Chapter 2
A. Meaning of intent: There is no general meaning of “intent” when discussing intentional torts. For each individual intentional tort, you have to memorize a different definition of “intent.” All that the intentional torts have in common is that D must have intended to bring about some sort of physical or mental effect upon another person.
1. No intent to harm: The intentional torts generally are not defined in such a way as to require D to have intended to harm the plaintiff. (Example: D points a water gun at P, making it seem like a robbery, when in fact it is a practical joke. If D has intended to put P in fear of imminent harmful bodily contact, the “intent” for assault is present, even though D intended no “harm” to P.)
2. Substantial certainty: If D knows with substantial certainty that a particular effect will occur as a result of her action, she is deemed to have intended that result. (Example: D pulls a chair out from under P as she is sitting down. If D knew with “substantial certainty” that P would hit the ground, D meets the intent requirement for battery, even if he did not desire that she do so. [Garratt v. Dailey])
a. High likelihood: But if it is merely “highly likely,” not “substantially certain,” that the bad consequences will occur, then the act is not an intentional tort. “Recklessness” by D is not enough.
3. Act distinguished from consequences: Distinguish D’s act from the consequences of that act. The act must be intentional or substantially certain, but the consequences need not be. (Example: D intends to tap P lightly on the chin to annoy him. If P has a “glass jaw,” which is broken by the light blow, D has still “intended” to cause the contact, and the intentional tort of battery has taken place, even though the consequences — broken jaw — were not intended.)
B. Transferred intent: Under the doctrine of “transferred intent,” if D held the necessary intent with respect to person A, he will be held to have committed an intentional tort against any other person who happens to be injured. (Example: D shoots at A, and accidentally hits B. D is liable to B for the intentional tort of battery.)
A. Definition: Battery is the intentional infliction of a harmful or offensive bodily contact. (Example: A intentionally punches B in the nose. A has committed battery.)
B. Intent: It is not necessary that D desires to physically harm P. D has the necessary intent for battery if it is the case either that: (1) D intended to cause a harmful or offensive bodily contact; or (2) D intended to cause an imminent apprehension on P’s part of a harmful or offensive bodily contact.
Example 1: D shoots at P, intending to hit him with the bullet. D has the necessary intent for battery.
Example 2: D shoots at P, intending to miss P, but also intending to make P think that P would be hit. D has the intent needed for battery (i.e., the “intent to commit an assault” suffices as the intent for battery).
C. Harmful or offensive contact: If the contact is “harmful” — i.e., it causes pain or bodily damage — this qualifies. But battery also covers contacts which are merely“offensive,” i.e., damaging to a “reasonable sense of dignity.”
Example: D spits on P. Even if P is not “harmed” in the sense of being caused physical pain or physical injury, a battery has occurred because a person of average sensitivity in P’s position would have her dignity offended.
D. P need not be aware: It is not necessary that P have actual awareness of the contact at the time it occurs. (Example: D kisses P while she is asleep. D has committed a battery.)
A. Definition: Assault is the intentional causing of an apprehension of harmful or offensive contact.
Example: D, a bill collector, threatens to punch P in the face if P does not pay a bill immediately. Since D has intended to put P in imminent apprehension of a harmful bodily contact, this is assault, whether D intends to in fact hit P or not
B. Intent: There are two different intents, either of which will suffice for assault:
1. Intent to create apprehension: First, D intends to put P in imminent apprehension of the harmful or offensive contact, even if D does not intend to follow through (e.g., D threatens to shoot P, but does not intend to actually shoot P); or
2. Intent to make contact: Alternatively, D intends to in fact cause a harmful or offensive bodily contact. (Example: D shoots a gun at P, trying to hit him. D hopes P won’t see him, but P does. P is frightened, but the shot misses. This is assault.)
3. Summary: So D has the requisite intent for assault if D either “intends to commit an assault” or “intends to commit a battery.”
C. No hostility: It is not necessary that D bear malice towards P, or intend to harm her. (Example: D as a practical joke points a toy pistol at P, hoping that P will falsely think that P is about to be shot. D has one of the two alternative intents required for assault — the intent to put P in imminent apprehension of a harmful or offensive contact — so the fact that D does not desire to “harm” P is irrelevant.)
D. “Words alone” rule: Ordinarily, words alone are not sufficient, by themselves, to give rise to an assault. Normally there must be some overt act — a physical act or gesture by D — before P can claim to have been assaulted. (Example: During an argument, D says to P “I’m gonna hit you in the face.” This is probably not an assault, if D does not make any gesture like forming a fist or stepping towards P.)
1. Special circumstances: However, the surrounding circumstances, or D’s past acts, may occasionally make it reasonable for P to interpret D’s words alone as creating the required apprehension of imminent contact.
