Read Text: The Modern Law of Torts A Contemporary Approach By Douglas Lee Donoho Chapter 2 Pages 19 - 40

Complete Assignment 2.1,Garratt; Spivey Problem2a; Assignments 2.2, 2.3, 2.4 Baska; Hendrix

Chapter 2 The Intent Element Chapter Goals and Focus 1. Identify and memorize precise black letter definitions relating to intent; 2. Demonstrate understanding of these definitions through analysis of factual problems; 3. Identify and demonstrate an understanding of four important doctrines which address common problems relating to intentmistakes, eggshell plaintiffs, transferred intent, and mental disabilitythrough their application to factual problems; and 4. Develop an understanding of the analytical method and structured analysis of legal problems. I. Black Letter Foundations A. Introduction and Overview Intentionally causing injury to another person, or to another person's property, has formed one of the principle bases for a tort claim since early English common law. The intent to cause certain harms (those the law recognizes as actionable) establishes "fault" by the actor that justifies payment of damages to the injured party. To understand intentional torts, you must first understand the legal concept of intent as defined in tort law. Intent, in the tort context, may not mean what you think it means. You will discover, for example, that motivethe reason that prompts a per- son to actis not the same as intent and is typically only indirectly relevant to most claims. Rather, intent in tort law zeroes in on the conduct of a person as it relates to consequences. Did the defendant intend to cause the results of his conduct? The focus is not, therefore, on what motivated the conduct per se but rather on whether the actor desired or was substantially certain of causing certain consequences, those which the law prohibits. Battery, for example, prohibits unwanted touchings that are either harmful or offensive. For each intentional tort, the prohibited result may vary, but the intent required for fault remains constant. Further definitions and examples are presented below.

20 2 THE INTENT ELEMENT Intent is not always so simple, however. Over time, the common law has encountered and addressed a variety of dilemmas created when the facts get more complicated than a smack in the face. How, for example, should we understand intent when the actor is a very young child, insane, or suffering from diminished mental capacity? How should the law deal with injuries caused when the defendant acted intentionally but under a reasonable mistake of fact that would seem to negate a finding that he desired the prohibited result? What should happen when the defendant intends to injure Joe in a certain way, but instead causes a distinct harm to an unintended actual victim, Frank? The common law's response to these reoccurring problems, fundamental to intentional torts, is addressed in Section II below. Despite the traditional phrase "black letter law," the law is rarely black and white; it is perpetually gray. Nevertheless, the black letter definitions are an important place to start. Generally, you should commit these basic rules to long-term memory. You will need them for the bar exam. B. Basic Definition of Intent Most common law courts follow the standard definition of intent provided in the Restatement (Second) of Torts:1 The word "intent" is used throughout the Restatement . . . to denote that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it. If you examine this definition carefully, you will note that it provides two alternative standards for intent. (1) Desire, or (2) a substantial certaintyof causing particular, specified consequences. The conjunction "or" indicates that either alternative may be used to demonstrate intent. You don't need both. Importantly, the definition focuses on consequences or results rather than the act which brings them about. It does not, however, define what precisely those consequences are and thus may be described as "inchoate."2 Subsequent sections of the Restatement, which define the specific elements of various torts, supply this information about what con- sequences or results are legally prohibited. The Restatement commentary provides this helpful illustration: "Intent," as it is used throughout the Restatement of Torts, has reference to the consequences of an act rather than the act itself. When an actor fires a gun amid the Mojave Desert, he intends to pull the trigger; but when the bullet hits a person who is present in the desert without the actor's knowledge, he does not intend that result. "Intent" is limited, wherever it is used, to the consequences of the act. 1. Published by the American Law Institute, https://www.ali.org/. 2. https://www.merriam-webster.com/dictionary/inchoate. 2 THE INTENT ELEMENT 21 Background and Context The Restatement (Second) of Torts, is a multi-volume compendium of tort law produced by a group of lawyers and scholars at the American Law Institute. The purpose of the Restatement is to distill from cases across the United States a general set of tort law rules and definitions. Although not law and not binding on any state, many of these Restatement rules and definitions have gained wide acceptance throughout the United States. It is a good resource for defining "black letter" rules and also provides, in commentary, many helpful explanations and illustrations. Some sections of the Restatement (Second) of Torts have been supplanted by the Restatement (Third) of Torts, (Products Liability (1998); Apportionment of Liability (2000); and Liability for Physical and Emotional Harm (2009 & 2012). The Restatement (Third) defines intent in this way: "[a] person acts with the intent to produce a consequence if . . . the person acts with the purpose of producing that consequence; or . . . acts knowing that the consequence is substantially certain to result." It is easy, and perhaps understandable, to confuse an intent to take an action with an intent to cause the consequences of that action. As the Restatement illustration demonstrates, however, intent for purposes of tort law focuses exclusively on the consequences. It is irrelevant that the actor intended to swing his arm, except to the extent that this shows the act to be voluntary, which it must be. It is equally irrelevant what his motives were for doing so, except to the extent such evidence might help to establish the critical question for intentional torts did the actor desire to cause the prohibited harmful contact with another person's body? Intent, defined in this way, focuses first on the actor's subjective (actual or internal) desires. What was his actual purpose? Intentional fault is not, however, strictly limited to the actor's subjective desire for a wrongful consequence. The law also relies upon an alternative objective standard for intent that asks whether a reasonable person in the actor's position would be "substantially certain" of causing that result. If substantial certainty is proven, intent is established even if we believe the defendant did not actually, subjectively want to cause the Objective Versus Subjective A standard is "objective" in the sense that it uses a neutral external measurement to judge the actor's conduct rather than actual internal thoughts, motivations, or desires. A subjective standard focuses on what the actor believed or desired, while an objective standard judges his behavior against an external standard such as what a reasonable person would have believed, thought, or done. The distinction is important to a wide range of legal topics. 