Law School Discussion

Intentional Torts question

Re: Intentional Torts question
« Reply #10 on: September 05, 2005, 09:15:08 PM »
causing "apprehension of such a contact" is an element of assault, not battery, right?  there actually has to be some kind of harmful contact for battery.

and what about vosburg v. putney where the court ruled that intent to act is enough even if there is no intent to harm?  if you slap someone in the face in a joking manner but end up breaking his/her nose, you can be held liable for battery simply because you intended to commit that act of slapping, even though you didnt intend to cause any harm.

I think that is a principle that contradicts some other principles...but it definitely is valid. My prof must have really liked that case because that is how he defines intent and battery.

Re: Intentional Torts question
« Reply #11 on: September 05, 2005, 09:51:22 PM »
I was taught the same way your professor thinks.  And the E&E for Torts agrees.

"Intent" alone is not the element of intentional battery.  The element is "intent to cause harmful or offensive contact, or an imminent apprehension of such a contact."

So unless the contact is intended to be harmful or offensive, as determined by the reasonable person standard, not the victim's subjective opinion, it's not likely to be considered battery.  Grabbing a woman's arm helping her on the bus probably wouldn't be battery, as a reasonable person wouldn't think there was an intention to cause harm inspite of the result.  Grabbing a woman's butt in a line would be even if she weren't hurt, as it's likely to be considered offensive by a reasonable person even if it didn't hurt.

The reasonable person standard applies in negligence cases, not in intentional torts. The defenses to intentional torts are consent, emergency, necessity, and self defense.  If no consent is given to touching in a situation where touching would otherwise be unexpected then there is a battery.

Re: Intentional Torts question
« Reply #12 on: September 05, 2005, 10:00:49 PM »
I was taught the same way your professor thinks.  And the E&E for Torts agrees.

"Intent" alone is not the element of intentional battery.  The element is "intent to cause harmful or offensive contact, or an imminent apprehension of such a contact."

So unless the contact is intended to be harmful or offensive, as determined by the reasonable person standard, not the victim's subjective opinion, it's not likely to be considered battery.  Grabbing a woman's arm helping her on the bus probably wouldn't be battery, as a reasonable person wouldn't think there was an intention to cause harm inspite of the result.  Grabbing a woman's butt in a line would be even if she weren't hurt, as it's likely to be considered offensive by a reasonable person even if it didn't hurt.

The reasonable person standard applies in negligence cases, not in intentional torts. The defenses to intentional torts are consent, emergency, necessity, and self defense.  If no consent is given to touching in a situation where touching would otherwise be unexpected then there is a battery.

Uh, no.  The reasonable person standard applies when we attempt to determine if a contact is offensive i.e. that it offends a reasonable sense of personal dignity.  We ask "would a reasonable person find that contact offensive".  Coregram is right on.

Re: Intentional Torts question
« Reply #13 on: September 05, 2005, 10:20:41 PM »
I was taught the same way your professor thinks.  And the E&E for Torts agrees.

"Intent" alone is not the element of intentional battery.  The element is "intent to cause harmful or offensive contact, or an imminent apprehension of such a contact."

So unless the contact is intended to be harmful or offensive, as determined by the reasonable person standard, not the victim's subjective opinion, it's not likely to be considered battery.  Grabbing a woman's arm helping her on the bus probably wouldn't be battery, as a reasonable person wouldn't think there was an intention to cause harm inspite of the result.  Grabbing a woman's butt in a line would be even if she weren't hurt, as it's likely to be considered offensive by a reasonable person even if it didn't hurt.

The reasonable person standard applies in negligence cases, not in intentional torts. The defenses to intentional torts are consent, emergency, necessity, and self defense.  If no consent is given to touching in a situation where touching would otherwise be unexpected then there is a battery.

Uh, no.  The reasonable person standard applies when we attempt to determine if a contact is offensive i.e. that it offends a reasonable sense of personal dignity.  We ask "would a reasonable person find that contact offensive".  Coregram is right on.

So, if Coregram is "right on" maybe you should reframe Vosburg v. Putney for me.  Since Vosburg did not intend to harm Putney but actually ended up harming him how can he be held liable for the damages resulting from the kick? 

The reasonable person standard is simply not used to adjudicate cases involving intentional torts.  Even if it is subtly applied it is certainly not the same reasonable person standard that is used to decide negligence cases because that involves a totally different element of tort law.  In the case of intentional torts we need to look more closely at the state of mind of both the plaintiff and the defendant.  Consent is the key whether express or implied.  There really is no reasonable person standard involved.  Once you determine consent you know what a reasonable person would do.  A reasonable person will comply with the wishes of the other person.  If they consent to an act then you can go forward with the act.  If they do not consent, then a reasonable person will not commence with the act in question. 

Re: Intentional Torts question
« Reply #14 on: September 05, 2005, 11:20:31 PM »
I was taught the same way your professor thinks.  And the E&E for Torts agrees.

"Intent" alone is not the element of intentional battery.  The element is "intent to cause harmful or offensive contact, or an imminent apprehension of such a contact."

So unless the contact is intended to be harmful or offensive, as determined by the reasonable person standard, not the victim's subjective opinion, it's not likely to be considered battery.  Grabbing a woman's arm helping her on the bus probably wouldn't be battery, as a reasonable person wouldn't think there was an intention to cause harm inspite of the result.  Grabbing a woman's butt in a line would be even if she weren't hurt, as it's likely to be considered offensive by a reasonable person even if it didn't hurt.

The reasonable person standard applies in negligence cases, not in intentional torts. The defenses to intentional torts are consent, emergency, necessity, and self defense.  If no consent is given to touching in a situation where touching would otherwise be unexpected then there is a battery.

