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Intentional Torts I. Common Law a. Case of the Thornsi. Recall: P brought a writ of trespass against D, who had cut thorns from his hedge on his own land that lay beside Ps land of five acres. The thorns fell upon Ps land and D removed them as soon as he could, which constitutes the trespass onto Ps land. (Remember the time in 1466, land was the only thing of value, presence was enough to be an injury.) ii. Lesson: If you injure someone, youre liable no matter if it is intended. Absolute Liability. iii. Side note: avoidance is not an issue in Thorns (if it could have been avoided) this is dicta.

II.

b. Dryller v. Schottum (Hypo) i. D did not shoot P on purpose (he tripped) could he have avoided it? But avoidance is not the issue on Thorns, it is dicta. How persuasive is dicta? Sometimes very persuasive. c. Stuk v. Leever (Hypo) i. 1st case suggesting strict liability is not what torts is all about ii. Difference between trespass and trespass on the case (action on the case) trespass on the case is a different case. Liability based on fault does fault matter in tort? a. Weaver v. Wardi. Although it is agreed that if men tilt or turney in the presence of the Kind, or if two masters of defense playing their prizes kill one another, that this shall be no felony, since these acts are not committed with a felonious mind. However, this is not the case in trespass, which tends only to give damages according to hurt or loss. No man shall be excused of a trespass except if it may be judged entirely without his fault. ii. There may be no criminal activity because of the absence of the felonious mind, but D is still liable in trespass unless it is utterly not his fault. iii. For D to be without fault, you have to find some1 else to be responsible (either P or a 3rd party). iv. The precedents dont apply here b/c it is not a crim case, it is a civil case, & D is not utterly without fault. v. In this case, theres a suggestion that fault matters. Tort law moved from absolute liability to the possibility that if you werent at fault, you wouldnt have to pay. vi. To be utterly without fault, it has to be inevitable, and the Ct gives 2 examples: (1) if someone grabs your arm & hits another person; (2) if P had run into the shot. vii. D has to demonstrate fault or lack thereof.

b. Brown v. Kendall - ** leading case in how we do personal injury law, major transition in the law i. Recall: Two dogs owned by P and D were fighting. D tried to separate them with a stick. Indoing so, he backed up toward P and in raising his stick over his shoulder, hit P in the eye and injured him. Action of trespass for assault and battery. ii. The trial ct said D had the burden of proving extraordinary care (The controversy between the parties: whether it was necessary or proper for D to interfere in the fight; whether the interference, if called for, was in proper manner, and what degree of care was exercised by each party on the occasion.) iii. But we cant tell how the jury decided because the burden had been on D when it should have been on P. Burden to show carelessness is on P. iv. Liability must be based upon legal fault.

III.

Battery a. Cole v. Turner i. Recall: the reasoning/rule is that the least touching of another in anger is a battery. Battery assumes a contact. ii. Restatement (Second) of Torts extremely influential b. Battery: Harmful Contact: i. Intent to cause harmful or offensive contact with a person ii. Harmful or offensive contact 1. Injury is not an element of intent. Battery liable for unintended or unforeseen injuries.

2. Contact with a person can be satisfied with something so connected as to be part of the person (Fisher v. Carrousel) c. Intent: i. Purpose to cause the prohibited result, or ii. Substantial certainty that the prohibited result will occur 1. [For battery, the prohibited result is the harmful or offensive touching, not the particular injury.] iii. Neither a good faith mistake (Ranson v. Kitner) nor mental illness (insanity) (McGuire v. Almy) eliminate intent iv. Transferred Doctrine of Intent: the intent for any of the 5 original torts can be substituted for intent for any 5 original accomplished [tort to tort, person to person, different tort to different person] Intent a. Garratt v. Dailey i. Recall: D, age 5 years 9 months, was visiting with Ps sister, an adult, and P in the back yard ofPs home. P contends that, as she began to sit down on a lawn chair, D deliberately pulled it out from under her. D alleges no intent to cause harmful or offensive contact.