3. https://thelawdictionary.org/subjective/. 22 2 THE INTENT ELEMENT resulting harms. In this sense, desire and substantial certainty are alternative methods of resolving the same ultimate question. How certain must the consequences be for intent to be established under this objective standard? Ultimately, juries must decide, but it is helpful to recognize that substantial certainty is an objective criterion for determining fault roughly equivalent to the desire to cause harm. If the defendant clubbed you over the head with a baseball bat, we are unlikely to credit his assertion that he meant no harm, even if he is subjectively sincere. Objectively measured by what a reasonable person would know, the the defendant acted with intent because the harmful contact with your head was not just likely but substantially certain to occur. The probability of a result plays an important role in torts generally. Subsequent lessons will make this clear. For now, consider this observation from the Restate- ment comments on intent: As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor's conduct loses the character of intent, and becomes mere recklessness, as defined in 500. As the prob- ability decreases further and amounts only to a risk that the result will follow, it becomes ordinary negligence, as defined in 282. All three have their important place in the law of torts, but the liability attached to them will differ. You may, at this point, have a false impression that legal definitions are clear, static, and uniform. This is not only false but also misunderstands the fluid nature of the common law operating in 50 distinct jurisdictions. For most basic rules, including the elements of common torts, the variations are subtle and probably don't much affect the outcome of cases. In other instances, the divergences are significant, with majority and minority views among states. Since most law students hope to pass a bar exam, this book always attempts to find an acceptable bottom line consistent with the multi- state bar examination (often relying upon the Restatements), while identifying divergent approaches. The exercise of spotting distinctions, however, is important in developing the essential lawyering skills of critical reading and thinking. Along these lines, good legal training requires that students wrestle with the rules and common ambiguities in meaning. Often this means addressing "fun" questions of interpretationat least fun for someone, probably the person standing in front of the room. These challenging questions are, in most cases, actually both serious and important. They involve the frequent ambiguities that arise in legal definitions and the reality that factual disputes are nuanced and rarely the same. Memorize what is clear and understand what is not. Speaking of substantial certainty and the probability that something will happen, here's a fun question (experienced law students would now be ducking into their seatsthey know that there is inevitably no good answer when a question is "fun"). 2 THE INTENT ELEMENT 23 Is there a time element to intent? For example, if a manufacturer of helium balloons knows with certainty, based on statistical evidence, that over one year at least one balloon will fail and explode into the faces of those nearby, has it committed battery when a balloon eventually explodes? It seems unlikely that courts would entertain such a claim, but why not? More fun will follow. As noted above, the materials always start with foundational basics and move to more challenging questions as the chapter progresses. The next section focuses on applications of the basic black letter rule for intent. Subsequent sections address more challenging nuances and ambiguities. Assignment 2.1 1. Analyze the following short hypotheticals based upon the definition of intent provided above, and the cases which follow. Although we have yet to review the elements of any particular intentional tort, you should also focus on precisely what result must be intended to satisfy the battery claims involved in the three cases presented below in this section. We will study battery in greater detail in Chapter 3. For now, rely on the definitions pro- vided in these cases, which are old but very helpful. Keep in mind that sometimes the court gets it wrong. It is likely, for example, that the Florida Supreme Court incorrectly decided the Spivey case, below. 2. In addition to analyzing the hypotheticals, develop an argument that the Spivey case was wrongly decided, based on the definitions of intent and battery presented in the Restatement and other cases. C. Simple Applications of the Intent Definition 1. Cheek by Jowl The New York City subways are often extremely crowded, with potential "strap- hangers" standing cheek by jowl.4 There are also rats. Krush Gibson saw such a rat while waiting for the uptown express. Hoping to "crush it," Gibson swung his umbrella over his head. Unfortunately, the umbrella tip pierced the eye of our plain- tiff, Sympathy Jones, who was standing directly behind Gibson. Gibson has testi- fied truthfully that he was unaware of Jones and meant only to rid the city of an unhealthy pest (the rat, that is). Did Gibson act with intent? What critical facts 4. https://www.nytimes.com/2016/05/04/nyregion/surge-in-ridership-pushes-new-york-sub- way-to-limit.html. 24 2 THE INTENT ELEMENT would determine this question? Would your analysis change if these events took place at 3 am in the morning? 2. The Nosebleed Section Ferb loves the Dolphin football team but hates its incompetent, showboat quarterback, Bam. While watching a particularly dismal performance by Bam on a Sun- day afternoon, Ferb carefully folded his program into a paper airplane. With the fervent desire to see Bam replaced, Ferb launched his missile from his very cheap seat in the very top row of the Dolphin's immense stadium, taking careful aim at the tiny figure of Bam, far below. As unlikely as it seems, Ferb's wishes were to come true as the paper airplane circled about the stadium, eventually finding its way through Bam's facemask and into his eye. Go team! Did Ferb act with intent? D. Case Law Illustrations 1. Garratt v. Dailey, 46 Wash. 2d 197, 279 P.2d 1091 (1955) Hill, Justice. The liability of an infant for an alleged battery is presented to this court for the first time. Brian Dailey (age five years, nine months) was visiting with Naomi Garratt, an adult and a sister of the plaintiff, Ruth Garratt, likewise an adult, in the back yard of the plaintiff's home, on July 16, 1951. It is plaintiff's contention that she came out into the back yard to talk with Naomi and that, as she started to sit down in a wood and canvas lawn chair, Brian deliberately pulled it out from under her. The only one of the three present so testifying was Naomi Garratt. (Ruth Gar- ratt, the plaintiff did not testify as to how or why she fell.) The trial court, unwilling to accept this testimony, adopted instead Brian Dailey's version of what happened, and made the following findings: "III. * * * that while Naomi Garratt and Brian Dailey were in the back yard the plaintiff, Ruth Garratt, came out of her house into the back yard. Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered the plaintiff, Ruth Gar- ratt, about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair; that due to the defendant's small size and lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of her hip; and other injuries and damagesas hereinafter set forth: "IV. That the preponderance of the evidence in this case establishes that when the defendant, Brian Dailey moved the chair in question he did not 2 THE INTENT ELEMENT 25 have any willful or unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person or any objects appurtenant thereto; that the circumstances which immediately preceded the fall of the plaintiff estab- lished that the defendant, Brian Dailey, did not have purpose, intent or design to perform a prank or to effect an assault and battery upon the person of the plaintiff." (Italics ours, for a purpose hereinafter indicated.) It is conceded that Ruth Garratt's fall resulted in a fractured hip and other pain- ful and serious injuries. To obviate the necessity of a retrial in the event this court determines that she was entitled to a judgment against Brian Dailey, the amount of her damage was found to be $11,000. Plaintiff appeals from a judgment dismissing the action and asks for the entry of a judgment in that amount or a new trial. The authorities generally, but with certain notable exceptions, state that when a minor has committed a tort with force he is liable to be proceeded against as any other person would be. In our analysis of the applicable law, we start with the basic premise that Brian, whether five or fifty-five, must have committed some wrongful act before he could be liable for appellant's injuries. It is urged that Brian's action in moving the chair constituted a battery. A defini- tion (not all-inclusive but sufficient for our purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. We have in this case no question of consent or privilege. We therefore proceed to an immediate consideration of intent and its place in the law of battery. In the com- ment on clause (a) of 13, the Restatement says: "Character of Actor's Intention. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehen- sion thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced." We have here the conceded volitional act of Brian, i.e., the moving of a chair. Had the plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of sitting down, Brian's action would patently have been for the purpose or with the intent of causing the plaintiff's bodily contact with the ground, and she would be entitled to a judgment against him for the resulting dam- ages. . . . In this connection, we quote another portion of the comment on the "Character of actor's intention," relating to clause (a) of the rule from [Restatement, (First) Torts, 29, 13]: "It is not enough that the act itself is intentionally done and this, even though the actor realizes or should realize that it contains a very grave risk 26 2 THE INTENT ELEMENT . . . . Such realization may make the actor's conduct negligent or even reck- less but unless he realizes that to a substantial certainty, the contact will result, the actor has not that intention which is necessary to make him lia- ble under the rule stated in this section." A battery would be established if, in addition to plaintiff's fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. If Brian had any of the intents which the trial court found, in the italicized portions of the findings of fact quoted above, he would of course have had the knowledge to which we have referred. The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her . . . would not absolve him from liability if in fact he had such knowl- edge. Without such knowledge, there would be nothing wrongful about Brian's act in moving the chair and, there being no wrongful act, there would be no liability. While a finding that Brian had no such knowledge can be inferred from the findings made, we believe that before the plaintiff's action in such a case should be dis- missed there should be no question but that the trial court had passed upon that issue; hence, the case should be remanded for clarification. . . . It will be noted that the law of battery as we have discussed it is the law applicable to adults, and no significance has been attached to the fact that Brian was a child less than six years of age when the alleged battery occurred. The only circumstance where Brian's age is of any consequence is in determining what he knew, and there his experience, capacity, and understanding are of course material. On remand, the trial court reconsidered the time sequence of the event. It found upon reconsideration that: "the arthritic woman had begun the slow process of being seated when the defendant quickly removed the chair and seated himself upon it, and that he knew, with substantial certainty, at that time that she would attempt to sit in the place where the chair had been." Judgement for the plaintiff was later affirmed. Garratt v. Dailey, 49 Wash. 2d 499, 304 P.2d 681 (1956). 2. Spivey v. Battaglia, 258 So. 2d 815 (Fla. 1972) This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Fourth District, Spivey v. Battaglia, Fla. App., 242 So.2d 477 (1971). It will be seen below that there is a misapplication and therefore conflicts with McDonald v. Ford, Fla. App., 223 So.2d 553 (2d DCA Fla.1969), vesting jurisdiction here under Fla. Const. art. V, 4, F.S.A. Petitioner (plaintiff in the trial court) and respondent (defendant) were employees of Battaglia Fruit Co. on January 21, 1965. During the lunch hour several employees of Battaglia Fruit Co., including petitioner and respondent, were seated on a work table in the plant of the company. Respondent, in an effort to tease petitioner, whom he knew to be shy, intentionally put his arm around petitioner and pulled her head toward him. Immediately after this "friendly unsolicited hug," petitioner suffered a 2 THE INTENT ELEMENT 27 sharp pain in the back of her neck and ear, and sharp pains into the base of her skull. As a result, petitioner was paralyzed on the left side of her face and mouth. An action was commenced in the Circuit Court of Orange County, Florida, wherein the petitioners, Mr. and Mrs. Spivey, brought suit against respondent for, (1) negligence, and (2) assault and battery. Respondent, Mr. Battaglia, filed his answer raising as a defense the claim that his "friendly unsolicited hug" was an assault and battery as a matter of law and was barred by the running of the two-year statute of limitations on assault and battery. Respondent's motion for summary judgment was granted by the trial court on this basis. The district court affirmed on the authority of McDonald v. Ford. The question presented for our determination is whether petitioner's action could be maintained on the negligence count, or whether respondent's conduct amounted to an assault and battery as a matter of law, which would bar the suit under the two- year statute (which had run). In McDonald the incident complained of occurred in the early morning hours in a home owned by the defendant. While