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Thursday, May 29, 2014

More Sections from the Restatement of Intentional Torts: Purpose

In an attempt to elicit comments about the ALI's Restatement of Intentional Torts, Ken Simons and Ellen Pryor asked that I post the black letter portions of the current draft.  If you have comments, you can post them here or send them directly to Ken and Ellen (or both).  Ken can be reached at:  ksimons@bu.edu and Ellen at Ellen.Pryor@untsystem.edu.  The entire draft, comments and all, is here.

ยง 102. Purposeful Infliction of Bodily Harm

An actor is subject to liability to another if:

(a) the actor purposely causes bodily harm to the other; and

(b) the other does not consent to the conduct [or to the harm].

--CJR

http://lawprofessors.typepad.com/tortsprof/2014/05/more-sections-from-the-restatement-of-intentional-torts-purpose.html

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Comments

How does purposeful differ from intentional in 101? I can't see any cases of liability under 102 that are not also liability under 101. The sentence structure of 102(a) is also ambiguous regarding what purposeful modifies - that act that causes the harm or the harmful outcome. Absent a good reason, I would strike 102 entirely.

Posted by: ohwilleke | Jun 3, 2014 2:42:09 PM

Normally, one cannot consent to bodily harm for criminal law purposes (a key point, for example, in domestic violence cases) and dueling and unlicensed fighting by agreement outside recognized sports is usually forbidden by law. A blanket consent defense seems problematic both here and in 101.

Posted by: ohwilleke | Jun 3, 2014 2:49:57 PM

Sec. 102 is designed to reach cases in which the contact requirement of battery (101) is not satisfied, but in which the defendant has a more culpable intent of purpose, not just knowledge to a substantial certainty.

Consent operates as a broader defense in tort law than in criminal law. In criminal law, there are sometimes distinctive policy reasons (including risks of harm to third parties and the perceived need to punish a culpable defendant) for ignoring the parties' consent and imposing liability.

Posted by: Ken Simons | Jun 6, 2014 2:13:40 PM

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