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Happy Threlkiss, sixty-seven years old, recently released from the hospital after receiving treatment for a nervous breakdown, retains your firm to sue Richard Ashcroft and Pizzarama, Inc. on her and her niece's behalf for injuries resulting from an incident which occurred on January 7th of the current year. On that date, Happy was walking hand in hand with her three-year-old niece from their car to the Pizzarama restaurant door when Ashcroft, a maintenance worker for Pizzarama, was operating a weed eater and trimming the lawn by the sidewalk that Happy and her niece were walking on. As Happy and her niece approached Ashcroft to enter Pizzarama, Ashcroft looked up at them, smiling, and then viciously attacked the niece with the weed eater, chewing up her legs and back requiring thirty days hospitalization, over two hundred stitches, and extensive plastic surgery. Happy was immediately admitted to the hospital as well. Investigation shows Ashcroft was working for Pizzarama at the time, but, Ashcroft had no known history of violence. What tort claims and defenses exist?

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Based on the facts here, it looks like we have potential claims for battery and assault against Happy's niece and infliction of emotional distress against Happy.

In order to demonstrate that one is liable for battery, we must prove that Ashcroft acted with the intent to cause harmful or offensive...

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Based on the facts here, it looks like we have potential claims for battery and assault against Happy's niece and infliction of emotional distress against Happy.

In order to demonstrate that one is liable for battery, we must prove that Ashcroft acted with the intent to cause harmful or offensive contact to Happy's niece, that Happy's niece suffered that contact, and that she suffered damages as a result. It appears that Ashcroft intentionally attacked the niece with the weed eater and that the contact caused harm since it injured her. She also definitely suffered damages since she needed extensive medical treatment. Therefore, Ashcroft is liable for battery against Happy's niece.

We turn next to assault. In order to be held liable for assault, Ashcroft must have acted with the intent to cause Happy's niece reasonable apprehension of a harmful or offensive contact, and Happy's niece must have actually apprehended that contact (believed it was going to happen). Here, it's a little unclear whether Happy's niece knew what was about to happen, since Ashcroft actually smiled at her before attacking her, so it is possible he would not be liable for assault. If she did see the attack coming, he would be.

Next, there is a possible claim for intentional infliction of emotional distress by Ashcroft upon Happy herself. To be liable for intentional infliction of emotional distress, Ashcroft must have engaged in what the law believes is extreme and outrageous conduct; the conduct must be either intended to cause the plaintiff to suffer emotional distress or must be done with recklessness as to whether the plaintiff will suffer severe emotional distress; and the defendant's conduct must cause the plaintiff to suffer emotional distress. The law would certainly say that attacking someone's loved one with a weed eater is outrageous behavior, and of course Happy would be emotionally disturbed by this attack on her niece. She was also admitted to the hospital, presumably for her trauma. It does appear that Ashcroft would be liable for intentional infliction of emotional distress.

Finally, we should note that since Pizzarama employed Ashcroft, they may be liable for his actions, according to the doctrine of vicarious liability. However, many courts have held that employers are not liable for the tortious acts of their employees if the action is outside the scope of their work. Weed-eating seems to be within the scope Ashcroft's position, but since his torts are intentional, it is possible Pizzarama would not be held liable (usually this doctrine applies to negligence claims).

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