Intentional torts: offensive contact Flashcards
Battery: single intent
Under the Third Restatement approach to battery, a plaintiff can bring a battery claim if:
(1) The defendant contact with the person of another that is:
(a) Harmful—e.g., causing injury, pain, or illness; or
(b) Offensive; and
(2) The defendant intended to cause that contact—or apprehension of that contact.
Battery: dual intent
Under the single-intent approach to battery, it is irrelevant whether the defendant intended to cause offense.
Rather, it suffices that:
(1) she intended the contact; and
(2) the conduct was objectively offensive.
By contrast, under the dual intent approach, a defendant must both intend the contact and intend to make an offensive contact.
Battery: nominal and actual damages
Ordinarily, a plaintiff claiming battery can seek both:
(1) Nominal damages; and
(2) Under the “eggshell plaintiff” rule, any damages for physical harm flowing from the battery, even if unforeseeable.
Battery: punitive damages
In many jurisdictions, plaintiffs may seek punitive damages if the defendant acted outrageously or with malice.
Battery: offensive contact
Generally, offensiveness is evaluated under an objective test: whether a person of ordinary sensibilities—i.e., a reasonable person—would find the contact offensive.
But a defendant may still be liable if she is aware that the victim is hypersensitive but proceeds to act nonetheless.
Assault
To sustain an assault claim, a plaintiff must establish that:
(1) The defendant caused reasonable apprehension of an imminent harmful or offensive bodily contact; and
(2) The defendant:
(a) Intended to cause apprehension of such contact; or
(b) Intended to cause such contact itself.
Assault: imminence requirement
“Mere words” generally will not suffice, unless the defendant:
(1) is able to imminently carry out the threat; and
(2) takes action designed to put the victim in a state of apprehension.
Self defense
It is appropriate to use reasonable force to defend against—or defend another against—an offensive conduct or bodily harm.
Self defense: initial aggressor
The initial aggressor is prohibited from claiming self defense—unless the other party has responded to non-deadly force with deadly force.
Self defense: bystander injury
A person acting in self defense is not liable for injury to bystanders as long as:
(1) the injury was accidental; and
(2) the actor was not negligent toward the bystander.
Self defense: duty to retreat
The majority of jurisdictions do not require an attempt to retreat before the use of force.
Child defendant: single intent
To sustain a battery claim, it is sufficient for a plaintiff to show that a minor defendant:
(1) intended to touch the neighbor in a way that would be considered harmful or offensive, even though the child may have been too young:
(a) to understand that what she was doing was wrong; or
(b) to appreciate that the neighbor might be unusually vulnerable to injury.
