Intentional Torts (I.T.)
I.
Intent
1.
Intent can be achieved two ways:
1.
The purpose was to cause the harm. (specific intent)
OR
2.
Knowledge to a substantial certainty (General Intent). (Ex: Garret v.
Dailey(chair/hip)(subjective standard)) Not SC EX: Spivey v. Battaglia (neck)
Did they know to a substantial certainty that they WOULD ( I.T.) or COULD(not
I.T.) cause a harmful or offensive contact (this is the difference between negligence
and battery)
2.
Mistaken intent is still intent. Mistake does not vitiate the intent. (EX: Ranson (P) v. Kitner
(D)(DOG))
3.
Insanity or mental deficiency is not a tort defense. It does not vitiate the intent. (McGurie v. Almy;
Colman v. Notre Dame Convalescent Home)
4.
Transferred intent (Ex: Talmage (P) v. Smith (D))
1) Intent to commit a tort against a third party, but tort occurred against plaintiff.
2) Intent to commit another tort, but a different one occurs. Assault to battery. (EX: Ex: A intends to
punch B, but instead punches C  still liable.) (See In re White)
- Only applicable if the both the tort intended and the tort that results are one of the following:
Assault, battery, false imprisonment, trespass to land, or trespass to chattels(personal
property)
5.
Recklessness is not enough to satisfy intent. (ex: Spivey (P) v. Battaglia (D) (subjective standard))
6.
Single Intent: intended the contact and a reasonable person would find that contact harmful or
offensive (example: sexual contact with an unconscious actor)
Other notes: Mass rulings follow subjective standard when determining reasonable actions. Meaning specific to that case.
Also add in: policy considerations (vaccination is for general health),
II.
Battery
1.
Requirements
1.
Intend to cause a harmful or offensive contact.
2.
The act does cause a harmful or offensive contact to plaintiff.
* This is established through a preponderance of evidence.
* No physical contact is required
2.
Mere words never suffice, but provide context.
3.
Plaintiffs person includes anything connected to the plaintiff (clothes, purse, cane, etc.) (Case: Fisher
v. Carrousel Motor Hotel Inc.);
4.
Actual Damages is not required for a battery (battery is a dignitary tort)
5.
Offensive contact is a subjective topic; and objective standards are put aside when the tortfeasor is on
notice of the plaintiffs wishes (not counting medical emergencies) (See Cohen v. Smith)
*Policy: Battery is a dignitary tort that social policy has determined is non-social behavior that leads to
breaches in the peace.
III.
Assault
1.
Intent to cause a reasonable apprehension of an imminent battery.
2.
Causes a reasonable apprehension of imminent battery.
1.
Apprehension: does not require fear; if you duck a punch, you don’t need to be afraid of it
2.
If she is reasonably apprehended, it does not matter whether the tort feasor could commit the
battery. (Western Union Telegraph Co (D). v. Hill (P))
3.
Imminence-an instant away from happening. (present and apparent ability to follow through)
(Western Union Telegraph Co (D). v. Hill (P))
4.
Words do not sufficient for intent, but they may negate it. (ex: shakes fist but states they are
not going to strike plaintiff)
IV.
IEED- Intentional Infliction of Emotional Distress
1. An act by defendant announcing to extreme and outrageous conduct
2. Intent or recklessness (See Johnson v. Thigpen)
3. Causation of damages (severe emotional distress) (only tort in which damage must be proven.. i.e.
vomit, sick, loss of sleep)
Can happen to a 3rd party or bystander. Ex: forcing a mother to watch her child be
tortured. Defendant must know that plaintiff is present and her the mother.
V.
Tortious Interference
Elements essential to Tortious interference claims are:
1. the contract
2. the wrongdoer’s knowledge therof
3. his intentional procurement of its breach
4. Without justification (I.e. Not privileged) (ex: American Surety Co. v. Schottenbaur)
5. damages resulting therefrom
Defenses to Intentional Torts
For ALL defenses
First: Look for Intent. If they intended to cause a battery (see elements) or an assault (see elements), then the
defense of consent is not applicable.
If there is a lack of intent then there is no need to establish this defense.
Defense comes into play when a tort did actually occur, but the actor is privileged in doing so.
VI.
Consent
The plaintiffs consent to defendants conduct is a defense, but majority view is that one cannot consent to a
criminal act, they must also have the capacity to consent (downs syndrome cases)
1.
VII.
Was consent given? (does not need to necessarily be verbal (implied consent) (See
O’Brien v. Cunard S.S. Co.)
2.
Did the defendant stay within the boundaries of consent. (i.e. not use a gun to a boxing
fight) (See Hackbart v. Cincinnati Bengals, Inc.)
Misc. notes: consent induced by fraud is invalidated if it goes to essential matter, but not collateral
manner.
Mistakes will undo expressed consent if the defendant knew and took advantage of the plaintiff’s
mistake (two-sided coin flip scenario)
Those incapable of giving consent: drunk, insane/incompetents, children
Self Defense & Defense of Others (and property)
One may not use force calculated to cause death or serious bodily injury, except where there is also a threat to
personal safety that justifies self‑ defense.

