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Welcome to this deep dive where 
we really get into the weeds on 

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tricky legal topics to help you 
sharpen your understanding. 

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Exactly. 
No need to wade through endless 

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pages today. 
We're focusing laser sharp on 

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intentional torts, you know, the
real foundation of tort law. 

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Think of this as your your key 
briefing for absolutely nailing 

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those law school exams and 
definitely the bar exam. 

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Couldn't agree more. 
Now you might find negligence 

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cases are like everywhere in 
actual practice later on, but 

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getting intentional torts down 
cold? 

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That's just non negotiable for 
exams. 

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They really force you to wrestle
with intent. 

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Intent. 
Yeah, that's the big one, isn't 

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it? 
The line between, say, an 

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accident and something done on 
purpose. 

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Recycling, unlike negligence 
where we're looking at 

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carelessness, maybe a breach of 
duty, right? 

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Intentional torts need of 
volitional act, a conscious 

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choice. 
It's not just a mistake. 

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There's a purpose, or at least a
near certainty driving the 

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action. 
OK, so let's unpack that this 

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idea of intent. 
So the restatement, the third 

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one, gives us a pretty clear 2 
pronged definition. 

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First, the person acts with the 
purpose of causing a 

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consequence. 
They want it to happen, right? 

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Desire. 
Or second, they act knowing that

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the consequence is substantially
certain to result from their 

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actions, even if they don't 
necessarily want it. 

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Substantial certainty. 
But here's a really critical 

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point, especially for exams, 
motive is not the same as 

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intent. 
Ah, good distinction. 

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So someone might have a really 
nasty reason like malice or ill 

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will, and that might help show 
intent. 

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Exactly. 
It can be evidence. 

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But you don't actually need to 
prove that bad motive to 

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establish the legal element of 
intent. 

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That's absolutely correct. 
Just the desire to bring about 

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the contact or knowing it's 
substantially certain is enough.

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The harm itself doesn't even 
need to be intended in some 

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cases like battery. 
OK, And this brings us to 

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something that definitely trips 
students up. 

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Transferred intent. 
The classic curveball it. 

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Feels a bit like legal magic. 
I aim at person A, but oops, I 

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hit person B instead. 
My intent just follows. 

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Sort of, yeah. 
In essence, if you intend to 

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commit, say, a battery against 
A, but accidentally commit that 

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battery against B, or maybe you 
intend an assault against A but 

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end up actually battering A, 
that initial wrongful intent can

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transfer. 
So it satisfies the intent 

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element for the tort you 
actually committed, even if it 

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wasn't the specific outcome or 
victim you planned. 

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Exactly. 
The law basically says you 

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intended A wrongful act. 
You don't get off the hook just 

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because your aim was bad or 
things went slightly 

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differently. 
Right, like those case examples 

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we all study QV Hainlein the 
eraser throwing in the classroom

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a classic or In re White where 
someone shot at one person but 

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hit another. 
In both, the intent to make the 

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harmful contact, even if aimed 
elsewhere, or maybe intending a 

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different tort like assault was 
enough. 

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It transferred to cover the 
battery against the actual 

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person hit. 
So the key is that initial 

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intent to do something tortious 
the. 

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Intent to commit that volitional
act, Yes. 

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Now things get, well, a bit more
complicated when we talk about 

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the mental state of the actor. 
You mean like if the person 

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committing the tort has a mental
illness? 

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That whole issue of capacity and
intent. 

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Exactly. 
It feels kind of intuitive, 

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doesn't it? 
How can someone who maybe lacks 

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full mental capacity truly form 
the necessary intent? 

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Yeah, it seems like it clashes 
with the whole idea of a 

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deliberate act. 
Well, it's been debated a lot 

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historically. 
The law, like we see in some 

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older Kansas cases, Seals V Snow
Tupper V Topher, took the view 

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that even legally insane persons
are still civilly liable for 

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their intentional torts. 
Really, what was the thinking 

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behind that? 
It seems quite harsh. 

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There were several policy 
reasons given. 

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One major 1 is about loss 
allocation. 

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Who should bear the cost? 
The innocent victim versus the 

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person who caused the harm. 
Right. 

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The law tended to say the person
who caused it should pay 

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regardless of their mental 
state. 

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There was also this older idea, 
maybe less relevant now, OK, 

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that holding them liable might 
encourage families or caretakers

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to, you know, exercise more 
control or restraint. 

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That feels a bit dated. 
It does, and there were also 

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concerns about people maybe 
faking insanity to avoid paying 

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damages, plus the basic need to 
give the injured person some 

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form of redress. 
OK, but there must be strong 

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arguments against that, right? 
It feels like it ignores the 

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whole fault principle and torts.
Oh. 

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Absolutely. 
Critics, like Kirby pointed out,

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argue that if someone truly 
can't control their conduct due 

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to mental illness, can we really
say they're at fault in the way 

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tort law usually requires? 
That makes sense. 

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And that rationale about 
encouraging confinement, like 

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you said, it's pretty outdated 
given modern mental health care.

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Plus, we have much better ways 
now to assess mental states than

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we did historically, making the 
feigning insanity argument 

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weaker. 
So where does the law generally 

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stand now? 
What's the prevailing view in 

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the US? 
The dominant view reflected in 

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the Restatement Second of Torts 
still generally holds that 

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mental deficiency doesn't 
automatically negate intent for 

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intentional torts. 
Still, why is that? 

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Well, the commentary points to a
few practical reasons. 

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Things like the difficulty in 
getting truly reliable evidence 

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about mental States and civil 
trials, the potential for fake 

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defenses, and a general 
reluctance to bring the complex 

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rules of criminal insanity into 
tort law. 

