Assault and Battery
Battery
A. Intent to Contact
NOTES TO WATERS v. BLACKSHEAR
- Parties and Pleadings. The person who brings an issue to a court's attention in a tort case
is usually called the plaimiff or pctitio,1er or complainant. The person
whose conduct a plaintiff believes has caused or is about to cause an injury is usually called a
dcfe11dant or respo11de11t. A lawsuit begins with written documents called
pleadings. A plaintiff files a formal written document called a co111plaint,
stating that a defendant has done (or isdoing) something for which tort law provides a remedy.
The defendant responds to the complaint in a formal written answer. The answer may dispute
the plain1irfs description of the defendant's actions. On the other hand, a defendant's answer may
agree with the plaintiffs description of the defendant's actions but argue either that: (I) tort
lav.- allows those actions; or (2) tort law ordinarily forbids those actions but that something
about the plaintiffs conduct or some other aspect of the case should prevent the court from ruling
in the plaintiffs favor.
- Plaintiff's Characterizations of Facts and Legal Doctrines. Every tort case must have a
legal theory and a [<1ct1111I theory. A legal theory is a statement of the type
of tort that the plaintiff cbims the defendant committed. A legal theory dek·rmines what the
plaintiff must prove to obtain the remedy he or she seeks. The plaintiffs choice of legal theory
determines wh,ll facts arc relevant. A factual theory is a statemt·nt of what caused the
plai111ifrs injury, including a statement of what the detendant did or did not do in the context of
the signiticant circumstances related to the injury. A plaintiff will win a tort case if: (I) the
plaintiff can persuade the trier of fact (the jury, or the judge in a case trkd without a jury)
thnt, ns a mntter of historicnl fact, some events occurred; and (2) the jurisdiction's legal
doctrines support the conclusion that when events oi the type the plaintiff described have occurred,
a plaintiff is entitled to a remedy.
- In Waters, the legal theory at stake on appeal involved the tort of b;Hk'ry. The plaintiff
had sought recovery on another theory, Jll'gligence, probably bt·.·.ausl.' the
defendant ,vas covered by an insurance policy that would pay damag1.·s for
ncgligt·nt conduct but not for intt·ntional torts. If the dl'lcndant's comlrn.:t
satisfi1.•d the rt·,1uir1e• ments for battery, then th1.· plaintiffs
n1.·gligcnn· claim had to fail. What f;.\.-ts an,1/l,r events must a party prove lo
have occurred to support a finding that a h,1ttay occurred? \Vhat was the factual theory (presented
by the defendant) to support a finding of battery? What facts did the defendant claim were
true and sufficient to support a finding that the defendant's conduct was a battery?
- Variety of Legal Theories. A person may act without intending to invade the legally
protected interests of another. If the defendant carelessly dropped the fire cracker and it
happened to fall into Waters's shoe, there would be no battery. There might, however, be a tort in
these situations based on another legal theory such as recklessness or negligence. Learning tort law
involves learning which legal theory fits the facts of a case.
- Variety of Sources of Law. The Waters court relied on several types of author
ity in reaching its conclusion; the Restatement (Second) of Torts, two treatises on tort law, and a
decision from another court. Judges and lawyers (and law students) regu larly rely on all of
these resources to find accurate statements of the law. Statutes and regulations are additional
sources of law discussed in this book.
- Restatements of Tort Law. The Restatement (Second) of Torts is a publication of a private
organization called the American Law Institute (ALI). Members of the ALI are prominent judges,
lawyers, and law professors. The ALI has prepared a large number of Restatements of the law for
different fields of law. The Restatements are intended to codify common law doctrines as developed
in state courts; where state court doctrines are not uniform, the authors of the Restatements either
incorporate the doctrine they consider best or state that there arc rival points of view on an
issue. Restatement provisions are not binding authoriry in a state unless they have been adopted by
that state's courts. The Restatements usually have had great persuasive power, though, because of
the prestige of the members of the committees that have produced them and because of the quality of
the analysis they have presented. A Restatement (Third) of Torts is currently being produced by the
ALI.
537 A.2d 468 (Conn. 1988), also Lexis
NOTES TO POLMATIER v. RUSS
- The Act Requirement. The Polmatier court described a two-step process to determine
if a defendant committed an intentional tort. The first question is whether the defendant "intended
the act that produced the injury." This is the act requirement. Plaintiffs must satisfy the
act requirement in all tort cases. The second question is whether the defendant "intended the
resulting injury to the decedent." This is the inte11t requirement. Plaintiffs are
obligated to satisfy the intent requirement only in intentional tort cases. The act must be an
external manifestation of the actor's will.This definition of"act" hastwo parts.
First, an external manifestation is something that can be perceived. Even "standing still" or "doing
nothing" can be perceived. What external manifestations were significant in establishing the
plaintiffs case? Second, the movement or failure to move must result from the actor's will. A
movement or failure to move when asleep ("or while the will is otherwise in abeyance") is not a
manifestation of will. What reasons support the court's treatment of Russ's movements as
manifestations of his will?
- The Intent Requirement. The intent requirement for all intentional torts is desuibed in
Restatement (Second) of Torts §8A: "Intent ... denotes that the actor desires to cause
consequences of his act, or that he believes that the consequences are substantially certain to
result from it."
- For battery, the plaintiff must establish that the defendant intended to cause a contact that is
h;1nnful or offensive. Intent may be shown by demonstrating that the actor either (a) desired the
harmful or oflensive contact or (b) believed that the ham1ful or offensive conlact was substantially
certain to result. Other intentional torts protect different interests, and their intent
requirements are modified ,1Ccordingly. What evidence supports a 111,ding that Russ desired to
im·adc Polmaticr's interest in being free from harmful contact?
