Torts - Session 02: Intentional Torts
Purpose of Tort Law
- Goal: Make the plaintiff whole again
- Only remedy: Money damages
- Nature: Tort is a civil wrong (not criminal)
Theory of Recovery
- Key term: Cause of action (legal term for “theory of recovery”)
- Always ask: “What is my cause of action?”
Tort as a Fault-Based System
- Tort is fault-based: If you cannot prove fault, you cannot recover
- Three pathways to prove fault:
- Intentional act (intentional torts)
- Negligence (most of the course)
- Strict liability (abnormally dangerous activities)
I. INTENT
A. Specific Intent
Rule: An actor intends the consequences of his conduct if his goal is to bring about those consequences.- Example: You punch me in the face intending to do so
- The defendant’s goal was to bring about the harmful result
B. General Intent
Rule: An actor intends the consequences of his conduct if he knows with substantial certainty that those consequences will occur.- Key phrase: “Substantial certainty” (very high threshold)
- Not just ordinary or probable—must be substantially certain
- Example: Swinging a cane in proximity to someone’s face where you know with substantial certainty you will strike them
- Do not overuse general intent
- Not every careless act meets the “substantial certainty” standard
- Texting and driving that causes a rear-end collision is not general intent—it’s negligence
C. Relationship Between Intent and Negligence
- If you cannot prove intentional conduct (specific or general intent), move to negligence
- Negligence = conduct that falls below the standard of care of a reasonable, prudent person under the circumstances
II. BATTERY
A. Definition
Battery is an intentional act that causes a harmful or offensive touching of the plaintiff’s person.B. Prima Facie Elements
To prove battery, plaintiff must establish:- Intent (specific or general)
- Act (volitional act)
- Causation
- Harmful or offensive touching
- Of the plaintiff’s person
C. Key Rules
1. Intent
- Intent has nothing to do with malice
- No showing of malice, ill will, or bad motive required
- Only requires a volitional act performed with purpose to cause harm OR knowledge of substantial certainty that result would be harmful or offensive
- 5-year-old Brian pulled chair out from under plaintiff
- Intent = pulling the chair (volitional act) + knowledge with substantial certainty that she would fall
- Not required: that he intended to break her hip—only that he knew she would contact the ground
2. Act Must Be Volitional
Rule: An act must be a volitional act (a conscious act). Non-volitional acts (no battery):- Epileptic seizure causing you to strike someone
- Fainting and hitting someone on the way down
- Stroke causing you to rear-end someone
- Defendant fainted while driving and lost control
- Fainting = not a volitional act, so no intent
- However: If defendant had a history of fainting, the act of driving itself could be negligent (even though fainting itself is non-volitional)
- California law: Doctors must report epilepsy to DMV; license suspended until condition is controlled
3. Causation
- In intentional torts, causation is exceedingly simple
- Example: You punched me in the face → caused my jaw to break
- (Causation becomes much more complex in negligence)
4. Harmful or Offensive
Rule: What is harmful or offensive is determined by a reasonable person’s standard.- Not subjective: Not based on what the individual plaintiff finds offensive
- Example: Tapping someone on the shoulder to ask for directions = not harmful or offensive
- Example: Unwanted hug may be battery (depends on reasonable person standard)
5. Of the Plaintiff’s Person
Rule: Anything intimately connected to the plaintiff’s person is a part of the plaintiff’s person. Examples of intimate connection:- Yanking someone’s tie
- Grabbing someone’s coat
- Flipping someone’s baseball cap
- Even though you never touched the plaintiff’s body, it satisfies the touching element
- Is the item intimately connected to plaintiff’s person?