IV.

ii. Issue: what level of knowledge that an act will cause harm constitutes intent. iii. Holding: Volitional act if you are substantially certain that harmful touching will occur, then this constitutes intent. (Side note: the touching can be direct or indirect, either is sufficient.) iv. The case is remanded the 2nd time around, P wins, since D knew with substantial certainty that P would hit the ground. The substantial certainty is in regard to the touching. v. Lesson: Intention, in any tort (this happens to be a battery) generally, can be either (1) purpose or (2) substantial certainty of the result. vi. Hypo: what if the child was 3.5 yrs old? In Fromenthal v. Clark, 2 yrs old was too young to form intent. At what age is a child capable of forming substantial certainty? vii. Hypo: What if a 3.5 yr old was mad at the babysitter and bit her, giving her an infection? 1. This is a purpose case he bit her on purpose. Not the same as substantial certainty. b. Ranson v. Kitner i. Recall: Appellants were hunting wolves and mistakenly killed appellees dog. ii. Ps complaint in trespass. Ds affirmative defense: that it was a good faith mistake, lacking intent. But there is no intent necessary for trespass. iii. Issue: Whether a good faith mistake means that there isnt intent necessary for trespass. iv. Intent in this case is for the trespass, by shooting. v. This was not a cause of action for battery because battery is harmful/offensive contact to a person. vi. Does making a mistake mean no intent? 1. Intent is different from motive. Intent has to do with the action. 2. He intended to pull the trigger, even though is motive was to kill a wolf, not a dog 3. A good faith mistake doesnt get you out of intent. c. McGuire v. Almy i. Recall: Insane person struck nurse and caused injury. Issue: Whether an insane person is liable for tort assault and battery. ii. Tort law if someone gets hurt, there ought to be a way to make them whole. iii. A person is liable for injuries that are not intended or not foreseeable, but injury is not an element in intentional tort, there is no need to prove an injury. d. Fisher v. Carrousel Motor Hotel i. Recall: employee of D snatched a plate from Ps hand and shouted that Negroes could not be served in this club. P sues for assault and battery.

V.

ii. Issue: Whether there must be an actual touching of the person to constitute a battery; and Whether P was entitled to compensatory damages for mental suffering (even though no physical injury). Holding: Yes and Yes (invasion of a persons dignity). iii. Lesson: this case illuminates that the idea of person is broadened broadens the 2nd element of battery: Harmful/offensive contact to a person or customarily an extension of the person. Assault a. Elements: i. Intent to cause apprehension of imminent contact ii. Reasonable apprehension (this is based on the physical facts) of imminent contact. 1. Reasonable apprehension requires: a. Apparent present ability to accomplish contact b. Threat must be present & unconditional [illegality exception crime] 2. Words alone do not constitute an assault. Future threats do not constitute. 3. Usually a conditional threat is not an assault unless its a crime (i.e. Im going to hit you if you dont give me your $ is committing a crime, but Im going to hit you if you dont leave the room is different, since theres a condition you can perform to avoid battery.) b. I de S et Ux v. W de S i. Cause of action for trespass Ps claim for trespass by assault on the wife (D struck with his hatchet but did not hit her when she stuck her head out the window to tell him the tavern was closed). D says hes not liable since no harm was done. ii. Issue: Whether actually doing physical injury to the person is a necessary element of trespass (necessary for the recovery of trespass for assault). Holding: No, it is not necessary to do physical harm in order to warrant trespass for assault. iii. In modern terms: The judge said no harm, no trespass. Other Judge then says that P wins as a matter of law although he did no harm, he still made an assault upon the wife, and for an assault, you recover damages. iv. HYPO: W de S steps forward, slams the end of the axe into the door (knocking) & yells bitch with no intent to hurt or scare her (not knowing she was there). Is he nevertheless liable for assault? 1. If there is no intent, 1 of the elements of assault is missing But this is a still a trespass (since he steps forward onto the steps and keeps knocking). 2. So the Doctrine of Transferred Intent comes in here: If you intend to accomplish 1 of the 5 original torts and accomplish another, the intent for the 1 you did transfers to the other (Only for these 5: battery, assault, false imprisonment, trespass to land, trespass to chattels). 3. So W de S is liable for assault, since the intent from trespass transfers to assault. c. Western Union Telegraph v. Hill i. Recall: If you come back here and let me love you and pet you, I will fix your clock. P sues for damages for assault on his wife. Jury decides in favor of P, but the decision is reversed. There was no imminent apprehension in this case (facts show that D could not reach the wife). ii. Issue: Are these facts sufficient could he reach over the desk and thus touch her? The ct here says that What it does take to constitute a