TORTS I
8.26.09
McGuire v. Almy (Mass. 1937)
Mental Illness  intent
 Difficult to establish requisite intent by mentally ill to commit act?
o How is the intent there for the tort of battery or assault if they cannot
form such a mental thought
 Sanity in the treatment of torts v. criminal law (p. 48)
o Higher standard in torts (less fuss in torts)
 Preponderance of evidence more over than beyond a
reasonable doubt
 Immunity for mental illness?
 P. 46 (“This means that insofar…”)
 Delusions p.48
o Deceit = fraud
o Defense of insanity is quite convoluted when applying it to criminal
law
o If individual does not have mental capacity to commit the act, then
they cannot be held liable for their actions
Keel v. Hainline (Okla. 1958)
 Injuring resulting from tossed eraser at student’s face
 Lawsuit is brought forth on assault and battery
 Battery instead of Assault?
o Yes, not every battery constitutes an assault
 She is not apprehensive or put into a state of apprehension
caused by fear of bodily harm  Battery instead of assault
o If no, then why?
 Common law discussion of objective/subjective intent to harm
 Doctrine of transferred intent
o If A tries to hit B but misses and hits C, then the intent is transferred
from one party to an unintended person.
 Intent follows the bullet
o Why would negligence (the breach of a duty)
 You have a duty as a shooter to shoot carefully and well
 Prof. Johnson thinks that is the flaw in this case
o The plaintiff would not have a claim for battery
because the DEF’s intent to cause harm was
against the other students that were
participating in the horseplay and this harm
upon the PL is considered to be fictional
 We’d prefer to be in Oregon rather than Texas
o “(1) In addition to any other remedy provided by law, the parent or
parents of an unemancipated minor child shall be liable for actual
damages to person or property caused by any tort intentionally or
recklessly committed by such child. However, a parent who is not
entitled to legal custody of the minor child at the time of the
intentional or reckless tort shall not be liable for such damages.”
(p.54)
Transferred Intent (PowerPoint slide)
 If both the tort intended and the tort resulting are within the five torts
descended from the writ of trespass
Brudney v. Ematrudo (D. Conn. 1976)
 It is reasonable to be battered by a police officer therefore cause of
transferred intent doctrine is inapplicable
 If police officer was not being unreasonable because he intended to uphold
order and not exceed reasonable behavior
Assault/Battery
Battery
 Intent to cause contact (or transferred intent)
 Unconsented harmful or offensive (i.e., unreasonable) touching of the
plaintiff’s person or effects
Assault
 Intent to cause apprehension of contact (or transferred intent)
 Present apparent ability
 Threatening gesture (usually)
 Well-grounded apprehension of unconsented imminent contact
Noble v. Louisville Transfer Co.
 Harmful
o Anything that is physically harmful against a reasonable persons
 Offensive
o Anything that is emotionally harmful against a reasonable person
 The final judgment decided that the DEF’s actions were merely offensive and
not physically harmful
Moore v. El Paso Chamber of Commerce (Tex. Civ. App. 1949)
 Encouragement of mutual western patriotism dress leads to PL injuries
o Contributory Negligence as a defense in the trial court (wrong order)
 DEF intended to do the offensive contact but not the resulted
harm
 The PL had the legal right to use the streets without being
harmed or offended
 ****A battery will ensue if the act is intended even if
there is no contact to the PL****