INTENTIONAL TORTS AGAINST THE PERSON
Professor Weigel
Exam-3 essay
questions. Read the entire exam
first. I’ll see the emphasis points,
Intentional torts, proximate cause.
Don’t create issues if they are not there.
Reason for law-to give certainty
INTENT:
In intentional torts there is no need for proximate cause.
Can be proven in 2 ways:
1 Specific Intent: D acted with the purpose of bringing about the result. The result being some sort of physical or mental effect upon another person.
2 General Intent: D knew with substantial certainty that such result would occur as a result of his actions.
- Good faith mistake or mental illness does not negate
intent so long as the D intended the consequence of his act.
- D does not have to intend to harm the person.
- Recklessness by D is not enough. If it is highly likely that a bad consequence will occur, then the act is not an intentional tort. It must be SC that the bad consequence will occur.
- The act must be intentional or substantially certain, but the consequences don’t have to be.
TRANSFERRED INTENT:
The doctrine allows the P to prove intent, by proving that the D intended to commit one of the 5 intentional torts and accomplished committing one.
If D had the intent with respect to person C, he will be held to have committed an intentional tort against any other person who happens to be injured.
Example; A intends to hit B, so she throws a punch at him, but misses, and instead of hitting him (which would constitute battery), she only manages to scare him. A will be liable in assault, even though she did not intend to scare B.
The tort to tort transferred intent may be applied to battery, assault, false imprisonment, intentional infliction of emotional distress, and trespass to land and chattels. In other words, the D intended to commit one of the 5 intentional torts and accomplished committing one.
I. ASSAULT
1 unlawful act
2 intentional
3 placing of another
4 in apprehension
5 of imminent harmful or offensive contact (objective, ROPP)
6 with the apparent ability to carry it out
Assault is defined as the unlawful intentional placing
of another in apprehension of imminent harmful or offensive contact, with the
apparent ability to carry it out.
To be liable, D doesn’t need to have the actual ability, just apparent ability for such conduct.
Elements:
1. A
voluntary/affirmative act
1 Words alone are not sufficient. Words must be coupled with some conduct by the D.
Example; Verbal threats immediately followed by reaching into his pocket may create apprehension which might not be reasonable absent the verbal threats or D’s past acts.
1 Physical act alone is sufficient
2 Also, words spoken by the D may negate his conduct or any reasonable apprehension stemming from it.
Example; B violently shakes his fists at A, and says “If you weren’t my friend I would punch you right now.” B’s words are enough to undue any reasonable apprehension by A.
2. Intent
1
Purpose/knowledge to cause harmful…OR
2
Substantial certainty that harmful…OR
3 Transferred intent applied across torts (especially between battery and assault) targets
3. Imminent
Apprehension
1 P must have been aware and must have perceived the D’s conduct
P may not recover for her apprehension that someone else will be so touched.
P must have the belief that something undesirable is going
to happen, and that they are at risk. Fear
is not a necessary element.
2 The apprehension must be imminent. Threat of future harm is not sufficient.
3 Apprehension must be reasonable (ROPP)
4. Causation
1 P must prove that the D’s voluntary act caused the P’s apprehension.
THE EXISTENCE OF AN ASSAULT DEPENDS ON WHETHER THE D HAD THE LEGAL RIGHT TO COMPEL P TO PERFORM THE ACT.
Hypos;
P is a burglar and breaks into D’s house. D says, “If you don’t leave, I’ll throw you out.” There is no assault on P, since D has the legal right to force P to leave.
D threatens to shoot P and leaves the room for the stated purpose of getting his revolver. NO ASSAULT
A person across the room threatens to kiss you. NO ASSAULT
A large boxer says to a small man, “I am going to punch your lights out.” ASSAULT
II. BATTERY
2 intentional
3 harmful or offensive touching – direct/or indirect
4 without justification or excuse
Battery is defined as an intentional harmful or
offensive touching without justification or excuse.
Elements:
1. An affirmative
act.
1 Act must be voluntary.
2 Involuntary or unconscious acts do not qualify.
2. Intent
1 Purpose/knowledge to cause harmful or offensive touching; OR
2 Substantial certainty that harmful or offensive touch will occur; OR
Example; D shoots at C, intending to miss him, but also intending to make him think that he would be hit. D has the intent needed for battery.
1 Transferred intent applies
3. Harmful or
offensive touching
1 Objective standard. Would the ROPP find the touching harmful or offensive?
2 Extreme sensitivities of the individuals will not be considered unless the D knew of the sensitivities.
3 Actual awareness at the time of the touching is not necessary.
Example; D kisses C, while she is asleep. D has committed a battery.