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So it's less about whether the 
person understood why they were 

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acting and more about whether 
they intended the physical act 

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itself. 
That's the crux of it. 

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It's about the voluntariness of 
the physical action. 

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Think about Delahanty V 
Hinckley. 

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The Reagan assassination 
attempt. 

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Right. 
Or Coleman V Notre Dame 

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convalescent home with a patient
with dementia. 

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In those situations, the court 
looks at did the person intend 

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to say pull the trigger or push 
the person? 

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Even if the reason for doing it 
was based on a delusion or was 

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totally irrational. 
Exactly as the Restatement says,

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an insane person acts 
intentionally if they intend to 

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do the physical act they did, 
even if their motives are 

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irrational. 
The focus is on the intent to 

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make the physical movement or 
contact. 

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That's a really critical 
distinction for exams, 

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volitional act versus rational 
motive. 

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OK, Now you also mentioned 
substantial certainty earlier as

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the other way to show intent. 
Right, the second Tron. 

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Can you expand on that? 
How does that work if someone 

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doesn't actually want to cause 
harm? 

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OK, so substantial certainty 
comes into play when the actor 

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knows with a very high degree of
probability that a certain 

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consequence will result from 
their actions. 

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They might not desire the 
outcome, but they know it's 

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practically guaranteed to 
happen. 

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Like firing a gun into a crowd, 
you might not want to hit anyone

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specifically, but you know it's 
almost certain someone will get 

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hurt. 
Perfect example or the classic 

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case, Gary V Daly. 
The chair polling case. 

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Exactly. 
The child might not have 

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actively wanted the woman to get
injured, but he knew with 

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substantial certainty that when 
he pulled the chair away, she 

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would try to sit and fall. 
That knowledge was enough to 

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constitute intent. 
So even without malice or a 

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specific desire to harm, acting 
when you know farm is virtually 

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inevitable counts as intent. 
Got it. 

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Before we jump into the specific
torts, you hinted that one of 

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them has a slightly different 
intense standard. 

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Yes, just a slight variation for
intentional infliction of 

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emotional distress or IED. 
OK. 

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What's different there? 
For IEE, many places and the 

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Restatement Third also allow 
recklessness to satisfy the 

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mental state requirement. 
Recklessness meaning what 

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exactly? 
Recklessness is generally seen 

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as consciously disregarding a 
substantial and unjustifiable 

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risk. 
For IIE, it means acting with 

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conscious disregard of a high 
probability that your actions 

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will cause severe emotional 
distress. 

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It's a bit lower than purpose or
substantial certainty. 

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OK. 
So for IIED intent or 

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recklessness regarding the 
emotional distress will do. 

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Good to know. 
All right, that groundwork on 

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intent is super helpful. 
Let's get into the first 

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specific tort assault. 
OK, assault. 

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The core definition you need is 
the intentional creation of a 

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reasonable apprehension of an 
imminent harmful or offensive 

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contact. 
OK, breaking that down, 

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intentional creation, reasonable
apprehension, imminent and 

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harmful or offensive contact? 
Exactly. 

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The key is the apprehension, the
plaintiffs awareness and 

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anticipation of an unwanted 
touching. 

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So it's about the victim state 
of mind. 

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They have to actually feel like 
they're about to be hit or 

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touched offensively. 
Yes, precisely. 

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It's a mental or emotional 
invasion, not a physical one. 

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And that feeling, that 
apprehension, has to be 

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reasonable under the 
circumstances. 

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Reasonable, OK, And they must be
aware of it at the time. 

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Like if someone swings at me 
from behind and misses and I 

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never knew about it, that's not 
assault. 

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Correct. 
No awareness, no apprehension, 

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no assault. 
What about just words? 

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If someone just yells threats, 
is that enough? 

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It feels like there needs to be 
more. 

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You're right, generally words 
alone are not enough for 

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assault. 
You usually need some kind of 

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accompanying physical act or 
conduct that makes the threat 

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seem immediate. 
Like shaking a fist while 

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threatening someone. 
Exactly the words plus the fish 

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shaking together create that 
reasonable apprehension of 

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immediate contact. 
Contrast that with, say, a 

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threat over the phone for miles 
away, like in Brook. 

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Review Silverthrone. 
Right, if I were there, I'd 

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break your neck. 
Not immediate enough. 

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Precisely that threat lacks the 
crucial element of imminence. 

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Imminent. 
Let's talk about that. 

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It means like right now. 
Not next week. 

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Not even in 5 minutes maybe. 
It means it's about to happen. 

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The contact will occur without 
significant delay unless 

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something intervenes, like the 
plaintiff flees, defends 

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themselves, or someone else 
steps in. 

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It's that feeling of it's coming
right now, OK. 

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Let's run through some of those 
classic assault cases. 

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Beach V Hancock pointing the 
unloaded gun. 

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Even though the gun was 
unloaded, the plaintiff didn't 

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know that pointing it and 
snapping the trigger created a 

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reasonable apprehension of an 
imminent battery. 

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So assault. 
It's about the plaintiff's 

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perception, OK. 
And Brooker, we mentioned no 

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imminence due to distance. 
What about Langford V Shoe, the 

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prank with the box supposed to 
contain a Mongoose? 

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The practical joke case. 
Yeah, how is that assault? 

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There wasn't even a real threat.
Well, the defendant 

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intentionally acted, told the 
story, showed the box to make 

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the plaintiff believe she was in
imminent danger of harmful 

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contact from a supposedly 
dangerous animal. 

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So they intended to cause the 
apprehension, even if the threat

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wasn't real. 
Exactly, and her apprehension 

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was reasonable given what she 
was told, leading her to injure 

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herself trying to escape. 
The intent was a cause to. 

