Welcome to this deep dive where we really get into the weeds on
tricky legal topics to help you sharpen your understanding.
Exactly. No need to wade through endless
pages today. We're focusing laser sharp on
intentional torts, you know, the real foundation of tort law.
Think of this as your your key briefing for absolutely nailing
those law school exams and definitely the bar exam.
Couldn't agree more. Now you might find negligence
cases are like everywhere in actual practice later on, but
getting intentional torts down cold?
That's just non negotiable for exams.
They really force you to wrestle with intent.
Intent. Yeah, that's the big one, isn't
it? The line between, say, an
accident and something done on purpose.
Recycling, unlike negligence where we're looking at
carelessness, maybe a breach of duty, right?
Intentional torts need of volitional act, a conscious
choice. It's not just a mistake.
There's a purpose, or at least a near certainty driving the
action. OK, so let's unpack that this
idea of intent. So the restatement, the third
one, gives us a pretty clear 2 pronged definition.
First, the person acts with the purpose of causing a
consequence. They want it to happen, right?
Desire. Or second, they act knowing that
the consequence is substantially certain to result from their
actions, even if they don't necessarily want it.
Substantial certainty. But here's a really critical
point, especially for exams, motive is not the same as
intent. Ah, good distinction.
So someone might have a really nasty reason like malice or ill
will, and that might help show intent.
Exactly. It can be evidence.
But you don't actually need to prove that bad motive to
establish the legal element of intent.
That's absolutely correct. Just the desire to bring about
the contact or knowing it's substantially certain is enough.
The harm itself doesn't even need to be intended in some
cases like battery. OK, And this brings us to
something that definitely trips students up.
Transferred intent. The classic curveball it.
Feels a bit like legal magic. I aim at person A, but oops, I
hit person B instead. My intent just follows.
Sort of, yeah. In essence, if you intend to
commit, say, a battery against A, but accidentally commit that
battery against B, or maybe you intend an assault against A but
end up actually battering A, that initial wrongful intent can
transfer. So it satisfies the intent
element for the tort you actually committed, even if it
wasn't the specific outcome or victim you planned.
Exactly. The law basically says you
intended A wrongful act. You don't get off the hook just
because your aim was bad or things went slightly
differently. Right, like those case examples
we all study QV Hainlein the eraser throwing in the classroom
a classic or In re White where someone shot at one person but
hit another. In both, the intent to make the
harmful contact, even if aimed elsewhere, or maybe intending a
different tort like assault was enough.
It transferred to cover the battery against the actual
person hit. So the key is that initial
intent to do something tortious the.
Intent to commit that volitional act, Yes.
Now things get, well, a bit more complicated when we talk about
the mental state of the actor. You mean like if the person
committing the tort has a mental illness?
That whole issue of capacity and intent.
Exactly. It feels kind of intuitive,
doesn't it? How can someone who maybe lacks
full mental capacity truly form the necessary intent?
Yeah, it seems like it clashes with the whole idea of a
deliberate act. Well, it's been debated a lot
historically. The law, like we see in some
older Kansas cases, Seals V Snow Tupper V Topher, took the view
that even legally insane persons are still civilly liable for
their intentional torts. Really, what was the thinking
behind that? It seems quite harsh.
There were several policy reasons given.
One major 1 is about loss allocation.
Who should bear the cost? The innocent victim versus the
person who caused the harm. Right.
The law tended to say the person who caused it should pay
regardless of their mental state.
There was also this older idea, maybe less relevant now, OK,
that holding them liable might encourage families or caretakers
to, you know, exercise more control or restraint.
That feels a bit dated. It does, and there were also
concerns about people maybe faking insanity to avoid paying
damages, plus the basic need to give the injured person some
form of redress. OK, but there must be strong
arguments against that, right? It feels like it ignores the
whole fault principle and torts. Oh.
