result (Garrett), just that h/o contact would result

Ø Mere knowledge and appreciation of a risk, something short of substantial certainty, is not intent

iv Intent doesn’t require ill motive, can be something lesser

Ø i.e. “egg shell” (thin shelled) plaintiff-Frail Plaintiff, Defendant didn’t know injury would result but is still liable

Ø hidden injury-ex: one kid had problems w knee; hit kid in knee lightly, not knowing he had injury, and severely hurt him; Kearney hits Isaac in nose(which was healing from being broken)

v Garrett- he knew w/ substantial certainty that she would sit in chair

Ø Did he have intent & knowledge that if he moved the chair she may try to sit

b. Kids

vi kids can have intent (special standard)

Ø Garrett v. Dailey- ct doesn’t care about his actual knowledge, but care about what he must know

vii Age is relevant to knowledge based on: (according to Dailey)

Ø Experience

Ø Capacity

Ø Understanding

§ How do you assess these 3 items later down the road when he is questioned?

§ Comparing objectively w/ what a similarly situated 6 yr old boy must know

c. Adults, mentally ill-

viii can have intent

Ø Measure capability w/ objective standard using words & acts

· Capable of entertaining (forming) intent

¨ Look at words & acts/conduct

¨ If have no words (not able to speak), look at act

· Must have entertained it

§ Social policy: a rule imposing liability tends to make more watchful those who are in charge of them

· Message to brother in law- originally had 2 people taking care of her, now only 1; this is not working and need to change it

§ Counter argument is shouldn’t be held liable if w/o fault

· Fault implies- there is some control or choice; You

§ Where do you draw line?

· Flicking water on George when nodding off and hit him in face- Probably yes

¨ Through mechanism of flicking water, she made contact with George indirectly

· Splash water at George but hit computer- probably yes

¨ Computer is extension of George- something you are touching is an extension of your body

· Follow George out and hit car window while driving away- No

¨ Car is not something that is so connected to his person as to be an extension of him

II. Assault

A. “An actor is subject to liability to another for assault if:

1. He acts intending to cause a harmful or offensive contact with a person or a 3rd person, or an imminent apprehension of such a contact, &

2. Imminent apprehension results

B. Elements

1. Act

2. Intent

a. Transferred intent

xv (Talmage)Threw stick at 2 boys (intending to assault) but hit 3rd who he didn’t see and did not know was there

Ø Wasn’t assault because he had no knowledge of apprehension- couldn’t see him- transferred to battery

Ø Talmage is double transfer

§ Assault to battery (against tort)

§ 2 boys to 3rd boy (against people)