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Fear Gotcha and Vetter V Morgan,
the road rage case screaming, 

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revving the engine at the 
stoplight. 

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Yes, the defendant's aggressive 
actions created a reasonable 

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fear in the plaintiff that he 
was about to ramp her car or 

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otherwise harm her. 
Imminent harm again. 

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Right, and her attempt to evade 
that reasonably perceived threat

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led to her crashing. 
The court found that sufficient 

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for assault. 
OK, so assault, intentional 

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creation of reasonable 
apprehension of imminent harmful

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offensive contact. 
Now let's move to the actual 

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contact battery. 
All right, battery, the basic 

236
00:11:09,480 --> 00:11:12,640
definition is an intentional, 
harmful or offensive and 

237
00:11:12,640 --> 00:11:15,000
unprivileged contact with the 
person of another. 

238
00:11:15,120 --> 00:11:18,280
Intentional contact. 
Harmful or offensive? 

239
00:11:18,280 --> 00:11:19,520
Unprivileged. 
Correct. 

240
00:11:19,840 --> 00:11:24,200
And notice the key difference 
from assault Battery requires 

241
00:11:24,240 --> 00:11:27,120
actual contact. 
So assault is the threat, 

242
00:11:27,120 --> 00:11:29,600
battery is the hit, roughly 
speaking. 

243
00:11:29,680 --> 00:11:32,680
That's a good shorthand, but 
remember the intent element for 

244
00:11:32,680 --> 00:11:34,600
battery. 
You don't necessarily need to 

245
00:11:34,600 --> 00:11:37,120
intend to harm the person. 
Oh right, you mentioned this 

246
00:11:37,120 --> 00:11:38,840
earlier. 
Just intending the contact 

247
00:11:38,840 --> 00:11:42,320
itself is enough. 
Often, yes, the intent to make 

248
00:11:42,320 --> 00:11:45,520
the physical contact, even if 
you didn't foresee the specific 

249
00:11:45,520 --> 00:11:48,920
injury that resulted, can 
satisfy the intent element for 

250
00:11:48,920 --> 00:11:51,400
battery. 
Like in Volzburg V Putney, the 

251
00:11:51,400 --> 00:11:54,160
kid kicks another kid in the 
shin in the classroom. 

252
00:11:54,680 --> 00:11:57,880
Seemingly minor tap. 
But it aggravates a prior 

253
00:11:57,880 --> 00:12:00,440
injury, leading to serious 
complications. 

254
00:12:00,640 --> 00:12:03,680
The kicker intended the kick, 
even if not the severe harm. 

255
00:12:03,680 --> 00:12:06,600
Exactly or White V. 
University of Idaho, the piano 

256
00:12:06,600 --> 00:12:08,400
teacher case. 
Touching the students back 

257
00:12:08,400 --> 00:12:09,280
unexpectedly. 
Right. 

258
00:12:09,520 --> 00:12:12,960
He intended the touch, which was
argued doably offensive or at 

259
00:12:12,960 --> 00:12:16,160
least unwanted, and it led to 
unforeseen medical issues. 

260
00:12:16,480 --> 00:12:18,480
The intent to make the contact 
was sufficient. 

261
00:12:18,520 --> 00:12:20,040
OK. 
And what makes contact 

262
00:12:20,040 --> 00:12:21,520
offensive? 
It's not just about physical 

263
00:12:21,520 --> 00:12:22,960
pain, right? 
Definitely not. 

264
00:12:23,480 --> 00:12:26,680
Offensive contact is contact 
that violates a reasonable sense

265
00:12:26,680 --> 00:12:28,880
of personal dignity. 
Reasonable sense again, so it's 

266
00:12:28,880 --> 00:12:31,840
judged objectively. 
Yes, based on what a reasonable 

267
00:12:31,840 --> 00:12:34,320
person in the plaintiff's 
position would find offensive 

268
00:12:34,320 --> 00:12:37,320
under the circumstances. 
Think social norms. 

269
00:12:37,560 --> 00:12:42,960
Context Restatement Second, 
Section 19 talks about this. 

270
00:12:43,160 --> 00:12:45,560
It's not usually based on 
someone being hypersensitive, 

271
00:12:45,840 --> 00:12:48,280
unless the defendant knew about 
that hypersensitivity. 

272
00:12:48,560 --> 00:12:51,200
OK, so let's take off some 
battery examples. 

273
00:12:51,320 --> 00:12:54,320
Nelson V Carroll hitting someone
with a gun during robbery. 

274
00:12:54,440 --> 00:12:56,000
The gun goes off. 
Battery. 

275
00:12:56,360 --> 00:12:58,320
The intentional act was hitting 
the person with a gun. 

276
00:12:58,680 --> 00:13:01,040
That contact set the harmful 
gunshot in motion. 

277
00:13:01,160 --> 00:13:03,760
Got it. 
Wagner V State the attack by the

278
00:13:03,760 --> 00:13:05,720
mentally disabled person in 
Kmart. 

279
00:13:06,040 --> 00:13:08,200
Reinforces the point about 
mental capacity. 

280
00:13:08,440 --> 00:13:11,080
The court found the patient 
capable of intending the contact

281
00:13:11,360 --> 00:13:12,680
fulfilling the battery element 
OK. 

282
00:13:12,920 --> 00:13:16,120
What about Laidlaw V Sage the 
guy used as a human shield 

283
00:13:16,120 --> 00:13:18,720
before a bomb went off? 
The court said no battery there.