- Intending the Precise Injury. As the Po/111micr court statccl. it is not essential
that the precise injury that was done be the one ink·ndt·d. The tort of battery only
requires that the actor intend a conduct that is harmful or offt·nsive. Similarly, in Waters
v. Blackshear, the court observed that for determining wht'lhcr the dd',;·ndant committed a
battery it did not matter that the defendant mav not have intended to cause the inju rics that the
plaintiff sustained, known the seriou ness of the l.'.onduct, or desired all the harm that might
resuh.
- Distinctions Between Tort Law and Criminal Law. A person's condlKI mav ht· hnth a
tort and a nim(·. For example, when ont· person shoots and kills ,11wther,'
tht· injury might he called a battery in tort law and murdn in criminal law.
- Problems: Desire or Substantial Certainty-A plaintiff can satisfy the intent requirement
for battery with proof that the defendant either (1) desired to cause a contact that was
harmful or offensive orwassubstantially certain thatsuch a contact would occur.The
Restatement (Third) of Torts: LiabiJjty for Physical and Emotional Harm §I defines
"intent" as follows:
- A person acts with the intent to produce a consequence if:
- the person acts with the purpose of producing that consequence: or
- the person acts knowing that the consequence is substantially certain to result.
B. Intending Contact That Is Harmful
Nelson v. Carroll considers whether an actor who commits a battery may be liable for harms the actor did
not intend and could not reasonably have foreseen. It also shows how a plaintiffs factual theory relates
to the harm for which the plaintiff seeks damages.
735 A.2d 10% (Md. 1999), also Lexis
NOTES TO NELSON v. CARROLL
- Identifying Significant Facts. In Nelson v. Carroll, the defendant's actions included: (I)
moving a gun toward the plaintiff and hitting him with it; and (2) moving a gun toward the plaintiff
in a way that resulted in a bullet wound. Assuming that each of these actions could be characterized
as a battery, from the plaintiffs point of view which one provides the better basis for a lawsuit?
From which action did the plaintiff suffer the greater harm?
- Defining "Injury" and "Harm." Even if the defendant in Nelson had no inten
tion to hit the plaintiff with a bullet, the defendant was stiH subject to liability for battery. As
the court stated, "theintent required is not a specific intent to cause the type of harm that
occurred."
The Restatement (Second) of Torts distinguishes between an injury and a harm.
Section 7 says that, to commit an intentional tort, an actor needs only to intend an injury. An
injury "denotes the invasion of any legally protected interest of another." A harm
"denotes the existence ofloss or detriment in fact of any kind to a person."
An injury causes a harm if the injury actually has a detrimental effect on the plaintiff.
According to the Restatement (Second) of Torts §7 comment b, harm is
the detriment or loss to a person which occurs by virtue of, or as a result of, some aJteration or change
in his person, or in physical things, and also the detriment resulting lo him from acts or conditions
which impair his physical, emotional, or aesthetic well-being, his pecuniary advantage, his intangible
rights, his reputation, or his other legally recognized interests.
The harm Carroll had in mind when he raised the gun was different from the harm Nelson suffered. In an
intentional tort case, the plaintiff is required only to prove that the defendant inflicted a legally
recognized injury. Damages are measured, however, by the amount of harm suffered.
- Direct and Indirect Contacts. The simplest battery cases involve direct contact between
some part of the defendant's body and some part of the plaintiffs body (such as a contact between a
defendant's fist and a plaintiffs chin). As Nelson shows, however, contact between the
plaintiffs body and something put in motion by the defendant (e.g., a bullet) can also support a
battery claim.
C. Intending a Contact That Is Offensive
634 N.E.2d 697 (Ohio Ct. App. 1994), also CB
NOTES TO LEICHTMAN v. WLW JACOR COMMUNICATIONS, INC. AND
ANDREWS v. PETERS
- Offensive Contact. According to the Restatement (Second) of Torts §19, "a bodily
contact is offensive if it offendsa reasonable senseof dignity." Comment a 10 that section
says:
In order that a contact beoffensive to a reasonable sense of personal dignity, it must be one which would
offend the ordinary person and as such one 1101 undulysensitive as to his personal dignity. lt must,
therefore, be a contact which is unwarranted by the social u ages prevalent at the time and place at
which it is inflicted.
- Subjective and Objective Tests. The intent test for any intentional tort requires the
factfinder to determine what was going on in the defendant's mind specifically, what the
defendant desired or knew. For battery, the factfinder must conclude that the defendant desired to
contact the plaintiff (or to cause the plaintiff to anticipate imminent contact) or was
substantially certain that a contact (or anti cipation of contact) would occur as a result of
the defendant's act. This intent test is called a subjective test because it focuses on
what the individual defendant desired or knew.
The test for offensiveness requires the factfinder to evaluate a defendant's conduct in terms of societal
standards and a "reasonable sense of dignity." This offensiveness test is called an objective test,
because it focuses on a general societal consensus rather than on what the individual defendant
desired or knew. An act can be offensive regardless of what the defendant personally thought about its
character.
D. Damages for Intentional Torts
In most tort cases, plaintiffs seek monetary damages. The plaintiffs desire to receive a
monetary judgment is mentioned by the courts in Polmaticr v. Russ, Nelson v. Carroll, and Andrews v.
