Chapter 2: Intentional Torts and Other Dignitary Actions

I.   Introduction

§2.1   In 1884, the Michigan Supreme Court held that every citizen holds their “life, liberty, and property under the protection of [the] general rules which govern society.” Risser v Hoyt, 53 Mich 185, 203, 18 NW 611 (1884). The Michigan common law has since developed into an important tool for the protection of an individual’s right to life, liberty and property. This chapter discusses several of the most common causes of action seeking to vindicate these individual rights:

• A claim for battery vindicates an individual’s right to be “free from nonconsensual physical invasions” of their person. See In re Rosebush, 195 Mich App 675, 680, 491 NW2d 633 (1992).
• A claim for assault vindicates the right to be free from apprehension of a physical violence. See Warmelink v Tissue, 257 Mich 228, 231–233, 241 NW 203 (1932).
• The common-law action to redress an intentional infliction of emotional distress secures one’s “right to be free from serious, intentional and unprivileged invasions of mental and emotional tranquility.” Cotton v Banks, 310 Mich App 104, 129, 872 NW2d 1 (2015) (quotation marks and citation omitted).
• A defamation action vindicates the right to be secure in one’s reputation. See Ghanam v Does, 303 Mich App 522, 537, 845 NW2d 128 (2014).
• An invasion-of-privacy action vindicates the right to be secure in one’s private affairs. See Doe v Mills, 212 Mich App 73, 79–80, 536 NW2d 824 (1995).
• The action of false imprisonment protects against the unlawful restraint on the right to personal liberty. See Moore v Detroit, 252 Mich App 384, 387, 652 NW2d 688 (2002).
• A conversion action secures a person in their right to possess and use personal property. See Thoma v Tracy Motor Sales, Inc, 360 Mich 434, 438, 104 NW2d 360 (1960).
• Finally, the action for wrongful interference with the right of burial protects the peace of mind and emotional stability that comes from meeting one’s familial obligations to a deceased loved one. See Keyes v Konkel, 119 Mich 550, 551, 78 NW 649 (1899).

Although these causes of action are ancient, they continue to provide a potent means for redressing the infringement of the rights to personal security, personal liberty, and property.

II.   Assault and Battery

A. Cause of Action

§2.2   In simple terms, an assault is a threat of harmful contact, and a battery is the culmination of that threat. More specifically, assault is defined as any intentional, unlawful threat or offer to do bodily injury to another by force, under circumstances that create a well-founded fear of imminent peril, coupled with the apparent present ability to carry out the act if not prevented. Tinkler v Richter, 295 Mich 396, 295 NW 201 (1940). Battery is the willful or intentional touching of a person against that person’s will by another person or by an object or substance put in motion by another person. Id.

Assault and battery actions are closely related in that the offenses often derive from the same occurrence. See Gray v Morley  (After Remand), 460 Mich 738, 747, 596 NW2d 922 (1999) (Kelly, J, dissenting) (citing Tinkler) (“Liability for assault attaches if the actor intends to commit a battery or the actor intends to put the victim in fear or apprehension of an immediate battery.”). As a result, the causes of action are often pleaded together. For example, a shooting may give rise to an action for both assault and battery in that pointing the gun at a person creates a threat that culminates when the actor pulls the trigger and the bullet makes contact with a person. However, one may occur without the other. When the gun shoots a blank, only an assault occurs. In contrast, only battery occurs during a consensual sexual encounter where a party knew with reasonable certainty that they could transmit a sexually transmitted disease and in fact transmitted it to the other party. See Doe v Johnson, 817 F Supp 1382 (WD Mich 1993).

See form 2.1 for a complaint drafting checklist and form 2.2 for a sample complaint.

B. Controlling Law

§2.3   Michigan’s common law governs assault and battery actions, with many cases citing to various sections of the Restatement (Second) of Torts. See Restatement (Second) of Torts §§13, 18, 21.

A statutory cause of action exists to the extent an assault or battery against a pregnant individual “results in a miscarriage or stillbirth by that individual, or physical injury to or death of the embryo or fetus.” MCL 600.2922a.

MCL 600.2922b provides a statutory defense to an assault and battery when an individual acts in self-defense as set forth in Michigan’s self-defense act, MCL 780.972(2).

