TORTS NOTES
I. BASICS
a. Elements of liability:
i. Wrongful conduct
ii. Cause
iii. Harm
b. Principles of tort law:
i. Deterrence
ii. Compensation for a wrong.
c. Standards
i. Tort law is objective, reasonable person standard.
ii. Take the victim as he is: eggshell skull. This is subjective
II. Intentional Torts: Assault: Development of the Tort
a. Why do we want to have this tort?
i. Maybe deterrence
ii. Keep people from manipulating others through fear of harm
iii. You can have real emotional harm and need compensation.
b. Cases:
c. I de S: in 1348
i. Trespass means assault
1. This case is the first finding of assault in the world
2. Judge focuses on the fact that there was harm to the wife (when ∆ banged on their
door with a hatchet in the night, perceived her at the window telling him to stop, and
banged again).
3. For assault, we need some intent. At the time there was no required intent to assault.
4. Rule: There was an intent to harm and a harm for which damages were recoverable.
Thus for an assault one can recover damages.
d. Tuberville v. Savage:
i. In this case one man put his hand on his sword and told the other that he would wound him if
the judges were not in town, but since that was the case he would refrain. The other man
then sworded him and tried to claim self-defense. Judge found for the victim.
ii. No assault because there was no intent. In this case we don’t need to specify the kind of
intent. To scare? Harm?
iii. Rule: The intention as well as the act make up an assault, so here there was no assault b/c π
said he would not assault ∆.
III. CORE PARAMETERS FOR ASSAULT:
a. Elements of liability
i. Harm: reasonable apprehension of harm
ii. Intent: to cause (objectively) apprehension of battery or something
iii. Immediate/credible threat.
b. Restatement (second)
i. Doesn’t mention objectivity requirement but you assume it.
ii. Has a causation factor
c. Basics of Assault
i. Protects the interest in freedom from apprehension of a harmful or offensive contact with the
person, as distinguished from the contact itself.
1. No actual contact is necessary to it.
2. π is protected against a purely mental disturbance of this kind. “touching of the mind,
not the body.”
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ii.
iii.
iv.
v.
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3. Damages recoverable are for the π’s mental disturbance, including fright and
humiliation, and any physical illness resulting from it.
Intent
1. This element is identical to the intent for battery. There is no such thing as
“negligent assault.”
2. Intent need not be to inflict bodily injury, it is enough that there be intent to arouse
apprehension.
3. Once apprehension has been created, it is no defense that ∆ reconsidered or desisted
w/o physical harm.
4. Tort is complete with the invasion of the π’s mental peace.
Assault and Battery
1. Difference between them is that between physical contact and the apprehension of it.
2. One may exist w/o the other, i.e. someone might not have apprehension but still be
battered (hit from behind).
3. Other than that the two are identical, incl. fiction of transferred intent.
Blackstone, Commentaries
1. Assault is an attempt to offer to beat another, w/o touching him: if he raises his fist or
cane in a threatening manner; or strikes and misses, this is assault. It is more than
bare threats.
Notes:
1. Social interest against assaults:
a. Allen v. Hannaford: ∆ threatened to shoot π and moving men, and pointed a gun
at them. ∆ said she couldn’t be guilty b/c gun was unloaded. Rule: so far as π
was concerned ∆ could have shot them. Whether there is an assault depends
more on the apprehensions in the mind of the victim than what may be the
secret intentions of the person committing the assault.
i. Court found that even though the gun was unloaded and couldn’t have
killed anyone, it was an assault because the victims didn’t know that
and they were in fear of being shot.
ii. This adds that the harm need not be possible: the key is just that
apprehension was created.
iii. It is objectively reasonable for victim to be apprehensive.
iv. You can infer intent if there was some sort of act.
2. Apprehension v. fright:
a. Restatement: Assault:
i. An actor is subject to liability to another for assault if
1. He acts intending to cause a harmful or offensive contact w/ the
person of the other or a third person, or an imminent
apprehension of such a contact, or
2. The other is thereby put in such imminent apprehension.
ii. Distinction btwn apprehension and fright: it is not necessary that
the other believe that the action done by the actor will be effective in
inflicting the intended contact upon him. It is enough that he believes
that the act is capable of immediately inflicting the contact upon him
unless something further occurs.