Peters. Awards for harms suffered are called compc11satory damages. Methods for calculating
damages are discussed in Chapter J2. The opinion in Andrews v. Peters also mentions punitive
damages, which are damages intended to punish the defendant rather than to compensate the
plaintiff. While rules vary from state to state, punitive damages may be awarded when the defendant is
malicious, or "oppressive, evil, wicked, guilty of wanton or morallyculpable conduct, or shows flagrant
indifference to the safety of others." See Dan B. Dobbs, Law of Remedies §3.11(2), p.319 {2d ed.
1993).
Taylor v. Barwick discusses a third type of damages, nominal damages, which may be awarded
instead of compensatory damages when the plaintiff has suffered an injury but no harm. Nominal damages
awards might also have been appropriate in Leichtman v. WLW Jacor Communications, Inc. Taylor v. Barwick
also discusses a limitation of liability for intentional tort, the doctrine of de minimis non curat
lex, which says that the law will not involve itself in trifling invasions of others'
interests. To understand nominal damages, it is important to remember the distinction between injury
and harm, discussed in Note 2 following Nelson v. Carroll.
TAYLOR v.
BARWICK 1997 WL 527970 (Del. Super. Ct. 1997)
NOTES TO TAYLOR v. BARWICK
- Nominal Damages. "Nominal damages are a trifling sum awarded to a
plaintiff in an action, where there is no substantial lossor injury to be compensated, but still the
law recognizes a technical invasion of his rights." Black's Law Dictionary at 392 (6th ed. 1990).
Traditional awards for nominal damages in many states are six cents or one dollar. Money will not
encourage a plaintiff to sue when only nominal damages can be expected. A plaintiff suing for
nominal damages may be motivated by the desire to vindicate a right - that is, to have the court
define the rights and privileges of each party. It is easy to see why this would be important to a
prisoner and a prison guard, as in Taylor v. Barwick. That opinion also points out that, in addition
to defining the rights of the parties, courts provide "an outlet clothed with some sense of civility
for minor emotional controversies."
- De Minimis Non Curat Lex. The doctrine of de minimis non curat lexcontradicts some
people's idea that our society is too litigious and that it is easy to sue and recover damages for
any technical interference with a recognized legal interest. The doctrine frustrates lawsuits by
people motivated by vengeance, as the plaintiff in Taylor v. Barwick might have been, or who
complain about acts courts believe are oflittle social consequence. The court in Taylor v. Barwick
recognized that, on the one hand, the plaintiff made a "battery mountain" out of a "poking or
brushing mole hiU." The court recognized that, on the other hnnd, prison guards ought not to be able
to use minor physical contact as a form of humiliation. By allowing the trial to proceed, the court
recognized that some social purpose would be furthered by the court's intervention in the dispute
bet,veen the parties.
Taylor v.
Barwick | Case Brief for Law School | LexisNexis
[18]
In re
Taylor v. Barwick, 1997 WL 527970, at *3 (Del. Super. Jan. 10, 1997) (citing W. Page
Keeton, et al., Prosser and Keeton on Torts, § 9 at 39 (5th ed.1984)).
Ill. Assault
The intentional tort of assault protects one's interest in being free from the apprelzension
of immineltt harmful or offensive contact. A single act, like the firing of a gun in Polmatier
v. Russ, may cause harmful or offensive contact and may also cause anticipation that such contact wilJ
imminently occur.Thus,a single act may be both an assault and a battery. A battery may occur without an
assault if the victim does not perceive the impending contact. For example, on the facts of Waters v.
Blackshear, an assault claim would be possible only if the plaintiff was aware of the lighted
firecracker in his sneaker before it exploded. An assault may also occur without a
battery.
Assault cases involve an intellf requirement. They also require analysis of the meaning
of apprehension, how imminent contact must appear to be to qualify as an assault, and
the relationship between battery and assault.
A. Intending Apprehension of Imminent Contact
570 N.E.2d 27 (Ind. 1991)
BRO'\VER v. ACKERLEY 943 P.2d 1141 (Wash. Ct. App. 1997)
NOTES TO CULLISON v. MEDLEY AND BROWER v. ACKERLEY
- Factual Theories. The two cases illustrate several types of factual theories a plaintiff
might offer. The court in Brower v. Ackerley based its analysis on a series of phone calls made to
Brower. By contrast, the court in Cullison v. Medley based its holding only on the acts of the
Medleys at Cullison's trailer in February 1986. Among the specific acts of the Medleys that could
form the basis for finding that there was an assault that night was Ernest Medley's grabbing and
shaking of his gun in its holster. Several months later, Ernest stood next to the booth in a
restaurant where Cullison was seated while Ernest was wearing a pistol and a holster approximately
one foot from Cullison's face. Would this later act be sufficient to form the basis for finding that
there was an assault at the restaurant? Are there other relevant facts provided in the opinion that
make this more likely to be an assault? The Restatement recognizes that it is appropriate to
consider the surrounding circumstances when deciding whether appre hension of imminent contact
is reasonable. See Restatement (Second) of Torts §31.
- Injury and Harm. As for the tort of battery, the defendant need not intend or even foresee
the specific consequence of an assault. The injury for assault is the invasion of the plaintiffs
peace of mind by causing apprehension of an imminent harmful or offensive contact, without regard to
whether the contact occurs. It is this injury that must be intended, not any other specific harm.
The harms suffered by the plaintiff in Cullison v. Medley included chest pains, fear of a heart
attack, and other physical and emotional consequences.
- Objective Test for Apprehension. The court in Cullison v. Medley applied an
objective test to determine whether Cullison suffered apprehension. The court stated that
the jury must find that the defendant's conduct would normally arouse appre hension in the mind
of a reasonable person. This isan objective test because it refers to people in general, not to the
specific assault plaintiff. The court in Brower v. Ackerley quoted Restatement (Second) of
Torts§31, which says that words alone arc not enough to make an actor liable for assault
"unless together with other acts or circumstances they put the other in reasonable apprehension
of an imminent harmful or offensive contacl." (Emphasis added.)
