Torts - My notes for the Class on Wednesday, August 31st pages xiii-xvii, Lambertson v.

United States (supplement pgs 12-13), pages 3035 Lambertson v. United States Parties: Lambertson - Appellant (Employee of Armour & Co.) United States - Defendant (Action against U.S. because William Boslet, man whose actions caused injury, was a meat inspector for the United States Department of Agriculture) Prodedural History: -United States District Court for the Northern District of New York Dismissed Plaintiff's Action against the United States -Appellant is now appealing the order of the court and the United States Court of Appeals, Second Circuit will hear case Facts: -While unloading meat, Appellant sustained injuries to his mouth as a result of one sided horseplay of William Boslet, a meat inspector for the United States Department of Agriculture. -Boslet had no intention of harming Lambertson -Plaintiff commenced the instant action against United States pursuant to Federal Torts Claim Act -Under Federal Torts Claim Act - federal courts do not have jurisdiction to entertain a suit based on assault or battery because Supreme Court has not consented to be sued for these torts. -Judge Port dismissed Plaintiff's Action because he concluded that Boslett's actions constituted a battery - which he did not have jurisdiction to entertain. -Plaintiff contests that the action was battery and maintains his complaint is that of negligence. Issue:

-Is this claim grounded in battery or negligence? Reasoning: -The essential element of the action for battery is the intent to make contact, not the intent to do injury. -Cite Masters v. Becker: Established that to constitute the action for battery, Plaintiff must prove there was bodily contact, contact was offensive, and that Defendant intended to make contact. NOT required to prove defendant intended to physically injure him. -The one sided horseplay of the Defendant involved bodily contact, contact that was offensive and it was contact that was intentional, not accidental, Holding: -There was no error in the District Court's determination that the action was battery. -Because action was battery, and Federal Torts Claims Act does not have the jurisdiction to entertain the action of battery, action must be dismissed -If Boslet was employed by another company, not the government, and same situation occurred while employed, the Plaintiff would be free to claim that Boslet and his employer were liable on the basis of battery and negligence. Disposition: Affirmed

**If Plaintiff brought suit against defendant for the action of negligence and that statute of limitations for negligence was not expired, the court found that the action was actually that of battery and the statute of limitations had already expired - the court would have to dismiss the action

Pages 30-35 Notes Cole v. Turner Issue: -If you touch someone in the least amount possible, when done in anger, is this battery? Holding: -If there is anger in the least touching of another, there is battery. -If gentle touching occurs without violence or design of harm, no battery. -If violence is used, if force is used in a rude inordinate manner, if there is a struggle (to the degree it causes injury), it is battery Rule: -A person is liable for battery if they use harmful or offensive contact. -Intent to harm the other person is not an essential element at this time Notes & Questions 1. Yes, it is battery because holding Defendant's coat demanding satisfaction is force used in a rude, inordinate manner. 2. Spitting in face: Yes battery - because most would consider offensive contact, even if not intended to be offensive, intent doesn't matter Forcibly removing hat: Yes battery - because most would consider offensive contact, even if not intended to be offensive, intent doesn't matter Attempted search of pockets: Yes battery - because most would consider offensive contact, even if not intended to be offensive, intent doesn't matter Touching her private parts: Yes, that is harmful and offensive contact at the barest minimum 3. Tapping plaintiff on shoulder to attract his attention: No because it is an

action without violence or design of harm and is a gentle touch Wallace v. Rosen Parties Involved: Kirsch J. Wallace (Plaintiff - One that is suing Schools) Harriet Rosen & Indianapolis Public Schools (Defendant) Procedural History: Trial Court ruled in favor of Indianapolis Public Schools & Rosen Wallace appeals to the Court of Appeals of Indiana Wallace raises issue of whether the trial court erred in refusing to give her jury instruction regarding battery. Issue: Is there evidence to support the inference that the touching intentional, but that it was done in a rude, insolent, or angry manner, for example, that the batterer intended to invade the interests of another in a way that the law forbids. Holding: -The circumstances in which the case takes place did not constitute the Defendant meeting the requirements of battery. -This case stands for: *Intent can be inferred through knowledge or circumstances (Pushed because of circumstances of firedrill-not because teacher intended to do her damage) *One has to look at context the facts and circumstances Rule: -Circumstances of the situation would imply that a person standing in the middle of a stairway during a fire alarm would expect a certain amount of unavoidable personal contact -Court said in these circumstances the Defendant's touching of the Plaintiff was not rude, insolent, or angry

