Welcome

Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


I am most conservative and appropriate in my approach so if you comment and/or have questions to ask, please do so with an equal degree of appropriateness.



I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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I have no set schedule of posting, but I hope you will check in from time to time.

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Tuesday, February 9, 2010

3 - Intentional Torts – Expanding on Intentional Torts (Volitional Act and Intent)

3 - Intentional Torts – Expanding on Intentional Torts (Volitional Act and Intent)

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.
We won’t take a great deal of time right now on each intentional tort, but I want to point out a few things that might be helpful.
Remember, that the elements that are common to all intentional torts are volitional act, intent, causation and injury. Let’s look at two of those – volitional act and intent.
A volitional act is one that is voluntary – it was not reflexive – like when your doctor hits you with and sledge hammer just below the kneecap to test your reflex. Okay, so it’s not a sledge hammer, but you get the point. It was not volitional, it was not voluntary.

There are four different types of intent. Intent can be actual, that is the actor desires to commit the act. For instance, if I desire to swing my fist at you in order to make contact with your face. Intent can also be shown through what is called substantial certainty. In other words, I may not have the desire to hit you in the face with my fist, but if, in a small area of space, I begin flailing my arms around, with you standing nearby, and strike you, a reasonable person should know or should have known that my act of flailing was substantially certain to cause contact with you.

Finally, there is transferred intent. Transferred intent does not apply to all intentional torts. Most jurisdictions allow transferred intent for all intentional torts except Intentional Infliction of Emotional Distress and Conversion. If we consider nuisance and fraud in our list of intentional torts, most jurisdictions would not apply transferred intent to them. The minority position is found in the Restatement of Torts which holds that transferred intent only applies to Assault and Battery. Prosser, a leading commentator on Torts, takes the view that transferred intent applies only to Assault, Battery and False Imprisonment because false imprisonment often requires either an assault or battery to restrain the victim.

So. Did I clear this up? Okay, okay. Where’s your sense of humor? Remember that on an essay, you should apply the majority rule unless told otherwise – usually in the facts or the call of the question. The majority rule is still the traditional rule that allows transferred intent for the five basic intentional torts: assault, battery, false imprisonment, trespass to land, and trespass to chattels.

That’s a quick guide to volitional act and intent. In the next torts post, we’ll look at some more issues with respect to intentional torts.

Professor Doug Holden
© 2010 Douglas S. Holden. All Rights Reserved.

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