Intentional Harms to Persons

What are the four established intentional torts involving personal injury?

• battery, 

• assault, 

• intentional infliction of emotional harm (distress), and 

• false imprisonment.

What intentional tort is underneath a different mental state as an or to intentional conduct?

also allows recklessness

What does a prima facie case for any intentional tort include:

• Act

• w/intent

• To cause

• [insert specifics of tort]

What are the 3 basic elements of a battery claim that need to be fulfilled in order to subject the defendant to liability?

i) They intend to cause a contact with the plaintiff's person;

ii) Their affirmative conduct causes such a contact; and

iii) The contact causes bodily harm or is offensive to the plaintiff.

Can the intent element in an intentional tort be satisfied through the application of another doctrine, what is it?

Yes transferred intent

When can a plaintiff be barred from recovery in battery?

If the plaintiff consents either to the contact that is harmful or offensive or to the conduct by which the actor intends to cause such a contact.

As far as consent goes who must carry the burden of proff for it?

The plaintiff must prove lack of actual consent

What is the rule around acting intentionally?

To act intentionally, a defendant must act with either:

• (i) the purpose of bringing about the consequences of that act, or 

• (ii) the knowledge that the consequences are substantially certain to occur.

What is the majority rule around intent?

Single intent: requires defendant to intend to cause a contact that is harmful or offensive the defendant need not intend the result

What is the minority rule around intent?

Dual Intent: a defendant not only to intend to bring about a contact, and intend that the contact be harmful or offensive

What is an example of a single intent case?

Garratt v. Dailey (1955)

In a case involving a five-year-old who moved a chair as an adult was sitting down, the court ruled that intent can be inferred if the child knew with "substantial certainty" that the contact (the fall) would occur, even if there was no "purpose" to injure.

Can an insane person be held liable for a tort even if motive for an act is irrational or crazy?

Yes, per Polmaiter v. Russ a volitional act if it is an exertion of the actor’s will doesn’t have to be a logical will.

What’s the policy reason for holding an insane person liable for a tortious act?

When one of two individuals must bear a loss resulting from an act, justice dictates that the burden fall on the person who caused the loss, rather than the one who did not produce it or could have avoided it.

What is the rule around transferred intent?

Transferred intent exists when a defendant intends to commit a battery, assault, or false imprisonment against one person but instead commits the intended tort against a different person. 

When does transferred intent not apply?

• Transferred intent does not apply to transfer intent from an intentional tort based on personal injury (e.g., battery, assault) to an intentional tort based on harm to property (e.g., trespass to land). 

• It also generally does not apply to intentional infliction of emotional distress, but may under limited circumstances.

What is an example of a case that court applies dual intent to?

White vs. Muniz (2000) 

• The court applied a dual intent standard, requiring that the defendant (an Alzheimer's patient) appreciate the offensiveness of her contact to be held liable for battery.

• Dual: woman not only to intend to bring about a contact (through her hitting of the nurse), BUT she did not have the additional element need 2. and she did not have the mental state to intend (aka appreciate the offensiveness of her contact) that the contact be harmful or offensive

What is harmful contact?

Contact is harmful when it causes physical injury, illness, disease, impairment of bodily function, or death.

What is offensive contact?

Contact is offensive when a person of ordinary sensibilities (i.e., a reasonable person) would find the contact offensive (objective test). In addition, contact is offensive when the defendant knows that the contact is highly offensive to the plaintiff's sense of personal dignity, and the defendant contacts the plaintiff with the primary purpose that the contact will be highly offensive, unless the court determines that imposing liability would violate public policy.

What is the rule for indirect contact?

The harmful or offensive contact need not be with the defendant himself

What is a case that illustrates the rule for indirect contact:

Reynolds v. MacFarlane (2014): Snatched ten-dollar bill from a plaintiff's hand was found to be sufficient contact with the person to support a battery claim. 

What are some cases to illustrate offensive conduct:

Balas v. Huntington Ingalls Industries, Inc. (2013): Offensive A "swooping" hug from a supervisor was found not to be objectively offensive given the context (the plaintiff had just given the supervisor a gift).

• Fuerschbach v. Southwest Airlines Co.: Offensive (2006): A jury could find that handcuffing an employee as part of a "prank" was an offensive contact, even if no physical injury was intended.

What is the rule for liability in general?

 Plaintiff is entitled to monetary damages, emotional distress, and maybe punitive damages (depending on def’s conduct)

What is the rule for extended liability?