In protecting his property, may not use force calculated to cause death or serious bodily injury (See
Katko v. Briney)
Self Defense requirements:
1. Threat to personal safety (see Katko v. Briney)
How much force can you use?
May not use deadly forces
May use reasonable and proportionate force (See Katko v. Briney)
1.
Social policy test question: What happens if you see a reasonable and proportional force
to rescue a victim, but you see it wrong and you intervene on the side of the aggressor.
May use forces calculated to respond to the same level of threat
Policy concerns:
 In the context of physical property, the law values life over property
 Indiscriminate and deadly forces that cannot discriminate between illegal and legal entry (fireman
entering a house on fire with a gun trigger trap on the door… not okay)
VII.
Public Necessity
A person is not liable to a property owner for destruction of property if they destroyed the property in good faith
and under the necessity of preventing future harm.
Requirements:
Necessity must clearly be shown (apparent)
Good faith effort to prevent future harm
Called a complete defense/privilege:
In the event of public necessity, the interests of property are suspended; therefore when defendant destroy s
property based upon actually and apparent necessity they cannot be held liable. (See Surocco v. Geary)
VIII.
Private Necessity
Complete Defense:
One is privileged to enter the land in possession of another if it is, or reasonably appears to be, necessary to prevent
serious harm to the actor or his property.
Incomplete Privilege:
An individual who damages the property of another as a result of private necessity may still liable for the damage to that
individual's property. (see Vincent v. Lake Erie Transp. Co.)
If the result was and act of god or unavoidable then the defendant will not be liable
What happens in cases of life v. life? (look into the 9/11 case)
Passengers too over the 4th plane, crashed the plane, and all died
Government may have had to make the decision of taking the lives of 200+ people to save the lives of others
o Look at the book about life or death based on necessity (sailors)
Cases:
Intent:
Garrett (P) v. Daily (D) (child intent/substantial certainty)
o Child pulls chair.. plaintiff breaks hip
o Takeaway:

A defendant has the required intent (i) when it is his purpose that a specific result occurs or
(ii) when he is substantially certain that a given result will occur.

A child can have intent
Spivey (P) v. Battaglia
o ‘friendly unsolicited hug’… paralyzed face
o “substantial certainty” is very important when determining intent. A reasonable person would not
suspect someone to lose and arm from being pinched.. unless otherwise knowing about some sort of
condition
Ranson (P) v. Kitner (D)
o Hunting for wolf. See’s dog. Kills dog.
o Mistakes happen but intent is the same even if the action was intended for a different actor.

This is not transferred intent. The purpose was still there for the receiving party. It just
wasn’t what they thought it was.
McGurie v. Almy (insane)
o Mentally insane patient. Struck head of nurse caretaker. Heald liable for assault and battery.
o Main Take-Away : Your mental state and ability to understand a particular act in question does no
take away liability nor intent.
Talmage (P) v. Smith (D) (transferred intent)
o
Threw stick intended for someone else, hit Talmage instead
o Transferred intent.

