Fun intentional torts hypo Forum

[brickman]

Adam sees Barbra being verbally accosted by a wildly gesticulating Cody and runs up to defend Barbra. Cody sees Adam step between him and Barbra and watches him wind up to punch Cody in the face. Adam doesn’t have much hand-eye coordination and entirely misses Cody.

anyone liable?

[kalvano]

Liable for what?

[071816]

Adam may be liable for assault upon Barbra depending on what he was saying to her initially (depends on whether or not he put her in apprehension of imminent harm). Adam would also most likely be liable for assaulting Cody seeing as how Adam attempted to batter Cody but narrowly missed with his punch. I doubt Cody would be liable for anything and Barbra would mostly like not be liable either (unless she put Adam in apprehension of imminent harm in their initial "conversation" - in which case you could argue that she assaulted Adam - although this seems highly unlikely given the facts). I'm too lazy to go through the whole analysis, but this would be a good starting point I think.

I can't believe I actually responded to this. I need to stop procrastinating.

[downing]

[brickman]

Liable for what?

you tell me. But it looks like there may be some assault. but i tried to put in a little twist.

[kalvano]

Cody to Barbara, possibly, for assault. Depends on how wild the gesticulations were and if they closely resembled punches. Assault cannot be words alone.

Adam to Cody for assault.



What's with 1L's and Torts this year?

[071816]

Cody to Barbara, possibly, for assault. Depends on how wild the gesticulations were and if they closely resembled punches. Assault cannot be words alone.

Adam to Cody for assault.



What's with 1L's and Torts this year?

False. Battery cannot be words alone, but assault can be words alone in some instances.

[kalvano]

False. Battery cannot be words alone, but assault can be words alone in some instances.

It's the exception, not the rule. You'll get dinged on a Torts exam if you assert that assault can be words alone without providing the few specific circumstances in which it can be.

[brickman]

Would Adam maybe have a defense here? It looks like Cody might reasonably hit Barbra...

[071816]

False. Battery cannot be words alone, but assault can be words alone in some instances.

It's the exception, not the rule. You'll get dinged on a Torts exam if you assert that assault can be words alone without providing the few specific circumstances in which it can be.

I never said it was the rule. I said that in some instances a verbal threat causing reasonable apprehension of immediate and imminent bodily harm could be considered an assault. You would get dinged if, on an exam, you wrote "assault cannot be words alone."

[I.P. Daly]

Would Adam maybe have a defense here? It looks like Cody might reasonably hit Barbra...

If Cody alleges assault, Adam could counter with self defense/defense of others.

Because of Cody's wild gesticulations, poor Barbra is probably seeing a therapist right now, and arguably has a claim against Cody for IIED.

[071816]

Would Adam maybe have a defense here? It looks like Cody might reasonably hit Barbra...

No because Adam had no reason to believe that Cody might hit Barbra according to your facts. Plus, since the right of a person to defend another is not greater than such person's right to defend himself, Adam's punch was not reasonable to fend off Cody and was not proportional to the force that Cody used.

[brickman]

Would Adam maybe have a defense here? It looks like Cody might reasonably hit Barbra...

No because Adam had no reason to believe that Cody might hit Barbra according to your facts. Plus, since the right of a person to defend another is not greater than such person's right to defend himself, Adam's punch was not reasonable to fend off Cody and was not proportional to the force that Cody used.

Didn't he have a reason to believe that he might? Does accosting someone and gesticulating wildly suggest someone who is abiding by societal norms?

does it matter that Adam didn't actually connect with his punch? (I honestly don't know anything about this) Also, adam might not punch very hard. I'm honestly not sure, just trying to play around with concepts here.

[071816]

Would Adam maybe have a defense here? It looks like Cody might reasonably hit Barbra...

No because Adam had no reason to believe that Cody might hit Barbra according to your facts. Plus, since the right of a person to defend another is not greater than such person's right to defend himself, Adam's punch was not reasonable to fend off Cody and was not proportional to the force that Cody used.

Didn't he have a reason to believe that he might? Does accosting someone and gesticulating wildly suggest someone who is abiding by societal norms?

I guess that would depend on what is meant by "gesticulating." But I wouldn't take gesticulating to mean anything more than using dramatic gestures while talking or yelling. Therefore, I think you could make the argument that the threat that Adam posed to Barbra was purely verbal, but still could be considered assault for the reasons I mentioned above.

The fact that Adam did not connect with his punch is what would make this an assault rather than a battery against Cody.

[kalvano]

I never said it was the rule. I said that in some instances a verbal threat causing reasonable apprehension of immediate and imminent bodily harm could be considered an assault. You would get dinged if, on an exam, you wrote "assault cannot be words alone."

Words do not make an actor liable for assault unless coupled with other actions that put a person in reasonable apprehension of imminent harmful contact. There must be an act, mere words alone do not constitute an act. Additionally, there must be the capability to carry out the act.

So if he is saying "I am going to punch your stupid fat face in" and making threatening gestures with closed fists, then that's assault. If not, then it's not. The only case I can recall where a court found words alone sufficient to constitute assault was one where some guy was making creepy phone calls, and even then the court had some reasoning that the phone calls constituted an act.

TL, DR: I wrote "assault cannot be words alone" on my Torts exam and got an A.

