Assault, Battery and false Imprisonment

Fault:
Vancamp v. Mcafoos: Liability without fault will not be applied to children. Fault must be
discernible in pleading and proof otherwise motion to dismiss granted.
Dillon v. Frazer (additur): A trial court must grant a new trial on the issue of damages if the
amount of the verdict is so grossly inadequate or excessive as to shock the conscience of the
court and 6clearly indicates that the figure reached was the result of passion, caprice, prejudice,
partiality, corruption, or some other improper motive.
It is likely that the reviewing court was concerned that the jury minimized the damages in this
case based on their belief that Dillon’s (P) actual out-of-pocket losses were less than his claimed
damages because of third-party payments, despite the judge’s admonition that such payments
were not to be considered. Generally speaking, the “collateral source rule” bars the admission at
trial of evidence that the plaintiff’s damages have been or will be paid by another source other
than the defendant, such as the plaintiff’s health or auto insurance, or workers’ compensation.
Battery
Elements of battery are (1) the intent to touch in a fashion that is harmful or offensive, (2)
resulting in a touching that is harmful or offensive.
Intent:
The intent element can be met by showing actual intent i.e. desire/purpose to bring about a
consequence OR knowledge that the consequence is substantial certain to result.
For the intent element, some jurisdictions like Colorado and Minnesota have adopted a dual intent
requirement. In White v. Muniz, the court upheld the dual intent requirement for battery i.e. there
must be both intent to contact and an intent to cause harmful or offensive results.

Other jurisdictions like Utah have upheld the single intent rule i.e. only intent required for
battery is simply an intent to make a contact. In Wagner v. State, the court held that, in order to
commit battery, deliberate contact is sufficient, the actor need not intend that his contact be
harmful or offensive.
When a person has knowledge to a substantial certainty that harmful or offensive contact will
result from a certain action, a battery occurs if that action is taken, even if there is no intent to
cause harm to another Garratt v. Dailey
Polmatier v Russ: Russ schizophrenic shot his father in law Arthur Polmatier. An insane person
may have intent to invade interests of another, even though his reasons and motives for forming
that intention may be entirely irrational.
Contact/Touch:
Leichtmann v. WLW Jacor communications
In Leichtmann, a talk show host blew cigar smoke onto an anti-smoking advocate to humiliate
him. Smoke as particulate matter has physical properties of making contact.
Harmful or offensive
Synder v. Turk:
A nurse sued a doctor(Turk) for battery when he grabbed her during an operation and yelled
about her incompetence.
Dr. Turk contended that there is no battery absent evidence that he intended to inflict physical
injury. Reasonable minds test: Under this test, a contact is offensive if a reasonable person
in the circumstances of the victim would find the particular contact offensive.
Offensive contact is contact which is offensive to a reasonable sense of personal dignity. There
does not have to be actual physical harm.
Thus, if Snyder (P) were simply a hypersensitive person, and no reasonable person would find
pushing her face toward the table to be offensive, there would be no battery— the fact that she
was personally offended would not matter.

