Torts E&E question on battery

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greenchair
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Torts E&E question on battery

Postby greenchair » Sun Sep 02, 2012 10:23 am

I am opening my Torts E&E for the first time after getting it because of its raving reviews. I disagree with the answer on the very first E&E question on battery. I am not sure if I am using it correctly, or interpreting the question/answer correctly, since apparently these answers are supposed to be really good.

P.10, first question.

Question: Romeo drives like an asshole in the school parking lot to impress the ladies. Car loses grip on a patch of ice and hits and knocks over Thibault. Is Romeo liable for battery?

The model answer: Romeo is not liable for battery; he was simply negligent. While Romeo's show-off driving were voluntary, he did not intend to harm or cause offensive contact to Thibault.

I disagree.

My answer: Romeo IS liable for battery. True, Romeo did not intend to cause harmful or offensive contact to Thibault. But he was intentionally committing an unlawful act of reckless driving. Common law says if your intentional act is unlawful, and it causes unforeseen damages, you are liable for it (Vosburg v. Putney). Common law should have more authority than the Restatement definition that the E&E presents, correct?

I can see how I can make it a "fork" answer (as suggested by Getting to Maybe) by talking about the Restatement definition. But I think my common law answer is much more persuasive.

Thoughts? Am I not getting the point of these E&Es? Are they just supposed to be guidelines, and there is no right or wrong answer?

Gorki
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Re: Torts E&E question on battery

Postby Gorki » Sun Sep 02, 2012 10:52 am

Um. A lot of this depends on how your prof is teaching it. E&Es are general hypos, not tailored to your class in any way. E&E's hornbook rule is the way I learned it: you have to intend the harm, not just the act. I have to be honest that I took torts over a year ago, and I am a bit fuzzy, but I think the liability for unlawful acts that you are describing is a different cause of action.

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breadbucket
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Re: Torts E&E question on battery

Postby breadbucket » Sun Sep 02, 2012 10:53 am

Yeah I agree with you, but the issue I think, is he never intended the contact at all, In Vosburg, the contact was intended, only the consequences were unforseen

tim.janitor
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Re: Torts E&E question on battery

Postby tim.janitor » Sun Sep 02, 2012 11:04 am

.
Last edited by tim.janitor on Thu Sep 06, 2012 8:41 am, edited 1 time in total.

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Verity
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Re: Torts E&E question on battery

Postby Verity » Sun Sep 02, 2012 11:07 am

OP, you're wrong. Battery is an INTENTIONAL tort. You have to intend the injury. It's not enough that you intended to do the things that inadvertently led to an injury. What if we change the hypo, and say "Romeo intentionally went out for a drive, had a fit of epilepsy, and smashed into Thibault"? We would hardly say that he committed a battery. He had no intention (not even any idea) to hurt the victim. He may have been negligent for driving with epilepsy, but the injury was not intentional. Even if driving with epilepsy is unlawful, you have to intend that some person be injured for there to be a battery. So no battery.

The difference in Vosburg is that it deals with the extent of injury, not the injury itself. The injury itself was intended. The extent of the injury, though maybe not intended, is still the responsibility of the tortfeasor. This is just a rule that the courts adopted because they reasoned, hey, once you cross that line and commit a battery, we're not going to try and decipher how much harm you intended to cause, because that's just too hard to prove.

Make sure to always make this distinction.
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JCFindley
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Re: Torts E&E question on battery

Postby JCFindley » Sun Sep 02, 2012 11:08 am

breadbucket wrote:Yeah I agree with you, but the issue I think, is he never intended the contact at all, In Vosburg, the contact was intended, only the consequences were unforseen


This and the injury from the contact in V v. P could be reasonably foreseen even if not intended from the kick.

If you think big picture, anyone that might drive five over the speed limit on purpose could be held responsible for battery for the smallest of accidents caused by the "excessive speed."

nucky thompson
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Re: Torts E&E question on battery

Postby nucky thompson » Sun Sep 02, 2012 11:16 am

intentional tort - the actor can still be held liable for an intentional tort if he did not intend the harm - if he knew with substantial certainty that the harm (injuring bystander) would follow from his actions (driving to show-off). There is no way the driver knew with substantial certainty that as a result of his driving recklessly that he would injure a bystander (he hit a patch of ice). The E and E is correct, you my gunner friend are wrong.

