Issue whether someone can be held liable for tort when it happened during a lawful act Holding If intended result is privileged there is no liability for actual result Note 1: is this consistent with Keel? o In Keel, the acts were wrongful to begin with B. Battery and Assault Battery (new) 1. Intent to cause contact (or transferred intent) 2. Contact Door running through glass Camera case 3. Harmful or offensive Eggshell skull plaintiff Reasonable person (offensive) 4. With the plaintiffs person (or effects) 5. [Unconsented] Assault 1. Intent to cause apprehension of contact (or transferred intent) Apprehension doesn't have to be fear Fear of contact = apprehension “Expectation” you expect that whatever is happening will make contact Was apprehension reasonable? Whole tort doesn't need reasonable person standard 2. Present apparent ability 3. Threatening gesture (usually) 4. Well grounded apprehension of unconsented, imminent contact 17
Torts 1 Outline Noble v. Louisville Transfer Co. Page 59 Facts Defendants mother and daughter got a cab, daughter puked in cab, cab driver said they were going to clean it up, while mother went in house to get cleaning supplies daughter stayed with driver. Driver put his finger on girl. Driver contends he did it to keep the girl from falling over. Holding No battery when driver steadied sick girl by placing finger on shoulder. Intent was to help not hurt. Consent presumed to minor’s touching warranted by social usages prevalent at time and place Note 1: Harmfulness o To be an actionable battery, contact must be harmful or offensive. “Harmful” is a term of art denoting any unconsented alteration of a structure of function of the body, even if the change does not affect the plaintiffs health o Some courts decline this Note 2: Offensiveness and presumed consent o Contact is offensive if it would offend a reasonable persons sense of personal dignity. o Contacts which are ordinarily and necessarily incident to the conduct of everyday affairs do not meet this requirement o To some extent, the question is one of what should reasonably be expected, for by engaging in particular forms of conduct, one knowingly runs certain risks o The issue is whether the conduct is unwarranted by the social uses prevalent at the time and place Note 3: Intent to Harm or Offend o Occasionally a court holds that intent to harm or offend is a prereq to liability to battery o Acts done with the best of motives can give rise o Harm = intent to touch in a way that most people would find unacceptable. Not necessarily that they want to hurt them Note 4: Plaintiffs Protestations o Normally, consent to contact cannot be implied in the face of another’s express assertions to the contrary o Cohen v. Smith patient stated a cause of action against a male nurse and a hospital for battery and intentional infliction of emotional distress by alleging that she informed them of
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- Spring '08