1. If bystanders prevent the battery from occurring there is still
assault.
2. Apprehension may bear no relation to fear.
3. See Stephens v. Myers, where ∆ headed toward π with clenched
fists, in anger, and was headed off by a third person.
3. Conditional threats and the use of force:
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a. Tuberville v. Savage: ∆ claimed π’s words were the assault that justified his
battering the π. This was not a conditional threat and not really a threat at all.
b. Brooker v. Silverthorne: case of ∆ who threatened a telephone operator. Court
said that ∆ was not there and π knew it, so even though he said if he were there
he would break her neck it was not an assault. “A threat only promises a
future injury.”
i. Judge found that he wasn’t actually close enough for her to be scared of
imminent bodily harm.
ii. Mere words do not amount to an assault: Applies to strong words
used in the course of an argument.
IV. ASSAULT PART II
a. Why do so few assault claims end up in court?
i. Many assaults don’t result in a lot of money damages from harm, so plaintiff attorneys don’t
take the cases.
b. Cyberstalking/cyberterrorism
i. Brooker: threat made over the phone found to be not actionable.
ii. Courts probably won’t grant relief for threats made over email.
iii. “Words alone are not enough to constitute assault”
iv. Courts want to be conservative in these cases, not knowing whether there will be millions of
such claims in these new areas.
c. Assault elements redux:
i. Intent to cause apprehension (objective standard)
ii. Credible/imminent threat
iii. Harm=reasonable apprehension
V. BATTERY
a. There must be physical contact (unwanted), which is what distinguishes it from assault.
b. Battery in civil/criminal law
i. Lower civil threshold for damages
ii. Victim brings the charges (claim)
iii. Money damages, not prison
iv. Different burdens of proof: not beyond a reasonable doubt, it just has to be more likely than
not that this is true.
c. Vosburg v. Putney:
i. One boy in a schoolroom, after the class has been called to order, kicks another on the leg.
The kick excites a nearly-healed wound, resulting in damage to the bone and loss of the use of
the leg. Victim sued for battery.
ii. Very convoluted procedural history. Court made lots of mistakes, and they don’t seem to
really know what they’re doing here.
iii. Why is ∆ appealing? There was a special verdict with 7 questions. Judge asks them and jury
answers. #6: ∆ did not intend to cause harm. ∆ says battery requires intent to do harm.
iv. Why would the judge ask about intent? Maybe he made a mistake, or to assess punitive
damages, or to cover his butt in case there was an appeal.
v. Court says: Test for battery: π must show either that ∆’s intent was unlawful or that ∆ was at
fault.
vi. So which applies here? Intention to do an unlawful act or intent to do an act that was
unlawful? Mens rea in the second one does not attach to whether the act is unlawful or not,
just whether he knew he was doing the act.
vii. One more problem: damages issue. ∆ wants to pay only for the damages he could have
reasonably anticipated, not for the lost limb.
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viii. “thin skull” rule: you take your victim as you find him, it’s just your bad luck if he’s fragile.
It’s stricter liability.
ix. As between two parties, the one who did wrong has to pay. Courts are sentitive to costs.
They’d rather focus on what happened in the case before them than hypothetical damages to
an average person.
x. Cons to the rule: lack of notice, no incentive for πs to take precautions.
d. Vosburg continued
i. Is the definition problematic?
ii. Under the Restatement, probably the kid would still have been guilty on the battery charge.
iii. We have intent to kick (make physical contact) + the kick being unlawful
iv. Word “intend”: how do the courts apply it? Courts replace it with the idea of “substantial
certainty”: sort of “what would a reasonable person think?
e. Transferred intent in battery: just like crim law.
VI. THE STING (class problem)
a. Anne would want to use the Restatement for authority in her case. There is no intent to make
contact with the other girl’s back.
b. There wasn’t any disciplinary action in the school
c. Probably the court would find that this is just careless and doesn’t rise to the level of battery. It’s
too far out on the fringe.
VII.