- Should There Be a Subjective Test for Apprehension? There was no evidence in
Cullison or Brower that either plaintiff was a particularly sensitive person
whofrightens easily. The Restatement (Second) of Torts §27 says that, even if a plaintiff
frightens easily, the defendant will be subject to liability ifhe intends to put the plaintiff in
apprehension of an immediate bodily contact and succeeds in doing so. See comment a, "Actor's
surprising success." The treatise cited in Cullison and Brower,
- Page Keeton, Prosser & Keeton on Torts at 44 (5th ed. 1984), states that no cases have applied
this Restatement rule but that there might be liability if the defendant actually knew of the
special sensitivity, but the treatise cites no cases.
Recall that in the context of battery the test for whether a contact is offensive is an objective test.
The Restatement (Second) of Torts §19 requires that thecontact offend a reasonable sense of
dignity. Section 19 comment a explains that "[i]n order that a contact be offensive to a
reasonable sense of personal dignity, it must be one which would offend the ordinary person and as such
one not unduly sensitive as to his personal dignity." The Restatement (Second) of Torts took no position
on whether an actor would be subject to liability for battery if he or she knew that the contact would
be offensive to the other's abnormally acute sense of personal dignity.
- Conditional Language and Imminent Contact. The intermediate appellate court in Cullison v.
Medley held that the Medleys' conduct constituted conditional language that did not express any
present intent to harm Cullison. A co11ditional threat is one that threatens harm unless
the plaintiff behaves in a certain way in the future. Because the harm depends on something that
will happen in the future, any contact a plaintiff anticipates is future rather than imminent
contact. While the Cullison court was correct that a conditional threat is not sufficient
to justify an assault, the state's supreme court found that the Medleys threatened imminent contact
as well as future contact. The interest protected by assault is the interest in freedom from
im111inent contact.
By contrast, the court in Brower v. Ackerley found that there were no threats of
imminent harmful or offensive contact, because the defendant did not threaten actions that would occur
"almost at once." The i111111i11c1,cc of the contact means that the contact will occur without
significant delay. Injury threatened for the "near future" is not actionable under the legal theory of
assault, while injury threatened for the immediate or imminent future is.
- /nffiction of Emotional Distress. Even though the plaintiff in
Brower v. Ackerley may have suffered serious emotional harm from the threats made by the defendants,
the particular requirements of the assault and battery tort actions prevented recovery on either of
those theories. Another tort, infliction of emotio1Jnl distress provides an alternative
theory on which such plaintiffs might rely. That tort, sometimes called the tort of
outrageous conduct.
B. Transfer of Intent Among People and Between Torts
HALL v. McBRYDE 919 P.2d 910 (Colo. Ct. App. 1996)
NOTES TO HALL v. McBRYDE
- Multiple Transfers of Intent. The court in Hall v. McBryde held that if Marcus
fired the bullet that struck the plaintiff, Marcus would be liable for the intentional tort of
battery. This is surprising for two reasons: (I) Marcus did not intend to batter the plaintiff, who
was his neighbor; and (2) Marcus did not even intend to assault the plaintiff. The evidence suggests
that Marcus intended to assault the youths in the car. The court held that not only can the
factfinder transfer the intent from assault to battery, it can transfer intent from intended victims
to other people. The first of these transfers of intent is the transfer of intent between torts. The
second is the transfer of intent among people. A Missouri court described the transfer of intent
among people, saying, 'The intention follows the bullet." State v. Batson, 96 S.W.2d 384, 389 (Mo.
1936). The court in Hall v. McBryde quotes the Restatement (Second) of Torts §J6( I) to support
the transfer of intent between assault and bilttery and§I 6(2) to support the transfer of
intent among people. Would either of these subsections be applicable if Marcus had shot one of the
occupants in the car?
IV. Defenses to Assault and Battery
A defense protects a defendant from liability even if a plaintiff can prove that the defendant acted in a
way that meets the definitions of "assault" or "battery." This Section considers the most common
defenses to assault and battery: consent and defense of self, others, and property.
A. Consent
536 A.2d I37 (Md. Ct. Sp. App. 1987)
- Express and Implied Consent
- Consent to Contact Rather than to Harm. An actor will usually be treated as having
consented to contact rather than to a particular harm. In McQuiggan v. Boy Scouts of America,
Nicholas consented to relinquish his right lo be free from harmful or offensive contacts. He
certainly would nol concede that he consented to the harm to his eye. Recall the distinction between
injury and harm discussed in the notes following Nelson v. Carroll. To intend a battery, an actor
must intend the injury, the invasion of another's interest, and, in dual intent states, to cause
harm that would otherwise constitute a battery. But the actor need nol intend the particular harm
that occurred. Consent is analy-.1,ed the same way. An actor consents to suffer the injury, the
invasion of a right. Once the actor has consented to the invasion, the actor cannot recover for
harms related to that invasion, even if they were unforeseeable.
An actor who consents to an invasion of an interest (to be free from harmful contact, for instance) does
not thereby consent to all possible harmful conduct. If Nicholas consents to being hit with paper clips,
Billy may not shoot him with a hand gun. Sometimes applying this idea is difficult, because the conduct
to which an actor has consented may be defined only vaguely. The court in McQuiggan v. Boy Scouts of
America quotes a treatise by Professor Keeton saying that the conduct lo which one consents in a sport,
game, or contest is "physical contacts consistent with the understood rules of the game." Thus, custom
is relevant in determining the scope of conduct to which one has consented.