- Example: If plaintiff’s elbow is resting on a table and you bang the table, is the table intimately connected? → Jury decides
D. Damages Not Required
- Damages are NOT a prima facie element of battery
- You can recover for battery even without proving damages
- Look at the rule—damages is not listed as an element
E. Mental Illness and Intent
Rule: Mental illness does not negate intent. Case: McGuire v. Almy (1937)- Mentally ill nursing home patient struck nurse with furniture leg
- Court held: Mentally ill person is liable for intentional torts under same circumstances as non-mentally ill person
- Rationale: Law will not inquire into mental condition to excuse intent
- Mentally disabled man attacked plaintiff at Kmart
- To commit battery, defendant must have intended the contact that was harmful or offensive
- Not required: intent to harm—only intent to make the contact
- Mentally handicapped people can form requisite intent
- We prosecute and incarcerate mentally ill people
- Exception: Insanity defense = cannot tell difference between right and wrong (very high threshold)
- If insanity defense successful, person committed to institution until no longer a danger
III. STRICT LIABILITY (Brief Introduction)
Rule: Liability without fault.- Applies when defendant engages in abnormally dangerous activity
- Also called “ultra-hazardous activity” in older cases
- Examples: Dynamite blasting, keeping wild/dangerous animals (crocodiles, not poodles)
- Defendant engaged in abnormally dangerous activity
- Activity caused injury to plaintiff
- No need to show fault or negligence
- Blasting contractor caused damage
- Plaintiffs did not prove negligence
- Court imposed strict liability for abnormally dangerous activity
- Question: Who should bear cost? Person engaged in dangerous activity or innocent neighbor?
IV. ASSAULT
A. Definition
Assault is an intentional act by the defendant that places the plaintiff in the imminent apprehension of a harmful or offensive touching.B. Prima Facie Elements
- Intent (specific or general)
- Act (volitional)
- Causation
- Imminent apprehension
- Of harmful or offensive touching
C. Key Rules
1. Assault vs. Battery Distinguished
- Assault = imminent apprehension of harmful/offensive touching (no contact required)
- Battery = actual harmful/offensive touching
- Point a gun at someone → assault (but not battery)
- Throw brick at someone’s back (they don’t see it coming) → battery only (no assault)
- Throw brick while facing someone → assault and battery (they see it coming, then it hits)
2. Apparent Ability Sufficient
Rule: Defendant’s apparent ability to assault is sufficient. Actual ability is irrelevant. Example: Gun is unloaded- If plaintiff didn’t know gun was unloaded → assault
- Defendant’s apparent ability to harm is what matters
3. Words Alone Insufficient
Rule: Words alone are insufficient to constitute assault. Example: “I’m going to kill you” (words only) → NOT assault- May be intentional infliction of emotional distress (covered later)
- But not assault
- “I’m going to hit you” while raising fist → assault
- The overt act (raising fist) + words = assault
4. Apprehension Must Be Immediate
Rule: The apprehension of harmful or offensive contact must be immediate. Example: “I’m going to hit you tomorrow” → NOT assault- Future threats don’t create imminent apprehension
V. FALSE IMPRISONMENT
A. Definition
False imprisonment is an intentional act or omission to act (where there is a duty to act) that confines or restrains the plaintiff to a bounded area.B. Prima Facie Elements
- Intent (specific or general)
- Act (or omission to act where duty exists)
- Causation
- Confinement or restraint
- To a bounded area
C. Methods of Confinement or Restraint
Plaintiff can prove confinement through any one of the following methods:1. Physical Barriers
- Locking a door
- Blocking an exit
- Creating a physical obstacle to movement
2. Physical Force
- Grabbing plaintiff’s wrist
- Holding plaintiff’s coat
- Physically restraining plaintiff
- Note: This also constitutes battery
3. Threat of Force
Rule: Threat of force can be directed at plaintiff or someone else. Examples:- Police officer points gun and says “don’t move” → false imprisonment
- Someone threatens harm to your child if you move → false imprisonment
4. Failure to Provide Means of Escape
Rule: Failure to provide means of escape where there is an affirmative duty to do so. Example:- Promise to drive someone to airport and let them out
- Arrive at airport but refuse to unlock doors
- Duty to act arose from the promise
- Promise to let passenger disembark in United States
- Failure to honor promise = omission to act where duty existed
D. Awareness Requirement
Rule: Awareness of confinement is required for false imprisonment. Examples:- Sleeping in room, someone locks you in → NOT false imprisonment until you try to leave and discover you’re locked in
- At campus, doors locked but you don’t know → NOT false imprisonment until you go to door and can’t get out
- The moment you become aware you cannot leave → false imprisonment begins
E. Intent Requirement
- Must be an intentional act (specific or general intent)
- If someone accidentally locks you in without knowing you’re there → NOT false imprisonment (no intent)
VI. EXAM TIPS
Study Methods
- Type your own notes - aids memorization
- Repetition is key - repeat rules like “Sunday school”
- Memorize black letter law - speeds up bar exam performance
- Focus on analysis, not conclusions - “How did you get there?”