284
00:13:18,720 --> 00:13:20,880
Why? 
Because the defendant's act of 

285
00:13:20,880 --> 00:13:24,200
moving the plaintiff wasn't done
with the intent to harm or 

286
00:13:24,200 --> 00:13:27,880
offend him, but out of immediate
self preservation in a moment of

287
00:13:27,880 --> 00:13:31,360
extreme peril, the intent 
element was missing. 

288
00:13:32,280 --> 00:13:34,760
The specific intent in that 
emergency context. 

289
00:13:34,760 --> 00:13:37,160
Interesting. 
Paul V Holbrook The unwanted 

290
00:13:37,160 --> 00:13:39,960
shoulder massage. 
Clear battery once he was told 

291
00:13:39,960 --> 00:13:44,000
to stop continuing the contact 
after consent was withdrawn made

292
00:13:44,000 --> 00:13:45,880
it offensive. 
Even if a massage isn't 

293
00:13:45,880 --> 00:13:47,280
inherently harmful. 
Right. 

294
00:13:47,280 --> 00:13:49,280
It became an offensive violation
of dignity. 

295
00:13:49,360 --> 00:13:53,640
And liked min VWLW 
communications blowing smoke in 

296
00:13:53,640 --> 00:13:55,520
the anti smoking advocate's 
face. 

297
00:13:55,520 --> 00:13:57,480
The court allowed that claim to 
recede. 

298
00:13:58,240 --> 00:14:01,000
Intentionally blowing smoke 
directly at someone to cause 

299
00:14:01,000 --> 00:14:04,160
discomfort could be seen by a 
jury as offensive contact. 

300
00:14:04,560 --> 00:14:06,520
Smoke particles are particulate 
matter. 

301
00:14:06,520 --> 00:14:09,160
They made contact. 
Wow OK, but compare that to 

302
00:14:09,160 --> 00:14:11,760
Madden VDC Transit, the bus 
fumes case. 

303
00:14:11,760 --> 00:14:15,280
No battery there, no intent to 
direct the fumes specifically at

304
00:14:15,280 --> 00:14:16,840
the plaintiffs as a form of 
contact. 

305
00:14:17,080 --> 00:14:19,080
It was just a general 
environmental exposure. 

306
00:14:19,600 --> 00:14:21,360
Lack the specific intent for 
contact. 

307
00:14:21,640 --> 00:14:24,920
Intent makes all the difference.
OK, what about the really 

308
00:14:24,920 --> 00:14:29,040
sensitive area, sexual contact 
and undisclosed STD's like in 

309
00:14:29,040 --> 00:14:31,840
Kathleen KV, Robert B. 
Yeah, this is important. 

310
00:14:32,160 --> 00:14:35,320
The principle here, also seen in
the Restatement, is that consent

311
00:14:35,320 --> 00:14:39,080
to sexual contact is generally 
considered invalid or vitiated 

312
00:14:39,400 --> 00:14:42,920
if it's obtained based on a 
significant misrepresentation or

313
00:14:42,920 --> 00:14:46,000
failure to disclose something 
crucial like having an STD. 

314
00:14:46,360 --> 00:14:49,720
So the contact becomes non 
consensual and therefore 

315
00:14:49,720 --> 00:14:53,000
potentially a battery. 
Exactly because the person 

316
00:14:53,000 --> 00:14:56,120
wouldn't have consented had they
known the truth, the contact is 

317
00:14:56,120 --> 00:14:59,440
rendered harmful or offensive 
due to the undisclosed risk. 

318
00:14:59,520 --> 00:15:03,280
And Dovie Johnson with HIV. 
Similar reasoning, the court 

319
00:15:03,280 --> 00:15:05,880
said a battery claim could be 
made if the defendant knew with 

320
00:15:05,880 --> 00:15:09,120
substantial certainty that they 
could transmit HIV and engaged 

321
00:15:09,120 --> 00:15:11,120
in contact without disclosing 
that risk. 

322
00:15:11,640 --> 00:15:14,880
Again, it links back to intend, 
either purpose or substantial 

323
00:15:14,880 --> 00:15:16,640
certainty of causing a harmful 
contact. 

324
00:15:16,640 --> 00:15:19,520
OK, so knowing exposure to 
serious risk without consent, 

325
00:15:19,640 --> 00:15:21,960
potential battery makes sense. 
All right, moving on, false 

326
00:15:21,960 --> 00:15:23,560
imprisonment. 
This one seems straightforward, 

327
00:15:23,680 --> 00:15:26,120
restricting movement. 
At its core, yes, false 

328
00:15:26,120 --> 00:15:28,520
imprisonment is about the 
intentional confinement or 

329
00:15:28,520 --> 00:15:32,320
restraint of a person within 
fixed boundaries, without legal 

330
00:15:32,320 --> 00:15:34,840
justification and without their 
consent. 

331
00:15:34,840 --> 00:15:38,240
OK, for exam purposes, what are 
the absolute key elements we 

332
00:15:38,240 --> 00:15:41,000
need to lock down for false 
imprisonment? 

333
00:15:41,000 --> 00:15:44,280
You need 4 things. 
One, intent to confine the 

334
00:15:44,280 --> 00:15:46,840
defendant has to mean to 
restrict the person's movement. 

335
00:15:47,320 --> 00:15:50,840
2 actual confinement. 
The person has to be truly 

336
00:15:50,840 --> 00:15:53,880
restricted within boundaries, 
with no reasonable means of 

337
00:15:53,880 --> 00:15:56,080
escape known to. 
Them no reasonable way out, got 

338
00:15:56,080 --> 00:15:57,600
it. 
Three, it has to be without 

339
00:15:57,600 --> 00:16:00,320
consent. 
If they agree to stay, it's not 

340
00:16:00,320 --> 00:16:03,520
false imprisonment, right? 
And four, this is important in 

341
00:16:03,520 --> 00:16:06,760
most jurisdictions the plaintiff
has to be aware of the 

342
00:16:06,760 --> 00:16:10,680
confinement at the time it's 
happening or alternatively 

343
00:16:11,000 --> 00:16:13,880
suffer some actual harm because.
Of it awareness or harm? 

