I. Intentional Torts

  • Battery
  • Assault
  • False Imprisonment
  • IIED

A. Intent

Intentional Torts require intent:

  • In law, to be at fault is to blameworthy – blameworthy is intent or negligence
  • No liability without fault

§ 8A Intent - The word "intent" is used throughout the Restatement of this Subject to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.

  • Intent - Having purpose or knowledge that an event is substantially certain to result
  • “Substantially certain” is a subjective test from the defendant’s point of view

Transferred Intent – A intends a tort on B but commits it on C OR A intends one tort on A but accomplishes another – there’s still liability

Minors and incompetents are liable for their intentional torts

  • Insane individuals are NOT excused from tort liability
  • Children – In most states, may be liable for torts they commit as long as plaintiff can prove elements, including intent (Garrett v. Dailey)
  • Some states hold young children under 7 are incapable of harmful intent. A few hold children under a certain age as immune from tort liability
  • Parents are not vicariously liable for the torts of their children unless statute authorizes suit
  • Contrasts with employers who are liable for torts of their employees done within scope of employment – Respondeat Superior
  • Statutes imposing liability exist in almost every state, but are limited to (1) children’s willfully or wantonly committed torts AND (2) damages capped at low amount

B. Battery

An Intentional Infliction of a harmful or offensive bodily contact

-The interest in freedom from bodily or offensive harm; of all the Intentional Invasions of Interests in Personality, harmful battery is given the greatest protection

Elements

An actor is subject to liability for battery if he acts:

  • Intending to cause (Purpose/Knowledge)
  • Transferred Intent is applicable here – if you intend to affect a third person but wind up affecting plaintiff, actor is liable as if he intended to affect plaintiff
  • Rule choice between single intent (intent to touch) vs. dual intent (intent to cause harmful/offensive contact via touching)
  • A harmful contact, offensive contact, or imminent apprehension of such contact, and
  • “Intent” here is NOT intent to harm (malice) but an intent to cause harmful/offensive contact
  • If an offensive contact is not done with intent, the actor is NOT liable to the other for a mere offensive contact with other’s person.
  • The act may involve an unreasonable risk of inflicting the offensive contact and therefore would be negligent or reckless if the risk threatened bodily harm
  • Harmful/Offensive contact with person directly/indirectly results
  • Bodily contact is offensive if it offends a reasonable sense of personal dignity
  • ALI has no opinion on whether an actor is liable for inflicting a contact on another which he knows will be offensive to the other’s known but abnormally acute sense of personal dignity
  • Offensive contact must be one which would offend the ordinary person – might be unwarranted by social usages prevalent at the time
  • An indirect result is if defendant sets in motion aforce that brings about the harmful/offensive contact
  • Rationale behind liability for offensive contact is the adage about hitting the French ambassador’s cane – offensive contact may lead to harmful contact

-Different Type of Contact than intended – If you intend to cause a non-harmful (offensive, imminent apprehension) contact and a bodily contact occurs, you’re liable for battery despite the act not being done with intention to bring about bodily harm

-Actual Awareness: P need not have actual awareness of contact at time it occurs (sleeping, unconscious), it’s still a battery

-Breaking points in terms of what is and what is not “bodily” “contact”

  • Hitting a cane one is holding is deemed to be “bodily”
  • Shining a light in one’s eye or blowing smoke in their face is deemed to “contact”

-Exceeding a privilege is possible battery (i.e., using excessive force in self-defense

-You don’t need actual damages, you can recover nominally

§ 13 Battery: Harmful Contact

§ 16 Character of Intent Necessary

§ 18 Battery: Offensive Contact

§ 19 What Constitutes Offensive Contact

Related Cases

Van Camp v. McAfoos

  • Three year old rides tricycle into Van Camp’s leg on the sidewalk
  • McAfoos wins because Van Camp does not allege fault – no liability with fault. Court is not willing to extend concept of liability without fault to childish acts by children
  • Fault – Intentional/Negligent failure to maintain some standard of conduct when the failure results in harm to someone else