RICHARD v. MANGION 535 So. 2d 414 (La. Ct. App. 1988)
NOTES TO RICHARD v. MANGION
Consent and Self-Defense.
- Consent and Excessive Force. The court in Richard v. Mangion states that consent is
vitiated by unnecessary or excessive force. Excessive force is a contact that is not "consistent
with the understood rules of the game." That is not the same as saying that consent is vitiated by
unanticipated results. For example, in McQuiggan v. Boy Scouts of America, while the plaintiff had
not consented to the particular harms he suffered, he was barred from recovering damages for them.
Was the court's conclusion that there was no excessive force in Richard v. Mangion consistent with
the fact that the plaintiff suffered hemorrhaging in his eye that required two operations and
$15,000 in medical bills?
- Problem: Excessive Force Vitiating Consent. In Lane v. Holloway, 3 All Eng. Rep. 129 (Court
of Appeal, 1967), there was a fight, of sorts, between Mr. Lane and Mr. Holloway. Mr. Lane, a
somewhat infirm, 64-year-old retired gardener living in England, resided in a quiet courtyard onto
which backed a noisy cafe run by 23-year old Mr. Holloway. Returning from a bar at 11o'clock
one night, Mr. Lane was chatting in the courtyard. Holloway's wife, disturbed by the noise, called
out to them, "You bloody lot." The court described the subsequent events as follows:
Mr. Lane replied: "Shut up, you monkey-faced tart." Mr. Holloway sprang up and t\\;ce said: "What did you
say lo my wife?" He said ii twice. Mr. Lane said: "I want lo see you on your own," implying a challenge
to fight. Whereupon Mr. Holloway came out in hispyjamas and dressing-gown. He walked up the courtyard to
the place where Mr. Lane was standing at his door. Hemoved up close lo Mr. Lane in a manner which made
Mr. Lane think that he might himself be struck by Mr. Holloway. Whereupon Mr. Lane threw a
punch at Mr. Holloway's shoulder. Then Mr. Holloway drew his right hand out of his pocket and punched
Mr. Lane in the eye, a very severe blow.
Mr. Lane was taken to the hospital with a very serious eye injury requiring 16 stitches that
worsened his chronic glaucoma. Did Mr. Lane consent to a battery? How much force was Mr.
Holloway entitled to use? Did Mr. Holloway use excessive force?
B. Defense of Self and Others- The Proportionality Principle
Proportionality is central to the defenses to assault and battery. In defense of one's self, of another
person, or of one's land or property, an actor may use force proportionate to: (1) the interest the
actor is protecting; and (2) the injury or harm threatened by the other. The law values the interest in
human life more highly than the interest in personal property. Accordingly, an actor is privileged to
use greater force to protect a life than to protect an automobile. An actor is privileged to use greater
force to prevent a stab than to prevent a slap. Appreciating how the law values different inter
ests and weighs different kinds of injuries and harm makes it easier to understand how
much force an actor may use in self-defense, defense of others, and defenseof property. In a case where
a boy was followed home from school by another boy who threatened to beat him up. Slayton v. McDonald
identifies factors relevant to deter mining how much force a person may use for self-defense. A
general approach to this issue first requires establishing how much force may be used and then deciding
whether the actual force used was greater than the allowable maximum. An actor who is entitled to use
some force may still be liable for the consequences of using excessive force. Young v. Warren applies
this principle to the privilege to use force to protect others.
690 So. 2d 914 (La. Ct. App. 1997)
NOTES TO SLAYTON v. McDONALD AND YOUNG v. WARREN
- Proportionality in Defense of Self and Others. Slayton v. McDonald and Young v.
V.7arren illustrate the principle of proportionality as applied to defense of self and others. One
may use deadly forceonly to prevent serious bodily harm. When an actor is faced with a
battery or assault that does not involve serious bodily harm, he or she is entitled only to
use moderate or reasonable force. In Restatement (Second) of Torts
§63 comment b, "serious bodily harm" means
a bodily harm the consequence of which is so grave or serious that it is regarded as differing in kind,
and not merely in degree, from other bodily harm. A harm which creates a substantial risk of fatal
consequences is a "serious bodily harm." The permanent or protracted loss of the function of any
important mem
ber or organ is also a "serious bodily harm."
Compare the harm McDonald faced to the harm Warren's daughter faced at the time of the shooting.
Note that Young was shot in the back, after he had left Warren's daughter's house. The privilege to
use force to protect self and others is not a right to retaliate or seek revenge; it is a privilege to
use force to protect. Are there any parts of
\•Varren's testimony that, if believed, would support a privilege for Warren to use deadly force to
protect himself?
Vfould Warren's daughter, Autumn, have been privileged to shoot Young after Young threw a large piece of
wood through the glass, entered Autumn's house, and jerked Autumn's arm? If Young had been inside
Autumn's house jerking Autumn's arm at the time Warren showed up with the shotgun, would Warren have
been privileged to shoot Young?
- Objective Test for Perception of Threat. Generally, one may not use deadly force to protect
one's self or others from bodily harm that is not serious. If the actor actually fearsserious bodily
harm and a reasonable person in the actor's position would fear serious bodily harm, then
the actor may defend him- or herself by using deadly force. This "reasonable person," according to
the Restatement (Second) of Torts §63 comment i, must be a person of "ordinary firmness and
courage." It does not matter what harm the attacker intends to inflict. The privilege arises from
the reasonable perception of an impending battery.