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Tom Joad
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Re: Torts E&E question on battery

Postby Tom Joad » Sun Sep 02, 2012 12:02 pm

He didn't intend the contact. Not battery.

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AVBucks4239
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Re: Torts E&E question on battery

Postby AVBucks4239 » Sun Sep 02, 2012 12:31 pm

You'll understand why this is negligence when you cover negligence.

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Re: Torts E&E question on battery

Postby AVBucks4239 » Sun Sep 02, 2012 12:34 pm

By the way, this is a classic example of allocating your time on an exam.

I think when you cover negligence, you'll understand why this is negligence. There is a slight argument that it's a battery, but it's likely not.

On an exam, you'd want to briefly discuss why this is not a battery, then move on. If you get all hot and bothered about why this is a battery and common law superseding the Restatement, you'll waste precious time where points actually are allocated (i.e., the professor likely has barely any points allocated for discussion of a battery here, because it's not).

It's good you're thinking the way you are, but it's the first month of the course. Come back to this hypo over Thanksgiving break.

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Re: Torts E&E question on battery

Postby greenchair » Sun Sep 02, 2012 12:40 pm

JCFindley wrote:
breadbucket wrote:Yeah I agree with you, but the issue I think, is he never intended the contact at all, In Vosburg, the contact was intended, only the consequences were unforseen


This and the injury from the contact in V v. P could be reasonably foreseen even if not intended from the kick.

If you think big picture, anyone that might drive five over the speed limit on purpose could be held responsible for battery for the smallest of accidents caused by the "excessive speed."


Ooh, I see. Yeah that makes sense.

Would the result be different if Romeo, in an attempt to show off, tried to drive extremely close to Thibault and slipped on ice and hit him? He didn't want to hit him and didn't intend to -- but a reasonable person would know that it COULD cause injury?

Thanks all who have provided helpful responses. I am not trying to be a gunner or a douche... I was just confused, because my prof really emphasized the V v. P case in class. Didn't mean to come off like a know-it-all... since I don't. At all.

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ph14
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Re: Torts E&E question on battery

Postby ph14 » Sun Sep 02, 2012 12:42 pm

Tom Joad wrote:He didn't intend the contact. Not battery.



+1. You have to at least intend the contact. In some jurisdictions, you need to intend a harmful result as well. Easiest way to keep this straight is just to remember "intentional." What was his intent?

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greenchair
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Re: Torts E&E question on battery

Postby greenchair » Sun Sep 02, 2012 12:46 pm

ph14 wrote:
Tom Joad wrote:He didn't intend the contact. Not battery.



+1. You have to at least intend the contact. In some jurisdictions, you need to intend a harmful result as well. Easiest way to keep this straight is just to remember "intentional." What was his intent?


Thanks for the response. I understand. But I guess I am just a little confused about then, why in Vosburg, the court ruled that the D was liable. The D didn't intend to cause harmful or offensive contact -- but was liable for the injuries because he was in a classroom, and a kick is "unlawful conduct" in a classroom. It goes to say that D wouldn't have been liable for the kick if it were on a playground. Does that simply fall under "offensive contact", in that a kick was offensive in a classroom setting?
Last edited by greenchair on Sun Sep 02, 2012 12:50 pm, edited 1 time in total.

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ph14
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Re: Torts E&E question on battery

Postby ph14 » Sun Sep 02, 2012 12:50 pm

greenchair wrote:
JCFindley wrote:
breadbucket wrote:Yeah I agree with you, but the issue I think, is he never intended the contact at all, In Vosburg, the contact was intended, only the consequences were unforseen


This and the injury from the contact in V v. P could be reasonably foreseen even if not intended from the kick.

If you think big picture, anyone that might drive five over the speed limit on purpose could be held responsible for battery for the smallest of accidents caused by the "excessive speed."


Ooh, I see. Yeah that makes sense.

Would the result be different if Romeo, in an attempt to show off, tried to drive extremely close to Thibault and slipped on ice and hit him? He didn't want to hit him and didn't intend to -- but a reasonable person would know that it COULD cause injury?

Thanks all who have provided helpful responses. I am not trying to be a gunner or a douche... I was just confused, because my prof really emphasized the V v. P case in class. Didn't mean to come off like a know-it-all... since I don't. At all.