344
00:16:14,640 --> 00:16:17,400
Intent, Actual confinement, no 
consent and awareness. 

345
00:16:17,400 --> 00:16:20,240
Harm. 
Simple enough, but lots of ways 

346
00:16:20,240 --> 00:16:21,600
that could play out. 
Definitely. 

347
00:16:22,000 --> 00:16:24,480
Now let's tackle the last of 
this group intentional 

348
00:16:24,480 --> 00:16:27,520
infliction of emotional 
distress, IED. 

349
00:16:28,120 --> 00:16:31,160
Of the outrageous conduct tort, 
this one has a high bar, doesn't

350
00:16:31,160 --> 00:16:32,280
it? 
Extremely high. 

351
00:16:32,720 --> 00:16:37,120
The definition is intentional or
reckless conduct that is extreme

352
00:16:37,120 --> 00:16:39,920
and outrageous and causes severe
emotional distress. 

353
00:16:40,280 --> 00:16:42,840
That's straight from Restate, 
the second section 46. 

354
00:16:43,000 --> 00:16:45,680
Extreme and outrageous. 
What does that actually mean in 

355
00:16:45,680 --> 00:16:47,440
practice? 
It sounds subjective. 

356
00:16:47,520 --> 00:16:49,880
It is a high standard. 
We're talking about conduct that

357
00:16:49,880 --> 00:16:54,320
is, as courts often say, beyond 
all possible bounds of decency, 

358
00:16:55,240 --> 00:16:58,400
atrocious and utterly 
intolerable in the civilized 

359
00:16:58,400 --> 00:17:01,120
community. 
So definitely not just insults 

360
00:17:01,120 --> 00:17:03,200
or being rude or minor 
annoyances. 

361
00:17:03,200 --> 00:17:05,400
Absolutely not. 
Everyday indignities, name 

362
00:17:05,400 --> 00:17:08,480
calling, even some threats that 
don't rise to assault those 

363
00:17:08,800 --> 00:17:12,280
generally won't cut it for IIE. 
The conduct has to be truly 

364
00:17:12,280 --> 00:17:14,560
shocking and egregious. 
But you mentioned earlier the 

365
00:17:14,560 --> 00:17:16,720
threshold might be a bit lower 
sometimes. 

366
00:17:16,720 --> 00:17:19,240
Yes, context matters. 
If the defendant is in a 

367
00:17:19,240 --> 00:17:22,000
position of power over the 
plaintiff, employer, police 

368
00:17:22,000 --> 00:17:25,119
officers, school official, their
conduct might be judged more 

369
00:17:25,119 --> 00:17:27,599
harshly. 
Same if the plaintiff is known 

370
00:17:27,599 --> 00:17:31,600
to be particularly vulnerable. 
A child, an elderly person, 

371
00:17:31,600 --> 00:17:35,240
someone pregnant, or someone the
defendant knows has a particular

372
00:17:35,240 --> 00:17:38,040
sensitivity. 
Exploiting that vulnerability 

373
00:17:38,040 --> 00:17:41,200
can make conduct outrageous when
it might not otherwise be. 

374
00:17:41,400 --> 00:17:45,960
Makes sense and the mental state
for IED, its intent or 

375
00:17:45,960 --> 00:17:47,600
recklessness? 
Correct. 

376
00:17:48,040 --> 00:17:51,120
The defendant must either have 
intended to cause severe 

377
00:17:51,120 --> 00:17:55,800
emotional distress or they acted
with reckless disregard of a 

378
00:17:55,800 --> 00:17:58,280
high probability that such 
distress would result. 

379
00:17:58,280 --> 00:18:00,760
That recklessness part is key. 
They didn't have to want to 

380
00:18:00,760 --> 00:18:03,800
cause the distress, just knew 
their shocking conduct was very 

381
00:18:03,800 --> 00:18:05,040
likely to. 
Exactly. 

382
00:18:05,320 --> 00:18:07,440
Consciously ignoring that high 
risk is enough. 

383
00:18:07,440 --> 00:18:10,240
And the distress itself, it 
can't just be feeling upset, 

384
00:18:10,240 --> 00:18:11,600
right? 
It has to be severe. 

385
00:18:12,000 --> 00:18:15,120
Severe is the standard. 
We're talking about distress so 

386
00:18:15,120 --> 00:18:18,360
bad that no reasonable person 
could be expected to endure it. 

387
00:18:18,960 --> 00:18:21,800
Often courts will look for 
proof, Maybe physical 

388
00:18:21,800 --> 00:18:25,120
manifestations like ulcers or 
headaches, psychological harm 

389
00:18:25,120 --> 00:18:28,240
requiring treatment, or major 
interference with daily life. 

390
00:18:28,320 --> 00:18:31,880
It needs objective evidence, OK.
What if the outrageous conduct 

391
00:18:31,880 --> 00:18:34,720
is aimed at someone else, but I 
witness it and get severely 

392
00:18:34,720 --> 00:18:38,840
distressed? 
The Bystander Rule Restatement, 

393
00:18:38,920 --> 00:18:41,320
second section 46 two covers 
this. 