TRESPASS
a. Unauthorized entry onto someone else’s property.
b. The only requirement is that you intend to be on the land, you don’t have to intend to trespass. You
have do intend to be physically on the land though, it doesn’t count if you were thrown onto it from a
car, for example. Very low intent requirement. It’s lower than for battery.
c. Courts will ask: what is the utility of the defedant’s conduct? (like adverse possession). Trespassing
can bring profit (courts don’t want unjust enrichment) and usually it has very low social utility.
VIII. FALSE IMPRISONMENT
a. Definition: an unlawful restraint of an individual’s personal liberty or freedom of locomotion.
Imprisonment is “any unlawful exercise or show of force by which a person is compelled to remain
where he does not wish to remain or to go where he does not wish to go. There must be actual or
legal intent to restrain. The confinement must be against the plaintiff’s will and if a person
voluntarily consents to the confinement, there can be no false imprisonment.
b. Compare to assault: not necessarily physical contact
i. Element of psychological manipulation: threat of force
ii. Elements:
1. Unlawful restraint: intent to stay
2. Intent to restrain
3. Against plaintiff’s will
c. Lopez part 2
i. Restatement guideposts on “unlawful restraint”: 904
1. An action may bring about the confinement required as an element of FI, including:
a. Actual or apparent barriers,
b. Overpowering physical force, or by submission to physical force,
c. Threats of physical force,
d. Other duress, and
e. Asserted legal authority
2. “yields…to the assertion of authority…yield to the constraint of a threat, express or
implied.”
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ii. Why would the court ever let someone reasonably restrain another person? Sometimes
society wants you to detain a person? Yes. There’s some sort of benefit to this behavior by
employers.
iii. Court may be trying to give employers a message with this case: summary judgment is harsh.
iv. Shoplifting? Detainment must be reasonable.
IX. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED)
a. Class Notes:
i. Fear that people might be faking it
ii. Subjective: compared to assault
iii. Courts are v. reluctant to grant this claim
iv. This tort could be inflicted by a huge range of behavior:
1. Assault hinges on a particular action by the defendant, while IIED is very much less
defined.
v. Before Womack, you needed something physical, needed doctor proof. Court does not here
require physical harm but follows the jury determination.
vi. Elements of IIED:
1. Intentionally or recklessly cause severe emotional distress,
2. Outrageous or intolerable act,
3. Causal connection
4. Severe emotional distress
vii. “recklessly” sometimes applied to battery
b. Womack Case:
i. What were his symptoms of emotional distress? Insomnia, incoherence, anxiety.
ii. What was the outrageous conduct? Taking the photo by deception.
iii. How do you define “outrageous conduct”? What a reasonable person would call
“outrageous”. So really, it’s the jury who makes these decisions.
c. Womack v. Eldridge
i. Facts: π was an employee at Skateworld who worked with children. ∆ worked for a lawyer,
and went to π’s house to get a photo of him. The photo was used by the ∆’s employer in a
child-molestation case to present to the victims for them to ID their molester. The π was
never accused of any inappropriate conduct but the photo became public during trial, and π
had to be questioned several times and testify. He had nothing to do with the case, but his
picture was obtained fraudulently by ∆.
1. Π brought cause of action for intentional infliction of emotional distress. Trial court
found for π, awarding compensatory and punitive damages, and court of appeals
reversed.
ii. Issue: can one who by extreme and outrageous conduct intentionally or recklessly causes
severe ED to another be subject to liability absent any bodily injury?
iii. Rule:
1. There may be a recovery against one who by his extreme and outrageous conduct
intentionally or recklessly causes another severe emotional distress.
2. A cause of action will lie for emotional distress unaccompanied by physical injury,
provided four elements are shown:
a. The wrongdoer’s conduct was intentional or reckless,
b. The conduct was outrageous and intolerable in that it offends against the
generally accepted standards of decency and morality,
c. There was a causal connection between the wrongdoer’s conduct and the
emotional distress, and
d. The emotional distress was severe.
3. Most cases where this claim is brought: ∆ desired the ED or knew or should have
known that it would likely result.