Absolutely. Critics, like Kirby pointed out,
argue that if someone truly can't control their conduct due
to mental illness, can we really say they're at fault in the way
tort law usually requires? That makes sense.
And that rationale about encouraging confinement, like
you said, it's pretty outdated given modern mental health care.
Plus, we have much better ways now to assess mental states than
we did historically, making the feigning insanity argument
weaker. So where does the law generally
stand now? What's the prevailing view in
the US? The dominant view reflected in
the Restatement Second of Torts still generally holds that
mental deficiency doesn't automatically negate intent for
intentional torts. Still, why is that?
Well, the commentary points to a few practical reasons.
Things like the difficulty in getting truly reliable evidence
about mental States and civil trials, the potential for fake
defenses, and a general reluctance to bring the complex
rules of criminal insanity into tort law.
So it's less about whether the person understood why they were
acting and more about whether they intended the physical act
itself. That's the crux of it.
It's about the voluntariness of the physical action.
Think about Delahanty V Hinckley.
The Reagan assassination attempt.
Right. Or Coleman V Notre Dame
convalescent home with a patient with dementia.
In those situations, the court looks at did the person intend
to say pull the trigger or push the person?
Even if the reason for doing it was based on a delusion or was
totally irrational. Exactly as the Restatement says,
an insane person acts intentionally if they intend to
do the physical act they did, even if their motives are
irrational. The focus is on the intent to
make the physical movement or contact.
That's a really critical distinction for exams,
volitional act versus rational motive.
OK, Now you also mentioned substantial certainty earlier as
the other way to show intent. Right, the second Tron.
Can you expand on that? How does that work if someone
doesn't actually want to cause harm?
OK, so substantial certainty comes into play when the actor
knows with a very high degree of probability that a certain
consequence will result from their actions.
They might not desire the outcome, but they know it's
practically guaranteed to happen.
Like firing a gun into a crowd, you might not want to hit anyone
specifically, but you know it's almost certain someone will get
hurt. Perfect example or the classic
case, Gary V Daly. The chair polling case.
Exactly. The child might not have
actively wanted the woman to get injured, but he knew with
substantial certainty that when he pulled the chair away, she
would try to sit and fall. That knowledge was enough to
constitute intent. So even without malice or a
specific desire to harm, acting when you know farm is virtually
inevitable counts as intent. Got it.
Before we jump into the specific torts, you hinted that one of
them has a slightly different intense standard.
Yes, just a slight variation for intentional infliction of
emotional distress or IED. OK.
What's different there? For IEE, many places and the
Restatement Third also allow recklessness to satisfy the
mental state requirement. Recklessness meaning what
exactly? Recklessness is generally seen
as consciously disregarding a substantial and unjustifiable
risk. For IIE, it means acting with
conscious disregard of a high probability that your actions
will cause severe emotional distress.
It's a bit lower than purpose or substantial certainty.
OK. So for IIED intent or
recklessness regarding the emotional distress will do.
Good to know. All right, that groundwork on
intent is super helpful. Let's get into the first
specific tort assault. OK, assault.
The core definition you need is the intentional creation of a
reasonable apprehension of an imminent harmful or offensive
contact. OK, breaking that down,
intentional creation, reasonable apprehension, imminent and
harmful or offensive contact? Exactly.
The key is the apprehension, the plaintiffs awareness and
anticipation of an unwanted touching.
So it's about the victim state of mind.
They have to actually feel like they're about to be hit or
touched offensively. Yes, precisely.
It's a mental or emotional invasion, not a physical one.
And that feeling, that apprehension, has to be
reasonable under the circumstances.
Reasonable, OK, And they must be aware of it at the time.
Like if someone swings at me from behind and misses and I
never knew about it, that's not assault.
Correct. No awareness, no apprehension,
no assault. What about just words?
If someone just yells threats, is that enough?
It feels like there needs to be more.
