Torts Evening- Fall 2007
Professor Ralph Brill
Substantive Reviews
Substantive Reviews
REVIEW

CHAPTER TWO -- INTENTIONAL TORTS

A. INTENT

In this chapter, we examined the law relating to the various intentional torts. We have examined the following torts: battery, assault, false imprisonment, trespass to land, trespass to chattels and conversion. (We have not closely examined the tort of Intentional Infliction of Emotional Distress since that was covered in your Legal Writing course). We also have examined the defenses that may be available to a defendant accused of committing an intentional tort, namely consent, self-defense, defense of others, defense of property, recapture of property, public necessity and private necessity.

For each of the intentional torts we have tried to determine the individual elements that are essential to show that tort. That is, we have examined the facts or factors that a plaintiff must first plead and ultimately prove in order to establish a prima facie case. Each of these torts has several different elements that must be pleaded and proved. If any of these elements is missing -- if the plaintiff leaves one or more out of her complaint, or fails to offer proof of that element -- the case, on defendant's proper motion, will be dismissed for plaintiff's failure to state or prove a cause of action. Thus, in class, we tried to develop definitions that would include all of the elements required to establish a prima facie case for each cause of action.

All of these torts have in common one element -- the requirement that the defendant have acted with the intent to cause the essential element of the particular cause of action.

∙ Thus, for battery, the defendant must have acted with the intent to cause a harmful or offensive touching to plaintiff or some logical extension of plaintiff's person.

∙ For assault, the defendant must have intended to cause the plaintiff a reasonable belief that plaintiff was about to immediately suffer a battery.

∙ For false imprisonment, the defendant must have intended to confine the plaintiff within some boundaries, from which plaintiff could not reasonably escape.

∙ For trespass, plaintiff needed to show that defendant intentionally crossed the boundaries of plaintiff's land.

∙ For trespass to chattels and conversion, the intent factor was identical; the two torts overlap. Thus, for both of these torts, the defendant had to intend to assert dominion or control over plaintiff's chattel. The completed tort would be trespass to chattels if the exercise of dominion or control resulted in harm to the chattel or if it caused the interference with plaintiff's use of the chattel for an unreasonable length of time. The completed tort would be conversion if the defendant's assertion of dominion or control resulted in damage or interference with plaintiff's use of the chattel of such a serious nature that defendant was required to pay the full market value of the chattel.


Thus, for each of the intentional torts we had to at some point determine whether the intent element was satisfied. To do that, we had to define the legal term “intent.” We saw that the term had a different meaning in law than it commonly does in ordinary life. “Intent” is not a synonym for “voluntary.” While intent in law does require that a defendant act voluntarily, the legal term intent requires more. It has a dual definition. One acts intentionally, for purposes of Tort law, if one

∙ (1) voluntarily acts with the desire or purpose to accomplish the essential element of the tort in question (e.g., offensive or harmful contact, for battery), or,

∙ (2) alternatively, if one voluntarily acts with knowledge to a substantial certainty that the essential element of the tort (e.g., awareness of an imminent battery, for assault) will result.

To prove intent, it is not sufficient to show that a certain result “might” occur. It is not sufficient to show that a certain result is “likely to” occur. It is not sufficient to show that a certain result “probably will” occur, nor even that it is “highly probable” that it will occur. Defendant either must have had the purpose or subjective desire to cause that result, or the defendant must have known to a substantial certainty that the result (e.g., harmful touching, total confinement, awareness of an imminent battery, etc.) would occur.

If the plaintiff is unable to show that the defendant possessed the requisite intent, then he/she will not be able to show the existence of one of the intentional torts. That does not mean that the plaintiff may not try to establish some other tort, on a less culpable basis. The plaintiff might be able to show that defendant's act was reckless, or negligent, or that it fell within one of the activities for which the law creates strict liability. But it can’t be a battery, or assault, or false imprisonment, or trespass, or trespass to chattels, or conversion, or intentional infliction of mental distress.

We then investigated how various factors affect or do not affect a finding of intent.

∙ Children may be held liable for intentional torts, so long as they were old enough and subjectively intelligent enough to formulate the requisite purpose or knowledge. Very small children likely would not be found capable of formulating intent – they could not be found to have had a desire to cause the required consequence, or know to a substantial certainty that it would occur.

∙ Insane persons usually are held liable for intentional torts if a sane person in the same circumstances would be found to have had a purpose to cause the tort in question or to have known to a substantial certainty that the gist of the tort in question would occur. No inquiry will be made to see whether an ill mind is the stimulus for the insane person's actions and whether the person could have prevented the act from occurring. This, we saw, was primarily a policy decision, not a logical decision, based in part on the notion that it is more important to compensate the victim than to hold an insane person free from liability; the results are different in the criminal law, since the convicted defendant will be stigmatized as a criminal, and face loss of life or liberty, and not just the payment of money to the victim. A few cases do make some accommodation for a person's insanity, allowing evidence that the specific defendant was incapable of realizing what he/she was doing or what the consequences would be. And in the very few torts where a state-of-mind is required in additional to the necessary intent -- such as for malicious prosecution or malicious abuse of process -- some courts have relieved insane people of responsibility if it was shown that they were incapable of formulating the malice required.

∙ Mistake of fact will not negate one's intent. If one acts for the purpose of committing what would otherwise be one of the intentional torts, but does so under a mistaken notion, which if true would justify the action taken, the defendant nevertheless is still responsible. Thus, if a police officer arrests a person because of an entirely reasonable belief that the arrested person is someone else, whom he would be fully justified in arresting, the officer may nevertheless be liable for the intentional tort. The defedant intended to cause the confinement of the person arrested, even if he thought the person arrested was soeone else, someone the defendant would be justfied in arresting.

∙ A mistake of fact may be considered on another issue --- since several defenses, such as self-defense or defense of others, are based on what reasonably appeared to the actor at the time, a defendant who acts under a reasonably formulated mistake of fact may be able to defend on the basis of one of these defenses. That does not mean that there is a defense called mistake; it only means that the circumstances which led a defendant to act will be considered, even if defendant turns out to be mistaken as to the need for action.

∙ Through the fiction of transferred intent, a defendant's intent to commit one of the five common law intentional torts of battery, assault, false imprisonment, trespass to chattels or trespass to land can be transferred to supply a missing intent element when the defendant causes the other elements of one of these torts to the one aimed at or any other person. Thus, when defendant intended to commit an assault against one boy on his roof by throwing a stick at him, but hit a second boy, whose presence on the roof he wasn't even aware of, the defendant was guilty of a battery to the second youngster.