4 Touching must be with the individual’s person (body) or any object which may be considered a natural extension of the individual’s body. (Fisher v. Carrousel)
5 Harmful: in that it causes pain or bodily damage
Offensive: if it is damaging to a reasonable sense of dignity
Example; D spits on P.
A battery has occurred because a ROPP of average sensitivity in P’s
position would have her dignity offended.
1 Agent – D does not have to come in contact with the person, a ball can act as the agent for the battery.
2 Occurs without consent or justification (as in a boxing match)
4. Causation
1 P must prove the D’s voluntary act caused the harmful touching.
Hypo- blowing smoke into someone’s face of normal health is not a battery but a mental issue.
Hypo- If someone says “lookout there’s a snake!” and the victim fell off the cliff and injured himself. It is a battery when he hits the ground, but if he only jumps around in fright but doesn’t fall to the ground, then no battery.
III. FALSE IMPRISONMENT
2 intentional
3 restraint or confinement
4 through force or threat of force
5 which confines one to a bounded area
6 without justification or excuse
7 and the person is aware of it
False imprisonment is defined as the intentional
restraint of another through mental or physical boundaries without legal
justification and the person is aware of it.
Elements:
1. Affirmative act
or omission
1 Physical confinement: actual confinement or restriction of one’s physical mobility.
2 Confinement through taking of a person’s personal property without which they cannot leave (wallet).
3 Mental confinement: fear of harm forces the individual to remain within the limited space
4 Failure to proved means of egress.
2. Intent
1 Purpose/knowledge to confine; OR
Example; D a shopkeeper, negligently locks the store while P, a customer, is in the bathroom. This is not false imprisonment, since D did not intend to confine P.
2 Substantial certainty that act will cause confinement; OR
3 Transferred intent applies to torts or across targets.
3. Limited Space
1 D’s act must confine P to a limited space with defined boundaries.
2 No FI when an individual is prevented from entering an area or a space (building) because they are not prevented from going anywhere else, so they have not been confined.
4. Awareness
1 P must be aware of their confinement at the time of the confinement.
2 Exception: Some courts waive the awareness requirement if the P suffered physical injury during or as a result of confinement.
Children are excused from the awareness requirement, b/c of their age and maturity.
If unconscious at the time of FI, then you wake up and are aware, than FI.
5. No Reasonable
Means of Escape
4 If there is a reasonable means of escape and the P is aware of it at the time of confinement, NO FI.
5 If P’s escape is reasonable and P is injured in the process of escape, than the D can be liable for the injuries caused to P.
6. P must be held against their free will & protest
1 Mere obligation to stay is not sufficient.
2 Submission to stay due to persuasion of another is not sufficient.
P must be restrained against his will & protest, b/c if you do not protest than you blow your case. If P submits to persuasion, and accompanies D to clear up a situation without any implied threat of force, than no FI.
The longer the confinement, the greater the damages the P is entitled to.
Threats of future action are not enough. There is no FI if the D threatens to call police and have P arrested unless he stays.
Hypo – If a person requests to be let off air plane because they were afraid and pilot refused. No duty to release unless urgent circumstances exist.
Hypo – A person complains of chest pain on an airplane and dies and the person is required to sit next to the dead body until the flight landed. Is this a tort?
You must weigh the benefit and risk. Schedule interruptions, fuel is expensive, many other people to consider. These are all factors that relay into answering the question of whether or not there is a tort.
Hypo – Passengers sitting on the tarmac in an airplane waiting for takeoff for 6-8 hrs. False Imprisonment ? It is a question of common sense. How are the facts going to sit with the jury? A pregnant woman wants to get off? The airline claims, that they can’t let you off because we have a schedule to keep. Where is the common sense? What is the jury going to think?
** Shopkeeper’s Privilege**
1 A limited privilege whereby a shopkeeper has the opportunity to temporarily & reasonably detain a suspected violator.
2 May be by direct physical means, but also by threats or by the assertion of legal authority.
** Inaction**
1 An omission to carry out one’s duty to act thereby causing confinement is FI.
FALSE ARREST
False arrest is defined as the arrest and custody by a
person who claims but does not have legal authority.
2 False arrest may lead to FI if other elements of the tort are satisfied.
3 No action if the person arrested actually committed the crime for which they are arrested.
IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
1 intentional
2 </