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iv. Holding: for the π. The jury could reasonably have applied this test and found for π.
v. Analysis:
1. Allocation of decision-making:
a. The court: determines first whether ∆’s conduct can be reasonably regarded as
so extreme and outrageous as to permit recovery, or whether it is necessarily
so.
b. The jury: determines whether, in the particular case, the conduct has been
sufficiently extreme and outrageous to result in liability.
d. Notes after Womack:
i. Russo v. White: ∆ made 340 “hang-up” phone calls in two months when she refused to go out
with him.
1. Court allowed π’s claim to be dismissed b/c she had not suffered any physical injury as
a result of the stress, and ∆ had not even spoken during the calls.
2. Court emphasized that there was no really clear guidance on what conduct gives rise
to liability.
ii. Restatement §46: states that outrageous conduct is conduct in which “recitation of the facts to
an average member of the community would arouse his resentment against the actor, and
lead him to exclaim, “that’s outrageous!”
1. There would be real constitutional issues in making such conduct criminal: vagueness
and notice issues.
iii. Lourcey v. Estate of Scarlett: Court held that π stated a claim for intentional infliction of
emotional distress b/c Scarlett’s act was sufficiently “outrageous”, even if it was not directed
at π.
iv. What about the unusually sensitive plaintiff?: Is it like the eggshell skull rule? Probably, but
court would have to find that a reasonable person under the circumstances would have
sustained emotional distress.
X. INTENTIONAL TORTS: SUMMARY
a. 5 claims under intentional torts:
i. battery
ii. assault
iii. trespass
iv. false imprisonment
v. IIED
XI. DEFENSES TO INTENTIONAL TORTS
XII.
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AFFIRMATIVE DEFENSES
a. Why do we like them?
i. Focused
ii. You don’t have to pick apart the π’s claim
b. Defense of CONSENT
i. ∆ argues that π consented to the ∆’s invasive or offensive contact.
c. Hart v. Geysel: Brief:
i. Facts: π’s estate brought this action after π was killed by a blow in an illegal prizefight by ∆.
ii. Issue: Can ∆ bring a defense of consent, arguing that his victim consented to being struck?
iii. Rule: One who engages in prize fighting, even though prohibited by positive law, and
sustains an injury, should not have a right to recover any damages that he may sustain as the
result of the combat, which he expressly consented to and engaged in as a matter of business
or sport.
iv. Conclusion: the law contains a principle preventing any man from profiting from his own
wrongdoing.
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v. Analysis:
1. In this case:
a. If π has consented to being struck by another in the course of a brawl, his right
to control of his person has not been invaded.
b. If it is clear that he has consented to the blow and that usually his consent
would bar his liability, he is profiting by his illegal conduct.
2. There is a split in authority on the consent defense. This case doesn’t fall under either
rule, partly b/c the combat wasn’t in anger, it was an illegal fight for money.
a. Majority: mutual combat in anger causes each to be civilly liable to the other
or physical injuries inflicted during the fight. The fact that both parties
voluntarily fought is not a defense to suit for damages.
b. Minority: in mutual combat, the act of each is unlawful and relief will be
denied them in a civil action.
c. The majority rule is an exception to the consent defense.
d. Class notes on Hart v. Geysel: π consented to the mutual combat.
i. Wrongful death suit brought after one fighter in a prize fight hit the other and killed him.
ii. Court says if you engage in a fight you knew you could get hurt.
iii. Also, you can’t profit from your own wrongdoing. No recovery when conduct was unlawful.
iv. Criminal law would presumably kick in with this case, since the conduct is illegal.
v. Defense argued that the ∆ had consented to the fight and thus to the punch that killed him,
but court disagreed. No consent.
e. Notes after Hart:
i. Limits of consent defense: Barbara A. v. John G.:
1. John told Barbara that he “couldn’t possibly get anyone pregnant”, and she had sex
with him. She sued when she got pregnant and incurred medical expenses from an
ectopic pregnancy, and he raised a consent defense.
2. Court held that two grounds invalidated John’s consent defense:
a. Impregnating π went beyond the scope of her consent, and
b. Consent obtained through fraud is invalid.
f. O’Brien v. Cunard:
i. Facts: a ship was docking in Boston, and the ship’s doctor vaccinated all the passengers to
avoid a quarantine order. The π passively got her vaccine, and never objected in any way.