the plaintiff was looking through some records, the defendant came up behind her, laughingly embraced her and, though she resisted, kissed her hard. As the defendant was hurting the plaintiff physically by his embrace, the plaintiff continued to struggle violently and the defendant con- tinued to laugh and pursue his love-making attempts. In the process, plaintiff struck her face hard upon an object that she was unable to identify specifically. With those facts before it, the district court held that what actually occurred was an assault and battery, and not negligence. The court quoted with approval from the Court of Appeals of Ohio in Williams v. Pressman, 69 Ohio L. Abs. 470, 113 N.E.2d 395, at 396 (Ohio App.1953): ". . . an assault and battery is not negligence, for such action is intentional, while negligence connotes an unintentional act." The intent with which such a tort liability as assault is concerned is not necessarily a hostile intent, or a desire to do harm. Where a reasonable man would believe that a particular result was substantially certain to follow, he will be held in the eyes of the law as though he had intended it. It would thus be an assault (intentional). However, the knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. Thus, the distinction between intent and negligence boils down to a matter of degree. "Apparently the line has been drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable man would avoid (negligence), and becomes a substantial certainty." In the latter case, the intent is legally implied and becomes an assault rather than unintentional negligence. The distinction between the unsolicited kisses in McDonald, and the unsolicited hug in the present case turns upon this question of intent. In McDonald, the court, finding an assault and battery, necessarily had to find initially that the results of the defendant's acts were "intentional." This is a rational conclusion in view of the 28 2 THE INTENT ELEMENT struggling involved there. In the instant case, the DCA must have found the same intent. But we cannot agree with that finding in these circumstances. It cannot be said that a reasonable man in this defendant's position would believe that the bizarre results herein were "substantially certain" to follow. This is an unreasonable conclusion and is a misapplication of the rule in McDonald. This does not mean that he does not become liable for such unanticipated results, however. The settled law is that a defendant becomes liable for reasonably foreseeable consequences, though the exact results and damages were not contemplated . . . . The trial judge committed error when he granted summary final judgment in favor of the defendant. The cause should have been submitted to the jury with appropriate instructions regarding the elements of negligence. Accordingly, certiorari is granted; the decision of the district court is hereby quashed and the cause is remanded with directions to reverse the summary final judgment. It is so ordered. II. Nuances and Ambiguities Specialized Applications of Intent Including Transferred Intent, Pre- Existing Conditions, Mistakes, and Mental Disability A. Introduction and Overview The standard approach to intent, detailed above, works well in the routine case. The defendant is at fault because he desired to cause the harm or was substantially certain of doing so. In some reoccurring circumstances, however, application of the basic definition of intent is more problematic. The next sub-sections address several of these reoccurring situations. Assignment 2.2 At the end of the following sections, you should be able to answer each of the following questions and explain the relevant nuances in the applicable legal rules. (1) What if the defendant intended a certain harm towards one person but instead, without intending to, harms a different person, maybe even in a different way? (2) If the defendant reasonably anticipated causing only a minor harm, such as an offensive touching of the plaintiff, but the victim then suffers serious injuries or dies by virtue of an unknown weakness, is the defendant at fault for causing the unforeseen, unintended harms? 2 THE INTENT ELEMENT 29 (3) What if the defendant was acting under a reasonable mistake as to the facts and circumstances in a way that casts doubt on his underlying intent to cause the prohibited harm? A fourth question, similar to those above, is presented in the last section of this chapter as a challenge issue. Even though the traditional answer is clearly "yes," the issue has recently generated disagreement among courts and poses a conceptual puzzler. (4) If the defendant does not truly understand the consequences of his actions because, for example, he suffers from a mental disability such as insanity, is he still at fault? 1. Transferred Intent Problem 2.a: Wrong Guy, Wrong Tort Angered by confusion sown by his torts professor's refusal to provide definitive answers to his questions, Biggly decided to bring a realistic looking water "squirt" gun to school. His goal, he later stated, was to "scare that old fella into some straight talk about torts." Just after class commenced, Biggly burst through the classroom door and fired two bursts of water at the professor. Nimble for a torts nerd, the professor ducked, and the water hit Biggly's best friend and co- conspirator Bobo, smack in the eye. Assignment 2.3 Use the following cases to evaluate whether Biggly's conduct would satisfy the intent requirement for battery. Are there other possible claims or victims? Davis, J.: a. Baska v. Scherzer, 283 Kan. 750 (2007) Celesta Baska brought an action for personal injuries sustained when she attempted to stop a fight by stepping between the defendants, Harry Scherzer, Jr., and Calvin Madrigal. Her action was brought after the expiration of a year from her injury but within 2 years from [that date]. After some discovery, the trial court granted the defendants' motions for summary judgment and dismissed Baska's action based upon its conclusion that her action was governed by the 1-year statute of limitations for assault and battery, K.S.A. 60-514(b). Facts Baska had given her daughter Ashley, a high school senior, permission to organize a "scavenger hunt" with some friends. The scavenger hunt began at the Baskas' house 30 2 THE INTENT ELEMENT around 8:30 p.m. and was to end with the participants returning to the house by midnight. When people returned, a number of them remained at the Baskas' home for a "party." . . . Around midnight, an altercation broke out between Scherzer and Madrigal. Madrigal approached Scherzer from behind, and the two boys began to push each other and throw punches at one another. Upon being informed of the fight by one of her daughter's friends, Baska yelled at the boys to stop in order to break up the fight. When they continued to fight, Baska placed herself between the boys and was punched in the face, losing several teeth and receiving injuries to her neck and jaw. Baska is certain that Scherzer hit her in the face; she also believes that Madrigal punched her in the back of the head. On April 8, 2004, just short of 2 years after the incident, Baska filed suit against Madrigal and Scherzer, alleging that she was injured by the defendants' negligence. In her