The rule Vosburg v. Putney gives us is that, once a battery is established, a plaintiff is liable for all reasonably foreseeable consequences. But first the battery must be established. Hurting someone unintentionally in a way that is reasonably foreseeable is negligence, which is the bulk of torts, and you will learn about after intentional torts.

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greenchair
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Re: Torts E&E question on battery

Postby greenchair » Sun Sep 02, 2012 12:51 pm

ph14 wrote:
greenchair wrote:
JCFindley wrote:
breadbucket wrote:Yeah I agree with you, but the issue I think, is he never intended the contact at all, In Vosburg, the contact was intended, only the consequences were unforseen


This and the injury from the contact in V v. P could be reasonably foreseen even if not intended from the kick.

If you think big picture, anyone that might drive five over the speed limit on purpose could be held responsible for battery for the smallest of accidents caused by the "excessive speed."


Ooh, I see. Yeah that makes sense.

Would the result be different if Romeo, in an attempt to show off, tried to drive extremely close to Thibault and slipped on ice and hit him? He didn't want to hit him and didn't intend to -- but a reasonable person would know that it COULD cause injury?

Thanks all who have provided helpful responses. I am not trying to be a gunner or a douche... I was just confused, because my prof really emphasized the V v. P case in class. Didn't mean to come off like a know-it-all... since I don't. At all.


The rule Vosburg v. Putney gives us is that, once a battery is established, a plaintiff is liable for all reasonably foreseeable consequences. But first the battery must be established. Hurting someone unintentionally in a way that is reasonably foreseeable is negligence, which is the bulk of torts, and you will learn about after intentional torts.


OK - Thank you very much

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Re: Torts E&E question on battery

Postby Scotusnerd » Sun Sep 02, 2012 12:52 pm

greenchair wrote:
ph14 wrote:
Tom Joad wrote:He didn't intend the contact. Not battery.



+1. You have to at least intend the contact. In some jurisdictions, you need to intend a harmful result as well. Easiest way to keep this straight is just to remember "intentional." What was his intent?


Thanks for the response. I understand. But I guess I am just a little confused about then, why in Vosburg, the court ruled that the D was liable. The D didn't intend to cause harmful or offensive contact -- but was liable for the injuries because he was in a classroom, and a kick is "unlawful conduct" in a classroom. It goes to say that D wouldn't have been liable for the kick if it were on a playground. Does that simply fall under "offensive contact", in that a kick was offensive in a classroom setting?


If it bothers you this much, I'd go to the professor and ask during office hours. Better yet, find your tutor and ask them. I'd use the resources at the school and get some networking out of this question rather than getting the answer here.

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ph14
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Re: Torts E&E question on battery

Postby ph14 » Sun Sep 02, 2012 12:54 pm

greenchair wrote:
ph14 wrote:
Tom Joad wrote:He didn't intend the contact. Not battery.



+1. You have to at least intend the contact. In some jurisdictions, you need to intend a harmful result as well. Easiest way to keep this straight is just to remember "intentional." What was his intent?


Thanks for the response. I understand. But I guess I am just a little confused about then, why in Vosburg, the court ruled that the D was liable. The D didn't intend to cause harmful or offensive contact -- but was liable for the injuries because he was in a classroom, and a kick is "unlawful conduct" in a classroom. It goes to say that D wouldn't have been liable for the kick if it were on a playground. Does that simply fall under "offensive contact", in that a kick was offensive in a classroom setting?


He intended the contact, which in some jurisdictions is sufficient. Look up single-intent versus dual-intent jurisdictions.

Yeah, that would be my guess -- the kick was "offensive contact" because it was in the classroom (although my memory of this case is really fuzzy). It could also just be something of dicta where the judge is pointing out that, the same contact if done on the playground would just be horseplay (and perhaps assumption of the risk), but not so in the classroom.

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Re: Torts E&E question on battery

Postby kaiser » Sun Sep 02, 2012 1:05 pm

The E&E is definitely right on this one. But if you are unconvinced, bring the hypo to your professor, who would almost certainly be happy to discuss it with you

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Re: Torts E&E question on battery

Postby NotMyRealName09 » Sun Sep 02, 2012 4:44 pm

This is another example of how using supplements too soon will just confuse you. Don't run practice problems until you've covered most of the material. You probably spent an hour thinking about this, convincing yourself that you knew what you were talking about - but you are clearly wrong about an elementary question. Like someone said, if you had studied negligence, you'd immediately see it (i.e., he had a duty not to drive reckelessly, the harm was foreseeable, etc.). On a multiple choice exam, the answer is - NO BATTERY, and there is no debate about this. On an essay exam, sure, argue both sides, but arguing this is battery is a loser.