E. Imminence: It must appear to P that the harm being threatened is imminent, and that D has the present ability to carry out the threat. (Example: D threatens to shoot P, and leaves the room for the stated purpose of getting his revolver. D has not committed an assault on P.)
F. P unaware of danger: P must be aware of the threatened contact.
G. Threat to third persons: P must have an apprehension that she herself will be subjected to a bodily contact. She may not recover for her apprehension that someone else will be so touched. (Example: P sees D raise a pistol at P’s husband. D shoots and misses. P cannot recover for assault, because she did not fear a contact with her own body.)
H. Conditional threat: Where D threatens the harm only if P does not obey D’s demands, the existence of an assault depends on whether D had the legal right to compel P to perform the act in question. (Example: P, a burglar, breaks into D’s house. D says, “If you don’t get out, I’ll throw you out.” There is no assault on P, since D has the legal right to force P to leave.)
A. Definition: False imprisonment is defined as the intentional infliction of a confinement.
Example: D wants to have sex with P, and locks her in his bedroom for two hours hoping that P will agree. She does not, and D lets her go. This is false imprisonment, because D has intentionally confined P for a substantial time.
B. Intent: P must show that D either intended to confine him, or at least that D knew with substantial certainty that P would be confined by D’s actions. The tort of false imprisonment cannot be committed merely by negligent or reckless acts. (Example: D, a shopkeeper, negligently locks the store while P, a customer, is in the bathroom. This is not false imprisonment, since D did not intend to confine P.)
C. “Confinement”: The idea of confinement is that P is held within certain limits, not that she is prevented from entering certain places. (Example: D refuses to allow P to return to her own home. This is not false imprisonment — P can go anywhere else, so she has not been “confined.”)
D. Means used: The imprisonment may be carried out by direct physical means, but also by threats or by the assertion of legal authority.
1. Threats: Thus if D threatens to use force if P tries to escape, the requisite confinement exists.
2. Assertion of legal authority: Also, confinement may be caused by D’s assertion that he has legal authority to confine P — this is true even if D does not in fact have the legal authority, so long as P reasonably believed that D does, or is in doubt about whether D does. (Example: Storekeeper suspects P of shoplifting, and says, “I hereby make a citizen’s arrest of you.” Putting aside whether Storekeeper has a privilege to act this way, Storekeeper has “confined” P, if a reasonable person in P’s position would think that Storekeeper had the authority to make such an arrest, even if under local law Storekeeper did not have that authority.)
E. P must know of confinement: P must either be aware of the confinement, or must suffer some actual harm. (Example: P is locked in her hotel room by D, but P is asleep for the entire three-hour period, and learns only later that the door was locked. This is probably not false imprisonment.)
A. Definition: This tort is the intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even in the absence of physical harm. [21]
Example: D threatens that if P, a garbage collector, does not pay over part of his garbage collection proceeds to D and his henchmen, D will severely beat P. Since D’s conduct is extreme and outrageous, and since he has intended to cause P distress (which he has succeeded in doing), D is liable for infliction of mental distress. [State Rubbish Collectors Assoc. v. Siliznoff]
B. Intent: “Intent” for this tort is a bit broader than for others. There are three possible types of culpability by D: (1) D desires to cause P emotional distress; (2) D knows with substantial certainty that P will suffer emotional distress; and (3) D recklessly disregards the high probability that emotional distress will occur. (Example: D commits suicide by slitting his throat in P’s kitchen. D, or his estate, is liable for intentional infliction of mental distress because although P did not desire to cause distress to P, or even know that distress was substantially certain, he recklessly disregarded the high risk that distress would occur. [Blakeley v. Shortal’s Est.])
1. Transferred intent: The doctrine of “transferred intent” is applied only in a very limited fashion for emotion distress torts. So if D attempts to cause emotional distress to X (or to commit some other tort on him), and P suffers emotional distress, P usually will not recover.
a. Immediate family present: The main exception is that the transferred intent doctrine is applied if: (1) D directs his conduct to a member of P’s immediate family; (2) P is present; and (3) P’s presence is known to D. (Example: While P is present, and known to D to be present, D beats up P’s father. If P suffers severe emotional distress, a court will probably allow her to recover from D, even though D’s conduct was directed at the father, not P.)
C. “Extreme and outrageous”: P must show that D’s conduct was extreme and outrageous. D’s conduct has to be “beyond all possible bounds of decency.”
Example: D, as a practical joke, tells P that her husband has been badly injured in an accident, and is lying in the hospital with broken legs. This conduct is sufficiently outrageous to qualify. [Wilkinson v. Downton]
D. Actual severe distress: P must suffer severe emotional distress. P must show at least that her distress was severe enough that she sought medical aid. Most cases do not require P to show that the distress resulted in bodily harm.