INTENTIONAL TORTS
I.
II.
Definition of a Tort
A. A civil wrong other than a breach of contract
B. Includes for types of wrongs
1. Intent
a. The desire to cause certain consequences; or
b. The substantial certainty that those consequences will result
from one’s behavior
2. Recklessness: a conscious indifference to a known and substantial
risk of harm created by one’s behavior
3. Negligence: a failure to use reasonable care, making harm to
another party a probable result
4. Strict liability: responsibility irrespective of fault
C. Generally involves a suit between private parties (as opposed to a suit by
the government against a defendant in criminal law)
D. The standard of proof = a preponderance of the evidence
1. More than 50%
2. Compare the standard to that of a criminal case, which is beyond a
reasonable doubt
E. Types of damages available to a winning plaintiff include
1. Compensatory damages: account for the harm suffered as a result
of the defendant’s wrongful act
2. Punitive damages: punish and deter flagrant wrongdoers
Interference with Personal Rights
A. Battery
1. Elements
a. Intentional and harmful or offensive touching of another
b. Without consent
2. Intent
a. Requires either
i.
Intent to cause harmful or offensive contact; or
ii.
Intent to cause apprehension that such contact is
imminent
b. Transferred intent: a defendant who intends to inure one
person but actually injured another is liable to the person
injured
3. Touching
a. Does not require direct contact between the defendant’s
body and the plaintiff’s body
b. Includes anything attached to the plaintiff’s body, such as a
hat
c. The plaintiff does not need to be aware of the touching at
the time it occurs
4. Consent
a. If the plaintiff consented to the touching, the defendant is
not liable
b. Consent can be inferred from a person’s voluntary
participation in activity, but is limited to contacts that are a
normal result of the activity
c. The law infers consent to many touchings that are
customary or reasonably necessary in normal social life,
such as bumping into someone on a crowded street
5. Offensive nature
a. Must offend a reasonable sense of personal dignity
B. Assault
1. Elements
a. Intentional attempt or offer to cause a harmful or offense
contact with another person
b. That causes a reasonable apprehension of imminent battery
i.
**Note that assault thus can result from an
attempted battery**
ii.
Also note that the anticipated battery must be
imminent, or about to occur; threats of a future
battery are not sufficient
C. Intentional Infliction of Emotional Distress
1. Elements
a. Outrageous conduct
b. That results in severe emotional distress
i.
Most courts require intent or recklessness on
behalf of the defendant
ii.
A few courts require proof of some bodily harm
iii.
Some courts also require that the distress be the
kind that a reasonable person of ordinary
sensibilities would suffer
2. The Supreme court, however, has severely restricted the ability of
public figures to win speech-related intentional infliction of
emotion distress cases, requiring them to show the same
requirement as in defamation cases: Hustler Magazine, Inc. v.
Falwell
D. False Imprisonment
1. Elements
a. Intentional confinement of another person
b. For an appreciable time (a few minutes is sufficient)
c. Without consent
2. Confinement
a. Can result from
i.
Physical barriers;
ii.
Threatened use of force; or
iii.
Unfounded assertion of legal authority to detain
the plaintiff;
iv.
A threat to harm to another
b. Must be complete
i.
False imprisonment will not result where only
one means of escape is blocked while others remain
ii.
However, the plaintiff must reasonably be
expected to know of the alternate means of escape
c. Must be known by the plaintiff
3. Conditional privilege: statutes passed by most states permit
storeowners to confine suspected shoplifters, so long as the owner
a. Acts with reasonable cause and in a reasonable manner;
and
b. Detains the suspect for a reasonable amount of time
E. Defamation
1. Elements
a. Unprivileged
b. Publication of (communication to one person other than the
defamed)
c. False and defamatory
d. Statements concerning another
2. Two forms
a. Libel
i.
Generally written or printed defamation
ii.
Can also include other defamation with a more
or less permanent physical form such as
a) Pictures
b) Signs
c) Statues
d) Radio/Television broadcasts
iii.
Due to the more permanent nature of the written
word, plaintiffs traditionally recover without proof
for special damages (actual reputational injury or
other actual harm)
iv.