"Argue both sides. Swoop in, swoop out. Get the points. Don't try to find the "right" answer. This is law school." Well, unless its a MC exam, then yes, there usually is a right answer. And if this was an essay exam, this question is so clear you'd miss points for not pointing out that this isn't battery, and is negligence.

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Re: Torts E&E question on battery

Postby ph14 » Sun Sep 02, 2012 4:53 pm

NotMyRealName09 wrote:This is another example of how using supplements too soon will just confuse you. Don't run practice problems until you've covered most of the material. You probably spent an hour thinking about this, convincing yourself that you knew what you were talking about - but you are clearly wrong about an elementary question. Like someone said, if you had studied negligence, you'd immediately see it (i.e., he had a duty not to drive reckelessly, the harm was foreseeable, etc.). On a multiple choice exam, the answer is - NO BATTERY, and there is no debate about this. On an essay exam, sure, argue both sides, but arguing this is battery is a loser.

"Argue both sides. Swoop in, swoop out. Get the points. Don't try to find the "right" answer. This is law school." Well, unless its a MC exam, then yes, there usually is a right answer. And if this was an essay exam, this question is so clear you'd miss points for not pointing out that this isn't battery, and is negligence.


I disagree on your first point about not running practice problems. Now he knows more about the intent requirement of battery, which is probably the most difficult part of intentional torts. A lot of people learn best by using supplements and running practice problems. It's a more interactive way of learning. On the second point, I agree, there's really no point in arguing about whether it is battery or not. Perhaps one sentence at most, if you have unlimited words, just explaining the intent requirement isn't met so no battery. If you have limited words, probably best just to skip the issue completely.

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Re: Torts E&E question on battery

Postby nonprofit-prophet » Sun Sep 02, 2012 5:25 pm

ph14 wrote:
Tom Joad wrote:He didn't intend the contact. Not battery.



+1. You have to at least intend the contact. In some jurisdictions, you need to intend a harmful result as well. Easiest way to keep this straight is just to remember "intentional." What was his intent?


That's not always true. Our casebook (by professors Robertson, Anderson, Powers, and Wellborn of UT) explored two lines of cases that had different understandings of what had to be intended. One line involved cases where the court required the defendant to have intended the touch/contact. Another group of cases featured courts that looked into whether defendants intended harm or offense, the fact that the touch itself was unintentional didn't matter.

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Re: Torts E&E question on battery

Postby Blessedassurance » Sun Sep 02, 2012 5:35 pm

nonprofit-prophet wrote: Another group of cases featured courts that looked into whether defendants intended harm or offense, the fact that the touch itself was unintentional didn't matter.


I'm curious...Is it possible to intend harm with unintentional touch?

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Re: Torts E&E question on battery

Postby Tom Joad » Sun Sep 02, 2012 5:38 pm

Blessedassurance wrote:
nonprofit-prophet wrote: Another group of cases featured courts that looked into whether defendants intended harm or offense, the fact that the touch itself was unintentional didn't matter.


I'm curious...Is it possible to intend harm with unintentional touch?

Maybe. Weird hypo though.

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Re: Torts E&E question on battery

Postby nonprofit-prophet » Sun Sep 02, 2012 5:39 pm

Blessedassurance wrote:
nonprofit-prophet wrote: Another group of cases featured courts that looked into whether defendants intended harm or offense, the fact that the touch itself was unintentional didn't matter.


I'm curious...Is it possible to intend harm with unintentional touch?


Those courts found a battery where the courts in the first group of cases would not have. So yes, it's possible. I don't remember the facts off the top of my head though.

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Re: Torts E&E question on battery

Postby Blessedassurance » Sun Sep 02, 2012 5:43 pm

nonprofit-prophet wrote:Those courts found a battery where the courts in the first group of cases would not have. So yes, it's possible. I don't remember the facts off the top of my head though.


Perhaps the difference was whether harm was intended or otherwise (i.e. as the previous poster said, intentional contact is enough for some and others require that harm also be intended)?




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