394
00:18:42,080 --> 00:18:46,240
Generally, if the conduct is 
directed at a third person, an 

395
00:18:46,240 --> 00:18:48,760
immediate family member of that 
person who is present at the 

396
00:18:48,760 --> 00:18:53,400
time can recover for IED if they
suffer severe emotional 

397
00:18:53,400 --> 00:18:55,480
distress. 
Even if the conduct wasn't aimed

398
00:18:55,480 --> 00:18:57,600
at them. 
Right, and some courts might 

399
00:18:57,600 --> 00:19:00,000
extend this to non family 
members who are present, 

400
00:19:00,160 --> 00:19:03,080
especially if they also suffer 
physical harm from the distress.

401
00:19:03,800 --> 00:19:06,840
The key is usually presence and 
the relationship or witnessing 

402
00:19:06,840 --> 00:19:08,240
of the outrageous act. 
OK. 

403
00:19:08,560 --> 00:19:11,680
Can we think of a case where 
conduct was bad but not bad 

404
00:19:11,680 --> 00:19:14,040
enough for IID to see where that
line is? 

405
00:19:14,040 --> 00:19:15,800
Roberts V Sailor is a good 
example. 

406
00:19:16,160 --> 00:19:18,560
A doctor was pretty unpleasant 
to a former patient in a 

407
00:19:18,560 --> 00:19:21,480
hospital hallway, making some 
cutting remarks related to a 

408
00:19:21,480 --> 00:19:24,080
past lawsuit. 
While the doctor's behavior was 

409
00:19:24,080 --> 00:19:26,640
unprofessional, maybe even 
offensive, the court found it 

410
00:19:26,640 --> 00:19:29,400
didn't reach that incredibly 
high level of extreme and 

411
00:19:29,400 --> 00:19:32,200
outrageous required for an IED 
claim. 

412
00:19:32,480 --> 00:19:34,720
It wasn't utterly intolerable, 
vulnerable in a civilized 

413
00:19:34,720 --> 00:19:36,920
society. 
So it sets a really high bar to 

414
00:19:36,920 --> 00:19:39,880
avoid turning every nasty 
encounter into a lawsuit. 

415
00:19:39,880 --> 00:19:43,280
Precisely, it reserves IED for 
truly appalling behavior. 

416
00:19:43,520 --> 00:19:46,880
All right, so we've covered the 
big four personal intentional 

417
00:19:46,880 --> 00:19:50,040
torts. 
But what if the defendant had a 

418
00:19:50,040 --> 00:19:54,000
good reserve for their actions? 
That brings us to defenses, 

419
00:19:54,040 --> 00:19:55,960
right? 
Absolutely, just proving the 

420
00:19:55,960 --> 00:19:58,040
elements of the tour isn't the 
end of the story. 

421
00:19:58,400 --> 00:20:01,000
The defendant might have a 
privilege or defense that 

422
00:20:01,160 --> 00:20:04,320
negates liability. 
I heard a mnemonic for defenses 

423
00:20:04,320 --> 00:20:07,760
once, something like Darn cops. 
Is that helpful? 

424
00:20:07,800 --> 00:20:11,640
It can be, yeah. 
Darn cops stands for discipline,

425
00:20:11,800 --> 00:20:16,360
arrest, recapture of chattels, 
necessity, consent, others, 

426
00:20:16,480 --> 00:20:20,000
defense of property, defense of 
and self-defense. 

427
00:20:20,080 --> 00:20:21,480
It covers most of the common 
ones. 

428
00:20:21,520 --> 00:20:24,360
That's handy for today, focusing
on assault and battery. 

429
00:20:24,560 --> 00:20:27,280
Which defenses are the most 
critical to know for exams? 

430
00:20:27,280 --> 00:20:28,840
Definitely consent and 
self-defense. 

431
00:20:28,840 --> 00:20:31,360
They come up constantly. 
Necessity is also important to 

432
00:20:31,360 --> 00:20:33,160
understand. 
OK, let's start with consent. 

433
00:20:33,320 --> 00:20:35,960
The idea is if I agree to it, I 
can't sue you for. 

434
00:20:35,960 --> 00:20:39,760
It that's the basic principle, 
Valenti non fit injuria to one 

435
00:20:39,760 --> 00:20:42,680
who is willing. 
No wrong is done if the 

436
00:20:42,680 --> 00:20:45,600
plaintiff voluntarily consents 
to the act that constitutes the 

437
00:20:45,600 --> 00:20:47,960
tort. 
That consent is generally a 

438
00:20:47,960 --> 00:20:50,120
complete defense. 
And consent can be stated 

439
00:20:50,120 --> 00:20:51,360
outright. 
Like yes you can. 

440
00:20:51,600 --> 00:20:53,760
Right. 
That's express consent, or it 

441
00:20:53,760 --> 00:20:56,160
could be implied by the 
plaintiff's conduct or by the 

442
00:20:56,160 --> 00:20:58,440
circumstances. 
Like holding out your arm for a 

443
00:20:58,440 --> 00:21:00,680
shot implies consent to the 
needle prick. 

444
00:21:00,680 --> 00:21:04,480
Exactly or participating in a 
football game implies consent to

445
00:21:04,480 --> 00:21:08,960
the usual tackles and contact 
within the rules, but the 

446
00:21:08,960 --> 00:21:11,720
defendant has to reasonably 
believe consent was given. 

447
00:21:11,720 --> 00:21:13,840
It has to be actual and 
reasonable belief. 

448
00:21:13,960 --> 00:21:15,840
OK. 
And are there limits? 

449
00:21:16,320 --> 00:21:20,280
Can consent be like invalid? 
Oh yes, consent obtained by 

450
00:21:20,280 --> 00:21:24,520
fraud like lying about having an
STD or duress is invalid. 