Presumed damages (compensation for assumed
reputational harm without actual proof of the harm)
are permitted
b. Slander: mainly oral defamation
i.
Generally not actionable without proof of
special damages
ii.
Slander per se, however, is actionable without
proof of special damages
iii.
Slander per se includes false statements that the
plaintiff
a) Has committed a crime involving moral
turpitude or potential imprisonment;
b) Has a loathsome disease;
c) Is professionally incompetent or guilty of
professional misconduct; or
d) Is guilty of serious sexual misconduct
3. Defenses
a. Truth is a complete defense to a defamation claim
b. Privileges: recognize that in some circumstance, other
social interests outweigh an individual’s right to reputation
i.
Absolute privilege
a) Complete defense
b) Includes statements made by
1) Participants in judicial proceedings
2) Legislators or witnesses in the course
of legislative proceedings
3) Certain executive officials in the
course of their duties
4) One spouse to the other in private
ii.
Conditional (or qualified) privileges
a) Provides a defense as long as the defamatory
statements are not made with knowledge of
their falsity or with reckless disregard for
the truth; when the statement does not
advance the purpose of the privilege; or
when it is unnecessarily made to
inappropriate people
b) Include
1) Statements made to protect or further
the legitimate interests of another
2) Statements made to promote a
common interest
3) Fair comment (fair and accurate
media reports)
4. Public v. Private Plaintiffs
a. New York Times Co. v. Sullivan held that the First
Amendment does afford some protection in defamation
cases, depending on the plaintiff and the topic
b. Cases involving public officials and public figures
i.
Require the Plaintiff to show
a) Actual malice: knowledge the statement is
false or with reckless disregard to the
statement’s falsity
b) By clear and convincing evidence
ii.
Allow damages for proven actual injury,
presumed damages, and punitive damages
c. Cases involving private figures
i.
If subject of public concern
a) Require Negligence
b) Allow damages
1) For proven actual injury if only
negligence
2) For presumed and punitive damages
if actual malice is established by
clear and convincing evidence
ii.
If subject of private concern
a) Likely requires at least negligence
b) Allows damages for proven actual injury,
presumed damages, and punitive damages
F. Invasion of Privacy
1. Intrusion on Solitude or Seclusion
a. Intentional intrusion on another
b. That would be highly offensive to a reasonable person
2. Public Disclosure of Private Facts
a. Publication of facts concerning someone private life
b. That would be highly offensive to a reasonable person
c. **Differs from defamation because requires widespread
communication of private facts in order to be actionable,
such as publication on the Internet**
3. False Light Publicity
a. Publicity placing a person in a false light in the public eye
b. That would be highly offense to a reasonable person
c. Truth is a defense
4. Commercial Appropriation of Name or Likeness (usually involves
an implication of someone else’s endorsement of a product or
service or non-existent connection to a business)
G. Misuse of Legal Proceedings
1. Malicious prosecution
a. Wrongful institution of criminal proceedings
b. Elements
i.
The Defendant caused the criminal proceedings
to be initiation against the Plaintiff without probable
cause
ii.
Improper purpose
iii.
Proceedings were eventually terminated in the
Plaintiff’s favor
III.
2. Wrongful use of civil proceedings: civil counterpart to malicious
prosecution
3. Abuse of process: initiation of proceedings for an improper
purpose
H. Deceit (Fraud): knowing misrepresentation
Interference with Property Rights
A. Trespass to Land: any unauthorized or unprivileged intentional intrusion
upon another’s real property
1. Includes
a. Physically entering the Plaintiff’s land;
b. Causing another to physically enter the Plaintiff’s land;
c. Remaining on the land after the right to remain has ceased;
d. Failing to remove items from the land with a duty to do so;
e. Causing an object or thing to enter the land; and
f. Invading the airspace above the land or the subsurface
beneath it
2. Requires only the intent to be on the land or to cause it to be
invaded – thus it can result from the mistaken belief of a right to be
on the land
B. Private Nuisance: substantial and unreasonable interference with the
Plaintiff’s use and enjoyment of his or her land
C. Conversion: intentional exercise of control over personal property without
consent