A defendant is liable for unforeseen consequences. Under the “eggshell-plaintiff” rule, the defendant is not required to foresee the extent of damages to be subject to liability for all damages.

What is case gives us an example of the egg-shell plaintiff/extended liability rule?

Vosburg v. Putney (1893): light touching of plaintiff’s leg whereby plaintiff loses use of leg due to preexisting medical condition constitutes a battery wherein plaintiff is entitled to full damages.

What are the basic elements of an assault claim?

i)The defendant intends to cause the plaintiff to anticipate an imminent, and harmful or offensive, contact with the plaintiff’s person; and

ii) The defendant’s affirmative conduct causes the plaintiff to anticipate such contact with the plaintiff’s person.

What does it mean to act with the intent to cause an imminent apprehension of a harmful or offensive contact (assault)?

It is sometimes said that “mere words alone do not constitute an assault.” However, words coupled with other acts or circumstances may be sufficient if the plaintiff reasonably anticipates that a harmful or offensive contact is imminent.

What are cases that illustrate what it means to act with intent when it comes to assault?

• Cullison v. Medley (1991): Case where a family surrounded a man in his trailer after inviting a girl for a coke at the grocery store earlier that day. Court believed that words and actions could be enough for a jury to “conclude that Medley’s intended to frighten Cullison by surrounding him in his trailer and threatening him with bodily harm while one of them was armed with a revolver, even if that revolver was not removed from its holster.”

  • showcases how must need combo of words and actions to suggest such intent to cause imminent apprehension of harmful/offensive contact

• Brower v. Ackerly (1997): Brower, a man active in civic affairs, thought some billboards to be a visual plight. After civically engaging the city pursued action against the Ackerley’s who ran a business around creating billboard ads. Brower received calls for 20 months from Ackerly saying things like “I’m gonna find out where you live and kick your X.” The court reasoned “words threatened action in the near future, but not the imminent future… because the threats, however frightening were not accompanied by circumstances indicating that the caller was in a position to reach Brower and inflict physical violence”

  • Shows that words alone aren’t enough to support an intent to cause imminent apprehension of harmful/offensive contact

What is the rule for conditional threats

Courts have concluded that the fact an individual can avoid a battery by complying w/def’s threat does not prevent the threatened contact from being imminent bc if the plaintiff doesn’t comply w/demand battery may still be imminent.

What are some things to remember about apprehension when it comes to assault?

• Apprehension has been developed broadly enough to include perception or anticipation that contact is imminent.

• “Apprehension must be one which would normally be aroused in the mind of a reasonable person” an objective standard -Per Cullison v. Medley (1991)

• Extended liability applies here too. 

• The plaintiff being able to, or actually, preventing the harmful or offensive contact does not impact the defendant’s liability for assault.

What are the 3 basic elements of a false imprisonment claim?

i) The defendant intends to confine the plaintiff within a limited area;

ii) The defendant's conduct causes the plaintiff's confinement or the defendant fails to release the plaintiff from a confinement despite owing a duty to do so; and

iii) The plaintiff is conscious of the confinement

What are the different forms in which confinement can be accomplished?

• (1) actual apparent physical barriers

• (2) overpowering physical force or by submission to physical force

• (3)  threats of physical force

• (4)asserting legal authority

• (5) other duress.

When it comes to false imprisonment what do a minority of jurisdictions do with a plaintiff who was not conscious of the confinement?

May still recover if the plaintiff was harmed by the confinement.

Is the length of confinement relevant for false imprisonment?

The length of time of the confinement or restraint is immaterial, except as to the determination of the extent of damages.

What’s a case that showcases what false imprisonment looks like?

Dupler v. Seubert (1975): Dupler was brought into her boss’s office before EOD to choose between resigning or being fired. After refusing to resign she was told in a harsh voice to sit down, two on one, another boss stood in front of the door, escorted to the bathroom, told to tell her husband she would be there longer and if didn’t return police would be called. Case showcases all forms in which confinement can be accomplished.

Can in other employee cases regarding false imprisonment the implied/express threat of loss of a job be considered other duress to support such a charge?

No! In Dupler she had other elements that showcased that it was a false imprisonment case.

