Intentional Torts Involving Personal Injury Flashcards
What is a prima facie case for any intentional tort generally?
A prima facie case for any intentional tort, whether involving personal injury or not, must include:
- Proof of an act
- Intent
- Causation
What is the meaning of an ‘act’ when showing an intentional tort?
The act must be voluntary, meaning that the D must have directed physical muscular movement.
How is intent shown for an intentional tort?
The defendant acts intentionally if:
- He acts with the purpose of causing the consequences of his act, OR
- He acts knowing that the consequence is substantially certain to result.
Can children or the mentally incompetent act with intent?
Yes; a majority of the courts hold that both children and those who are mentally incompetent can be held liable for intentional torts if they either act with a purpose or know the consequences of their act with substantial certainty.
What is transferred intent?
Transferred intent exists when a person intents to commit an intentional tort against one person but instead commits either:
- A different tort against hat same person
- The intended tort against a different person, or
- A different intentional tort against a different person
EX: When the D throws a hardball in the direction of the P, intending only to scare (assault), but the ball actually strikes her, the D is liable to the P for battery.
When does transferred intent apply?
Transferred intent applies only when the intended tort and the resulting tort are among the following:
- Battery
- Assault
- False Imprisonment
- Trespass to chattels
NOT: IIED
What are the elements of battery?
A defendant is liable to the plaintiff for battery when he:
- Causes harmful or offensive contact with the person of another, AND
- Acts with the intent to cause such contact or the apprehension of such contact.
How does consent apply to battery?
There is not battery if the plaintiff consented to the act, either expressly or by virtue of participating in a particular event, like playing in a football game or being bumped in a crowded subway.
What is harmful contact for battery?
Contact is harmful when it causes injury, physical impairment, pain or illness.
What is offensive contact for battery?
Contact is offensive when a person of ordinary sensibilities (i.e. a reasonable person) would find the contact offensive. It’s an objective, reasonable person test.
What if the plaintiff in a battery claim is unaware or hypersensitive?
If a P is hypersensitive, the D can still be held liable if he is aware of the hypersensitivity.
Also, the P need not be aware, such as a surgeon who gropes a patient while they are under anesthesia.
What counts as the P’s person for purposes of battery?
Contact with the P’s person or anything connects to the P’s person qualifies as contact.
EX: clothing, pet being held, bicycle being ridden
How is causation shown for battery?
The act must in fact result in contact of a harmful or offensive nature. A D who sets in motion is chain of events that causes contact with the P, whether the contact is direct or indirect, is liable.
EX: a tripwire
What is intent for battery?
To act intentionally, a D must act with the purpose of bringing about the consequences of the act or with the knowledge that the consequences are substantially certain to occur.
In some jurisdictions, the D must only intend contact, not necessarily the specific consequence. But in other jurisdictions the D must intend for the contact to be harmful or offensive. (Single intent versus double intent)
What we the damages rules for battery?
No proof of actual harm is required; the P may recover nominal damages even though no actual damage occurred (in order to vindicate the right to physical autonomy).
Many states allow recovery of punitive damages if the D acted outrageously or with malice.
NOTE: under the ‘thin skull’ doctrine, the D is not required to foresee the extent of the damages in order to be held liable for all damages. So, pinching someone is battery, but if they are also a hemophiliac and bleed to death then a D is liable for wrongful death instead.
What is assault?
An assault is the P’s reasonable apprehension of an imminent harmful or offensive bodily contact caused by the D’s action or threat with the intent to cause either the apprehension of such contact or the contact itself.
How does bodily contact apply to assault?
Bodily contact is not required. The prototypical assault occurs when the plaintiff sees the D throw a punch at him.
What is reasonable apprehension for assault?
A P’s apprehension must be reasonable. Unlike with battery, the P must be aware of or have knowledge of the D’s act.
The D’s apparent ability to cause harm (like a real-looking toy gun) can be sufficient to place the plaintiff in apprehension of harm.
What if the P is confident they can prevent the threatened harm; can there still be assault?
Yes.
What is imminence for purposes of the elements of assault?
The threatened bodily harm or offensive contact must be imminent, or without significant delay. Threats of future harm are insufficient, as are threats made by a D too far away to inflict any harm.
EX: a threatening phone call from across the city doesn’t count.
Can ‘mere words’ constitute an assault?
No; mere words must be coupled with conduct or other circumstances. If the d is able to carry out the threats imminently and takes action to put the victim in a state of apprehension, then there may be an assault.
EX: If a D sneaks up behind P in a dark alley and utters in a menacing voice, ‘your money or your life,’ then an assault may be complete.
How is intent defined for purposes of assault?
The D must intend to cause the P’s apprehension of an imminent harmful or offensive contact or intend to cause the contact itself.
NOTE: the D’s own words can negate intent, as in ‘if you weren’t such a good friend I would punch you.’ There is no assault there.
How do damages work for assault?
No proof of actual damages is required. As in battery the P can recover nominal or punitive damages. Actual damages from physical harm (like a heart attack) are also recoverable.
What is the tort of Intentional Infliction of Emotional Distress? (IIED)
A D is liable for intentionally or recklessly acting with extreme or outrageous conduct that causes the P severe emotional distress.
What is intent for purposes of IIED?
The D must intend to cause severe emotional distress or must act with recklessness as to the risk of causing such distress. NO TRANSFERRED INTENT.
What is extreme or outrageous conduct?
Conduct is extreme or outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in civilized society. So mere insults, threats or indignities down rise to that level. Ordinary people must be able to conclude that it is outrageous.
EX: as a joke, P tells D his wife was killed in an accident.
When is language or conduct more likely to be found outrageous for purposes of IIED?
When the D is in a position of authority over the P (police, employer, innkeeper etc)
When the P is a member of a group with known heightened sensitivity (kids, pregnant ladies, elderly etc)
Can a D be liable for IIED when they have directed the act toward a third party?
Yes; when the D’s conduct is directed at a third-party victim, that D is liable if he intentionally or recklessly caused severe emotional distress to:
- A member of the victim’s immediate family who is present (and D knows she is present), whether or not such distress results in bodily injury, or
- Any other bystander present (and D knows they are present), IF they actually do suffer bodily injury.
EX: D pulls a pistol on wife, who knows hubby is present. D is liable to hubby if he suffers severe emotional distress.
