Torts

Intent

Restatement (Third) of Torts - §1:

A person acts with the intent to produce a consequence if:

(a) The person acts with the purpose of producing that consequence; or

(b) The person acts knowing that the consequence is substantially certain to result.

Liability of Parents

At common law, parents are not vicariously held liable for the torts of their children.

Parents may be held liable, however, if the plaintiff can show some fault on the part of the parents through, for example, negligence in supervising the child.

Some states have enacted statutes that make parents liable for their child’s malicious torts.

Nominal Damages

For most intentional torts, the court will award nominal damages even if no actual damages were proved.

“Assault and Battery”

Assault and battery are separate torts.

“Assault” is a tortious threat.

“Battery” is a tortious contact.

Single v. Dual Intent

“Single Intent” = Plaintiff must prove that the defendant intended to touch the plaintiff, resulting in offense or harm.

“Dual Intent” = plaintiff must prove both that defendant intended to cause a bodily contact and to offend or harm the plaintiff.

A majority of courts require only single intent in battery cases.

A minority of courts require dual intent in battery cases.

General Rule for Liability of Mentally Disabled Person for Torts Committed by Them

Restatement (Second) of Torts - §895J (1979):

Mentally disabled persons may be held responsible for their intentional torts as long as plaintiff can prove they formed the requisite intent

Exceptions to the General Rule for Liability of Mentally Disabled Person for Torts Committed by Them

Several jurisdictions have carved out a narrow exception to this general rule (see above), holding that an institutionalized mentally disabled patient who cannot control or appreciate the consequences of his conduct cannot be held liable for injuries caused to those employed to care for the patient.

Transferred Intent Between Torts

Restatement (Third) of Torts - §33:

When the defendant intends any one of the 5 torts within the trespass writ (battery, assault, false imprisonment, trespass to land, and trespass to chattels), and accomplishes any one of the five, the doctrine applies and the defendant is liable, even if the plaintiff was not the intended target.

Mistake of Identity: The General Rule

Restatement (Third) of Torts - §11:

Generally, mistake as to identity does not negate intent, and thus defendant is liable.

In most circumstances, courts view this as a question involving the extent of the transferred intent doctrine.

Definition for a “Tort”

A tort is a civil wrong or injury not arising out of a contract.

Torts v. Contracts

1. A contract is an obligation, meaning that people enter it voluntarily/autonomously. 

2. Torts don’t have obligations, they have duties. Those duties are imposed on us. 

   1. E.g. We do not decide to drive carefully while on the highway. We have a duty imposed on us by the government.

Major ways to Understand Tort Law (Why does it exist)?

1. Deterrence: We try to keep torts from happening. 

   1. Via the threat of liability; or 

   2. The failure to recover damages. 

2. Individualized Justice (or wrongs-based ideas)

   1. What really matters is between the plaintiff and the defendant. 

3. Compensation

   1. Old fashioned thinking: 

      1. Loss Spreading

      2. Tort Law as Insurance - Lost Wages, Medical Bills, etc. 

   2. Modern Majority: 

      1. Think of it as a matter of deterrence or a matter of individualized justice - or both.

Major Types of Torts:

1. Intentional Torts = Bad deeds done on purpose.

   1. I.e. Battery, Assault, False Imprisonment, and Intentional infliction of emotional distress. 

   2. Intentional Torts to Property: Trespass to Land, Trespass to Chattels, and Conversion. 

   3. Defenses to Intentional Torts: Consent, and Self-Defense. 

2. Negligence = …

   1. Probably around 85% of tort law is some form of negligence. 

      1. Will spend most of our time on these cases b/c they’re the most complicated. 

   2. Will focus on: Duty → Breach (what does it mean to breach a duty?) → Causation (Did breach lead to the damage? → Cause in fact and proximate cause).

3. Strict Liability = do not require fault at all; strictly looking at causation (i.e. did A lead to harm of B?)

   1. Least amount of “badness” in Tort Law. 

      1. Strict Liability re: Animals: Trespassing Animals, Wild Animals, and Domestic Animals.

      2. Strict Liability re: Abnormally Dangerous Activities: 

4. Vicarious Liability 

   1. When are you responsible for the torts of someone else? 

   2. E.g. Employer’s Liability.

ELEMENTS for Battery:

Intentional;

Infliction of bodily contact upon another;

That was harmful.

Definition of Battery (NOT Professor R’s preferred definition)

Defined in the casebook as “the intentional infliction of bodily contact upon another that was harmful.”

What does the Restatement say about intent for intentional torts?

1. The Restatement provides that not only is purpose a way to prove intent for intentional torts, but also substantial certainty is a way to prove intent for intentional torts. 

   1. Purpose = want the contact to happen.

   2. Substantial Certainty = Know to a near certainty that the contact will happen.

Is Intent subjective or objective?

Intent is subjective, not objective.

Intent can be proved by either:

1. purpose (the goal) or

2. substantial certainty (knowledge to a near certainty)

What is Sovereign Immunity?

