Torts Q Forum

[JOThompson]

Since the two have a history of playing dumb jokes on each other, doesn't that constitute consent to what would otherwise have been offensive? As for the ankle fracture, that's not reasonably certain to flow from the action and the D wouldn't be liable. Correct me if I'm wrong, that's just what I gleaned from the Torts EE after a quick readthrough this weekend.

[christmas mouse]

Since the two have a history of playing dumb jokes on each other, doesn't that constitute consent to what would otherwise have been offensive? As for the ankle fracture, that's not reasonably certain to flow from the action and the D wouldn't be liable. Correct me if I'm wrong, that's just what I gleaned from the Torts EE after a quick readthrough this weekend.

Yea, that consent is why this question turned to negligence back on page 2.
I'm not sure i follow the reasonably certain to flow from the action argument you bring up.
If its an intentional tort, proximate cause isnt an issue. Where you commit an intentional tort, the harm isnt really at issue, its the action that is at issue.

Ex. A hates B and would love to see B cower in fear in front of the girls gymnastics team.
A grabs a baseball bat and runs at B screaming "arrghhh your face is about to get served!"
B, fearful of this immediate contact, turns to run and falls down the stairs breaking 6 vertebrate in his spine, biting his tongue off, and landing on a stack of pastels is blinded in his right eye.
In that case A didnt even want to cause a harm, he had no intent to hit B. Were B's injuries reasonably certain to flow from A's action? I dont think so, does that mean B cant recover damages from A? Definitely not. Does it matter that A only intended Assault and never made contact with B? Nope, A committed a battery. While he only intended assault, a harmful contact occurred and he liable.

[20160810]

No.

[kalvano]

For what it's worth, I showed this hypo to my prof and he said no battery. There was implied consent in the practical jokes, and that since there was no intent to do or cause a harmful touching, C has nothing on A in that respect.

He said the best chance for recovery is under negligence, but even then C might have a problem since he was possibly committing a tort by going through B's desk.

Also, negligence would be a problem b/c of the proximate cause issue stated above, unless A could have foreseen C going in B's desk for some reason (but that would have to be fact-specific).

The post above yours sounds right, but i dont know exactly what it means when the victim of negligence brought upon his harm by committing (im guessing your prof was referring to trespass to chattels) an intentional tort.

If C had also been negligent, then it would be contributory negligence.

He said something about the "own wrong" theory - we haven't studied it yet, but he basically said if you're doing something wrong and get hurt in doing so, you can't profit off of it.

I think that's what he was saying, someone please correct me if I am wrong.

[christmas mouse]

No.

It very well could be a "no," i stated earlier these are just the musings of a 1L trying to make sense of torts.

Please explain why i'm wrong though.

Are you arguing that intent to commit assault cant turn into a battery just because a harmful contact occurred? I think § 13 of the restatement would show that argument is fruitless.

Are you arguing that falling down a set of stairs isn't a harmful contact? I think a crap ton of case law would also show that argument is fruitless. Garret v. Dailey, moving a chair constituted battery when victim's ass made contact with the floor and D did not know to a substantial certainty that harm would occur.

Are you arguing D must foresee the type of harm that he causes on P? I think the issue of foreseeability is not found anywhere in discussions of intentional torts.

Are you arguing that my hypo is just stupid? I think you are right, but that doesn't get us any closer to showing why that is not a battery.

Also, I earlier said foreseeability doesnt have anything to do with duty, well I'm wrong... in a way.
My prof believes that, has written law review articles about it, and makes a compelling argument as to why. I, like a good law student should, agree with anything he says. But, in doing my readings for this week have noticed that a crap ton of courts, not only use foreseeability in deciding duty, but claim it is the most important factor. So yeai guess its just one of those questions that courts, profs, lawyers, etc can be at complete opposite ends of the spectrum and be right.

[keg411]

cm, there are some profs who believe that there is a "universal duty", so I can see where you are getting that "foreseeability has nothing to do with duty" and that proximate cause has nothing to do with "the type of harm being foreseeable" or "the harm had to be w/in the risk". Your prof is probably a big supporter of Andrews in the Palsgraf case.

RM is right that Respondeat Superior is going to come into play, so if was negligence C would sue the employer and there would be a Workers' Comp claim (although you might say that practical jokes aren't really in the "scope of employment"....). Still, I'm guessing now that OP's prof tried to frame this as an intentional torts case so you don't have to worry about that since in most cases where there is intent or gross negligence (neither of which apply) RS and Workers' Comp claims don't apply (I can't believe I forgot to think about vicarious liability since we are covering it now!).