Uh, no.  The reasonable person standard applies when we attempt to determine if a contact is offensive i.e. that it offends a reasonable sense of personal dignity.  We ask "would a reasonable person find that contact offensive".  Coregram is right on.

So, if Coregram is "right on" maybe you should reframe Vosburg v. Putney for me.  Since Vosburg did not intend to harm Putney but actually ended up harming him how can he be held liable for the damages resulting from the kick? 

The reasonable person standard is simply not used to adjudicate cases involving intentional torts.  Even if it is subtly applied it is certainly not the same reasonable person standard that is used to decide negligence cases because that involves a totally different element of tort law.  In the case of intentional torts we need to look more closely at the state of mind of both the plaintiff and the defendant.  Consent is the key whether express or implied.  There really is no reasonable person standard involved.  Once you determine consent you know what a reasonable person would do.  A reasonable person will comply with the wishes of the other person.  If they consent to an act then you can go forward with the act.  If they do not consent, then a reasonable person will not commence with the act in question. 

I think you are quite muddled.  The reasonable person standard is this; "would a reasonable person, in the place of the defendant, intpret the contact as offensive".  That is, is it reasonable for a woman having her ass grabbed to feel offended?  Well, is it reasonable or not?  Yeah, I think we'd all agree it is offensive to have your ass grabed, given that the circumstances didnt invite it somehow.  That, simply, is what is meant by the reasonable person standard in the context of this tort (probably assault too).

Re: Intentional Torts question
« Reply #15 on: September 06, 2005, 05:11:42 AM »
I know what the standard is, no need to redefine it for me.  I can give you at least 4 battery cases where consent, not the reasonable person calculus, is the main issue in the case.  See, O'Brien v. Cunnard Steamship,  Hackbart v. Cincinnati Bengals, Vosburg v. Putney, Hudson v. Craft.  They're all concerned with consent, not what a reasonable person would do.  In fact, if you read Hudson, you'll see that the Restatement on Torts gives 3 different definitions on the liabilities of a reasonable person who consents to mutual combat.  Simply saying an act is reasonable under the circumstances often does not answer the question of whether or not it was a battery. 

Re: Intentional Torts question
« Reply #16 on: September 06, 2005, 06:21:39 AM »
I know what the standard is, no need to redefine it for me.  I can give you at least 4 battery cases where consent, not the reasonable person calculus, is the main issue in the case.  See, O'Brien v. Cunnard Steamship,  Hackbart v. Cincinnati Bengals, Vosburg v. Putney, Hudson v. Craft.  They're all concerned with consent, not what a reasonable person would do.  In fact, if you read Hudson, you'll see that the Restatement on Torts gives 3 different definitions on the liabilities of a reasonable person who consents to mutual combat.  Simply saying an act is reasonable under the circumstances often does not answer the question of whether or not it was a battery. 

No *&^%, consent exists and it negates liablility.  SO WHAT.

4 cases do not change the FACT that, when deciding whether and offensive contact does in fact offend a "reasonable sense of personal dignity", as per the Restatements definition, you MUST imagine the "reasonable person" in place of the person of the PLAINTIFF and ask "is it reasonable, Mr. or Mrs. REASONABLE PERSON, for you to have found such contact offensive!".  The reasonable person calculus DOES NOT ENTIRE THE EQUATION WHEN A CONTACT IS HARMFUL to begin with, as in your off point examples of "combat"!

Secondly, and LASTLY, consent is AFFIRMATIVE DEFENSE.  Before it can be invoked, you MUST decide whether the contact that raised the question of consent--and here is where we are careful not to equivocate and start talking about HARMFUL CONTACT--was in fact an offensive one.  For analytics sake, what should you do?  For GOD sake, what should you do?  Hmm, I suppose I better ask the reasonable person question, realizing that I am such a smart person, I wont assume it dispositive as to the outcome.  No no no, istead, I'll answer it because logically, before I can raise such an affirmative defense for my other imaginary client, I must establish that we have a cause of action for battery, on the facts, to begin with.  If you fail to approach it this way, you lose on the exam.  You lose points for circumventing the analytics.

What is so difficult about this whole concept?

Re: Intentional Torts question
« Reply #17 on: September 06, 2005, 06:44:10 AM »
Nothing is difficult about it, I don't see why you are getting (pardon the pun) so defensive.

In an action for battery, the reasonable person standard is not the main calculus used by the jury to determine whether a battery has been committed.

Now, if the woman in question wants to sue for negligence then we can apply the reasonable person standard and ask whether the contact was what a reasonable person, under the circumstances, could expect.  But if she's strictly trying to recover for a battery, what a reasonable person would do to help her get on the bus under normal circumstances would be of much less concern when trying to prove the elements of battery. 

Re: Intentional Torts question
« Reply #18 on: September 06, 2005, 06:46:35 AM »
"The reasonable person calculus DOES NOT ENTIRE THE EQUATION WHEN A CONTACT IS HARMFUL to begin with, as in your off point examples of "combat"!"

Didn't you just define battery for me?  I'm not suggesting that the reasonable person standard does not apply, just that it does not apply to cases of battery.  It seems like that's what you just confirmed to me.

Also, if you're trying to suggest that the reasonable person calculus applies to the point that we don't want to bring a lawsuit where there is no legal basis for suit then I agree with you.  You have to ask if there is even a legal claim in order to survive motions for a demurrer, dismissal, or directed verdict.  But assuming that most people can differrentiate contextual touching vs. inappropriate touching, the questions turns on whether or not there was prior consent to the inappropriate touching in question.

Re: Intentional Torts question
« Reply #19 on: September 06, 2005, 08:42:59 AM »
You half way get it.