C. Elements

1. Assault

§2.4  

• intent to cause harmful or offensive contact with the person of another or a third person or intent to cause an imminent apprehension of such contact
• imminent apprehension by the plaintiff
• damages proximately caused by the fear or apprehension, which need only be a “‘well-founded apprehension of imminent contact, coupled with the apparent present ability to accomplish the contact,’” Smith v Stolberg, 231 Mich App 256, 260, 586 NW2d 103 (1998) (quoting Espinoza v Thomas, 189 Mich App 110, 119, 472 NW2d 16 (1991))

See also Restatement (Second) of Torts §21.

2. Battery

§2.5  

• intent to cause harmful or offensive contact with the person of another or a third person
• unpermitted harmful or offensive body contact as a result of direct touching of the plaintiff’s person or of something close to the plaintiff, such as their clothing, chair, or automobile
• damages proximately caused by the battery

See Restatement (Second) of Torts §§13, 18.

D. Damages and Remedies

1. Relief Available

§2.6   MCL 600.2917 limits the relief available for an assault and battery that arises out of conduct involving a person suspected of shoplifting when the merchant or its agent “had probable cause for believing and did believe that the plaintiff had committed or aided or abetted in the larceny of goods held for sale in the store.” In such case, a plaintiff is not entitled to punitive, exemplary, or aggravated damages unless it is proved that the merchant or its agent “used unreasonable force, detained plaintiff an unreasonable length of time, acted with unreasonable disregard of plaintiff’s rights or sensibilities, or acted with intent to injure the plaintiff.” Id.; see also Mosley v Federals Dep’t Stores, Inc, 85 Mich App 333, 337, 271 NW2d 224 (1978) (stating that MCL 600.2917 allows storeowners to act “without fear of a recovery … beyond the purely compensatory, at least where the storeowner acted with probable cause”).

2. Attorney Fees

§2.7   An individual who successfully asserts a defense under MCL 600.2922b is entitled to actual attorney fees and costs. See MCL 600.2922c.

E. Jury Instructions

§2.8   M Civ JI 115.01–.30.

F. Statutes of Limitations

§2.9   General assault and battery claims have a two-year statute of limitations. MCL 600.5805(3). Assault and battery claims involving current or former domestic or dating relationships as defined by statute have a five-year statute of limitations. MCL 600.5805(4), (5). The statute of limitations varies when the assault amounts to criminal sexual conduct, whether the assailant has been charged criminally or not. Generally, in such circumstances the statute of limitations is 10 years. MCL 600.5805(6). But it could be longer if the sexual assault occurred when the victim was a minor. MCL 600.5851b. Note that this applies only to actions occurring on or after June 12, 2018. See McLain v Roman Catholic Diocese of Lansing, Nos 360163, 360173, ___ Mich App ___, ___ NW3d ___ (Apr 27, 2023), leave to appeal granted, 512 Mich 960, 995 NW2d 130 (Sept 27, 2023), proceedings stayed by bankruptcy filing, No 165742, ___ Mich ___, 996 NW2d 488 (Nov 3, 2023).

G. Proper Parties

1. Proper Plaintiff

§2.10   An individual assaulted or battered is the clear plaintiff for an assault and battery claim. However, the individual’s spouse and children may also maintain a claim for damages they sustain from the loss of consortium and loss of society and companionship that results from the assault.

2. Proper Defendant

§2.11   The individual who committed the assault and battery is the proper defendant. Vicarious liability is rare and applied only under very limited circumstances. For instance, it may apply when the assault and battery were within the course and scope of employment with the prospective defendant as is the case with a medical battery or battery resulting from lack of informed consent.

H. Special Considerations

§2.12   While assault and battery are separate causes of action, assault is rarely pleaded independently from battery because damages resulting from an assault alone are usually insufficient to justify filing suit.

Intentional tort claims may trigger policy exclusions in homeowner’s insurance policies and prevent recovery. When the claim can be supported by the facts, the plaintiff’s attorney should plead negligence to attempt to avoid the policy exclusions.

I. Affirmative Defenses

§2.13  

• consent
• consent by voluntarily entering a mutual affray
• self-defense

J. Related Actions

§2.14   Assault and battery actions are frequently combined with other intentional tort claims, such as false imprisonment. See §2.15. They may also be combined with claims for hostile work environment sexual harassment (see chapter 20) or other discrimination or civil rights violations (see chapter 10), premises liability (see chapter 5), or dram-shop actions (see chapter 6).