451
00:21:24,720 --> 00:21:28,040
Consent can be withdrawn and you
can only consent to things 

452
00:21:28,040 --> 00:21:29,720
within the scope of the consent 
given. 

453
00:21:29,880 --> 00:21:33,200
Also, courts sometimes won't 
recognize consent if it violates

454
00:21:33,200 --> 00:21:36,520
public policy, like consenting 
to a crime or extreme harm. 

455
00:21:36,640 --> 00:21:39,800
OK, scope of consent. 
Let's look at Kauffman V 

456
00:21:39,800 --> 00:21:42,760
Garnett, the football coach 
tackling the young player way 

457
00:21:42,760 --> 00:21:44,680
too hard. 
Right, the player consented to 

458
00:21:44,680 --> 00:21:47,160
playing football and the normal 
contact can fall for his age 

459
00:21:47,160 --> 00:21:48,920
group. 
But not to being unexpectedly 

460
00:21:48,920 --> 00:21:51,080
slammed to the ground by a much 
larger adult coach. 

461
00:21:51,080 --> 00:21:53,200
Exactly. 
The coach's actions exceeded the

462
00:21:53,200 --> 00:21:55,640
scope of any implied consent. 
So, Battery? 

463
00:21:55,840 --> 00:21:59,000
What about Grabowski V Quigley, 
the wrong surgeon doing the 

464
00:21:59,000 --> 00:22:00,720
operation? 
No consent there. 

465
00:22:01,400 --> 00:22:04,120
The patient consented to Surgeon
A, not Surgeon B who actually 

466
00:22:04,120 --> 00:22:06,560
performed it. 
Consent is specific to the 

467
00:22:06,560 --> 00:22:08,720
person and the procedure agreed 
upon. 

468
00:22:09,200 --> 00:22:10,120
Battery. 
OK. 

469
00:22:10,960 --> 00:22:14,080
And Burzuska V Olsen, the 
dentist with HIV. 

470
00:22:14,080 --> 00:22:15,360
We touched on this. 
Right. 

471
00:22:15,520 --> 00:22:18,480
The argument is that consent to 
treatment was invalid because 

472
00:22:18,480 --> 00:22:21,800
the patients weren't informed of
the dentist HIV status, which 

473
00:22:21,800 --> 00:22:24,000
was a material risk related to 
the contact. 

474
00:22:24,400 --> 00:22:27,000
Lack of informed consent can 
vitiate it. 

475
00:22:27,280 --> 00:22:29,480
But then there's Kennedy V 
Parrot, where the Sojin found 

476
00:22:29,480 --> 00:22:31,600
something unexpected during 
surgery and fixed it. 

477
00:22:31,800 --> 00:22:34,560
That's often seen as implied 
consent in a medical emergency. 

478
00:22:35,120 --> 00:22:38,120
When a patient is unable to 
consent and immediate action is 

479
00:22:38,120 --> 00:22:40,760
needed to address an unforeseen 
issue discovered during an 

480
00:22:40,760 --> 00:22:44,280
authorized procedure, consent is
often implied for the necessary 

481
00:22:44,280 --> 00:22:46,760
extension. 
OK, so consent is complex, 

482
00:22:46,760 --> 00:22:50,320
express implied scope validity. 
Got it. 

483
00:22:50,720 --> 00:22:52,560
Now self-defense. 
A fundamental 1. 

484
00:22:53,120 --> 00:22:55,680
The basic idea is you're 
privileged to use reasonable 

485
00:22:55,680 --> 00:22:59,240
force to protect yourself from 
an imminent threat of harmful or

486
00:22:59,240 --> 00:23:02,440
offensive contact. 
Keywords there Reasonable force,

487
00:23:02,640 --> 00:23:04,200
imminent threat. 
Absolutely. 

488
00:23:04,480 --> 00:23:08,800
First, you must actually and 
reasonably believe that force is

489
00:23:08,800 --> 00:23:11,880
necessary to prevent the attack.
Reasonable belief, OK. 

490
00:23:11,920 --> 00:23:16,320
And second, the force you use 
must be proportionate to the 

491
00:23:16,320 --> 00:23:19,080
threat you're facing. 
You can't use deadly force to 

492
00:23:19,080 --> 00:23:22,320
stop someone from, say, just 
shoving you. 

493
00:23:22,720 --> 00:23:25,560
Generally, no. 
Deadly force is usually only 

494
00:23:25,560 --> 00:23:28,400
justified if you reasonably 
believe you're facing a threat 

495
00:23:28,400 --> 00:23:30,720
of death or serious bodily harm 
yourself. 

496
00:23:31,240 --> 00:23:33,480
You have to match the level of 
force appropriately. 

497
00:23:33,600 --> 00:23:36,760
What about Heisler V Loretto, 
the guy who punched someone on 

498
00:23:36,760 --> 00:23:38,800
his porch? 
That was found to be reasonable 

499
00:23:38,800 --> 00:23:40,960
self-defense. 
The person had been asked to 

500
00:23:40,960 --> 00:23:43,840
leave, refused and then advanced
aggressively toward the 

501
00:23:43,840 --> 00:23:46,120
homeowner. 
Creating a reasonable fear of 

502
00:23:46,120 --> 00:23:48,880
imminent harm. 
Yes, the homeowner's single 

503
00:23:48,880 --> 00:23:52,120
punch was seen as a 
proportionate response to repel 

504
00:23:52,120 --> 00:23:53,800
the perceived imminent threat. 
OK. 

505
00:23:53,880 --> 00:23:56,680
And you mentioned necessity 
briefly under darn cops. 