Cohen v. Smith
A woman sued her Roger Smith nurse and the hospital when, against her wishes, the nurse saw
her unclothed and touched her naked body.
Defendant is not only liable for contacts that cause actual physical harm but also those contacts
which are offensive/insulting. Offensive contact occurs when it is reasonable for a person to get
offended under the circumstances.
Similar to Synder. One slight difference between the two cases, however, can be found in the
way in which it is determined whether there has been offensive conduct. Snyder clearly states
that conduct is only offensive when a reasonable person would find it to be offensive. Cohen is
slightly different, however, in that it finds offensive conduct even where a reasonable person
might not, so long as it is reasonable that a person would take offense.
The difference is that under the first approach, the court looks to whether a reasonable person
would be offended, while under the second (Cohen) it looks to see whether it was reasonable for
the offended person to get offended.
Assault:
(1) An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful
or offensive contact with the person of the other or a third person, or an imminent apprehension
of such a contact, and (b) the other is thereby put in such imminent apprehension.
Assault protects a form of mental tranquility, the right to be free from fear or apprehension of
unwanted contact.
Assault, like battery, requires intentional conduct, and in the same restrictive sense. The
defendant must act with the purpose to cause apprehension of a contact or substantial certainty
that the apprehension will result. Assault results when a person acts with a purpose to frighten, or
with substantial certainty that the act will frighten him.
A jury should determine whether apprehension would be aroused in the mind of a reasonable
person.
There is a difference between apprehending an imminent injury and realizing, after the fact, that
you have narrowly escaped one. The elements of assault require that the plaintiff be placed in
apprehension of an imminent contact. Hennie’s post hoc awareness that the banner almost hit her
may be equally disturbing, but it isn’t an assault.
Imminent does not mean immediate, in the sense of instantaneous contact, as where the other
sees the actor’s fist about to strike his nose. It means rather that there will be no significant delay.
It is not necessary that one shall be within striking distance of the other, or that a weapon pointed
at the other shall be in a condition for instant discharge. It is enough that one is so close to
striking distance that he can reach the other almost at once, or that he can make the weapon
ready for discharge in a very short interval of time. Restatement (Second) of Torts § 29.
Mere words: The requirement that the victim anticipate an imminent battery has led many
courts to hold that mere words alone cannot constitute an assault, because they do not
sufficiently show the defendant’s purpose to immediately batter the victim.
Words do not make the actor liable for assault unless together with other acts or circumstances
they put the other in reasonable apprehension of an imminent harmful or offensive contact with
his person. Restatement (Second) of Torts § 31 (emphasis added).
Conditional threats may also undermine the imminence element of assault.
Suppose that Oda snarls at Rudolph, “If you hadn’t fouled out of the hundred-meter competition,
I’d beat you to a pulp.” Here, Oda’s own threat defeats the assault, since her words indicate
that she does not plan to carry it out.
Suppose that Oda snarls at Rudolph, “If you don’t get off this track, I’ll kick your tail into next
week.” This folksy threat is conditional, in the sense that Rudolph can avoid the threatened
battery by leaving. At least in theory, she need not fear a blow, because she holds the means
of avoiding it. Obviously, however, this should still be an assault. Otherwise the person
could be forced to abandon her right to comply with the threat.
There is a difference between apprehending an imminent injury and realizing, after the fact, that
you have narrowly escaped one. The elements of assault require that the plaintiff be placed
in apprehension of an imminent contact. Hennie’s post hoc awareness that the banner almost
hit her may be equally disturbing, but it isn’t an assault.
In this case, Wilson tried to hit Hennie, not frighten her. Indeed, the success of his scheme
probably turned on her ignorance of the peril, since she could skate away if she knew it was on
the way. Thus, Wilson may try to argue that he did not intend to cause Hennie to apprehend
an imminent contact, only to make the contact itself. The argument fails under the
Restatement definition of assault. Although Wilson only tried to commit the battery itself, he is
liable for assault since he acted with tortious intent and placed Hennie in apprehension of a
harmful touching. Under Restatement (Second) of Torts § 21, the intent requirement is met if
Wilson was trying either to cause the contact (as he was in this case) or to cause Hennie to
apprehend it, and she actually suffers such apprehension.

Cullison v. Medley
Cullison (P) sued the Medleys (D) for assault after they intimidated him while Mr. Medley was
armed. While Medley’s (D) father never withdrew the gun from its holster, he grabbed at it
several times while making threatening remarks. Cullison (P) was never touched, but feared he
would be shot.
No physical contact is required to establish assault, so long as a reasonable person would fear
that harmful or offensive contact is imminent.
Transferred intent:
Extended liability principle: the defendant who commits an intentional tort is liable for all the
damages caused not merely those intended/foreseeable.
Transfer between two persons: Restatement (Second) of Torts § 16( 2). Thus, where the actor
tries to batter one person and actually causes a harmful or offensive contact to another, she will
be liable to the actual victim. (Baska v. Scherzer)
Transferred intent between two torts: transferred intent doctrine also allows recovery where the
actor attempts one intentional tort but causes another.
if she tries to frighten Lopez by shooting near her, but the bullet hits her instead, she will
be liable for battery even though she intended to commit an assault instead.
tries to hit Smith with a hammer but misses, placing Smith in fear of a harmful contact but not
actually causing one, her intent to commit a battery suffices to hold her liable for assault.