Daniel McDonald testified that he thought James Slayton "was crazy enough to kill me." The court in
Slayton v. Mcl>onald identified six factors for determining the reasonablenessof the
actionsof a party being attacked: (I) the character and reputation of the attacker, (2) the
belligerence of the attacker, (3) differences in size and strength of the parties, (4) whether
there was an overt act by the attacker, (5) whether serious bodily harm was threatened, and (6) whether
a peaceful retreat was possible. A defendant need not show that all of these factors are present lo be
privileged lo use deadly force. Which of these factors are present in Slayton v.
McDonald?
Instead of the six-factor test used in Slayton v. McDonald, the Restatement (Second) of Torts focuses on
the nature of the likely harm when determining the extent of force an actor may use to protect himself
and others. Section 65 says that an actor may use deadly force if he reasonably believes he is "put in
peril of death or serious bodily harm or ravishment." How does this test compare with the six-factor
test?
- Extent of Force Used. In addition to determining how much force an actor is entitled to
use, the factfinder must determine how much force the actor actually did use. The extent of force
used is not measured by the harm suffered but rather by the harm the defendant intended to cause or
was likely to cause. Did Daniel McDonald and William Warren intend to use the same amount of force?
Was it likely the force each used would cause the same amount of harm? Consider how they aimed their
guns and the ammunition they used. What is the difference in the intent of McDonald and Warren?
- Assault in Criminal and Civil Law. The court in Young v. Warren says that
the question is "whether a defendant in a civil action may assert defense of family to justify
assault on a third party." Frequently, courts use the word "assault" to indicate a
harmful physical contact that tort law would describe as a "battery." In criminal law, an
assault may occur even without the victim fearing an imminent contact. This difference between
criminal law and the civil law action for assault will not cause confusion for readers who look
carefully at the nature of the injury inflicted. Even though the court in Young v. Warren referred
to the shotgun blast in the back as an assault, touching another person with shotgun pellets is
certainly a harmful contact that tort law would describe as a battery.
NOTES TO STATUTES
- The "Make My Day" Myth? Current street wisdom holds that a homeowner is
entitled to shoot anyone who enters the home uninvited. Many state statutes make special mention of
people's right to be secure in their dwellings. The Colorado statute, for instance, recognizes "that
the citizens of Colorado have a right to expect absolute safety within their own homes,"
although, as the second paragraph of that section reveals, the right has substantial qualifications.
The recently adopted Florida statute, which has been copied by some other states, has fewer
qualifications. Does the Florida statute in effect allow individuals to kilJ others in defense of
property?
- TheObligation to Retreat. Jurisdictions differ with respect to the obligation of a person
to retreat. The court in Slayton v. McDonald considers the possibility of retreat as merely one
factor to be considered in determining the amount of force one is privileged to use. The Restatement
(Second) §65 denies the privilege to use deadly force in self-defense to one who "correctly or
reasonably believes that he can safely avoid the necessity of so defending himself by ...
retreating" unless he is attacked in a dwelling place. The dwelling place exception is sometimes
called the "castle doctrine." When is a person obliged to retreat under the florida statute?
C. Defense of Land and Personal Property
784 So. 2d 239 (Miss. Ct. App. 2000)
NOTES TO WOODARD v. TURNIPSEED
Reasonable Force to Protect Land and Chattels
Reasonable Force to Eject Trespassers
Problem: The Proportionality Principle and Defense to Assault and Battery.
NOTES TO STATlJTES
- Lmitations on the Useof Reasonable Force.
While some statutes privilege the use of reasonable force to protect property, as Utah's
statute illustrates, others qualify the privilege. Requiring a request to desist is a common
limitation, though a request is required only when it is reasonable, as the North Dakota statute
indicates. Other statutes explicitly deny the privileged use of force when the actor knows that
exclusion
of the trespasser will expose the trespasser to a "substantial risk of serious bodily harm-" See, e.g.,
N.J. Stat. §2C:3-6(b)(2) (2009).
- Lmitations on the Use of Deadly Force. While some states privilege use of deadly force to
prevent serious crimes, othersqualify the privilege. New Jersey's statute listsa number of crimes
that justify the use of deadly force but qualifies the privilege by requiring that there also be
threat of bodily harm to a person.
Infliction of Emotional Distress
The tort of intentional infliction of emotional distress protects a person's right to be free
from serious emotional distress. This tort is also known as the tort of outrageous conduct, or,
simply, the tort of outrage. Certain attributes of emotional distress have made it a
complicated issue in tort law. Mental anguish occurs from time to time in everyone's life, it can be
hard to measure, and a plaintiff can easily lie about it. For these reasons, courts have sought to limit
the circumstances in which plaintiffs can recover damages from defendants whom they claim have caused
them to suffer emotional distress. Nevertheless, tort doctrines sometimes permit plaintiffs to recover
for emo tional distress. For example, recovery of emotional distress damages is permitted when the
distress is caused by an assault or a battery.
The development of the intentional infliction of emotional distress tort reflects the
concerns about the universality of some mental suffering in human life and the pro blems of
measurement and possible exaggeration. Plaintiffs are permitted to recover only if a defendant's conduct
is "outrageous" and the resulting mental distress is "severe." These limitations may prevent plaintiffs
from seeking damages when they suffer only the kind of sadness that iscommon in life, and may filter out
cases in which lying or exaggerating about emotional impact would be likely.
Outrageousness
Liahility for intentional infliction of emotional distress is based on proof of outrageous conduct. This
leads to some basic questions: Just how outrageous must the conduct be in order to impose liability?