506
00:23:56,680 --> 00:23:59,080
How does that fit in? 
Necessity is a defense that 

507
00:23:59,080 --> 00:24:02,280
arises in emergencies, allowing 
someone to commit an intentional

508
00:24:02,280 --> 00:24:05,360
tort, usually trespass to 
property to prevent a greater 

509
00:24:05,360 --> 00:24:07,400
harm. 
An emergency justification. 

510
00:24:07,640 --> 00:24:09,880
Right. 
Two types, public necessity and 

511
00:24:09,880 --> 00:24:12,560
private necessity. 
Public public necessity is when 

512
00:24:12,560 --> 00:24:14,320
you act to protect the public 
good. 

513
00:24:14,880 --> 00:24:18,080
Like a firefighter destroying a 
house to create a fire break and

514
00:24:18,080 --> 00:24:20,520
save the town. 
It's a complete defense. 

515
00:24:20,840 --> 00:24:22,840
You're not liable for the damage
caused. 

516
00:24:23,040 --> 00:24:24,400
Makes sense for the greater 
good. 

517
00:24:24,920 --> 00:24:27,840
What about private necessity? 
Private necessity is when you 

518
00:24:27,920 --> 00:24:31,080
act to protect your own 
interests or those of a small 

519
00:24:31,080 --> 00:24:33,440
group. 
Like docking your boat at 

520
00:24:33,440 --> 00:24:36,480
someone else's pier during a 
sudden violent storm to save 

521
00:24:36,480 --> 00:24:39,520
your boat and yourself. 
It's only a partial defense. 

522
00:24:39,760 --> 00:24:42,080
You're allowed to trespass, 
meaning you aren't liable for 

523
00:24:42,080 --> 00:24:45,520
the trespass itself, but you do 
have to pay for any actual 

524
00:24:45,520 --> 00:24:47,600
damage you caused to the other 
person's property. 

525
00:24:48,160 --> 00:24:51,280
So you can use their doc, but if
you damage it you pay for 

526
00:24:51,280 --> 00:24:54,000
repairs. 
Exactly, privilege and enter but

527
00:24:54,000 --> 00:24:56,280
liability for damages. 
OK, darn Cops is a good 

528
00:24:56,280 --> 00:24:59,240
checklist, but consent and 
self-defense really seem like 

529
00:24:59,240 --> 00:25:01,400
the heavy hitters for assault 
and battery questions. 

530
00:25:01,400 --> 00:25:03,480
They absolutely are. 
You need to know the elements, 

531
00:25:03,480 --> 00:25:06,240
the limits and how they apply 
inside and out for exams. 

532
00:25:06,440 --> 00:25:08,680
Right. 
So wrapping up this section, 

533
00:25:09,280 --> 00:25:14,080
we've covered assault, battery, 
false imprisonment and IAE, the 

534
00:25:14,080 --> 00:25:18,480
core personal intentional ports.
We dug deep into intent, 

535
00:25:18,480 --> 00:25:22,640
purpose, substantial certainty, 
transferred intent, the tricky 

536
00:25:22,640 --> 00:25:25,640
issue of mental capacity. 
And recklessness for IAD. 

537
00:25:25,680 --> 00:25:27,160
Right. 
And we've hit the major 

538
00:25:27,160 --> 00:25:30,080
defenses, especially consent and
self-defense, plus a look at 

539
00:25:30,080 --> 00:25:32,480
necessity. 
This really gives you a solid 

540
00:25:32,480 --> 00:25:33,600
framework. 
It should. 

541
00:25:34,000 --> 00:25:37,720
The key now is practice. 
Remember the specific elements 

542
00:25:37,720 --> 00:25:40,280
for each torque. 
Pay attention to the nuances. 

543
00:25:40,280 --> 00:25:43,400
What kind of intent is needed? 
When is contact offensive? 

544
00:25:43,600 --> 00:25:46,800
When is apprehension reasonable?
And how did the defenses work? 

545
00:25:46,920 --> 00:25:49,200
What cancels consent? 
What are the limits of 

546
00:25:49,200 --> 00:25:50,400
self-defense? 
Exactly. 

547
00:25:50,480 --> 00:25:52,880
Look at the cases, work through 
hypotheticals. 

548
00:25:52,920 --> 00:25:54,800
That's how you really get 
comfortable applying these 

549
00:25:54,800 --> 00:25:56,960
rules. 
Definitely this deep dive should

550
00:25:56,960 --> 00:25:59,840
give you a strong foundation for
tackling those torts questions 

551
00:25:59,840 --> 00:26:02,600
on any exam. 
Keep digging into the case law 

552
00:26:03,160 --> 00:26:04,920
and maybe here's something to 
think about as you study 

553
00:26:04,920 --> 00:26:06,840
further. 
With so much of our interaction 

554
00:26:06,840 --> 00:26:09,480
happening online now, social 
media, virtual worlds, 

555
00:26:10,080 --> 00:26:13,880
messaging, how do you think 
these traditional intentional 

556
00:26:13,880 --> 00:26:17,720
tort principles might apply or 
need to adapt to harmful conduct

557
00:26:17,720 --> 00:26:20,600
in digital spaces? 
Can you have a digital assault 

558
00:26:20,600 --> 00:26:23,280
or battery? 
What does IED look like online? 

559
00:26:23,480 --> 00:26:25,920
That's a fascinating question. 
It's definitely a developing 

560
00:26:25,920 --> 00:26:27,760
area of law. 
Something to ponder. 

561
00:26:28,160 --> 00:26:30,640
Thanks for joining us for this 
deep dive into intentional 

562
00:26:30,640 --> 00:26:31,200
torts.