nonsmokers and that here was no implied private remedy for violation of the non-smoking regulation because sanctions were provided to enforce the regulation o Reversed and remanded – dismissal of battery claim ASSAULT Restatement (Second) of Torts §21: the defendant must (1) act with intent (2) to place the victim in apprehension of a harmful or offensive contact or to make such a contact a nd (3) the victim must reasonably be paced in apprehension of such a contact Restatement (Second) of Torts §8 : Defendant must act with the purpose to cause apprehension of a contact or substantial certainty that the apprehension will result Prima Facie Case: Protect against apprehension of contact – rather than contact itself Following elements must be prove: 1. Reasonable Apprehension of immediate harmful OR offensive contact to P person 2. INTENT on part of D to bring about the above 3. CAUSATION If D knows of P extra sensitive nature and acts on that = liable EGGSHELL P RULE: ex: D intends to cause a fear of off/harm contact (as joke D unloaded gun pointed at P) - P can make a Prima Facie case of assault without having to establish fear; it is enough that P was aware that such contact might occur = “apprehension” REASONABLE APPREHENSION REQUIREMENTS - Apprehension of Harm/Off contact must be a reasonable one. Courts generally will not protect P against exaggerated fears of contact. In determining whether the apprehension in a given case is reasonable the courts will usually apply REASONABLE PERSON TEST o Fear, intimidation, etc. Distinguished Apprehension not the same as fear or intimidation. “apprehension” = expectation. One may reasonably apprehend an immediate contact although he believes he can defend himself or otherwise avoid it. 4 | P a g e
P a g e | 5 o Knowledge of Act Required For there to be apprehension – P must have been aware of threat from the D’s act. Contrasted with battery, in which P need not be aware of the contact at the time thereof o Knowledge of D’s Identity not required o D’s Apparent ability to Act is sufficient Person may be placed in reasonable apprehension of immediate harm/off contact even tho the D is not actually capable of causing injury to the P person. Ex: D points unloaded gun at P. P doesn’t know it isn’t loaded. P apprehension of immediate harm/off contact is reasonable REQUIREMENT OF IMMEDIACY - Apprehension must be of immediate nature. Threats of future contact are insufficient. No assault if the D is too far away to do any harm or is merely preparing for a future harmful act. CAUSATION - P apprehension must have been caused by the D’s act or something set in motion thereby, DIRECTLY OR INDIRECTLY TRANSFERRED INTENT - APPLIES HERE – D acting with the intent to commit a battery who causes P to reasonably apprehend imm/harm contact has committed an assault DAMAGES - Not necessary to prove actual damages – P can recover nominal damages . Most states allow punitive damages where D act malicious. ASSAULT CASES Read v. Coker (ENG. 1853) INTENTION, APPREHENSION FACTS: P paper-stainer rented premises from D. P fell ill fell behind on rent. D employed
You've reached the end of your free preview.
Want to read all 52 pages?
- Fall '08
- Tort Law, assault, Prima facie