You're right, generally words alone are not enough for
assault. You usually need some kind of
accompanying physical act or conduct that makes the threat
seem immediate. Like shaking a fist while
threatening someone. Exactly the words plus the fish
shaking together create that reasonable apprehension of
immediate contact. Contrast that with, say, a
threat over the phone for miles away, like in Brook.
Review Silverthrone. Right, if I were there, I'd
break your neck. Not immediate enough.
Precisely that threat lacks the crucial element of imminence.
Imminent. Let's talk about that.
It means like right now. Not next week.
Not even in 5 minutes maybe. It means it's about to happen.
The contact will occur without significant delay unless
something intervenes, like the plaintiff flees, defends
themselves, or someone else steps in.
It's that feeling of it's coming right now, OK.
Let's run through some of those classic assault cases.
Beach V Hancock pointing the unloaded gun.
Even though the gun was unloaded, the plaintiff didn't
know that pointing it and snapping the trigger created a
reasonable apprehension of an imminent battery.
So assault. It's about the plaintiff's
perception, OK. And Brooker, we mentioned no
imminence due to distance. What about Langford V Shoe, the
prank with the box supposed to contain a Mongoose?
The practical joke case. Yeah, how is that assault?
There wasn't even a real threat. Well, the defendant
intentionally acted, told the story, showed the box to make
the plaintiff believe she was in imminent danger of harmful
contact from a supposedly dangerous animal.
So they intended to cause the apprehension, even if the threat
wasn't real. Exactly, and her apprehension
was reasonable given what she was told, leading her to injure
herself trying to escape. The intent was a cause to.
Fear Gotcha and Vetter V Morgan, the road rage case screaming,
revving the engine at the stoplight.
Yes, the defendant's aggressive actions created a reasonable
fear in the plaintiff that he was about to ramp her car or
otherwise harm her. Imminent harm again.
Right, and her attempt to evade that reasonably perceived threat
led to her crashing. The court found that sufficient
for assault. OK, so assault, intentional
creation of reasonable apprehension of imminent harmful
offensive contact. Now let's move to the actual
contact battery. All right, battery, the basic
definition is an intentional, harmful or offensive and
unprivileged contact with the person of another.
Intentional contact. Harmful or offensive?
Unprivileged. Correct.
And notice the key difference from assault Battery requires
actual contact. So assault is the threat,
battery is the hit, roughly speaking.
That's a good shorthand, but remember the intent element for
battery. You don't necessarily need to
intend to harm the person. Oh right, you mentioned this
earlier. Just intending the contact
itself is enough. Often, yes, the intent to make
the physical contact, even if you didn't foresee the specific
injury that resulted, can satisfy the intent element for
battery. Like in Volzburg V Putney, the
kid kicks another kid in the shin in the classroom.
Seemingly minor tap. But it aggravates a prior
injury, leading to serious complications.
The kicker intended the kick, even if not the severe harm.
Exactly or White V. University of Idaho, the piano
teacher case. Touching the students back
unexpectedly. Right.
He intended the touch, which was argued doably offensive or at
least unwanted, and it led to unforeseen medical issues.
The intent to make the contact was sufficient.
OK. And what makes contact
offensive? It's not just about physical
pain, right? Definitely not.
Offensive contact is contact that violates a reasonable sense
of personal dignity. Reasonable sense again, so it's
judged objectively. Yes, based on what a reasonable
person in the plaintiff's position would find offensive
under the circumstances. Think social norms.
Context Restatement Second, Section 19 talks about this.
It's not usually based on someone being hypersensitive,
unless the defendant knew about that hypersensitivity.
OK, so let's take off some battery examples.
Nelson V Carroll hitting someone with a gun during robbery.
The gun goes off. Battery.
The intentional act was hitting the person with a gun.
That contact set the harmful gunshot in motion.
Got it. Wagner V State the attack by the
mentally disabled person in Kmart.
Reinforces the point about mental capacity.
The court found the patient capable of intending the contact
fulfilling the battery element OK.