Assault claim for intended boy

Battery claim for Talmage (who was actually hit)
Battery
Cole v. Turner (year 1704)
o “The least touching of another in anger is a battery; including rude inordinate manner in a narrow
passage”
o set precedent for battery
Wallace(P) V. Rosen (D)
o Teacher fire drill. pushed/touched down stairs
o Circumstances change the context of battery. It is not black and white. One should suspect certain
amounts of contact and discern in crowded or emergency situations.
Fisher (P) v. Carrousel Motor Hotel Inc. (D)
o Nasa employee has plate taken out of hand.
o Battery can be done even if you don’t physically touch the other person.
ASSUALT

Raess v. Doescher
o
I de S et ux.(P) v. W de S (D) (year 1328)
o Tavern case with hatchet swing.
o No physical harm needs to be done for an assault to have occurred.

Western Union Telegraph Co (D). v. Hill (P)
o Drunk clock fix assault case. Reached across table.
o Main Take-Away: an assault can be committed if the defendant creates in the mind of the plaintiff a
well-founded apprehension of an imminent battery coupled with the apparent present ability to
effectuate the attempt.
IEED- Intentional Infliction of Emotional Distress

State Rubbish Collectors Ass’n(P) v. Siliznoff (D) (garbage collection case)
o Threats and attacks to one’s mental state are tortious, even if the threats are not immediate or actually
done.

Johnson v. Thigpen (sexual harassment in the office)
o Employer sexually harasses the employee; also involved touching but that is not necessary fro IIED
Tortious Interference

American Surety Co. v. Schottenbaur
o Insurance company tells employer to terminate employee (who has disease) or they will cancel their

policy
Consent:

O’Brien v. Cunard S.S. Co. (vaccination case)
o Implied consent. Also, example of totality of circumstances.

Hackbart v. Cincinnati Bengals, Inc. (football case)
o Just because one consents to play a physical game it doesn’t mean all tort liability goes away. One must
act in accordance with the rules and be subject to trial for tortious conduct.
Self-Defense, defense to others, defense of property:

Katko v. Briney (gun trigger trap door)
Rppssc bruty/breach
Negligence
DUTY (judge question):
COA: breach of the duty that causes harm
Difference from intentional tort
o Must have damages for negligence, don’t need damages for intentional torts
Duty to:
1. Act like a reasonable or prudent person in similar circumstances (RPPSSC) (See Martin v. City of New Orleans)
2. Violation of Statute or Negligence Per Se (VOS) (See Martin v. Herzog)
- violation of statute is negligence per se* (emphasis added on the * for MANY exceptions/nuances)
- Better to say: violation of statute is negligence per se IF:
*Conduct vs. license: conduct is more clear cut, versus letting a license expire (car license vs. not stopping at a stoplight)
Physical Disabilities

The plaintiff must exercise that degree of care that an ordinary reasonable man would exercise in like or similar
circumstances
o Contributory negligence is the conduct on the part of the plaintiff, contributing as a legal cause of harm he
has suffered, which falls below the standard to which he is required to conform for his own protection

Yet the proper test in cases of physical disability is the test of a reasonable man under the same
disabilities and infirmities in like circumstances

See Memorial hospital of south bend, Inc. v. Scott

Are people with physical disabilities held to a higher or lower standard of care?

Technically neither, the law is just tailored to someone with the same disabilities.
o While a blind person may be expected to not drive, it isn’t a higher standard,
just the same standard for the same disabilities and infirmities in like
circumstances
Childreno Special standard for children
o A child is not expected to conform to the same standard of an adult, their conduct is judged by the standard
of behavior to be expected of a child of like age, intelligence, and experience

Public policy: Kids activities
o See Camerlick v. Thomas

If under 4 years old, negligence can never be found
o See Hueber v. koelfgren

Bb gun shot

Held to the same standard of care of children. However, one cannot know whether the operator
of an approaching automobile, airplane, or power boat is a minor or adult and usually cannot
protect himself against youth imprudence even if warned. ( See Dellwo v. Pearson)