Whose frame of reference counts in assessing outrageous ness? Should the judge or the jury (if
there is a jury) evaluate the defendant's conduct? Courts ordinarily usean objective test to
determine whether conduct is outrageous, just as they use an objective test for offensiveness in battery
cases. Zalnis v. Thoroughbred Datsun Car Company and Strauss v. Cilek introduce the outrageousness tort
and deal with many of these issues.
. 645 P.2d 292 (Colo. Ct. App. 1982), also Lexis
NOTES TO ZALNIS v. THOROUGHBRED DATSUN CAR
CO.
- Intent. The intent element for the tort of outrageous conduct may be estab lished by
proof that the defendant either (a) intended to cause or (b) recklessly caused the plaintiffs severe
emotional distress. Reckless infliction of emotional distress is discussed later in this chapter.
"Intent" has the same meaning for this tort as for the torts of battery and assault. What evidence
supports a conclusion that Trosper and Anthony intended to cause Zalnis severe emotional distress?
- Particular Sensitivity. The test for outrageousness is an objective test, based on a
typical community member's assessment of the challenged conduct. When deciding whether conduct is
outrageous, an average member of the community would likely consider whether the defendant knew that
the plaintiff was, for some idiosyncratic reason, particular likely to suffer severe emotional
distress. The Restatement (Second) of Torts §46 comment j stales: "The distress must be
reasonable and justified under the circumstances, and there is no liability where the plaintiff has
suffered exaggerated and unreasonable emotional distress, 1111/ess it res11lts from a pewliar
s11sceptibility to such distress of which the actor lws knowledge." ( Emphasis added.) What
evidence permitted consideration of Ms. Zalnis's peculiar susceptibility? How did this evidence
contribute to the court's conclusion that a reasonable person could find this conduct outrageous?
- Person in Position of Authority or Power. Conduct that would otherwise not be outrageous
might appear outrageous if one party has actual or apparent authority over the other or the power to
affect the other's interests. The Restatement (Second) of Torts §46 comment e, illus. 5,
provides an example of that principle:
Severe Emotional Distress
In addition to establishing outrageous conduct, the plaintiff in an intentional infliction of
emotional distress or outrageousness tort action must also establish that he or she suffered severe
emotional distress as a consequence of the defendant's conduct. Because of this requirement, some very
reprehensible conduct may escape tort liability if its intended victim happens to tolerate it without
suffering significant harm. This limitation on a plaintiffs ability to obtain redress may restrict the
outrageousness action to circumstances where it is highly likely that the underlying conduct was
outrageous and where the victim's suffering is genuine. Rogers v. Louisville Land Co. evaJuates the
severe emotional distress element and also considers how a plaintiff may prove the existence of that
level of distress.
367 S.W.3d 196 (Tenn. 2012), also Lexis
NOTES TO ROGERS v. LOUISVILLE LAND CO.
- Evidence of Severe Emotional Distress. The element of severe emotional distress involves
two related issues. One is how serious a plaintiffs emotional distress must be to allow recovery.
The other is howa plaintiff proves that he or she suffered severe emotional distress. Rogers
considers both issues. The court offers a list of six nonexclusive types of evidence plaintiffs
may offer to prove the severity of their emo tional harm. Some may involve testimony by a
medical professionaJ. Creating a cat egory of severe emotional harm mirrors the
Restatement (Second) of Torts characterization of some bodily harm as serious
bodily harm. See Restatement (Second) of Torts§63 (permitting use of deadly force only in
defense against a battery or assault that threatens serious bodily harm).
- Outrageousness as Evidence of Severity of Emotional Distress and Expert Testimony.
The outrageousness of the act may influence the factfinder's decisions about whether there was
intent ("so outrageous that the defendant must have intended serious emotional harm") and whether
the plaintiff actually suffered such harm ("so outrageous she must have suffered severe emotional
distress"). Courts are often influenced by the nature of the outrageous conduct when deciding that
the harm must have been severe because the conduct was so outrageous, even though
outra geousness is properly interpreted as a separate element of the tort. In an earlier
Tennessee case, Miller v. Willbanks, 8 S.W.3d 607 (Tenn. 1999), for instance, a doctor diagnosed a
newborn baby as having drug withdrawal symptoms without testing the baby for the presence of drugs.
The doctor contacted relatives of the parents and told the mother he did not believe her denials of
drug abuse, while rumors spread through the hospital causing nurses to treat the parents rudely. The
doctor also initiated an investigation of the parents and refused to give them information about
tests per formed on the baby. Another doctor's tests revealed no drug problems. The trial court
held that the failure to offer expert testimony regarding the existence of severe emo
tional distress doomed the plaintiffs case. The Tennessee Supreme Court reversed, saying that the
outrageousness of the conduct added weight to the plaintiffs claim of severe emotional distress and
expert testimony was not required. This is the majority approach. A minority of courts require
expert testimony regarding seriousness to prevent the tort from being reduced to a single element of
outrageousness.
- Problems: Evaluating Factual Showings of Severe Emotional Distress. Severe emotional
distress is required for recovery in a varietyof areas of tort law. Can the types and intensities of
emotional distress described in the following cases be ranked from most severe to least severe? Are
there any in which a court could sensibly say the plaintiff had failed to provide evidence of severe
emotional distress?
C. Intent and Recklessness
Although typical terminology refers to the tort of intentional infliction of emotional distress or
to the intentional tort of outrage, most states permit recovery if the plaintiff can show either that
the defendant's conduct was intentional or that it was reckless. Chapter 3 covers recklessness in more
detail. In Dana v. Oak Park Marina, Inc., the court describes the essential distinguishing
characteristic of recklessness, the defen dant's disregard of a substantial probability of serious
harm associated with his conduct.