What about Laidlaw V Sage the guy used as a human shield
before a bomb went off? The court said no battery there.
Why? Because the defendant's act of
moving the plaintiff wasn't done with the intent to harm or
offend him, but out of immediate self preservation in a moment of
extreme peril, the intent element was missing.
The specific intent in that emergency context.
Interesting. Paul V Holbrook The unwanted
shoulder massage. Clear battery once he was told
to stop continuing the contact after consent was withdrawn made
it offensive. Even if a massage isn't
inherently harmful. Right.
It became an offensive violation of dignity.
And liked min VWLW communications blowing smoke in
the anti smoking advocate's face.
The court allowed that claim to recede.
Intentionally blowing smoke directly at someone to cause
discomfort could be seen by a jury as offensive contact.
Smoke particles are particulate matter.
They made contact. Wow OK, but compare that to
Madden VDC Transit, the bus fumes case.
No battery there, no intent to direct the fumes specifically at
the plaintiffs as a form of contact.
It was just a general environmental exposure.
Lack the specific intent for contact.
Intent makes all the difference. OK, what about the really
sensitive area, sexual contact and undisclosed STD's like in
Kathleen KV, Robert B. Yeah, this is important.
The principle here, also seen in the Restatement, is that consent
to sexual contact is generally considered invalid or vitiated
if it's obtained based on a significant misrepresentation or
failure to disclose something crucial like having an STD.
So the contact becomes non consensual and therefore
potentially a battery. Exactly because the person
wouldn't have consented had they known the truth, the contact is
rendered harmful or offensive due to the undisclosed risk.
And Dovie Johnson with HIV. Similar reasoning, the court
said a battery claim could be made if the defendant knew with
substantial certainty that they could transmit HIV and engaged
in contact without disclosing that risk.
Again, it links back to intend, either purpose or substantial
certainty of causing a harmful contact.
OK, so knowing exposure to serious risk without consent,
potential battery makes sense. All right, moving on, false
imprisonment. This one seems straightforward,
restricting movement. At its core, yes, false
imprisonment is about the intentional confinement or
restraint of a person within fixed boundaries, without legal
justification and without their consent.
OK, for exam purposes, what are the absolute key elements we
need to lock down for false imprisonment?
You need 4 things. One, intent to confine the
defendant has to mean to restrict the person's movement.
2 actual confinement. The person has to be truly
restricted within boundaries, with no reasonable means of
escape known to. Them no reasonable way out, got
it. Three, it has to be without
consent. If they agree to stay, it's not
false imprisonment, right? And four, this is important in
most jurisdictions the plaintiff has to be aware of the
confinement at the time it's happening or alternatively
suffer some actual harm because. Of it awareness or harm?
Intent, Actual confinement, no consent and awareness.
Harm. Simple enough, but lots of ways
that could play out. Definitely.
Now let's tackle the last of this group intentional
infliction of emotional distress, IED.
Of the outrageous conduct tort, this one has a high bar, doesn't
it? Extremely high.
The definition is intentional or reckless conduct that is extreme
and outrageous and causes severe emotional distress.
That's straight from Restate, the second section 46.
Extreme and outrageous. What does that actually mean in
practice? It sounds subjective.
It is a high standard. We're talking about conduct that
is, as courts often say, beyond all possible bounds of decency,
atrocious and utterly intolerable in the civilized
community. So definitely not just insults
or being rude or minor annoyances.
Absolutely not. Everyday indignities, name
calling, even some threats that don't rise to assault those
generally won't cut it for IIE. The conduct has to be truly
shocking and egregious. But you mentioned earlier the
threshold might be a bit lower sometimes.
Yes, context matters. If the defendant is in a
position of power over the plaintiff, employer, police
officers, school official, their conduct might be judged more
harshly. Same if the plaintiff is known
to be particularly vulnerable. A child, an elderly person,
someone pregnant, or someone the defendant knows has a particular
sensitivity. Exploiting that vulnerability
can make conduct outrageous when it might not otherwise be.