Does not need to be an inherently adult activity(Ad.A) per se (

Therefore, applies to fun activities that are inherently dangerous (ID)
Mental Disabilities (See Creasy v Rust)
Will not tailor RPPSSC to those with differing mental disabilities
Policy reasons:
o Provides incentive to those responsible for people with disabilities and interested in their estates to prevent
harm and "restrain" those who are potentially dangerous. See, e.g., Gould, 543 N.W.2d at 287
*Relate this back to I.T. mental disability struggle:
The common law principle that where one of two innocent person must suffer loss from an act done, it is just that it
should fall on the one who cause the loss rather than upon the other who had no agency in producing it and could not
by any means have avoided it. (See Colman v. Notre Dame Convalescent Home)
Side note:
o Difference between physical and mental disabilities. The physical disability actor is able to knowingly be
held to a stronger standard of prudence, mental deficiency actors may not knowingly be able to do so due
to mental deficiency)
*Caregiver exception and hold that Alzheimer’s patients who cannot control their behavior owe no duty to use due care toward
their professional caregivers.
Violation of Statute (Breach)
Requirements: (go through the analysis on all steps)
1. Is there a statute on point
2. Was the statute violated? (Look for precise language) (See Lachenman v. Stice)
3. If violated, was the plaintiff in the class of persons designed to be protected? And did they suffer the type of harm sought to
be prevented by the law? (See Wawanesa Mutual Ins. Co. v. Matlock)

Ex: fire code requires that all doors push to exit a room (not pull). Thus, if injured during a fire (either by others
or even by smoke due to delay) due to a door not being up to code then:
o The person is in in the class of persons the statute is designed to protect and;
o They suffered the type of harm sought to be prevented by the law

However, may not create new liability that counters the RPPSSC standard. There is flexibility.
o Ex: tree in the road, many cars behind you, you cross the median carefully, plaintiff comes barreling
down at an excessive speed and a crash occurs. Despite VOS on defendants part, there is a valid
RPPSSC reason for violating the statute on defendants part.
Breach of Duty:
First step in breach analysis:
1. Identify or try to identify the wrongful acts (See Indiana Consolidated Ins. Co. v. Mathew)
2. With that in mind the plaintiff bears to burden to show that they acted like a RPPSSC
* important to remember that a greater risk of harm is justified when acting to protect human life than when
protecting property. (subjective standard; see Indiana Consolidated Ins. Co. v. Mathew)
Economic Approach:
A RPPSSC has a duty to provide against resulting injuries is a function of three variables:
(1) The probability of harm; (P)
(2) the gravity of the resulting injury; (L)
(3) the burden of adequate precautions. (B)


PL<B = No Liability
PL>B = Liability
Custom/Industry Standard: (See The T.J. Hooper)
Compliance with custom is evidence of due care, but not dispositive.

Many industries have bets practice manuals and standards. Juries may consider these, but compliance with the
industry standard does not in itself prove the absence of negligence.

This goes for company employee policies as well.
*Customary practice does not necessary link to safety. (ex: jay-walking in a certain area may be customary)
Res Ipsa Loquitur: “the thing speaks for itself.”
*usually used to resist summary judgement, must show damages along with res ipsa to survive S.J.
*draws from inferences to explain end result, absent any ability to find causation (Coke/Rat example in class)
Majority approach: The majority of courts find that res ipsa merely allows an inference of negligence. As such, it protects
plaintiff from summary judgment. But plaintiff still has the burden of persuading the fact-finder to draw an inference of
negligence
Requirements:
1.
2.
The instrumentality causing the damage must be under the exclusive control of the defendant,
The occurrence must be such as in the ordinary course of things would not happen if those in control of the
instrumentality used proper care, and
i.
Who is to say what is ordinary? What about instances of medical malpractice?
i.
3.
General rule of medical negligence may be established only through expert testimony, with an
exception for instances where layman can observe and understand the negligence as a matter of
common law (See Coleman v. Rice)
The occurrence must not be due to any voluntary act on the part of the plaintiff.
Cases for Res Ipsa
Byrne v. Boadle – barrel of flour
Ordinarily flour companies use due care, and this wouldn’t occur unless someone was negligent or improper due care.
Coleman v. Rice – medical negligence

