Shermans V. Church of Divine

Unit 5: Midterm – Intentional Torts & Defenses

Tammy Day

PA 310 – 01

Professor Pamela Kroh, Esq.

August 9, 2014

MEMORANDUM

To: Roberta Kroh, Esq.

From: Tammy Day

Date: August 5, 2014

RE: Intentional Torts & Defenses

Statement of Facts

Teenage son (Jake) borrowed his mother’s car without her permission. He stops over his girlfriend’s (Tara) house to pick her up and was met with considerable resistance from her parents. Jake starts the car while Tara’s father (Mr. Smith) is standing in front of the car in a menacingly manner. Jake yells out the window to Mr. Smith that he will run him over if he does not get out of the way. Mr. Smith stood his ground until the last possible moment he jumps aside, barely escaping injury.

Issue

Under California law, does a civil assault occur when the actor, who is operating a motor vehicle, is threatening to run over another individual, who is standing in front of the car in a menacingly manner, barely escaping injury because he doggedly stood his ground until the last possible moment?

Brief Answer

Yes. For a civil assault to occur the actor must intentional attempt or threaten to inflict injury upon another person that places that person in fear of imminent bodily harm.

Rule

Under CA CIVIL § 43, “[E]very person has the right of protection from bodily restraint or harm . . .” Case law is usually used in most torts claims.

Application

In Carlsen v. Koivumaki, Cal.Rptr.3d, (Cal.App. 3rd Dist., 2014), it is stated that the elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner, (2) the plaintiff reasonable believed he was about to be touched in a harmful or offensive manner or it reasonable appeared to the plaintiff that the defendant was about to carry out the threat, (3) the plaintiff did not consent to the defendant’s conduct, (4) the plaintiff was harmed, and (5)...