NOTES TO DANA v. OAK PARK MARINA, INC.
- Reckless and Intentional Infliction. The court in Dana
concludes that "reckless conduct is encompassed within the tort denominated intentional
infliction of emo tional distress." The result is that proof of either recklessness or intent
will support recovery. Recklessness, an unintentional tort, has two distinguishing elements. First,
while the defendant did not intend the harm in the sense of desiring it or being substantially
certain it would occur, the defendant must have consciously disregarded the risk of harm. Second,
the risk must have been very serious in terms of the substantial probability of causing serious
emotional distress.
- Elements of Recklessness. The Dana court referred to the definition of"reck-
lessness" in Restatement (Second) of Torts §500, which appears as follows:
Reckless Disregard of Safety Defined: The actor'sconduct is in reckless disregard of the safety of
another if he does an act or intentionally fails to do an act which it is his duty to theother to do,
(I) knowing or having reason to know of facts which would lead a reasonable man to realize, not only
that his conduct creates an unreasonable risk of physical harm to another, but also (2] that such risk
is substantially greater than that which is necessary to make his conduct negligent. (Numbering added.)
From what evidence is it reasonable to conclude that the defendant in Dana was aware of the
substantial probability of harm? Why would the court conclude that the likely emotional harm would be
severe?
D. Transferred Intent for Infliction of Emotional Distress
lntentionaJ infliction of emotional distress doctrines recognize the transfer of intent between
people, as do assault and battery doctrines. For both assault and battery, an actor who intends
an act to cause a harmful or offensive contact or apprehension of such a contact to one person is
potentially liable to another person who suffers the contact or apprehension. That transfer of intent
among people can create a large class of potentiaJ plaintiffs. For intentional infliction of emotional
distress, the class of people to whom intent may be transferred is more narrowly defined, as Green v.
Chicago Tribune Co. illustrates.
675 N.E.2d 249 (Ill. App. Ct. 1996). Also Lexis
NOTES TO GREEN v. CHICAGO TRIBUNE CO.
- Factual Theories and Transferred Intent. In Green v. Chicago Tribune Co., the plaintiff
claims that the defcndan should be liable on three factual theories.
One description of the facts involves a course of conduct on December 31 and January J that included the
Tribune reporter entering her son's hospital room without
the plaintiffs consent to photograph the dying son, preventing the plaintiff from entering the room until
the reporter was done, and publishing a story featuring the plaintiffs words to her son despite her
statement that she wanted to make no public comments. Was the plaintiff successful in showing that she
was personally involved in each of these acts and was thus a target of the Tribune's conduct?
The plaintiffs second description of relevant facts was based on the Tribune's publication of an article
on January 3 including photographs of her son undergoing medical treatment. The court accepted the
defendant's characterization of the article as not directed at the plaintiff. This led the
court to consider Restatement (Second) of Torts §46(2) to see if a transferred intent theory was
available to the plaintiff. In applying that section, who must the court have considered to have been a
"third person," and how did the court apply the Restatement provision to the plaintiffs claim?
The plaintiffs third factual theory was based on the Tribune's photographing her son on December 30. For
what reasons did the court analyze this conduct as similar to the publication of the January 3 article
and photographs?
- Transfer of Intent and Guarantees of Genuineness. Under the rules followed in Green v.
Chicago Tribune Co., intent may be transferred to a person who was not an intended target of the
defendant's conduct only if that person was present. There is an additional obstacle for
people who are not members of the target's immediate family. Restatement (Second) of Torts
§46(2)(b) requires that a nonfamily member suffer bodily harm before being allowed to recover
for severe emotional distress. The Restatement (Second) of Torts §46 comment I suggests that
these limitations are more practical than principled:
The limitation may be justified by the practical necessity of drawing the line somewhere, since
the number of persons who may suffer emotional distress at the news of an assassination of the President
is virtually unlimited, and the distress of a woman who is informed of her husband's murder ten years
afterward may lack the guarantee of genuineness which her presence on the spot would afford.
The guarantee of gen11ine11ess to which the Restatement (Second) refers is the reliability or
verifiability of the claim of emotional distress described in the materials introducing this tort.
Because people are more likely to suffer harm from conduct directed at third parties if they are family
members who are present at the time, their claims of emotional distress are more believable. For
nonfamily members, the bodily harm they suffer from conduct directed at third parties provides another
indicator of reliability for their claim of severe emotional distress.
- The "Directed At" Requirement in Reckless and Intentional Infliction
of Emotional Distress. Some states distinguish between
intentional and reckless inflic tion of emotional distress when applying transfer-of-intent
rules. Following the lan guage of Restatement (Second) §46, some states require that the
reckless conduct be directed at the plaintiff or occur in the presence of a plaintiff of
whom the defendant is aware. Others, by contrast, reject that requirement on the ground that the
elements of recklessness, outlined in Dana v. Oak Park Marina, Inc., above, do not require any
desire or substantial certainly that any particular person will be harmed. If directn<.'ss is not
required, then the limitations on liability to immediate family members and othc'rS who arc present
at the time are not relevant. The requirements of "outrageousness," of
"severe" emotional distress, and of a high degree of fault in recklessness claims serve as a limitation
on who can recover. Whether the marina patron in Dana could recover would thus depend on which
kind of jurisdiction she was in and on whether the video cameras were always turned on or turned on only
to capture particular individuals. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22 (Tenn.
2005), discussed this distinction in a case where victims of sexual abuse sued the church for recklessly
inflicting emotional distress by failing to take steps to prevent a priest's abuse of young men.