Found a sponge in patient after complications following her surgery.
o Circumstantial inferences for res ipsa

She was unconscious during the act;

The instrumentality found was a surgical sponge, not a common dish washing one

She was in care of physician and was working under his direction; thus he is responsible

Saucier case shows (and is not overruled) that responsibility may be delegated to nurses, but
liability cannot be (they operated under direction of surgeon and patient was in surgeons care)

A surgeon leaving a sponge inside a patient is not negligent per se, but a presumption of
negligence is raised, which the surgeon may rebut or explain
Ybarra v. Spangard – medical operation
Went into surgery with good shoulder, woke up with a messed up shoulder, sues all people who were in the
operating room
Was the plaintiff the instrumentality under the exclusive control by all defendants
o Holding: there is a presumption of negligence over all defendants who had ANY control over his body or the
instrumentalities which might have caused the injuries may properly be called upon to meet the inference
of negligence by giving and explanation f other conduct
Point-Du-Jour v. American Airlines – turbulence (most turbulence cases show turbulence is out of control of pilot)
Claim res ipsa;
o Plane lost power before takeoff (inference, something wrong with plane, but leaves up to speculation about
any mechanical issues)
o Turbulence; pilot should have avoided

Pilot said he would have avoided if he knew of it or should have known of it

No known origin of turbulence sometimes (common in airline industry)
Planes don’t ordinarily crash without some sort of negligence; lots of cases support this
o This is distinguished because it was turbulence which happens very ordinarily outside the control of a
RPPSSC pilot
Otus elevator Co. case (lookup)
Counter to Airline pilot negligence; the elevator operator cannot be held liable for negligence. It is reasonable to press
a down button while an elevator is going up. The design and maintenance of the elevator is in the control of the
elevator co. not the operator who cannot see or know that there is a problem where there has been no problem
before.
-
Causation
*A plaintiff must prove cause in order to recover in any tort claim. 1. Duty 2. Breach of Duty 3. Cause or proximate cause
But for the wrongful act it is more likely than not that this was the cause

Cause in Fact

Proximate Cause
Cases: Negligence
Breach of Duty (jury question)

Mathias v. Accor Economy Lodging (bed bugs case)
o A punitive damages award imposed against a defendant must be supported by sufficient evidence that the
defendant’s actions amounted to willful and wanton conduct.
Causation:
Cause in Fact:
Proximate Cause:
(Staelens v. Dobert) (hit gas tanker, an driver of tanker tripped over equipment hours later left by third party)
(Palsgraf v. Long Island RR. Co) (fireworks at train station)
Cardozo:
Andrews:
What’s is proximate?

Closeness in time in space(too remote)

Likelihood of result/ How strong was the foreseeability
1. Direct cause” test
defendant was responsible for all harms that flowed directly, until there are intervening, superseding
causes.
2. Foreseeability test (Maj. Approach)
defendant is responsible for all the risks that are foreseeable at the time the defendant took the wrongful
act.
i.
Questions to ask:
a. Was this a foreseeable risk? (Doughtery v. Turner; Hughes v. Lord)
b. Was the plaintiff a foreseeable plaintiff (See Palsgraf)
c. Was plaintiff in the zone of danger? (Palsgraf)
*Special Circumstances: Rescuers
- Tend to be treated favorably at law (rescue doctrine)
*Intervening Causes
Intervening cause happens after the wrongful act; the intervening cause is superseding if it wasn’t foreseeable by the
wrongdoer
-
Mayfield v. Levy Co (truck driving in front of train)
Patanude v. New York City Transit Authority (Bus in the lane)
Damages
I. Punitive
II. Actual
III. Parasitic damages

All emotional/pain suffering/fear damages incorporated in conjunction with actual damages