Makes sense and the mental state for IED, its intent or
recklessness? Correct.
The defendant must either have intended to cause severe
emotional distress or they acted with reckless disregard of a
high probability that such distress would result.
That recklessness part is key. They didn't have to want to
cause the distress, just knew their shocking conduct was very
likely to. Exactly.
Consciously ignoring that high risk is enough.
And the distress itself, it can't just be feeling upset,
right? It has to be severe.
Severe is the standard. We're talking about distress so
bad that no reasonable person could be expected to endure it.
Often courts will look for proof, Maybe physical
manifestations like ulcers or headaches, psychological harm
requiring treatment, or major interference with daily life.
It needs objective evidence, OK. What if the outrageous conduct
is aimed at someone else, but I witness it and get severely
distressed? The Bystander Rule Restatement,
second section 46 two covers this.
Generally, if the conduct is directed at a third person, an
immediate family member of that person who is present at the
time can recover for IED if they suffer severe emotional
distress. Even if the conduct wasn't aimed
at them. Right, and some courts might
extend this to non family members who are present,
especially if they also suffer physical harm from the distress.
The key is usually presence and the relationship or witnessing
of the outrageous act. OK.
Can we think of a case where conduct was bad but not bad
enough for IID to see where that line is?
Roberts V Sailor is a good example.
A doctor was pretty unpleasant to a former patient in a
hospital hallway, making some cutting remarks related to a
past lawsuit. While the doctor's behavior was
unprofessional, maybe even offensive, the court found it
didn't reach that incredibly high level of extreme and
outrageous required for an IED claim.
It wasn't utterly intolerable, vulnerable in a civilized
society. So it sets a really high bar to
avoid turning every nasty encounter into a lawsuit.
Precisely, it reserves IED for truly appalling behavior.
All right, so we've covered the big four personal intentional
torts. But what if the defendant had a
good reserve for their actions? That brings us to defenses,
right? Absolutely, just proving the
elements of the tour isn't the end of the story.
The defendant might have a privilege or defense that
negates liability. I heard a mnemonic for defenses
once, something like Darn cops. Is that helpful?
It can be, yeah. Darn cops stands for discipline,
arrest, recapture of chattels, necessity, consent, others,
defense of property, defense of and self-defense.
It covers most of the common ones.
That's handy for today, focusing on assault and battery.
Which defenses are the most critical to know for exams?
Definitely consent and self-defense.
They come up constantly. Necessity is also important to
understand. OK, let's start with consent.
The idea is if I agree to it, I can't sue you for.
It that's the basic principle, Valenti non fit injuria to one
who is willing. No wrong is done if the
plaintiff voluntarily consents to the act that constitutes the
tort. That consent is generally a
complete defense. And consent can be stated
outright. Like yes you can.
Right. That's express consent, or it
could be implied by the plaintiff's conduct or by the
circumstances. Like holding out your arm for a
shot implies consent to the needle prick.
Exactly or participating in a football game implies consent to
the usual tackles and contact within the rules, but the
defendant has to reasonably believe consent was given.
It has to be actual and reasonable belief.
OK. And are there limits?
Can consent be like invalid? Oh yes, consent obtained by
fraud like lying about having an STD or duress is invalid.
Consent can be withdrawn and you can only consent to things
within the scope of the consent given.
Also, courts sometimes won't recognize consent if it violates
public policy, like consenting to a crime or extreme harm.
OK, scope of consent. Let's look at Kauffman V
Garnett, the football coach tackling the young player way
too hard. Right, the player consented to
playing football and the normal contact can fall for his age
group. But not to being unexpectedly
slammed to the ground by a much larger adult coach.
Exactly. The coach's actions exceeded the
scope of any implied consent. So, Battery?
What about Grabowski V Quigley, the wrong surgeon doing the
operation? No consent there.
The patient consented to Surgeon A, not Surgeon B who actually
performed it. Consent is specific to the
person and the procedure agreed upon.
