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Together, let's work through the following Torts mini fact
pattern, thinking out loud:
Did John commit a Battery? Of course he did.
Was the touching "intentional"? "No
facts indicate that John's striking was other than an intentional,
volitional act." Not much thought on this element.
Was the touching "harmful"? Of course it
was! Are you sure about that? Do we know how hard John hit
Mary? If we don't know for sure, then we cannot conclude with
certainty that the touching of Mary was harmful. Perhaps John
did not hit Mary with very much force. Or, maybe he hit her
with all of his might. But since we do not know for certain
how hard John hit Mary, our analysis would have to be bifurcated:
i.e., "If John hit Mary with all of his might, the touching
of Mary was certainly harmful. If, however, John hit
Mary with very little force, then the touching of Mary was
not necessarily harmful.")
Was the touching at least "offensive"? Few
people would want to be hit from behind, don't you agree?
Most people would find such an act offensive. On this fact,
it does not matter how hard John hit Mary. All that matters
is whether a reasonable person would find the touching offensive.
Most unconsented touchings are offensive, no matter the force
or lack thereof. If a man ever so slightly and purposefully
grazed a woman's breast, it would certainly be offensive if
unconsented, yes? Therefore, "John's touching of Mary,
if not harmful, was likely offensive since most people
do not want to be hit from behind without their consent."
Was the touching "without consent"? "Since
John slowly snuck up behind Mary, we can reasonably infer
that he did not have Mary's consent to hit her."
Was the touching "without privilege"? "Lastly,
no facts indicate that John's striking of Mary was in self-defense,
especially since John slowly snuck up behind Mary. Even if
Mary had been the initial aggressor, John's privilege had
passed since he struck Mary from behind in a deliberate and
surprising fashion, which indicates that Mary, at that moment
in time, did not pose a threat to John. Therefore, John should
be found liable for Battery."
This is how you would need to think your way through the
above Torts mini fact pattern in order to write a superior
response. Knowing the rule statement for Battery would not
help you with the required thought process. Nor would having
all of the elements memorized.
Let's continue.
Did John commit an Assault? No! Are you sure about
that? Well, you're probably thinking Mary couldn't have seen
John's menacing shadow approach her - it was a cloudy day
after all, right? Mary couldn't have heard John sneak up behind
her - John didn't make a sound, and he was wearing gum-soled
shoes, right? Therefore, you are probably thinking, no way
could Mary have been placed in apprehension of an imminent
battery, right?
Actually, not necessarily.
Visualize the mini fact pattern in your mind like a movie.
Think "reasonable inference".
Do not create facts, but make a "reasonable inference"
to find an assault.
Would it be reasonable to assume that Mary turned around
to look at who had just hit her? Would most people turn around
if someone had just hit them from behind? Yes, they would.
So, then, if John, a mean-looking man was still standing
there after having hit Mary from behind, would it be reasonable
to assume that Mary, at that very moment, after turning around,
was placed in apprehension of an imminent battery (i.e., placed
in apprehension of being hit again, especially since John
was so mean-looking)? Yes, it would certainly be reasonable
to make such an inference.
Keep in mind, there is a significant difference between making
a "reasonable inference" and "creating facts".
An example of creating facts: "Since Mary went home and
had nightmares that required psychiatric care, John should
be found liable for Intentional Infliction of Emotional Distress."
What?!?! Where did those facts come from?
The moral of this quiz? Legal knowledge, in and of
itself, has little to do with the ability to think analytically
and write analytically. At Barperfect, we do more than teach
you black-letter law. We teach you how to think analytically.
And we teach you how to write analytically.
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