Restatement Tort Definition of Battery? he acts intending to cause a harmful or offensive contact with the person of the other ... and a harmful contact with the person of the other directly or indirectly results. Defense – consent Fails because: There was no emergency Consent was given to a doctor who did not perform the surgery. CASEBRIEF Facts – Son of decedent gave consent for a Dr. Wieman to perform surgery on his mother. Son was aware of another, Dr. Vitale, who also specialized in the needed procedure, but clearly only gave consent for Wieman to perform the surgery. Wieman ended up not being able to do the surgery and Vitale was called in to do it. The son was never informed of the change. Mother died after surgery and son sued Vitale for battery. Procedural History – trial court dismissed complaint claiming that doctors did not act against their duty. Court of Appeals reversed saying that surgery done without specific consent is battery. ISSUE – whether intent to harm is necessary to prove battery. RULE – intent can be either harmful OR offensive. Absent an emergency, performing surgery without consent is an offensive touching, and meets the intent element of battery. RATIONALE – limiting intent to whether contact was harmful would violate accepted tort law standards for battery intent which include “offensive touching”. Furthermore, there was no emergency, so getting consent should be required.
ASSAULT – reasonable fear of imminent bodily harm NOTE – it is the plaintiff's apprehension of fear that is important. Would a reasonable person also have feared a harmful or offensive touching was imminent? BATTERY – intent to inflict an intentional touching Punitive Damages – not awarded to compensate Pl, but to deter D from doing action again in the future. D's conduct usually must have been egregious. CASE BRIEF FACTS – after disagreement about auto repair serviced, Pl tried to take a picture of D (the mechanic). It is undisputed that D reached toward Pl's camera and touched it. PROCEDURAL HISTORY – Pl won in trial court on assault and battery claims. ISSUE – does touching of an object being held by Pl (camera) constitute a battery. RULE - anything directly grasped by the hand which is so intimately connected with one's body should be regarded as part of the person. Rationale – defendant's contact with camera being held by Pl was part of Pl for purposes of battery, and reaching toward the camera was enough to place Pl in fear for purposes of assault. RESULT - affirmed
FACTS – P get into a pushing match with D and is injured. In doing so she aggregates an old ailment. PROCEDURAL HISTORY – Trial court found for P, but Court of Appeals reduced her damages.. ISSUE – Did court of appeals properly reduce damages? Trier of fact When trier of fact abused its description in giving the award. Eggshell Rule
Summary Judgment – allows court to decide legal issues without a trial where no factual issues are in dispute. Wanton – gross, excessive, egregious, outrageous Deposition & Discovery Affidavit – sworn written statement presented to court as evidence. FALSE IMPRISONMENT: an unlawful restraint of an individual's personal liberty or freedom of locomotion. Imprisonment - “any unlawful exercise or show of force by which a person is compelled to remain where he does not wish to remain or to go where he does not wish to go.” In order for a false imprisonment to be present, there must be actual or legal intent to restrain. Unlawful restraint may be effected by words alone, by acts alone or both. FACTS: In her deposition, Pl said she was called into D's office after she was suspected of stealing from the cash register. She also said that she got up a left the office and never returned to work. She disputed this testimony in her response to D's summary judgment motion, claiming that she was forced into the office and held against her will. PROCEDURAL HISTORY – trial court granted D's summary judgment motion. ISSUE – Did words and actions of D amount to unlawful restrain of P. RULE - confinement be against the plaintiff's will and if a person voluntarily consents to the confinement, there can be no false imprisonment. Merely feeling “compelled” to remain some place is not enough. RATIONALE - P's deposition said that she went to the office voluntarily, she stayed there to protect her reputation, she was never threatened with losing her job and she left when she was accused of stealing. He later affidavit does not change this fact. RESULT - affirmed.
FACTS: immigrant woman aboard ship got in line with immigrants to be inspected by doctor to see if they had vaccinations. She did not have a mark on her arm, so the doctor wanted to give her a vaccination. She told that doctor that she already had been vaccinated, but he gave her shot anyway. At no time did she protest or act as though she wouldn't accept the shot. PROCEDURAL HISTORY – jury ruled in favor of doctor. ISSUE – what is an unlawful act for purposes of battery. RULE - In determining whether the act was lawful or unlawful, the surgeon's conduct must be considered in connection with the surrounding circumstances. RATIONALE – in light of the fact that the woman knew the line being formed was for vaccinations, she saw vaccinations being given, she did not protest when told she needed another vaccination, the touching was lawful. A lawful touching (CONSENT) is not battery.