-Time, place, circumstances, and relationship between the parties will affect the unpermitted character of the act *The test is what would be offensive to an ordinary person not unduly sensitive as to personal dignity -Professor Prosser & Keeton say some sort of personal contact is inevitable and has to be accepted by people in this crowded world. *Consent is assumed for all contacts that are necessary to the common intercourse of life tap on the shoulder to get attention The jury instructions could be thrown out because the 3 requirement talks about recklessness, but battery is an intentional tort, and it talks about recklessness which is not intentional

**Key distinction between 2 types of legal liability 1) Negligence - can be caused when someone acts in a way they know will cause risk of harm 2) Intentional Torts - mere knowledge of a risk-something short of substantial certainty, is not intent -Line needs to be drawn by courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a substantial certainty. Notes & Questions 1. In Cole v. Turner, the intent to harm was not important, however now the intent to harm is explored and can be explored and deduced from circumstances surrounding the situation or knowledge one might have. 4. Modern shift of emphasis to intent and negligence instead of trespass and case. *Battery is almost exclusively an intentional fort *No battery when defendant negligently or even recklessly drives car into plaintiff and injures him without intending to hit him Restatement (Second) of Torts (1965) Section 13. Battery: Harmful Contact

An Actor is subject to liability to another for battery if: a) He acts intending to cause harmful or offensive contact with another person, or an imminent apprehension of such contact, and b) A harmful contact with a person of the other directly or indirectly results Section 18. Battery: Offensive Contact 1) An actor is subject to liability to another for battery if: a) He acts intending to cause harmful or offensive contact with another person, or an imminent apprehension of such contact, and b) A harmful contact with a person of the other directly or indirectly results 2) An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to over for a mere offensive contact with the other' s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm. Notes & Questions 1. When Defendant intentionally causes plaintiff to undergo an offensive contact and the resulting injuries are more extensive then a reasonable person might have anticipated, the defendant will still be liable for those injuries. 2. In Vosburg v. Putney one schoolboy during class playfully kicked another boy in his shin. he intended no harm, and the touch was so slight that the plaintiff did not even feel it. it had, however, a "lighting up" effect on an infection form a previous injury and as a result the plaintiff suffered damages found by the jury to be $2,500.00.The court found liable for battery even though the injury could not be foreseen. 3. Does it make any difference if the defendant is trying to help the plaintiff? Clayton v. New Dreamland Roller Skating Rink Inc., the Plaintiff and her husband are skating and the wife falls and breaks her arm. Regardless of her and her husband's protests, defendant's employees, one of whom was a prize fighter and trained in first aide, proceeded to manipulate the arm in an

attempt to set it. Is this battery? 4. After back surgery, patient found a small washable tattoo on her back. Doctor said that he put it there to lift her spirits, that he did it with all his patients and none of them ever complained. Does she have a cause of action for batter? If so, what would be the damages? 5. Can the Plaintiff make the Defendant liable for contact that would not be offensive to a reasonable person, such as a tap on the shoulder to attract attention, by specifically forbidding that contact? The Restatement of (Second) Torts, Section 19 leaves the question open. Richmond v. Fiske where defendant, against plaintiff's orders, entreated plaintiff's bedroom and woke him up to present a milk bill. This was held to be battery, but no doubt it would be offensive to a seasonal person. 6. Can there be liable for battery for a conduct of which plaintiff is unaware at the time? Did Sleeping Beauty have a cause of action against Prince Charming? What if an unauthorized surgical operation is perforated while plaintiff is under an aesthetic? Does it make any difference whether the operation is harmful or beneficial? 7. Does the exposure to a virus, such as herpes, through sexual activity constitute a battery? Does the consent to the sexual activity constitute as a defense? See Doe v. Johnson. (battery action is alleged in transmission of HIV; consent to intercourse does not bar action). 8. Does a mortician that embalms a body unaware that it was infected with the AIDS virus have a cause of action for battery? What about the patients of a dentist who does not disclose he has AIDS? What if the dentist always wore gloves during treatment procedures? Would the reasonable person find such touching offensive?

