INTRODUCTION: Tort is concerned with civil wrongs caused by individuals and other legal entities. Tort has two main objectives. One is to offer compensation to the victims of civil wrongs for the loss, damage or injury that they have suffered. The most common remedy for tortious conduct is money, referred to as damages. Tort also acts as a deterrent, and aims to reduce the harm caused by making the tortfeasor responsible for providing a remedy. Another type of remedy is an injunction, where the court orders a person not to do something, for example, not to publish an article in a newspaper. It may also be used to compel a person to do something, although this is less common. There are three main elements to a tort claim. irst, it must be proved that there was a wrongful act or omission !failure to act" by the defendant. #econd, it must be proved that the claimant suffered loss, damage or injury as a result. Third, it must be proved that the defendant had a duty to act in a certain way but didn$t, meaning he was at fault. The most litigated tort is the general tort of o f negligence, where A$ A$s careless act or omission causes damage to %. Other torts include defamation, where A suffers as a result of %$s spoken or published lies& trespass, where % wrongfully goes onto A$s land& and nuisance, where % disturbs A$s enjoyment and use of his land !for example, by allowing dogs or cats to run freely there". In cert certai ain n case cases, s, such such as defe defect ctiv ivee prod product uctss that that caus causee harm harm to cons consum umer ers, s, stri strict ct liability is used. This means that the defendant will be found liable regardless of fault. There are some overlaps between tort law and criminal law, and sometimes the same set of facts may lead to both a criminal prosecution and an action in tort. A famous example of this was the '# case of The (eople v. Orenthal )ames #impson. This criminal trial involved the former American football star and actor O. ). #impson, and was heard at the #uper #uperio iorr *ourt *ourt of +o +oss Angel ngeles es *ount *ounty y, *ali *alifo forn rnia ia.. #imp #impso son n was was charg charged ed with with two counts of murder following the deaths of his ex wife icole %rown #impson and her friend -onald oldman in )une /001. #impson was eventually ac2uitted. 3owever, the %rown and oldman families then sued #impson for damages in a civil suit. The jury unanimously found there was a preponderance of evidence to find #impson liable for damages in the wrongful death of oldman and battery of %rown. The standard of proof in civil cases, the preponderance of the evidence, is much lower than in criminal cases, the facts of which have to be proved beyond reasonable doubt. Anoth Another er diff differ eren ence ce betw betwee een n civi civill law law and crim crimin inal al law law are are the the conse conse2u 2uen ences ces of a finding of liability and a finding of guilt. 4amages are awarded in tort cases, and are meant to compensate the injured party for wrongs caused, and to deter others from acting negl neglig igen entl tly y. A findi nding of guil guiltt can can subje ubject ct the the def defenda endant nt to a num number ber of different punishments, including imprisonment and fines !a sum of money exacted as a penalty penalty by a court court of law or other other author authority ity". ". #ome #ome jurisd jurisdict iction ionss are also also able able to
award punitive damages, which can be extremely high, in addition to compensatory damages, where the tort in 2uestion has been particularly serious.
ASSAULT: An assault is a threat or attempt to do a corporeal hurt to another, coupled with an apparent physical ability and intention to do the act. Actual contact isn$t necessary in an assault. %ut it is not every threat, where there is no actual personal violence that constitutes an assault& there must, in all cases, be means of carrying that threat into effect./ 5Any gesture calculated to excite, in the party threatened, a reasonable apprehension that the party threatening intends immediately to offer violence, or, in the language of the Indian (enal *ode, is 6about to use criminal force$ to the person threatened, constitute, if coupled with a present ability to carry such intention into execution, an assault in law.78 The intention as well as the act makes an assault. Therefore, if one strikes upon the hand, or arm, or breast in discourse, it is no assault, there being no intention to assault& but if one, intending to assault, strikes at another and misses him, this is an assault& so if he holds up his hand against another, in a threatening manner, and says nothing, it is an assault.9 The menacing attitude and hostile purpose go to make the assault unlawful, e.g. presenting a loaded pistol at any one,1 or pointing or brandishing a weapon at another with the intention of using it,: or riding after a person and obliging him to seek shelter to avoid being beaten. ;ere words do not amount to an assault. %ut the words which the party threatening uses at the time may either give to his gestures such a meaning as may make them amount to an assault, or, on the other hand, may prevent them from being an assault. or instance, if A laid his hands on his sword, and said to <, 5If it were not assi=e time, I would not take such language from you.7 This was held not to be an assault on the ground that the words showed that A did not intend then and there to offer violence to <. here, there was the menacing gesture, showing in itself a intention to use violence, there was the present ability to use violence, but there were also words which would prevent the person threatened from reasonably apprehending that the person threatening was really then and there about to use violence. Elements of Assault:
Three elements must be established in order to establish tortious assault> first, the plaintiff apprehended immediate physical contact, second, the plaintiff had reasonable apprehension !the re2uisite state of mind" and third, the defendant?s act of interference was intentional !the defendant intended the resulting apprehension". %ut intent for purposes of civil assault can be either general or specific. #pecific intent means that when /
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the defendant acted, he or she intended to cause apprehension of a harmful or unwanted contact. eneral intent means that the defendant knew with substantial certainty that the action would put someone in apprehension of a harmful or unwanted contact. Hhile the law varies by jurisdiction, contact is often defined as harmful if it objectively intends to injure, disfigure, impair, or cause pain. The act is deemed offensive if it would offend a reasonable person$s sense of personal dignity. Hhile imminence is judged objectively and varies widely on the facts, it generally suggests there is little to no opportunity for intervening acts. +astly, the state of apprehension should be differentiated from the general state of fear , as apprehension re2uires only that the person be aware of the imminence of the harmful or offensive act. There are some cases which would illustrate the concept better. They are mentioned under. Cullison v. Medley 6 a!ts > (laintiff *ullison met /Dyearold #andy ;edley in a grocery store parking lot, invited her to have a soda with him and to come to his home to talk further. A few hours later he was awoken by a knock at his door. 3e was confronted by #andy ;edley, her father Crnest, her brother, brotherinlaw, and mother. Crnest had a revolver in a holster strapped to his thigh. #andy called him a 5pervert7 and her mother berated him. Crnest kept grabbing and shaking the gun while still in the holster and threatening to 5jump astraddle7 of him if he did not leave #andy alone. Although no one ever touched *ullison, he feared he was about to be shot because Crnest kept grabbing the gun as if to draw it from the holster while threatening him. As a result of this incident, *ullison sought psychological help to deal with nervousness, depression, sleeplessness, inability to concentrate, and impotency. 3e sued the ;edleys for assault, among other torts. The trial court granted summary judgment in favor of defendants on all claims, the appeals court affirmed, and the Indiana #upreme *ourt reversed on the assault count. Issue: Hhether threatening language coupled with a holstered pistol rises to the level of assault. "eld: Jes, it was an assault. Assault occurs when one intentionally creates the reasonable apprehension of imminent harmful or offensive contact in another. It is a touching of the mind, if not the body, and as such, the damages which are recoverable are for mental trauma and distress. It is assault to shake a fist under another$s nose, to aim or strike at him with a weapon or to hold it in a threatening position, or to surround him with a display of force. Additionally, the apprehension must be one that would be aroused in the mind of a reasonable person. In this case, a jury could reasonably conclude that the ;edleys intended to frighten *ullison by surrounding him in his trailer and verbally threatening him with bodily harm while one of them was armed with a holstered revolver. Accordingly, the Indiana #upreme *ourt reversed the summary judgment on the assault count.
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:G .C.8d 8G !Ind. /00/".
Tu#e$ville v. Sava%e & a!ts: Tuberville put his hand upon his sword and said 6If it were not assi=etime, I would not take such language from you.$ #avage sued Tuberville for assault. Issue: Hhat are the elements of the tort of assaultK "oldin% and Rule: To be liable for assault at least one of the following must be present> /. an act intending to cause harmful control to another person, or imminent apprehension, or 8. a third person put in apprehension if he believes the person can do damage. An assault exists even if the other party can defend against the action and the action is not inevitable. ;ere threats of future harm are insufficient. In this case the court held that the declaration of Tuberville was that he would not assault #avage at that point in time. To commit an assault there must be intention followed by an act. An assault is present if the fear is reasonable. The court held that in this case there was clearly no intention of assault. Dis'osition: or Tuberville. Notes: Threats of future harm are insufficient to establish assault. *onditional threats may suffice where the defendant has no privilege to assert them.