petition she alleged: "5. That the defendants, in their excitement and totally unintentionally, struck the plaintiff with powerful blows intended for the other partici- pant in the fight." "6. That the sole and proximate cause of plaintiff's injuries was the negli- gence and carelessness of the defendants." Both defendants filed motions to dismiss based on the statute of limitations, alleging that the suit was barred by the 1-year statute of limitations for assault and battery, K.S.A. 60-514(b). Depositions were taken of Baska, Madrigal, and Scherzer. Both Madrigal and Scherzer testified in their depositions that they did not intend to strike or injure Baska in any way. Instead, each defendant testified that it was his intention in throw- ing the punches to strike and injure the other defendant. In its decision after conducting a hearing, the court concluded that the doctrine of transferred intent applied and that Baska's cause of action was an action for assault and battery, not negligence. The court explained: "The depositions of both of the combatants having been taken now, it appears to me that they were striking at each other. Those are intentional acts. The doctrine of transferred intent has been the law in Kansas probably since this place became a state because I think it came straight out of the common law, and it's certainly been the law since I was in law school 30 years ago . . . ." The Court of Appeals reversed in an unpublished opinion, Baska v. Scherzer, Case No. 94,879, 2006 WL 2265106, filed August 4, 2006. The sole issue we must resolve is whether plaintiff's action is governed by the 1-year statute of limitations for assault and battery under K.S.A. 60- 514(b) or by the 2 THE INTENT ELEMENT 31 2-year statute of limitations for negligence under K.S.A. 60-513(a)(4). The facts are not in dispute, and the answer to this question is one of law. Standard of Review "Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. . . . [W]here we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." Discussion and Analysis The outcome of this case depends upon whether Baska's claims are in substance based upon intentional or negligent actions of the defendants. If intentional, Baska's claims are barred by the 1-year statute of limitations; if negligent, her claims are not barred and are governed by the 2-year statute of limitations. Battery is defined as "the unprivileged touching or striking of one person by another, done with the intent of bringing about either a contact or an apprehension of contact, that is harmful or offensive." PIK [Pattern Jury Instructions for Kansas] Civ.3d 127.02. . . . "[N]egligence is an unintentional breach of a legal duty causing damage reasonably foreseeable without which breach the damage would not have occurred." As these definitions make clear, "the fundamental distinction between . . . battery, on the one hand, and negligence, on the other, is that the former is intentional and the latter is unintentional." The Restatement (Second) of Torts and this court's decisions discuss this situation as being contemplated by the long-standing doctrine of transferred intent. . . . [A]n action need not be directed at the plaintiff in order to give rise to liability for intentional torts (such as assault or battery). Rather, the doctrine of transferred intent states that "[t]he tort of battery or of assault and battery may be committed, although the person struck or hit by the defendant is not the one whom he intended to strike or hit." The comments to the Restatement (Second) of Torts, in describing the intent necessary for battery, explain: "The intention which is necessary to make the actor liable [for civil bat- tery] is not necessarily an intention to cause a harmful or offensive contact or an apprehension of such contact to the plaintiff himself or otherwise to 32 2 THE INTENT ELEMENT cause him bodily harm. It is enough that the actor intends to produce such an effect upon some other person and that his act so intended is the legal cause of a harmful contact to the other." Restatement (Second) of Torts 16, comment b (1964). This conclusion was reiterated in Byrum [v. Edwards], 66 Kan. 96, 71 P. 250. There, both the plaintiff and an undersheriff were searching for the perpetrator of a robbery in Oswego. When the two searchers met, each mistakenly thought the other was the robber. Both fired shots, and the undersheriff's shot hit the plaintiff. . . . In Byrum, the officer intended to shoot the robber and mistakenly shot and injured the plaintiff. Conclusion The undisputed facts in this case show that the defendants intended to strike and cause harm to one another. When Baska intervened and stepped between the two boys, she was "unintentionally" struck by punches intended for the defendants. Had the defendants struck each other and brought suit, they would be liable to one another for assault and battery. Under the doctrine of transferred intent, which has long been recognized in this state, the fact that the defendants struck the plaintiff does not change the fact that their actions (punching) were intentional. Moreover, the fact that Baska's petition describes her claims against the defendants as actions for negligence does not alter the nature of those claims, which the law recognizes as claims for intentional torts of assault and battery. The trial court correctly granted defendant's motion for summary judgment. b. Hendrix v. Burns, 205 Md. App. 1 (Md. Ct. Spec. App. 2010) Eyler, J.: Marjorie Gayle Hendrix, the appellant, was injured in an automobile accident caused by Charles Robert Burns, one of the appellees. In the Circuit Court for Baltimore County, Mrs. Hendrix sued Mr. Burns and Candice Marie Burns, his wife, the other appellee, alleging battery and negligence against Mr. Burns and negligent entrustment against Mrs. Burns. Before trial, the court granted summary judgment on the battery claim and Mr. and Mrs. Burns admitted liability on the negligence claims against them. The trial court granted motions in limine that precluded Mrs. Hendrix from introducing certain evidence and making certain information known to the jury, as we shall discuss below; it also granted a motion to strike an amend- ment to the complaint. The case was tried to the jury solely on damages, for four days. The jurors returned a verdict in favor of Mrs. Hendrix for $85,000. Unhappy with the outcome, Mrs. Hendrix noted an appeal, posing four questions for review, which we have combined and reworded as follows: 2 THE INTENT ELEMENT 33 I. Did the circuit court err in granting summary judgment on the battery claim? II. Did the circuit court err or abuse its discretion by granting motions in limine that precluded the admission of certain evidence? 