Torts: Pages 17-20; Pages 22-28 Garratt v. Dailey Facts:

Five year old Brian Dailey (Defendant) pulled a chair out from under Ruth Garratt when she was about to sit causing her to fall and break her hip. Garratt brought suit for personal injuries and alleged that Dailey had acted deliberately. The trial court entered judgment for Dailey and found that he had not intended to injure Garratt, therefore he was not liable for battery. Procedural History Trial Judge ruled in favor of Defendant (Daily) Garratt (Plaintiff) Appealled. The Supreme Court of Washington remanded back to Trial Court for clarification of whether Defendant knew with substantial certainty what time sequence would take place/that woman would try to sit down and fall. Supreme Court nevertheless made a finding of $11,000 in damages in case the judgment was overturned on appeal. Trial Judge considered time sequence and found that Defendant knew with substantial certainty that Plaintiff would attempt o sit in place chair had been, Judged in favor of Plaintiff and awarded $11,000 in damages Dailey appealed. Issues: In regards to the intentional tort of battery, is the element of intent satisfied if the defendant knows with a substantial certainty that his act will result in a harmful or offensive contact? Can a five year old child be liable for an intentional tort?

Holding and Rule: Yes. In regards to the intentional tort of battery, the element of intent is satisfied if the defendant knows with a substantial certainty that his act will result in a harmful or offensive contact.

Yes. A five year old child can be liable for an intentional tort. -A minor is liable just as any other person when he has committed an intentional tort with force. Elements of the Tort of Battery: *Under the Restatement of Torts an actor who commits a direct or indirect act which is the legal cause of a harmful contact with another is liable if: 1) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and 2) the contact is not consented to by the other or the others consent thereto is procured by fraud or duress, and 3) the contact is not otherwise privileged. *Intent requires that the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced. -A battery would be established if a party acts with substantial certainty that a result will occur. -The mere absence of any intent to injure, play a prank on, or embarrass the plaintiff, or to commit an assault and battery on her, would not absolve the defendant of liability if in fact he had such knowledge. -If Garratt has proven that when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been, a battery would have been established. Disposition: *Remanded for a clarification of findings regarding Daileys knowledge in order to determine whether the element of intent is satisfied.

Notes & Questions 1. For most intentional torts, the court will award nominal damages, even if no actual damages were proved. Of course, if plaintiff can prove actual damages,

as Plaintiff did in Garratt v. Dailey, Defendant is liable for these damages. 2. NOTE: Trial judge was fact finder at both trials. Why do you think the findings of fact during the second trial (after the appeal) were different from the findings of fact the first time? 3. 4. 5. Ortega v. Montoya ruled 8 year old boy could be capable of willful & malicious conduct & that it was for jury to determine whether he had acted in such a manner. Ranson v. Kitner Facts: The plaintiff sued the defendant for killing a dog. The defendants claimed they thought they were shooting a wolf. The trial court found for the plaintiff, and the defendants appealed. Issue: Are the defendants liable for trespass to chattels if they intended to harm a fox and not a dog? Rule: A person is liable for damages caused by a mistake, even if it is made in good faith. Analysis: We dont allow mistake as an excuse because we fear that defendants will claim it fraudulently to get out of any liability. Conclusion: The appellate court upheld the trial courts verdict. Notes and Questions 1. I think the court seeks to distinguish between a mistake as an act where intent misfired and an accident as something where an act took place despite there being no intention of acting whatsoever. 2. I guess we find the fuel oil distributor liable because as a matter of policy we want the distributor to be careful when it fills up fuel tanks. 3. Mistake does not seem to vitiate intent. Any reasonable person who shoots at an animal must intend to kill it. By analogy to Ranson, the surgeon who operates on the wrong patient must be liable for battery even though their intent would have been appropriate if directed at the correct patient. What about when someone mistakenly does the right thing when they were intending to do wrong? As a matter of policy, I

dont think this should be an excuse. This seems to apply in particular when the defendant takes the plaintiffs property. 4. Mistakes as to the existence of a privilege are distinguished from mistakes as to fact. 5. Maybe I will!