Snyder v. Turk – Defines “Intentional”

  • Dr. Turk was frustrated during surgery so he pulls Snyder’s face towards incision
  • Turk committed a battery because although he didn’t intent to cause harm, he intended to cause bodily contact – “reasonable minds test” rules he intended to offend

Cohen v. Smith – Defines “Offensive”

  • During birth, male nurse sees and touches Cohen’s naked body after she told doctor about her religious beliefs
  • Smith committed an offensive contract because it offends a reasonable sense of personal dignity. If D knew of prior sensitivity that P would find certain contact offensive, D is liable

Mullins v. Parkview Hospital

  • Mullins asked that no medical student touch her but VanHoey had no reason to believe the patient had asked for privacy and thus no intent in causing harmful/offensive contact

Intent as purpose or knowledge of certainty that act will occur

Garratt v. Dailey – Knowledge with Substantial certainty

  • Brian Dailey moves lawn chair while Ruth Garratt as about to sit down.
  • Although one may not have intent to commit a battery, one is liable if he can foresee with substantial certainty that injury will result

Rule Choice: Dual vs. Single Intent States

Dual Intent - White v. Muniz

  • Senile Helen White is not liable for battery because she did not appreciate offensiveness of her conduct and thus didn’t have intent to cause harmful contact
  • Dual = Intent to contact + intent to cause harmful/offensive contact + harmful/offensive contact results – MAJORITY RULE

Single Intent – Wagner v. State

  • Mentally Challenged Sam Giese intended to contact Wagner and offensive touching resulted
  • Single = Intentional contact with another that results in harmful/offensive touching

Dichotomy is over intent to cause H/O versus just intent to contact. Single intent states thought dual was unworkable because a guy who goes around kissing women does not intend harmful/offensive contact and wouldn’t be held liable under dual intent

The Role of Policy Arguments

  • Some cases are easy (core cases) and some are hard (fringe cases). In core cases, we use rules to decide; in fringe cases we use policy arguments
  • Example – We ban hitting French Ambassador’s cane because it’s offensive contact which can lead to harmful contact – this is a Policy Argument

Polmatier v. Russ – Insane individuals are liable for intentional torts

  • Russ beat his father-in-law Polmatier over the head then killed him. He’s insane
  • Court held insane people are liable for their intentional torts
  • Policy arguments (Boyle article):
  • Between two innocents, the one who caused the ham should pay (Moral)
  • Liability will encourage relatives to restrain insane family members (Deterrence)
  • Liability prevents people from faking insanity (Judicial Administration)

Plaintiff’s Argument / Boyle’s Label / Defendant’s Argument
Liability encourages relatives to restrain their mentally ill family members / Deterrence / Premature, unnecessary institutional action will be cruel, lead to the mistreatment of the insane relative
We need a rule of liability to avoid fake claims of insanity / Judicial Administration / Courts can tell who is faking, they do it in criminal trials! They also do it in mental competency hearings
As between two innocents, the one who caused the harm should pay / Moral / No liability without fault (McAfoos)

Stoshak

  • Teacher is injured when breaking up a fight. School won’t give him Combat Pay Provision because they say it’s not an assault and battery
  • Doctrine of transferred intent come here – this is a legal fiction provided by the courts to permit a finding of intent where non could otherwise be proven

Baska

  • Ashley breaks up a fight between two boys during a party at her house. She files suit for negligence after one year
  • Here, transferred intent works to her disadvantage because it’s for intentional torts (battery) which have a shorter statute of limitations than negligence – her claim here is barred

-Also, parties may sue under negligence since negligence is covered by insurance whereas intentional torts are not

C. Assault

  • Assault is about the plaintiff’s state of mind. If you’re threatened with an unloaded gun and you don’t know or have reason to know that it’s unloaded, it’s assault
  • There can be assault without battery and battery without assault. Assault claims merge or disappear when battery occurs

Elements:

An actor is subject to liability to another for assault if he acts:

  • Intending to cause (knowledge/purpose)
  • Transferred intent applies
  • H/O contact or imminent apprehension of such contact with the person/third person
  • If action is not done with intent, the actor is NOT liable to the other for an apprehension thereby caused
  • The act may involve an unreasonable risk of causing it and therefore would be negligent or reckless if the risk threatened bodily harm
  • Apprehension = knowledge, expectation
  • The other is thereby put in such imminent apprehension
  • Other must believe the act may result in imminent contact unless prevented by self-defense, flight, or external intervention
  • Determining “imminence” is a jury question
  • "Imminent" does not mean immediate, in the sense of instantaneous contact, as where the other sees the actor's fist about to strike his nose. It means rather that there will be no significant delay.
  • Not necessary that one be within striking distance of the other, or that a weapon pointed at the other shall be in a condition for instant discharge. It is enough that one is so close to striking distance that he can reach the other almost at once, or that he can make the weapon ready for discharge in a very short interval of time.
  • Reasonable – apprehension must be reasonable and not exaggerated (unless D knows of P’s unreasonable fear and uses it against P)

-Conditional Threat – Liability if actor puts another in apprehension and gives an option to escape by obedience, unless the command is one which the actor has a legal right to enforce

  • If a burglar enters D’s house and D says get out or I’ll shoot you, this isn’t assault by D because D has legal right to do so

-Threat by Words alone do not make actor liable for assault. Must be together with acts/other circumstances

  • Words can negate imminence many times – “If you weren’t in my class I’d slap you”

-P must be aware of threatened contact (vs. Battery where you don’t need awareness)

-You don’t need actual damages, you can recover nominally

-D’s apparent ability to act is sufficient – If A points unloaded gun at B and B doesn’t know it’s unloaded, B’s apprehension is reasonable

-No recovery for apprehension that someone else will be touched (a loved one)

§ 21 Assault

§ 24 What Constitutes Apprehension

§ 30 Conditional Threat

§ 31 Threat by Words

Cullison v. Medley

  • Cullison invited Sandy Medley to his home. Later that night, her family comes a calling. Father on crutches had gun strapped to his thigh and mother yelled at him with hand in pocked (he thought she had a gun)
  • There was imminent apprehension of battery – they intended to scare Cullison by surrounding him in his trailer and Cullison was sufficiently scared

D. False Imprisonment

  • Battery protects your space, assault protects your state of mind, False Imprisonment protects your freedom of movement

Elements

Ac actor is subject to liability to another for false imprisonment if he acts:

  • Intending to confine the other or a third person within boundaries fixed by the actor, AND
  • An act which is not done with the intent does not make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm.
  • His act directly/indirectly results in such confinement, AND
  • Confinement within boundaries must be complete
  • They can be complete even if there’s a means of escape unless P knows about it
  • If P knows about it and means of escape would offend a reasonable sense of personal dignity or is harmful then it’s false imprisonment
  • Not liable by intentionally preventing another from going in a particular direction in which he has a right to go
  • Area of confinement may be large and doesn’t have to be stationary. If it’s so large that it ceases to be a confinement is a jury question
  • Confinement can be by physical barrier, force, threats of physical force, other duress, threat of invoking legal authority
  • The other is conscious of confinement or is harmed by it
  • Exception is where a confined person is actually injured by confinement – i.e. a baby locked in bank vault IS falsely imprisoned whereas a sleeping person locked in a room learning later that the room was locked is NOT falsely imprisoned

-Time of Confinement is NOT applicable, except as to extent of damages

-Damages can be recovered without actual harm

  • Actual harm is only required to support the exception where plaintiff was not aware of confinement at time it took place

§ 35 False Imprisonment

§ 36 What Constitutes Confinement

McCann v. Wal-Mart

  • McCann family was stopped by two Wal-Mart employees who falsely accused them of stealing. Family was told police were being called when they were not and told to wait in area near exit until allowed to leave an hour later
  • Wal-Mart liable because they intended to confine family against their will, asserted legal authority, family was aware of the situation

