Torts Class Notes 8/19/03


Last time, we talked about assault.We talked about trespass.When it was direct, and there was harm, there would be liability despite no fault.


Then in Weaver v. Ward, there are possibilities discussed where you might not be liable if the act was involuntary.


We talked about reasons things were the way they were and why they changed (i.e. the growth of industry in the U.S. and the necessity of encouraging them to perform socially beneficial work).


I de S showed that you had to prove the intent of the acting party, the creation of the apprehension of harmful or offensive contact.


The Restatement of Torts suggested reasonableness is not a requirement.


The court decided in I de S that you can have mental as well as physical harm.


Western Union Telegraph v. Hill


What happened at trial?The trial court finds for the plaintiff.The defendant appealed.


What did the trial court get wrong?The defendant said that he never could have reached her.The issue is whether or not the defendant had the apparent ability to commit assault.The contact canít be imminent if youíre not able to make the contact.


Remember, any factual questions must be addressed by the jury.Itís only questions of law that the Appeals Court can address.


The court reversed because Sapp wasnít acting within the scope of his employment.It wasnít the company doing the assault, and it wasnít paying him to do the assault.


Whatís the impact of Sappís drinking?Did the drinking cause anything?The drinking may be outside the scope of peopleís employment.But we donít even need to get to that part.Unless your job entails intentional torts, like if youíre a bouncer, intentional torts are considered outside the scope of your employment.


So why did they sue Western Union?Western Union has the big money and Sapp probably doesnít.


Assault Concepts


1.     Intent to cause imminent apprehension

2.     Harmful Contact vs. Offensive Contact

3.     Actual Apprehension (reasonable, depending on jurisdiction)

a.      Western Union ó Apparent Ability

b.     I de S ó Mental Injury


Words alone do not amount to assault.But why?




The kissy-kissy case: We say itís not actionable.How come?Part of it is the slippery slope.That is, if we open up this action too broadly, we will have more lawsuits than people will tolerate in society.


Itís not enough to be an injury thatís recognized in a court of law.Also, itís hard to ascertain the amount that should be recovered for mental injuries.


Does the environment youíre in contribute?Yes.C.f. Fisher v. Carrousel.The customs of the world will impact liability.You look at the testimony of both plaintiff and defendant and weigh intent heavily.


The KKK case: What would the Vietnamese fishermen have to prove to show assault?The KKK must have actually made a move towards harming the families.Can the KKK be liable for assault simply by putting on the robes?NoÖat least youíd have 1st amendment problems, I think.You canít just guess peopleís intent.


Bringing a gun along for an interview: Does it depend on how youíre carrying the gun?What if it was concealed?Itís hard to call that a threat.What if itís in a holster?Does the mere sight of a gun constitute an assault?


ďLike I said, I sure would be happy to have you as my son-in-law.Ē


Next door neighbor: Letís say I call you up and Iím over to beat you up, but I never come over.If I didnít do anything, it canít be an assault.If I threaten your dog, is that an assault?No, because Iím not threatening to touch the dogís owner.If the dog is harmed, then Iíve committed trespass to chattels.


Assault can be attempted battery, although it can stand on its own.


Sleeping kisser!Is this assault?It might be battery (offensive touching), but I didnít apprehend the harmful or offensive contact, so itís not assault.


Not all batteries include assault.


What if I sic my dog on you?We donít want people to get off the hook by saying they didnít directly cause the battery.


Momentary apprehension is worth something to a jury, but not as much as the battery.


Apprehension is necessary for assault.Contact is not.Once you get contact, you move to battery.


So the dog attack is assault if you run and then break your leg.


Sometimes judges are wrong.


Note (9)


A.   If it werenít forÖIíd kick your ass.Well, if your words disclaim the assault, you donít have an assault.Does it make a difference that the guy has his hand on his sword?The words still disclaim the assault.

B.    Same

C.   Same

D.   ?

E.    ďYour money or your lifeĒ?You canít impose an unlawful condition.But what if you just said the words but did not make a gesture?Thatís tricky.


Why is there an assault tort?

        Psychological Injury is Compensable

        Legal Protection of Mental Tranquility

        Threats of Force Resulting in Economic Gain

        Consistent with Battery Tort




Defendant must intend to cause harmful or offensive contact with the person of another which causes harmful or offensive contact.


How did things change from Cole?You donít have to be angry.The part about going through a narrow passage is still not actionable due to slippery slope and other stuff.


What about when they ďstruggle about the passageĒ?Actually a lot less than this can constitute battery now, especially when you look at the role of intent today.


Elements of Battery


-         Touching another in anger?

-         Intentional touching?

-         Intent to cause harmful or offensive contact?

-         Voluntary?

-         Harmful or Offensive

-         Contactóof person?

-         Actual touching?


The touching has to be things connected to you.


More Hypotheticals


Six-year old boy shoves four-year old girl.Is the boy liable?Yes, itís battery.When you shove someone, you expect to cause them mild harm, not major harm.Does it matter that the harm in this case exceeded what a reasonable person would expect?


What about kicking someone playfully, with no harm intended?Are you liable?Well, what if he is?Maybe kids wouldnít be allowed to kick each other and have fun anymore.What about shared liability?The kid with the potential infection is the cheapest cost-avoider.Why doesnít he wear a shin-guard?Where do we want to put the incentive?We want to say, ďyou have to wear a shin-guard when you think you might get infectedĒ.The playful kicking should occur on the playground.What about in class?The expectations of appropriate behavior might be different in class.Thereís a strong argument that he should wear the shin-guard in situations where heís likely to get kicked.


For tomorrow, read 17-20 and 37-41.


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