However, I still don't think A had a duty to C based on what my prof believes about duty, breach, Palsgraf, etc. . I also don't think this has anything to do w/intentional torts but we haven't covered them at all yet.

[jjamesChess]

Thanks for the comments to my original post. As an FYI - this was a Q on multiple choice, not essay. The right/wrong answer centered on 1) whether this could be a battery, and 2) the consent issue. Negligence, while interesting to argue about, was not a part of the answer choices.

Needless to say, I think I missed this Q. I think there is a battery, if the consent was absent. But given consent, I dont think there is a battery in this case (or at least I can't find any resources that would suggest consent to the prank would not "transfer, protect, etc" to third parties). If someone finds something, feel free to let me know.

[20160810]

No.

It very well could be a "no," i stated earlier these are just the musings of a 1L trying to make sense of torts.

Please explain why i'm wrong though.

Are you arguing that intent to commit assault cant turn into a battery just because a harmful contact occurred? I think § 13 of the restatement would show that argument is fruitless.

Are you arguing that falling down a set of stairs isn't a harmful contact? I think a crap ton of case law would also show that argument is fruitless. Garret v. Dailey, moving a chair constituted battery when victim's ass made contact with the floor and D did not know to a substantial certainty that harm would occur.

Are you arguing D must foresee the type of harm that he causes on P? I think the issue of foreseeability is not found anywhere in discussions of intentional torts.

Are you arguing that my hypo is just stupid? I think you are right, but that doesn't get us any closer to showing why that is not a battery.

Also, I earlier said foreseeability doesnt have anything to do with duty, well I'm wrong... in a way.
My prof believes that, has written law review articles about it, and makes a compelling argument as to why. I, like a good law student should, agree with anything he says. But, in doing my readings for this week have noticed that a crap ton of courts, not only use foreseeability in deciding duty, but claim it is the most important factor. So yeai guess its just one of those questions that courts, profs, lawyers, etc can be at complete opposite ends of the spectrum and be right.

You're overthinking things. Have a beer.

[SDSC]

From what I understand:

Assault is the(1) intentional causing of (2)a reasonable apprehension in the plaintiff of an imminent harmful or offensive contact

(1)Intent:To have the requisite intent, the D must either have (1) intended to cause the apprehension of contact OR (2) intended to cause the contact itself. It is clear that the D's act of putting a spider in an arachnophobic co-worker's desk was intended to cause some sort of apprehension. The co-worker may have apprehended a harmful contact because the spider was located in his personal desk and was presumably located close to his hand while opening the desk.

(2)Whether a reasonable person would apprehend a harmful contact by a spider in their desk is debatable. The courts are split on whether the "reasonable person" standard is required for assault. The Restatement doesn’t require reasonableness of apprehension, but some courts have read in a reasonableness test. In additon, the harmful or offensive contact must be imminent. Generally, imminent usually means next few minutes, but it depends on circumstances.

It seems like there may be a case for assault here. If the requisite intent for assault can be proved, and a harmful or offensive contact occued due to the assault there will also be a case for battery. Like others have said, D will likely bring up a consent defense. Just my take...

[christmas mouse]

No.

It very well could be a "no," i stated earlier these are just the musings of a 1L trying to make sense of torts.

Please explain why i'm wrong though.

Are you arguing that intent to commit assault cant turn into a battery just because a harmful contact occurred? I think § 13 of the restatement would show that argument is fruitless.

Are you arguing that falling down a set of stairs isn't a harmful contact? I think a crap ton of case law would also show that argument is fruitless. Garret v. Dailey, moving a chair constituted battery when victim's ass made contact with the floor and D did not know to a substantial certainty that harm would occur.

Are you arguing D must foresee the type of harm that he causes on P? I think the issue of foreseeability is not found anywhere in discussions of intentional torts.

Are you arguing that my hypo is just stupid? I think you are right, but that doesn't get us any closer to showing why that is not a battery.

Also, I earlier said foreseeability doesnt have anything to do with duty, well I'm wrong... in a way.
My prof believes that, has written law review articles about it, and makes a compelling argument as to why. I, like a good law student should, agree with anything he says. But, in doing my readings for this week have noticed that a crap ton of courts, not only use foreseeability in deciding duty, but claim it is the most important factor. So yeai guess its just one of those questions that courts, profs, lawyers, etc can be at complete opposite ends of the spectrum and be right.

You're overthinking things. Have a beer.

haha point taken. It's just easy to get wrapped up in this stuff, and lose sight of everything else, when this is all you do every single day.

keg 411 - solid explanation.