The U.S. was immune, the federal gov’t was immune and the states were immune and for a long time you could not sue the states or the federal government in tort.

Was eventually superseded by the Federal Tort Claims Act - 1946

What is the Federal Tort Claims Act - 1946

1. The United States government waived its sovereign immunity - with exceptions. 

2. Many states followed, with one the common exception being for battery.

How to Prove Intent for a Dual Intent Jurisdiction (i.e. prove intent for both the contact and the harm): 

1. Did the defendant have the purpose (goal) to contact the plaintiff?

2. Did the defendant have substantial certainty (knowledge to a near certainty) to contact the plaintiff?

3. Did the defendant have purpose for the harm or offense? 

4. Did the defendant have substantial certainty for the harm or offense?

What does transferred intent apply to?

Transferred intent allows us to transfer intent from person to person and between torts, as long as those torts were within the old writ of trespass.

How, if at all, does Mistaken Identity apply to Intent?

A mistake as to the identity of the animal or person does not negate intent. The defendant is still liable.

What Role does Mental Illness Play Regarding Intent?

1. We treat people who have mental illness the same as we treat people who do not have mental illness. 

2. As long as intent can be proven, the person is liable.

Rule for “Reckless” Conduct

Restatement (Third) of Torts - §2

A person is said to be engaging in “reckless” conduct if:

(a) the person knows of the risk of harm created by the conduct or knows facts that make that risk obvious to another in the person’s situation, and

(b) the precaution that would eliminate or reduce that risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk.

Meaning of “Gross Negligence”

“Gross Negligence” simply means negligence that is especially bad.

Gross Negligence carries a meaning that is less than recklessness.

Meaning of “Willful Misconduct”

“Willful Misconduct” sometimes refers to conduct involving an intent to cause harm.

Meaning of “Wanton Misconduct”

“Wanton Misconduct” is commonly understood to mean recklessness.

Meaning of “Reckless Disregard for Risk” or “Reckless Indifference to Risk”

To state that a person displays a reckless disregard for risk is equivalent to stating that the person’s conduct is reckless.

Rule for Battery (General Definition)

Restatement (Third) of Torts - §1

An actor is subject to liability to another for battery if:

(a) the actor intends to cause a contact with the person of the other … or the actor’s intent is insufficient under §11 (transferred intent);

(b) the actor’s affirmative conduct causes such a contact; and

(c) the contact (i) causes bodily harm to the other or (ii) is offensive, as provided in §3.

Rule for Battery (Definition of Offensive Contact)

Restatement (Third) of Torts - §3

A contact is offensive within the meaning of §1(c)(ii) if:

(a) the contact is offensive to a reasonable sense of personal dignity; or

(b) although the contact is not offensive to a reasonable sense of personal dignity, the actor knows that the contact is highly offensive to the other’s sense of personal dignity, and the actor contacts the other with the primary purpose that the contact will be highly offensive.'

Liability under subsection (b) shall not be imposed if the court determines that imposing liability would violate public policy.

Battery: Single v. Dual Intent

Section 2 of the Restatement expressly adopts a single-intent rule for battery — in other words, the plaintiff need only establish that the defendant intended the contact, not the resulting harm.

This represents the majority, although not unanimous, approach.

Unforeseeable Harm

When defendant intentionally contacts a plaintiff and the resulting injuries are more extensive than a reasonable person might have anticipated, the defendant will still often be liable for those injuries.

What is the “eggshell skull rule”?

The defendant is required to take the plaintiff as he finds him.

Hypo: Can the plaintiff make the defendant liable for contact that would not be offensive to a reasonable person, such as a tap on the shoulder to attract attention, by specifically forbidding that conduct?

The Third Restatement says no, even if the contact in fact causes physical harm.

Exceptions to “Reasonable Sense of Personal Dignity” Standard

Section 3(b) created an exception to the “reasonable sense of personal dignity” standard if the defendant’s purpose is to offend the plaintiff.

Rule for Personal Infliction of Bodily Harm

Restatement (Third) of Torts - §4

An actor is subject to liability to another for purposeful infliction of bodily harm if the actor purposely causes bodily harm to the other, either by the actor’s affirmative conduct or by the actor’s failure to prevent bodily harm when the actor has a duty to prevent such harm.

What is Professor R.’s Definition of Assault?

• Intentional Act;

• To cause a harmful or offensive contact with another or imminent apprehension of such contact;

• The other [person] experiences such imminent apprehension.

Is Assault a Single or Dual Intent Tort?

Assault is a dual intent tort.

What is Professor R.’s Definition of Battery?

• Intentional;

• Touching;

• That is harmful or offensive.

What Constitutes a Touching for the Purposes of Battery?

If an item is “intimately connected with” the plaintiff’s body, and the defendant touches it, it constitutes touching for purposes of battery.

1. See Fisher v. Carousel Motor Hotel

Touching can include touching a plate, book, or cane that someone is holding/using, a hat or lapels on a jacket that someone is wearing, spitting or blowing smoke in someone’s face can all constitute touching.