What are the 3 basic elements for intentional infliction of emotional distress

1. There has been intentional or reckless conduct;

2. The conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community; and

3. The conduct caused emotional distress so severe that no reasonable person should be expected to endure it.

When it comes to extreme and outrageous conduct for an IIED what does liability not extend to?

mere insults, threats, or indignities, a defendant’s abusive language and conduct may be sufficiently “extreme and outrageous” if either:

i)The defendant is in a position of authority or influence over the plaintiff, such as a police officer, employer, or school official, or traditionally an innkeeper or an employee of a common carrier; or

ii)The plaintiff is a member of a group with a known heightened sensitivity (e.g., young children, pregnant women, or elderly persons).

What are cases that illustrate the gray area of a court finding extreme and outrageous conduct?

Brodeur v. Claremont School Dist. (2009)

• High school biology teacher verbally disrespectfully commented on a girl’s buttock

• Court viewed this more of mere insults or indignities, despite teacher being the one to throw these things out

 Costello v. Mitchell Public School Dist. 79 (2001)

• The teacher called a kid in need of special education retarded in class

• The teacher’s words and conduct did not rise to the level of extreme and outrageous

McDaniel v. Gile (1991)

• The attorney made sexually suggestive remarks and inappropriate sexual requests to his client, and abandoned her case after she refused to comply.

• In determining whether the conduct meets the extreme and outrageous element, all of the facts and circumstances of the particular case must be considered.

• Court noted that this could be a triable issue if extreme and outrageous conduct by jury

What did the Kaztsky v. King David Memorial Park case show about the severe emotional distress portion of IIED?

At the very least, existence of the alleged emotional distress must be supported by competent medical evidence.

(case about the parents who were beefing with cemetary over kids grave site markers)

What is the rule around third-party distress related to IIED?

A defendant who causes harm to an individual may be liable when his intentional or reckless conduct also (1) causes severe emotional distress (2) to a close family member of the individual (3) who contemporaneously perceives the defendant’s extreme and outrageous conduct. 

What are the four different defenses or privileges?

• consent

• self-defense

• defense of others

• shopkeepers privlege

What is the rule for a defendant to use the defense of consent and not be held liable for otherwise intentional tortious conduct?

Consent is legally effective if it satisfies the requirements for:

i) Actual consent;

ii) Apparent consent; or

iii) Presumed Consent; or

iv) The emergency doctrine —we won’t really cover this on test

What is the rule for defendant to use the defense of consent falling under actual consent?

The plaintiff expressly consents to the defendant’s otherwise tortious intentional conduct if the plaintiff is willing for that conduct to occur. Such willingness may be expressed or inferred from the facts.

What is the rule for defendant to use the defense of consent falling under apparent consent?

A defendant is not liable for the otherwise tortious intentional conduct if the defendant reasonably believes that the plaintiff actually consents to the conduct, even if the plaintiff does not.

Can you give me an example case that illustrates what it might look like for a defendant to use the defense of consent —apparent consent?

O’Brien v. Cunard S.S. Co. (1891): 

• Defendant’s ship had strict quarantine regulations for smallpox and the ship’s doctor administered a small-pox vaccine allegedly against the plaintiff’s will.

• O’Brien held up her arm, did not tell the surgeon she did not want to be vaccinated, received the vaccine, and proceeded to use the certificate at quarantine. There was nothing in the conduct of the plaintiff to indicate to the surgeon that she did not wish to be vaccinated or receive the ticket certifying her vaccination. 

• In light of surrounding circumstances, a reasonable person would understand through the plaintiff's words and actions that she did consent to the defendant’s conduct.

What is the rule for defendant to use the defense of consent falling under presumed consent?

A defendant is not liable for otherwise tortious intentional conduct if:

i) Under prevailing social norms, the defendant is justified in engaging in the conduct in the absence of the plaintiff’s actual or apparent consent; and

ii) The defendant has no reason to believe that the plaintiff would not have actually consented to the conduct if the defendant had requested the plaintiff’s consent.

What could negate a defense of consent?

• capacity

• mistake, misrepresentation

• duress

Tell me more about capacity when it comes to the defense of consent and why it would invalidate it?

Plaintiff’s lack of capacity due to 1.youth, 2. intoxication, or3. intellectual incompetence may negate the validity of her consent. However, an individual who appreciates the nature, extent, and potential consequences of the conduct has the capacity to consent to it. Generally, an adult is rebuttably presumed to have the capacity to consent. 

Tell me more about mistake and misrepresentation when it comes to the defense of consent and why it would invalidate it?

Actual consent given by a plaintiff due to a substantial mistake regarding the nature of the invasion of the plaintiff’s interests, the extent of the expected harm, or the defendant’s purpose in engaging in the conduct is nevertheless valid consent unless the defendant caused the mistake by affirmative misrepresentation or fraud or knew of the mistake.