Battery. OK.
And Burzuska V Olsen, the dentist with HIV.
We touched on this. Right.
The argument is that consent to treatment was invalid because
the patients weren't informed of the dentist HIV status, which
was a material risk related to the contact.
Lack of informed consent can vitiate it.
But then there's Kennedy V Parrot, where the Sojin found
something unexpected during surgery and fixed it.
That's often seen as implied consent in a medical emergency.
When a patient is unable to consent and immediate action is
needed to address an unforeseen issue discovered during an
authorized procedure, consent is often implied for the necessary
extension. OK, so consent is complex,
express implied scope validity. Got it.
Now self-defense. A fundamental 1.
The basic idea is you're privileged to use reasonable
force to protect yourself from an imminent threat of harmful or
offensive contact. Keywords there Reasonable force,
imminent threat. Absolutely.
First, you must actually and reasonably believe that force is
necessary to prevent the attack. Reasonable belief, OK.
And second, the force you use must be proportionate to the
threat you're facing. You can't use deadly force to
stop someone from, say, just shoving you.
Generally, no. Deadly force is usually only
justified if you reasonably believe you're facing a threat
of death or serious bodily harm yourself.
You have to match the level of force appropriately.
What about Heisler V Loretto, the guy who punched someone on
his porch? That was found to be reasonable
self-defense. The person had been asked to
leave, refused and then advanced aggressively toward the
homeowner. Creating a reasonable fear of
imminent harm. Yes, the homeowner's single
punch was seen as a proportionate response to repel
the perceived imminent threat. OK.
And you mentioned necessity briefly under darn cops.
How does that fit in? Necessity is a defense that
arises in emergencies, allowing someone to commit an intentional
tort, usually trespass to property to prevent a greater
harm. An emergency justification.
Right. Two types, public necessity and
private necessity. Public public necessity is when
you act to protect the public good.
Like a firefighter destroying a house to create a fire break and
save the town. It's a complete defense.
You're not liable for the damage caused.
Makes sense for the greater good.
What about private necessity? Private necessity is when you
act to protect your own interests or those of a small
group. Like docking your boat at
someone else's pier during a sudden violent storm to save
your boat and yourself. It's only a partial defense.
You're allowed to trespass, meaning you aren't liable for
the trespass itself, but you do have to pay for any actual
damage you caused to the other person's property.
So you can use their doc, but if you damage it you pay for
repairs. Exactly, privilege and enter but
liability for damages. OK, darn Cops is a good
checklist, but consent and self-defense really seem like
the heavy hitters for assault and battery questions.
They absolutely are. You need to know the elements,
the limits and how they apply inside and out for exams.
Right. So wrapping up this section,
we've covered assault, battery, false imprisonment and IAE, the
core personal intentional ports. We dug deep into intent,
purpose, substantial certainty, transferred intent, the tricky
issue of mental capacity. And recklessness for IAD.
Right. And we've hit the major
defenses, especially consent and self-defense, plus a look at
necessity. This really gives you a solid
framework. It should.
The key now is practice. Remember the specific elements
for each torque. Pay attention to the nuances.
What kind of intent is needed? When is contact offensive?
When is apprehension reasonable? And how did the defenses work?
What cancels consent? What are the limits of
self-defense? Exactly.
Look at the cases, work through hypotheticals.
That's how you really get comfortable applying these
rules. Definitely this deep dive should
give you a strong foundation for tackling those torts questions
on any exam. Keep digging into the case law
and maybe here's something to think about as you study
further. With so much of our interaction
happening online now, social media, virtual worlds,
messaging, how do you think these traditional intentional
tort principles might apply or need to adapt to harmful conduct
in digital spaces? Can you have a digital assault
or battery? What does IED look like online?
That's a fascinating question. It's definitely a developing
area of law. Something to ponder.
Thanks for joining us for this deep dive into intentional
torts.