(ATTER): %attery is the intentional and direct application of any physical force to the person of another. It is the actual striking of another person, or touching him in a rude, angry, revengeful, or insolent manner. In *ole v. Turner @, 3O+T, *.). declared> 5irst, that the least touching of another in anger is a battery. #econdly, if the one touches the other gently, it will be no battery. Thirdly, if any of them use violence against the other, to force his way in a rude inordinate manner, it will be a battery.7 -O%C-T O+, +.). redefined battery as meaning an intentional physical contact which was not 6generally acceptable in the ordinary conduct of daily life$.0This definition was accepted by the 3ouse of +ords in Hainwright v. 3ome Office./ A battery includes an assault which briefly stated is an overt act evidencing an immediate intention to commit a battery. It is mainly distinguishable from an assault in the fact that physical contact is necessary to accomplish it. It cannot mean merely an injury inflicted by an instrument held in the hand, but includes all cases where a party is struck by any missile thrown by another. It doesn$t matter whether the force is applied directly to the human body itself or to anything coming in contact with it. In order to establish the tort of battery, the plaintiff must however prove that the force used was without any justification.// Thus, to throw water at a person is an assault& if any drops fall upon him it G
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is a battery./8 #o, riding a horse at a person is an assault, and riding it against him is battery. (ulling away a chair, as a practical joke, away from a person who is about to sit on it, is assault until he reaches the floor& then it is battery the minute he comes in contact with the floor. The term assault is commonly used to induce battery. %ut every lying on of hands is not a battery. The party$s intention must be considered. Touching a person, for instance, for merely calling him isn$t a battery. In #tephens v. ;yers/9, the plaintiff was the chairman of a parish meeting. The defendant having been very vociferous, a motion was made and carried by a large majority that he should be turned out. 'pon this, the defendant said he would rather pull the chairman out of the chair, than be turned out of the room, and immediately advanced with his fist clenched towards him& he was thereupon stopped by the churchwarden, who sat next but one to the chairman, at a time when he was not near enough for any blow, he might have mediated to reach the plaintiff& but the witness said that it seemed to them that he was advancing with an intention to strike the chairman. The jury found for the plaintiff with one shilling damages. %attery re2uires actual contact with the body of another person so a sei=ing and laying hold of a person so as to restrain him& spitting in the face& throwing over a chair& or carriage in which another person is sitting& throwing water over a person& striking a horse so that it bolts and throws its rider& taking a person by the collar& causing another to be medically examined against hisLher will& are all held to amount to battery. Hhere the plaintiff, who had purchased a ticket for a seat at a cinema show, was forcibly turned out of his seat by the direction of his manager, who was acting under a mistaken belief that the plaintiff had not paid for his seat, it was held that the plaintiff was entitled to recover substantial damages for assault and battery. The purchaser of a ticket for a seat at a theatre or other similar entertainment has a right to stay and witness the whole of the performance, provided he behaves properly and complies with the rules of the management./1 A civil action lies for assault, and criminal proceedings may also be taken against the wrongdoer. The fact that the wrongdoer has been fined by a criminal court for the assault is no bar to a civil action against him for damages. The previous conviction of the wrongdoer in a criminal court is no evidence of assault. The factum of the assault must be tried in a civil court, which is not bound by conviction or ac2uittal in criminal proceedings. A plea of guilty in a criminal court may, but a verdict of conviction cannot, be considered in evidence in a civil court. *a$$att v. Dailey +, a!ts: ive year old %rian 4ailey !4" pulled a chair out from under -uth arratt just as she was about to sit causing her to fall and break her hip. arratt brought suit for personal injuries and alleged that 4ailey had acted deliberately. The trial court entered judgment for 4ailey and found that he had not intended to injure arratt. The court nevertheless made a finding of M//, in damages in case the judgment was overturned on appeal. 4ailey appealed. /8
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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 contactK 8. *an a five year old child be liable for an intentional tortK "oldin% and Rule:
/.
8.
Jes. 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. Jes. 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 t-e To$t of (atte$y: 'nder the -estatement 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> /" 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 8" the contact is not consented to by the other or the other$s consent thereto is procured by fraud or duress, and 9" the contact is not otherwise privileged.
Intent re2uires 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 arratt has proven to the satisfaction of the trial court that 4ailey moved the chair while she was in the act of sitting down, his action would patently have been for the purpose or with the intent of causing her bodily contact with the ground, and she would be entitled to a judgment against him for the resulting damages. Talma%e v. Smit-+6 a!ts: Talmage and several other children were playing on the roofs of sheds on #mith$s property. #mith ordered the children to get down and threw a stick at one of the bo ys. The stick missed its intended target and struck Talmage in the eye. Talmage lost all sight in the eye and sued for battery to recover for personal injuries. Cvidence was offered showing that #mith threw the stick intending to frighten !i.e. assault" but not hit a different boy. The trial court entered judgment for Talmage and #mith appealed on the grounds that he did not have the intent to hit Talmage and was therefore not liable for battery.
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Issue: If an actor intends to inflict an intentional tort upon one party and accidentally harms a second party, can the actor be held liable to the second party for batteryK "oldin% and Rule: Jes. If an actor intends to inflict an intentional tort upon one party and accidentally harms a second party, the actor can be held liable to the second party for battery under the doctrine of transferred intent. If an actor intends an act against a party and that act impacts upon another the actor is liable for the injuries suffered. The fact that the injury resulted to a party other than was intended does not relieve the defendant from responsibility. #mith will not be relieved of liability because he intended to injure someone else. Dis'osition: Affirmed. T$ansfe$$ed Intent: The transferred intent torts under common law are> assault, battery, false imprisonment, trespass to land, and trespass to chattels. If an actor has the intent to commit any of the transferred intent torts, the actor will be liable for all other transferred intent torts that result from that act. The actor$s liability extends to all parties harmed, not merely the original intended victim.