[kalvano]

does it matter that Adam didn't actually connect with his punch? (I honestly don't know anything about this) Also, adam might not punch very hard. I'm honestly not sure, just trying to play around with concepts here.

Connecting with his punch would make it battery, even if he hit someone else behind Cody. It doesn't matter if he hits like Stephen Hawking or Mike Tyson.

[shoeshine]

I read it wrong.

[071816]

I never said it was the rule. I said that in some instances a verbal threat causing reasonable apprehension of immediate and imminent bodily harm could be considered an assault. You would get dinged if, on an exam, you wrote "assault cannot be words alone."

Words do not make an actor liable for assault unless coupled with other actions that put a person in reasonable apprehension of imminent harmful contact. There must be an act, mere words alone do not constitute an act. Additionally, there must be the capability to carry out the act.

So if he is saying "I am going to punch your stupid fat face in" and making threatening gestures with closed fists, then that's assault. If not, then it's not. The only case I can recall where a court found words alone sufficient to constitute assault was one where some guy was making creepy phone calls, and even then the court had some reasoning that the phone calls constituted an act.

TL, DR: I wrote "assault cannot be words alone" on my Torts exam and got an A.

If the words constitute an imminent threat of violence that could actually be carried out I think you could argue that assault could be words alone though (e.g. Read v. Coker). Is my train of thought completely off or do we just have differing conceptions of what "words alone" really means? I think we are basically saying the same thing without actually saying the same thing.

[kalvano]

You must have an act coupled to the words. If I look over and say "I'm going to stab you in the face", that's not assault. Hence, words alone.

If I'm known to carry a knife and say that as I reach into my pocket, then that's assault.

That's what I meant.

[target]

I never said it was the rule. I said that in some instances a verbal threat causing reasonable apprehension of immediate and imminent bodily harm could be considered an assault. You would get dinged if, on an exam, you wrote "assault cannot be words alone."

Words do not make an actor liable for assault unless coupled with other actions that put a person in reasonable apprehension of imminent harmful contact. There must be an act, mere words alone do not constitute an act. Additionally, there must be the capability to carry out the act.

So if he is saying "I am going to punch your stupid fat face in" and making threatening gestures with closed fists, then that's assault. If not, then it's not. The only case I can recall where a court found words alone sufficient to constitute assault was one where some guy was making creepy phone calls, and even then the court had some reasoning that the phone calls constituted an act.

TL, DR: I wrote "assault cannot be words alone" on my Torts exam and got an A.

If the words constitute an imminent threat of violence that could actually be carried out I think you could argue that assault could be words alone though (e.g. Read v. Coker). Is my train of thought completely off or do we just have differing conceptions of what "words alone" really means? I think we are basically saying the same thing without actually saying the same thing.

Assault cannot be words alone. We don't have Read v. Coker for class, so I just search an online brief. Didn't D gather some men, and then threaten P? The act of gathering people and standing off against P qualify as imminent threat.

[bathtubgin]

Like this nonsense really matters. In real life torts the only question is how much is the insurance policy limit. No policy= no case.

HTH

[071816]

You must have an act coupled to the words. If I look over and say "I'm going to stab you in the face", that's not assault. Hence, words alone.

If I'm known to carry a knife and say that as I reach into my pocket, then that's assault.

That's what I meant.

I agree with you.

But what if I am a cook and I'm in the kitchen chopping up some onions with a knife and my boss comes up to me and fires me for whatever reason. If I am already holding the knife, but I'm not pointing it at him or holding it up (but I do have it in my hand b/c I was cutting the onions) and I say "How could you fire me? I'm going to kill you!" Is that merely words? Is this a verbal threat only? Or does the fact that I already had a knife in my hand constitute an "act"? I think you could argue that this would be an assault despite the fact that I made no overt act other than telling my boss that I was going to kill him because the threat was 1) imminent and b) capable of being carried out because I already had the knife in my hand.

[071816]

Like this nonsense really matters. In real life torts the only question is how much is the insurance policy limit. No policy= no case.

HTH

[kalvano]

I agree with you.

But what if I am a cook and I'm in the kitchen chopping up some onions with a knife and my boss comes up to me and fires me for whatever reason. If I am already holding the knife, but I'm not pointing it at him or holding it up (but I do have it in my hand b/c I was cutting the onions) and I say "How could you fire me? I'm going to kill you!" Is that merely words? Is this a verbal threat only? Or does the fact that I already had a knife in my hand constitute an "act"? I think you could argue that this would be an assault despite the fact that I made no overt act other than tell the cook that I was going to kill him because the threat was 1) imminent and b) capable of being carried out because I already had the knife in my hand.

The person being threatened must also actually be in fear of the threat. Even if they should be and are not, it's not assault.

So for instance, a wife pulls out a fake gun in a divorce meeting and the husband knows it's fake and therefore isn't afraid. Everyone else who hit the deck has an assault claim, but the husband does not because he was not afraid.

Without knowing more about the boss who did the firing, it's impossible to say. But your hypo is exactly what you would see on a Torts exam because it requires you to know the law and apply it by arguing both ways, for assault and against assault. Was the mere act of holding the knife enough? The case would be stronger if the cook said "I'm going to stab you!"

That's exactly what law profs play on.

[kalvano]

Like this nonsense really matters.

My Torts grades helped balance my shitty Property grades. So yeah, it matters.