Analytical Framework (IRAC)
- Issue: What is the cause of action?
- Rule: What is the black letter law?
- Application: Apply facts to the rule
- Conclusion: Did plaintiff meet all prima facie elements?
Key Principle
- Don’t look inside for answers (“What do I think?”)
- Look to the rule - find the applicable law
- Apply the rule to facts - this is where points are earned
Common Mistakes to Avoid
- Confusing specific intent with general intent
- Applying “substantial certainty” too broadly
- Forgetting that damages are not required for battery
- Thinking words alone can constitute assault
- Confusing criminal law terms with civil tort law (e.g., “guilty” vs. “liable”)
VII. CASE LAW SUMMARY
Brown v. Kendall
- Dog owner swinging cane to separate fighting dogs
- Struck plaintiff in eye on upward motion
- Analysis of specific vs. general intent
Cohen v. Petty
- Defendant fainted while driving
- Fainting = non-volitional act
- Distinction between conduct during unconsciousness vs. conduct leading to unconsciousness
Garratt v. Dailey
- 5-year-old pulled chair out from under plaintiff
- Intent does not require malice or intent to injure
- Only requires volitional act with purpose to cause harm OR substantial certainty of result
Wagner v. State (2005)
- Mentally disabled person attacked plaintiff at Kmart
- To be liable for battery, must intend the contact (not the harm)
- Mentally handicapped can form requisite intent
McGuire v. Almy (1937)
- Mentally ill nursing home patient struck nurse
- Mental illness does not negate intent
- Mentally ill persons liable under same circumstances as others
Spano v. Perini Corp.
- Blasting contractors caused damage
- Strict liability for abnormally dangerous activities
- Question: Who bears cost of damage from dangerous activity?
VIII. KEY TERMINOLOGY
- Adjudication: Judicial determination; court making a finding
- Cause of action: Theory of recovery; legal basis for lawsuit
- Volitional act: Conscious act (not reflexive or unconscious)
- Prima facie elements: The required components/ingredients of each cause of action
- Substantial certainty: Very high threshold; nearly certain to occur
- Imminent apprehension: Immediate expectation or fear
- Bounded area: Confined space from which plaintiff cannot escape
- Post hoc ergo propter hoc: Latin - “after this, therefore because of this” (logical fallacy)
- Sine qua non: Latin - “without which it cannot be” (causation in fact)
IX. RELATIONSHIP BETWEEN CAUSES OF ACTION
When to Use Each:
Battery → Actual harmful/offensive contact occurred Assault → Placed in imminent fear of contact (no actual contact required) False Imprisonment → Confined to area, cannot leaveMultiple Causes of Action:
- Same act can be multiple torts
- Example: Security guard grabs your wrist to prevent you from leaving
- Battery (harmful/offensive touching)
- False imprisonment (physical force restraining you)
If Intent Fails:
- If cannot prove specific or general intent → try negligence
- Negligence = conduct falling below reasonable person standard