Trial Court Jury Instruction – only decide whether proof was presented showing that P was assaulting D. If no proof of assault, then D acted unreasonably and is liable for the injury. FACTS: after chasing away intruders from his jewelry store by firing gun shots in the air, D was approached by P. P called out that he was an officer. D, seeing P approaching quickly, shot P. PROCEDURAL HISTORY: jury found for P after narrow jury instruction was given. ISSUE: was jury instruction improper because it didn't allow jury to consider whether circumstances existed justifying D's behavior. RULE – jury must be allowed to judge circumstances surrounding D's behavior to determine whether self-defense was justified. RATIONALE – a reasonable person in D's position may have acted the same way. Jury must be allowed to determine whether D acted reasonably. Thus, narrow instruction was false. RESULT – reversed (and likely remanded)
Intentional Torts Lecture
Torts Intentional Torts
Vitale v. Henchey <ul><li>What is the Restatement of Tort's definition of battery? </li></ul><ul><li>How are the doctors trying to defend themselves against the battery claim? </li></ul><ul><li>Why does the defense fail? </li></ul>
Picard v. Barry Pontiac <ul><li>What must be proved for an assault claim? </li></ul><ul><li>What must be proved for a battery claim? </li></ul><ul><li>What are compensatory damages? </li></ul><ul><li>What are punitive damages? </li></ul>
Battery <ul><li>The defendant must act, </li></ul><ul><li>her act must be intentional, </li></ul><ul><li>the act must cause a contact with the victim, and </li></ul><ul><li>the intended contact must be either harmful or offensive to the victim </li></ul>
Assault <ul><li>intentional act </li></ul><ul><li>done to place P in apprehension of harmful or offensive contact, and </li></ul><ul><li>P must reasonably be placed in apprehension. </li></ul><ul><li>NOTE – normally a lesser and included claim. </li></ul>
Reck v. Stevens <ul><li>Who decides how much damages can be awarded? </li></ul><ul><li>When can this decision be changed on appeal? </li></ul><ul><li>Why did Ms. Reck suffer more severe damages than would normally be expected, and what did the court have to say about this? </li></ul>
The Egg Shell Rule <ul><li>Defendant takes Plaintiff as he finds him. </li></ul><ul><li>Applies to both intentional torts and negligence. </li></ul>
Lopez v. Winchell's <ul><li>What is summary judgment? </li></ul><ul><li>What does “wanton” mean? </li></ul><ul><li>What is a “discovery deposition?” </li></ul><ul><li>What is an “affidavit?” </li></ul><ul><li>How is the common law tort of False Imprisonment defined? </li></ul>
False Imprisonment <ul><li>confinement - act to wrongfully confine </li></ul><ul><li>intent - there is no liability for negligently caused imprisonments </li></ul><ul><ul><li>although there may be liability under negligence theory. </li></ul></ul><ul><li>act - act results in confinement; person is aware of being confined (MAJORITY RULE in U.S.) </li></ul>
O'Brien v. Cunard <ul><li>What is another way of saying a “lawful touching” in this case. </li></ul><ul><li>If the woman had pulled her arm away and doctor still gave her a shot, would the result have been different? </li></ul>
Consent <ul><li>If a victim of a harmful or offensive touching consents to the contact, the defendant is generally not liable for causing it. </li></ul><ul><ul><li>Note, it's tough to call this a defense considering that element of battery is unwelcome contact. </li></ul></ul><ul><li>Common sense dictates the scope of consent </li></ul><ul><ul><li>Most courts look at words, gestures or conduct that reasonably manifest consent. </li></ul></ul>
Courvoisier v. Raymond <ul><li>What is a “jury instruction?” </li></ul><ul><li>What did the lower court say the jury should consider when determining whether the defendant was liable for injuring the plaintiff? </li></ul>
Self-Defense <ul><li>Authorizes use of force to prevent an impending battery or to stop one that is in progress. </li></ul><ul><li>This is a limited privilege </li></ul><ul><ul><li>Cannot be used to retaliate for prior battery. </li></ul></ul><ul><ul><li>No right to attack because one deserves it. </li></ul></ul><ul><ul><li>Cannot use more force than necessary (reasonable force). </li></ul></ul><ul><li>May not even be able to use equal force! </li></ul>
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