Tell me more about duress when it comes to the defense of consent and why it would invalidate it?

Actual consent given while under duress (e.g., physical force or threats) is not valid. The threat, however, must be of present action not of future action. In general, threats of economic duress do not render the plaintiff’s consent invalid nor does consent given under moral pressure. 

Tell me about the defense of liability from an intentional tort: self defense?

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

Can you give me an example of a case that illustrates what mistake and misrepresentation is not to invalidate consent?

Neal v. Neal (1994):

• Husband Thomas failed to disclose his affair with another woman to his wife Mary.

• Although Mary was unaware about the true nature of their exclusivity, this did not invalidate her consent to engage in sexual intercourse with him since it did not relate to the essential nature of the physical act she had consented to.

• She knew the physical act she was consenting to and voluntarily agreed to it showcases the importance that the mistake relates sufficiently to the nature or essential character of the act that would’ve affected her decision to consent

What case shows the importance of proportional force when it comes to self-defense

Hagopian v. Fuchs:

• Hagopian belonged to a dairy farmers' guild that was involved in a milk strike; Fuchs did not.

• Fuchs had previously been attacked by guild members, so he feared another attack.

• After the strike ended, Hagopian followed Fuchs to a gas station.

• Fuchs threw a steel wedge at Hagopian's head, claiming self-defense.

• Hagopian was about 4–6 feet away, unarmed, had his back turned, and was not threatening Fuchs at the time.

• The court held that self-defense is an affirmative privilege, so Fuchs had to prove that self-defense was justified.

• Because throwing a steel wedge at someone's head could cause death or serious bodily harm, Fuchs needed a reasonable belief that he faced that level of danger.

When using the self-defense defense to an intentional tort liability what is also to note?

• Some states note that defendant need not retreat when reasonably believes he is threatened with a harmful or offensive contact even if he could do so safely

• Also stand your ground/castle doctrine that have noted no duty to retreat when in one’s own home even if say there is a duty to retreat normally

What is the defense to others defense to intentional tort liability?

The defendant must reasonably believe that the circumstances are such that the third person has a privilege of self-defense against the plaintiff and the defendant's intervention is immediately necessary for the protection of the third person. The third person need not be related to the defendant but may instead be a stranger.

• proportional force applies here too

What are the basic elements of the modern shopkeeper’s privilege defense to intentional tort liability?

• A Merchant, which for purposes of the Restatement Third means a seller of goods or services, is privileged to use force against another for the purpose of:

  • i) Investigating a potential theft or knowing nonpayment for goods or services;

  • ii) Recapturing personal property ; or

  • iii) Facilitating the arrest of a person suspected of theft or knowing nonpayment.

• For this purpose, a merchant encompasses a merchant's agent or employee

What is the concept of reasonableness as relating to the shopkeeper privilege?

• The merchant must reasonably believe that the other has wrongfully :

  • i) Taken, or is attempting to take, merchandise from the merchant's premises; or

  • ii) Failed to pay for personal property purchased on those premises or for services rendered there

What must the shopkeeper’s use of force against another entail?

i) On, or in the immediate vicinity of, the shopkeeper’s premises;

ii) In a reasonable manner; and

iii) Only for the time reasonably necessary for investigating the matter, for recapturing the property, or for facilitating the other's arrest

Tell me about two cases that illustrates when shopkeeper’s privilege did not defend against liability for a intentional tort?

Holguin v. Sally Beauty Supply Inc. (2011): Holguin was placed under arrest for and charged with shoplifting after placing a can of hair product into her tote bag. She then sued for false imprisonment.

• The court found that Sally Beauty Supply had not been within their right to detain the Plaintiff under Shopkeeper’s Privilege, as they failed to meet the requirement of probable cause because Holguin did not ‘willfully conceal’ merchandise in a way that would justify Shopkeeper’s Privilege.

Hobson v. Dolgencorp, LLC (In a Reasonable Manner and for a Reasonable time):

• In Hobson, a Dollar General employee loudly accused a customer of shoplifting, blocked her in an aisle, and emptied her purse in full view of other shoppers, ultimately finding no stolen items. The court held that the store could be stripped of its statutory "Shopkeeper's Privilege" immunity and sued for false imprisonment and slander. While the privilege allows merchants to detain suspected shoplifters, the detention and questioning must be conducted in a reasonable manner.

What is defense of self-defense when it comes to intentional tort liability?

Self Defense

“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