Hardy v. LaBelle’s

  • Employee is accused of shoplifting, voluntarily goes to manager’s office
  • No false imprisonment if the plaintiff voluntarily complied with the request to remain in the manager’s office. She did not ask to leave and wanted to remedy the situation. She was not told she couldn’t leave and no threat of force compelled her to stay
  • There’s an implicit default rule here that for False Imprisonment, plaintiff consents to confinement if they do not object to it
  • A lawyer could argue against this and say that asking is more likely to be done by men than women and is thus discriminatory

E. Intentional Infliction of Mental Distress

  • First stand alone mental tort. As opposed to suing for a base tort and claiming emotional damages, which would be parasitic damages

Elements

  • Defendant acts intentionally or recklessly
  • Defendant’s conduct must be extreme and outrageous
  • “Extreme or outrageous” is defined as exceeding all bounds of decency tolerated in civilized society
  • More likely to be outrageous or extreme if:
  • Abuse of power or authority (relationships between parties)
  • Conduct is repetitive
  • Defendant knew of P’s vulnerability
  • D continued conduct after protest
  • Actions must cause plaintiff to be severely distressed
  • Severe emotional harm is measured by intensity and duration
  • Minority of courts hold that distress must be severe enough to cause physical manifestations
  • Usually has to be severe enough that P sought medical attention

Limited Transferred Intent – For a third person, D is liable if he intentionally/recklessly causes severe emotional distress

  • To a member of such person’s immediate family present at the time, regardless of whether or not such distress results in bodily harm, or
  • Exception to family being present is in the case of child abuse
  • To any other person present at the time, if distress results in bodily harm
  • Otherwise, all witnesses could sue
  • In both of these, D must know P was present because it’s intentional

-Actual damages are required – nominal will not suffice

§ 46 Outrageous Conduct Causing Severe Emotional Distress

Related Cases

GTE v. Bruce

  • Bruce and two other employees were verbally degraded by a boss who did harassed reputedly
  • Court held that P established that D engaged in extreme and outrageous conduct due to severity, regularity, and his abuse of power
  • Court uses inductive reasoning to unite the incidents of harassment to get a theme or pattern
  • Vicarious liability:
  • Respondeat Superior – A boss is responsible for his employees wrongdoings
  • Worker’s Compensation – you can’t sue your boss if you’re collecting workers compensation
  • Court said employees weren’t entitled to worker’s comp here

Homer v. Long

  • Homer’s wife of many years is hospitalized for depression. While in hospital, Dr. Long seduced her and allegedly took advantage of her, resulting in Homer’s divorce
  • Defendant wins even though his conduct was extreme and outrageous because it was not directed at Homer. You must be a witness to the harm to seek recovery
  • Unless it’s child molestation

Jones v. Clinton

  • Governor Clinton propositioned Jones, she alleges IIED
  • Summary Judgment for Clinton – no severe emotional distress

II. Affirmative Defenses to Intentional Torts

  • In affirmative defenses, Defendant has the burden of proof

A. Self-Defense and Defense of Property

Elements

  • An actor is privileged to use reasonable force, not intended or likely to cause death/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
  • Reasonable belief – it’s apparent necessity of self-defense (not actual necessity)
  • Retaliation not allowed – You have to act when battery is imminent
  • Defense must be limited to a reasonable response
  • No duty to retreat – Majority rule
  • Restatement says you can use non-deadly force before retreating
  • You must attempt retreat before deadly force is used

UNLESS you’re in your own home (Castle doctrine)

  • May only use force that appears to be reasonably necessary to prevent harm – You can use deadly force if you’re threatened with deadly force
  • Initial aggressor may NOT use self-defense doctrine to defend himself against the other party’s self-defense
  • This changes if victim becomes aggressor (responds with deadly force in the face of non-deadly force)
  • Defense of Third Person – In general, one may defend others on the same bases that he can defend himself

§ 63 Self-Defense by Force Not Threatening Death or Serious Bodily Harm