5 Facts and Proceedings The automobile accident that gave rise to this lawsuit took place on July 25, 2005, at approximately 5:30 p.m., at the intersection of Belair Road and Glen Park Road, which at its western terminus is the entry to a shopping center. The intersection is controlled by a traffic light. Mr. Burns was driving south on Belair Road, in a Jeep Cherokee. The traffic light at Glen Park Road was red in his direction, and at least one car was stopped at the light. Mr. Burns failed to stop for the red light and drove through the intersection. . . . In the intersection, Mr. Burns's Jeep struck the rear driver's side of Mrs. Hendrix's Toyota, causing the Toyota to spin around at least once and almost hit another vehicle head-on. In the collision, Mrs. Hendrix sustained injuries to her neck, shoulders, chest, and abdomen and suffered emotional injuries, including thinking she would not survive. The Jeep Mr. Burns was driving was owned by Mrs. Burns. She allowed her husband to use it, with her knowledge and permission, on a regular basis. Mr. Burns had a history of substance abuse, a criminal record, and a record of driving violations. On the day of the accident, he had consumed alcohol. After the collision, he initially tried to leave the scene in his damaged Jeep, but did not get far, and walked back to the accident location. He was taken into custody and charged with reckless driving, driving while under the influence of alcohol, driving while impaired by alcohol, and related offenses. . . . Mr. Burns was sentenced to 18 months in prison, all but three months suspended, one year probation, a $250 fine for driving while under the influence of alcohol, and a $100 fine for reckless driving. . . . On October 22, 2007, Mrs. Hendrix filed suit in the case at bar. As noted, before trial, the court granted summary judgment in favor of Mr. Burns on the battery claim; thereafter, and also before trial, Mr. Burns and Mrs. Burns each conceded liability for 5. [Fn. 1] The questions as framed by Mrs. Hendrix are: 1. Did the lower court err in granting summary judgment in favor of the Defendant/Appel- lee, Charles Robert Burns, on Appellant's claim of battery by automobile, where the record established that this Appellee was engaged in a high-speed "road rage" pursuit of another motorist on a heavily traveled thoroughfare, accelerated through a red traffic signal while chas- ing that motorist and then collided with Plaintiff/Appellant's vehicle as she lawfully proceeded through an intersection on a green light? 2. Did the total blackout imposed by the lower court at trial regarding both the assertion of, and the factual basis for, Appellant's claim for negligent entrustment against Appellee, Candice Marie Burns, violate Appellant's right to a fair, open and public jury trial and also operate to confuse and/or mislead the jury by preventing it from knowing the nature of and the factual basis for Appellant's cause of action against Ms. Burns? . . . 34 2 THE INTENT ELEMENT the claims against them (negligence against Mr. Burns and negligent entrustment against Mrs. Burns), leaving damages as the sole issue for decision by a jury. With knowledge that the Burnses each were conceding liability, the trial court granted motions in limine that precluded Mrs. Hendrix from introducing evidence that, in the time leading up to the accident, Mr. Burns had been drunk; had been involved in a "road rage" incident with another driver and was pursuing that driver when he ran the red light at the intersection; had attempted to flee after the accident; and had a criminal record that included DUI convictions. . . . Discussion I. Summary Judgment on the Battery Claim Mr. Burns . . . argued that the facts most favorable to Mrs. Hendrix on the sum- mary judgment record were legally insufficient to prove that he had intentionally struck her, which, he asserted, is an essential element of the tort of battery. He com- plained that, given that the defendants had conceded liability for negligence, the bat- tery claim was being used as a means to introduce evidence on "the issue of alcohol and other alleged outrageous conduct," in an attempt to recover punitive damages. Mrs. Hendrix . . . argued that, even if that evidence was not sufficient to show an intent on Mr. Burns's part to harm her, it was sufficient to show an intent on his part to harm the person with whom he was engaged in the "road rage" incident and, under the doctrine of transferred intent, that would be sufficient intent to support a civil battery claim. In the affidavit by Ryan Cannon, he attested that he was driving south on Belair Road along the same route as Mr. Burns and at the same time. . . . Just south of Reckord Road, Mr. Burns began "tailgating" a Toyota Camry, at one point speed- ing around it and then slamming on his brakes, coming almost to a complete stop in front of it. . . . At that point, Mr. Burns was driving between 80 and 90 miles per hour. As Mr. Cannon approached the intersection of Belair Road and Glen Park Road, he saw the Camry, ahead of him, drive through the intersection. The light turned red and Mr. Cannon stopped his car. He then looked in his rear view mirror and saw Mr. Burns's Jeep "approaching my vehicle . . . at a high rate of speed attempting to catch up with the Toyota Camry that had already driven through the intersection." . . . He then saw Mr. Burns drive his Jeep through the red light at the intersection, at a high rate of speed. The front of the Jeep hit the left rear of the compact car. Mr. Burns made no attempt to stop the Jeep before running the red light. After the accident, Mr. Burns got out of the Jeep briefly, got back in, and then tried to drive off, but the Jeep would not move. He then returned on foot to the site of the collision. The court granted Mr. Burns's motion for summary judgment on the battery claim in a written ruling, stating, in relevant part: . . . Opposition facts show no intent against the Plaintiff so as to constitute a battery and no facts to support any theory of transferred intent that would constitute a battery. 2 THE INTENT ELEMENT 35 We review de novo a circuit court's decision to grant a motion for summary judgment. On appeal, Mrs. Hendrix argues that . . . there was evidence that Mr. Burns intended to harm the driver of the Camry, and that a jury could transfer that intent to harm to her, under the doctrine of transferred intent. "A battery occurs when one intends a harmful or offensive contact with another without that person's consent." . . . It is also clear, however, that the intent required is not a specific intent to cause the type of harm that occurred." . . . In addition, lesser states of mindsuch as recklessness or wantonnessdo not equate to the intent to cause a harmful or offensive contact. "Reckless, wanton or willful misconduct differs from intentional wrongdoing." Johnson v. Mountaire Farms of Delmarva, Inc., 305 Md. 246, 253, 503 A.2d 708 (1986). In Saba [v. Darling, 320 Md. 45, 49, 575 A.2d 1240 (1990),] and Johnson, the Court quoted with approval comment f to section 500 of the Restatement (Second) of Torts, which provides: Intentional misconduct and recklessness contrasted. Reckless misconduct differs from intentional wrongdoing in a very important particular. While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results. To be sure, a battery can be committed by the use of an automobile, just as it can be committed by the use of a gun or other instrumentality. A person can use an automobile or other vehicle to intentionally hit another person. Here, however, there was no evidence in the summary judgment record to show that Mr. Burns drove through the intersection with the intention of hitting Mrs. Hendrix's vehicle (and hence Mrs. Hendrix) with his Jeep. His conduct in running the red light at a high rate of speed certainly