False imprisonment:
To establish a claim of false imprisonment, a plaintiff must show the defendant intended:
(1) to act;
(2) to confine the plaintiff;
(3) and that resulted in restraint against the plaintiff’s will;
(4) the plaintiff was conscious of or harmed by the restraint.
Confinement against will and awareness of confinement: Defendant must intend to confine a
person against that person’s will and with that person’s awareness of the confinement. Notice
that if the plaintiff is not aware of the confinement, then there is no liability. For eg; if the
defendant knocks the plaintiff unconscious, transports the plaintiff in the trunk of a car back
Confinement:
No bad motive requirement only intent.
 The confinement must be complete with no reasonable possibility of escape by the
plaintiff.
 If escape is possible only with harm to the plaintiff, to property, or to third parties, then
the confinement is complete.
A difficult case is presented by a situation in which the plaintiff could have escaped (because the
defendant left the plaintiff alone), but felt psychologically confined and unable to leave. Most
jurisdictions would very likely find false imprisonment under these circumstances.
 Consider the common false imprisonment scenario involving a customer in a store who is
brought to the office and accused of theft. The customer may choose to stay in the office
for a variety of reasons. She may believe that she is not free to leave, and will be
subjected to physical restraint if she does. As the Dupler case suggests, this suffices to
constitute confinement.
 Confinement under duress of goods: Or, the customer may believe that, if she leaves,
store personnel will keep her purse, or her purchases. The cases hold that staying to avoid
loss of personal property also constitutes confinement.
McCann v. Walmart
In this case, false imprisonment was found because the McCanns were confined without their
consent and were aware of the confinement. It did not matter that the confinement lasted merely
one hour— that was enough time to constitute false imprisonment.
Nor did it matter that the McCanns were not harmed in any way, as false imprisonment is a
trespassory tort and therefore no harm needs to be shown to collect damages (so long as the
plaintiff is aware of the confinement).
Walmart argued that confinement should be interpreted as actual physical restraint. However, the
court said implicit or explicit threats of physical force can suffice. Confinement can also be
based on false assertion of legal authority to confine.
Actual harm is required to support a claim where plaintiff was not aware that the confinement
took place Eg Baby locked in a vault
In most cases, exclusion from a place, as opposed to confinement to a place, will not be grounds
for a suit for false imprisonment.
Defense to false imprisonment :The Shopkeeper’s Privilege:
Almost all jurisdictions have recognized some sort of privilege protecting storeowners who
apprehend a shoplifter. This privilege is commonly called the “shopkeeper’s privilege.” In some
cases, the privilege is framed in very general terms. Consider, for example, the Second
Restatement’s definition of the shopkeeper’s privilege: One who reasonably believes that another
has tortiously taken a chattel upon his premises, or has failed to make due cash payment for a
chattel purchased or services rendered there, is privileged, without arresting the other, to detain
him on the premises for the time necessary for a reasonable investigation of the facts.
According to the shopkeeper’s privilege, one who reasonably believes that another has tortiously
taken a chattel upon his premises, or has failed to make payment for goods or services purchased
there, is privileged, without arresting the other, to detain him on the premises for the time
necessary to make a reasonable investigation of the facts.

Gortarez v. Smitty’s Super Valu, Inc. (Customer) v. (Store) 680 P. 2d 807 (Ariz. 1984)
UNREASONABLE FORCE MAY NOT BE USED AGAINST SHOPLIFTING SUSPECTS
To invoke the privilege, “reasonable cause” is the threshold requirement. If reasonable cause to
detain a shoplifting suspect is established, the next two questions are: (1) was the purpose of
the shopkeeper’s action proper (i.e., to detain for questioning or summoning a law
enforcement officer); and (2) was the detention carried out in a reasonable manner and for
a reasonable length of time?
If the answer to any of these questions is no, the privilege is lost. Reasonable cause and probable
cause are the same for purposes of this privilege. Reasonable cause does not require a correct
belief, as long as it was reasonable. The trial court was in the best position here to determine
whether reasonable cause existed, and we defer to that court’s finding. The purpose of the
detention in this case, however, is at best a question for the jury, such that the court should not
have directed a verdict. And even assuming there was a proper purpose, the privilege still may
not attach if the merchant does not detain in a reasonable manner and for a reasonable time.
Reasonable force may be used, but the use of force intended or likely to cause serious bodily
harm is never privileged for the sole purpose of detention to investigate, and it becomes
privileged only when the detainee’s resistance makes it necessary for the actor to use such force
in self-defense. Applying these restrictions, there is a question in this case as to whether the use
of force in the restraint of Gortarez (P) was reasonable.

The possible theft of a fifty-nine-cent item hardly warrants an apprehension that the two cousins
were armed or dangerous. Indeed, the evidence may have supported a finding that the