The doctor never knew that she objected until she filed suit.
ii. Rule: in light of the surrounding circumstances, it [the doctor’s conduct] was lawful; and
there was no evidence tending to show that it was not. He had no indication of nonconsent.
I. CONSENT IN TORTS
i. If there are rules of the game and ∆ violates them, there’s no consent.
ii. What about intercourse w/an underage person? Can a 6-yr-old consent?
iii. There must be the capacity to consent. You would look at the behavior of the π to see
whether he/she consented: must be reasonable.
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b. Self-defense: Courvoisier v. Raymond
i. Facts: this case took place around 1900, when some rowdy men surrounded the ∆’s building,
threatening him, throwing bricks and waving bats. ∆ fired a shot in the air, but the men kept
getting closer and throwing stones. Π, a sheriff’s deputy, came running, and the ∆ thought he
was one of the men in the crowd and shot him, wounding him. The street was lit, and π said
he ID’d himself, but ∆ says he didn’t know he was a policeman.
ii. Issue: error in jury instructions: ∆ claims self-defense, and that the JI excluded from the jury
a full consideration of the self-defense defense.
1. Was π assaulting ∆ at the time π was shot?
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c.
d.
e.
f.
g.
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2. If not, was there sufficient evidence of justification for the consideration of the jury?
iii. Rule: where a defendant attempts to justify on a plea of necessary self-defense, he must
satisfy the jury, not only that he acted honestly in using force, but that his fears were
reasonable under the circumstances, and also as to the reasonableness of the means used.
iv. Holding: in favor of π. The jury might have come to a different conclusion if it had been
properly instructed as per the above rule.
v. Analysis:
Insanity Defense
i. McGuire v. Almy: insane patient hits nurse over the head. Sues for battery.
Brief:
i. Facts: π was a nurse, caring for an insane patient. The patient went nuts one day and struck
the nurse and she sued for battery.
ii. Rule: where an insane person by his act does intentional damage to the person or property of
another he is liable for that damage in the same circumstances in which a normal person
would be liable.
1. The insane person must, in order to be liable, have been capable of entertaining the
necessary intent and must have entertained it in fact.
iii. Reasoning: Courts in this country almost invariably say in the broadest terms that an insane
person is liable for his torts.
1. As a rule no distinction is made between those torts which would ordinarily be classed
as intentional and those which would ordinarily be classed as negligent, nor do the
courts discuss the effect of different kinds of insanity or of varying degrees of capacity
as bearing upon the ability of the defendant to understand the particular act in
question or to make a reasoned decision with respect to it.
2. It is sometimes said that an insane person is not liable for torts requiring malice of
which he is incapable.
iv. Holding: ∆ found liable for her actions, verdict in favor of π. An insane person with wealth
ought not to continue enjoying that wealth while the victim bears the burden unaided.
Notes on Almy:
i. Intention and insanity: most decisions after Almy conform to its rule.
1. Note: where one of two innocent persons must suffer a loss, it should be borne by the
one who occasioned it.
2. Sometimes, ∆ was found unfit to stand for a criminal trial, but was held responsible for
an intentional tort. Court may find that ∆ could not form a rational choice, but did
make a crazy choice.
3. Automatism is a tough issue: case may be made that ∆ didn’t commit any voluntary
act, and can’t be liable at all.
Polmaier v. Russ
i. Schizophrenic man murdered his father in law.
ii. Though the defendant couldn’t form a rational choice, he could make a schizophrenic or crazy
choice and thus he was liable.
In Almy:
1. Not clear that they are raising an affirmative defense, but we assume it.
2. All you need here is the intent to strike.
3. It’s not redefining battery, just talking about this specific case.
a. Policy grounds for holding insane people liable: why would you make the
innocent victim pay?
b. As a policy matter, why don’t you want a consent defense? Maybe as a policy,
you want nurses to protect themselves and their patients: don’t want them to
be too scared to help their crazy patients.
c. Bottom line: insanity defense: we won’t be using it unless there is IIED or a
requirement for malice.
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