could be characterized as reckless. But, as the cases discussed above and in section 500 of the Restatement (Second) of Torts make clear, reckless, wanton, or willful conduct is not equivalent to intentional conduct. As noted, . . . Mrs. Hendrix asserts that Mr. Burns's intent to cause a harmful or offensive contact with the driver of the Camry, with whom he was involved in the ongoing "road rage" episode, could be transferred to her, thereby satisfying the intent element of her battery claim. In the case at bar, however, application of the doctrine of transferred intent does not save Mrs. Hendrix from the grant of summary judgment in Mr. Burns's favor on the battery claim. Mrs. Hendrix seeks to transfer to herself Mr. Burns's intent to cause harmful or offensive contact with the driver of the Camry. Although Mr. Cannon's affidavit attests to facts that show that Mr. Burns exhibited anger toward the Camry driver for no discernible reason, and that his conduct could be described 36 2 THE INTENT ELEMENT in the vernacular as "road rage," the facts, viewed most favorably to Mrs. Hendrix, do not show an intent on the part of Mr. Burns to cause harmful or offensive contact with the Camry driver. . . . Notwithstanding the evidence that Mr. Burns was enraged at the Camry driver for some unknown or irrational reason, there was no evidence to suggest that Mr. Burns intended to inflict harm on the Camry driver. Without legally sufficient evidence of an intent by Mr. Burns to cause a harmful or offensive contact with the Camry driver, which then could be transferred, the doc- trine of transferred intent is of no avail to Mrs. Hendrix in her battery claim. Accordingly, the circuit court correctly granted summary judgment in favor of Mr. Burns on the battery count. II. Motion in Limine Rulings As noted above, before trial, motions in limine were granted that precluded Mrs. Hendrix from introducing evidence that Mr. Burns was drunk when the collision happened, was engaged in a "road rage" incident with another driver, and then tried to flee, and that Mr. Burns had prior criminal convictions for drunk driving. . . . Mr. Burns responds that the trial court properly excluded evidence of his pre- and post-accident conduct. He maintains that, because liability was conceded, evidence of this conduct was irrelevant to the issue of Mrs. Hendrix's damages and, if relevant, was unfairly prejudicial. He characterizes Mrs. Hendrix's argument that she was entitled to recover emotional distress damages for her "awareness," after the accident, of his pre-and post-accident conduct, as a "guise" and a "clever attempt . . . to interject impermissible evidence of [his] bad conduct" into the case. The fact that Mr. Burns was drunk and in a "road rage" incident at the time of the collision, and attempted to leave the scene after the accident, was not of consequence to the issue of damages. . . . Because Mrs. Burns had conceded liability for negligent entrustment, the only possible objective in informing the jury of Mr. Burns's prior drunk driving conduct, which would have formed the basis for the negligent entrustment claim, would have been to place him in a more negative light than the jury would have seen him by his having conceded liability, and thereby improperly influence the jury's verdict. In the above cases, and in the Restatement, transferred intent finds frequent application between two similar torts, battery and assault. Although you will learn in the next chapter that these torts protect distinct interests, they often go together. Assaults often precede batteries, and typically occur when, for some reason, the bat- tery is attempted but not completed. Should transferred intent apply outside of this context? It is commonly said that the doctrine of transferred intent is applicable between five common law torts historically derived from old common law writs of "trespass." The term identified a form of action designed to address an invasion of similar property or personal interestsassault, battery, trespass to chattel, trespass to land, and false imprisonment. Case law confirming this view is very scarce, but the bar seems to like it. 2 THE INTENT ELEMENT 37 Assignment 2.4 You should, at this point, be able to answer the following question. If A intends to intentionally cause a harmful contact to B by throwing a rock at B, but instead, when B ducks, causes an apprehension of contact to B (watching the rock fly close by), and then a harmful contact to C (who catches the rock with the back of his head), what torts has A committed and against whom? (Hint: Consider whether transferred intent also applies when the defendant completes an intentional tort other than the one that he intended.) Note the distinctions drawn in the opinion between intentional, reckless and negli- gent conduct. Conduct that is substantially certain to result in harmful contact with another person is intentional. However, conduct creating even a substantial risk of injury is, arguably, reckless but falls short of intent. You will need to apply this knowledge in the following chapters, which review the elements of battery, assault, false imprisonment, trespass to chattels/conversion, trespass to land and intentional infliction of emotional distress. Practice Tips & Observations The case above reflects two useful insights into practical aspects of litigating a torts case. First, you should compare how the court articulates the issues presented by the case with the argumentative approach taken by the plaintiff in the footnote. The footnote is included to demonstrate how distinctly issues may be framed from a neutral versus advocacy perspective. The plain- tiff hopes to influence the court by including damaging facts and context that places her claims in the best light possible. Second, while case provides a useful discussion of the transferred intent doctrine, the underlying legal issues involved the plaintiff's attempt to present damaging facts about the defendant and his conduct. The defendant, realizing that he was very likely to lose on the merits, concedes liability for negligence and negligent entrustment in order to keep such evidence from the jury. The motion in limine asked the trial court to exclude that evidence because actual damages becomes the only issue for the jury once liability is conceded. The plaintiff's lawyers attempted to avoid this by pleading alternative torts for which the defendant's conduct would be relevantthe goal being simply to influence the damage award by revealing how horrible his conduct was. These sorts of strategic battles are extremely common in the litigation process. Do you think the plaintiff's strategy was ethical? Was the battery count pled in good faith with an adequate factual basis? 