Intentional Torts (Battery & Assault)

Torts I Bar Prep

Three Elements—to prove an intentional tort, the plaintiff must prove:

An act (tortious Conduct) + Intent (requisite mental state) + and Causation.

Note: an omission can be a tort, as well as an act.

Intent Defnition

The actor acts with the purpose of causing the consequence; or

o The actor knows that the consequence is going to come about to a substantial certainty.

a. Children and mentally incompetent persons—can be held liable for intentional torts if they act with the requisite intent.

Battery

Defendant causes a harmful or offensive contact with the person of another; and

2) Acts with the intent to cause that contact or the apprehension of that contact.

Causation

act must result in contact of a harmful or offensive nature.

Harmful or Offensive Contact

Harmful—causes an injury pain, or illness.

Offensive — A person of ordinary sensibilities would find the contact offensive.

• Victim need not be conscious of the touching in order for it to be offensive

• If the victim is hypersensitive and the defendant knows that about the victim, the defendant may still be liable

Contact—the contact can be direct, but need not be

With the person of another—includes anything connected to the plaintiff’s person.

Intent

What has to be intended is the contact not the offense.

Transferred intent

The doctrine of transferred intent applies to battery.

When the intent to commit one tort satisfies the required intent for a different tort; this

applies when a person commits:

• A different intentional tort against the same person that he intended to harm;

• The same intentional tort against a different person; or

• A different intentional tort against a different person.

Damages

No proof of actual harm is required; the plaintiff can recover nominal damages.

o The plaintiff can also recover damages from physical harm flowing from the battery.

• “Eggshell plaintiff” rule—a defendant is liable for all harm that flows from a battery, even if it is much worse than the defendant expected it to be.

o Many states allow punitive damages if the defendant acted:

• Outrageously; or

• With malice.

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Consent Defense

there is no battery if there is express or implied consent.

Assault

Definition—defendant engages in an act that:

o Causes reasonable apprehension of imminent harmful or offensive

bodily contact; and

o The defendant intends to cause apprehension of such contact or to cause such contact itself

Bodily Contact

—not required

Plaintiff’s Apprehension

• Must be reasonable

• Plaintiff must be aware of the defendant’s action

Imminent

• Must be without significant delay

• Threats of future harm or hypothetical harm are not sufficient.

Mere Words

• Generally, “mere words do not constitute an assault.”

• But words can suffice in certain circumstances. If the defendant is able to carry out the threat imminently and takes action designed to put the victim in a state of apprehension, then there may be an assault.

Intent—The defendant must intend to cause either:

• An apprehension of imminent harmful or offensive contact; or

• The contact itself.

Damages

o No proof of actual damages is required; the plaintiff can recover nominal damages.

o The plaintiff can also recover damages from physical harm flowing from the assault.

o In appropriate cases, punitive damages may be available.