38 2 THE INTENT ELEMENT 2. Pre-Existing Conditions and the Eggshell Plaintiff What happens if the defendant intended what he, and others, would have rea- sonably believed to be a minor harm, but in fact, his conduct causes significantly more damage than anticipated? Do intentional torts require that the defendant intend the precise consequences of his actions in terms of how much harm is done? The following case expresses a fundamental principle found throughout tort law, variously described as the "eggshell" or "thin skulled" plaintiff rule. It is often said that the defendant must "take the plaintiff as he finds him." What does this mean? a. Vosburg v. Putney, 78 Wis. 84, 47 N.W. 99 (1890) Orton, J. The facts of this case are briefly as follows: The plaintiff was about fourteen years of age, and the defendant about eleven years of age. On the 20th day of February, 1889, they were sitting opposite to each other across an aisle in the high school of the village of Waukesha. The defendant reached across the aisle with his foot, and hit with his toe the shin of the right leg of the plaintiff. The touch was slight. The plaintiff did not feel it, either on account of its being so slight or of loss of sensation produced by the shock. In a few moments he felt a violent pain in that place, which caused him to cry out loudly. The next day he was sick, and had to be helped to school. On the fourth day he was vomiting, and Dr. Bacon was sent for, but could not come, and he sent medicine to stop the vomiting, and came to see him the next day, on the 25th. There was a slight discoloration of the skin entirely over the inner surface of the tibia an inch below the bend of the knee. The doctor applied fomenta- tions, and gave him anodynes to quiet the pain. This treatment was continued, and the swelling so increased by the 5th day of March that counsel was called, and on the 8th of March an operation was performed on the limb by making an incision, and a moderate amount of pus escaped. A drainage tube was inserted, and an iodoform dressing put on. On the sixth day after this, another incision was made to the bone, and it was found that destruction was going on in the bone, and so it has continued 2 THE INTENT ELEMENT 39 exfoliating pieces of bone. He will never recover the use of his limb. There were black and blue spots on the shin bone, indicating that there had been a blow. On the 1st day of January before, the plaintiff received an injury just above the knee of the same leg by coasting, which appeared to be healing up and drying down at the time of the last injury. The theory of at least one of the medical witnesses was that the limb was in a diseased condition when this touch or kick was given, caused by microbes entering in through the wound above the knee, and which were revivified by the touch, and that the touch was the exciting or remote cause of the destruction of the bone, or of the plaintiff's injury. There was no proof of any other hurt, and the medical testimony seems to have been agreed that this touch or kick was the exciting cause of the injury to the plaintiff. The jury rendered a verdict for the plaintiff of $2,800. It is a very strange and extraordinary case. The cause would seem to be very slight for so great and serious a consequence. That there is great uncertainty about the case cannot be denied. But perfect certainty is not required. It is sufficient that it is the opinion of the medical witnesses that such a cause even might produce such a result under the peculiar circumstances, and that the jury had the right to find, from the evidence and reasonable inferences therefrom, that it did. . . . 3. Mistakes of Fact In the case below, the defendant was found to have had a good faith reasonable belief that he was shooting a wild wolf. The wolf, it turned out, was actually the plaintiff's dog. The defendant had made a reasonable mistake about a key fact required for the tort of conversion as alleged by the plaintiff - that he was intentionally interfering with the personal property of another (yes, dog lovers, our beloved pets are just chattels in the eyes of the law). For all that the defendant had reasonably understood, he was not destroying someone else's chattel but rather a wild animal. Bad enough behavior, but it was 1898, after all. Can the defendant be liable for an intentional tort when he did not in fact intend the prohibited result because of a reasonable mistake of fact? a. Ranson v. Kitner, 31 Ill. App. 241 (Ill. App. Ct. 1889) Conger, J. This was an action brought by appellee against appellants to recover the value of a dog killed by appellants, and a judgment rendered for $50. The defense was that appellants were hunting for wolves, that appellee's dog had a striking resemblance to a wolf, that they in good faith believed it to be one, and killed it as such. Many points are made, and a lengthy argument filed to show that error in the trial 40 2 THE INTENT ELEMENT below was committed, but we are inclined to think that no material error occurred to the prejudice of appellants. The jury held them liable for the value of the dog, and we do not see how they could have done otherwise under the evidence. Appellants are clearly liable for the damages caused by their mistake, notwithstanding they were acting in good faith. The clear outcome from the case above is that the defendant was found liable for the intentional tort of conversion even though he reasonably believed that he was killing a wild animal, not someone's property. If the defendant reasonably believed that he was killing a wolf, how can we say that he intended to convert the plaintiff's chattel? Defendant's reasonable mistake of fact would appear to negate a finding of intent, and yet, he was held liable. What is the possible policy-based reason for this outcome? Who should bear the loss when the otherwise innocent defendant intentionally killed a "dog that looked like a wolf"? Are both parties equally innocent? The courts reason that the intentional actor must bear the loss, even though acting under a reasonable mistake of fact; "where a loss must be borne by one of two inno- cent persons, it shall be borne by him who occasioned it." How might this mistake doctrine be applied to other intentional torts? Battery seems an unlikely candidate for mistakes ("I thought the plaintiff was a tree"?) but what about trespass to land or other torts? If the defendant enters the plaintiff's property under the false but reasonable mistake that it belongs to the defendant or is public, is the trespass to land complete? The general answer is that the mistake doctrine for intent applies to almost all intentional torts, with some nuances involving intentional interferences with chattels, and torts like privacy. This is true in the case of trespass to land, even if, in actual fact, the defendant did not intend to enter the land of another but rather entered what he believed to be his own land. Thus, for intentional torts, a defendant's reasonable mistake as to a critical factual predicate (such as the identity of property, ownership, or sometimes a privilege) is not a defense, so long as the defendant acted in a fashion that would otherwise establish the tort and has caused the innocent plaintiff a compensable harm. An important word of caution is appropriate here. Mistakes involving defenses, such as consent, public necessity and self-defense, are treated differently from mistakes relevant to intent. You will learn subsequently that, at least for some defenses, reasonable mistakes do not negate what would otherwise constitute the defense. Thus, a defendant who uses reasonable force to defend himself against what he reasonably perceived to be an attack is entitled to the privilege of self-defense even if he was mistaken. Such distinctions are reviewed in Chapter 6.