Introduction to Intentional Torts

"Intentional torts are often taught at the beginning of Torts because they reveal the basic structure of civil liability in a clear way. Each tort protects a specific interest. Each tort has elements. Each tort requires a particular kind of intent. Each tort may be defeated by privileges or defenses. A student who learns to analyze intentional torts carefully will be better prepared for negligence, strict liability, products liability, defamation, privacy, and every later topic in the course."

Intentional torts are not simply "bad acts." They are legally defined invasions of protected interests. Battery protects bodily integrity. Assault protects freedom from apprehension of imminent harmful or offensive contact. False imprisonment protects freedom of movement. Trespass protects possessory interests in land and personal property. Conversion protects dominion over personal property. Intentional infliction of emotional distress protects emotional security against extreme and outrageous misconduct.

The key to intentional torts is disciplined analysis. Do not begin by asking whether the defendant is a bad person. Ask what interest was invaded, what conduct caused the invasion, whether the defendant had the required intent, and whether a privilege applies.

I. Intent in Intentional Torts

For intentional torts, intent usually means that the defendant either desired the legally relevant result or knew with substantial certainty that the result would occur. The defendant does not necessarily need to intend harm. The defendant must intend the contact, apprehension, confinement, entry, or interference that the tort recognizes.

This distinction is essential. A person may commit battery without intending physical injury. If Alex intentionally taps Jordan on the shoulder in a socially acceptable way, there is probably no battery because the contact is not harmful or offensive. But if Alex intentionally spits on Jordan, grabs Jordan’s clothing, or snatches an object from Jordan’s hand in an insulting way, battery may exist even if Jordan suffers no physical injury. The law protects personal dignity and bodily integrity, not merely freedom from broken bones.

Intent can also be established by substantial certainty. Suppose a person pulls a chair away as another person is sitting down. If the actor knows with substantial certainty that the person will hit the ground, the required intent may be present. The actor cannot avoid liability by saying, "I only meant it as a joke." Intentional tort law focuses on the intended invasion, not on whether the defendant intended serious harm.

II. Transferred Intent

Transferred intent is a traditional doctrine that allows intent to transfer in certain intentional tort cases. It can transfer between victims and, in some situations, between torts.

The classic torts associated with transferred intent are battery, assault, false imprisonment, trespass to land, and trespass to chattels. If the defendant intends to commit one of these torts against one person but instead commits one against another, the intent may transfer.

For example, if Dana throws a rock intending to hit Alex but accidentally hits Bailey, Dana’s intent to cause harmful or offensive contact transfers to Bailey. Dana may be liable to Bailey for battery even though Bailey was not the intended target.

Intent may also transfer between torts. If Dana throws a rock intending only to frighten Alex, but the rock actually hits Alex, the intended assault may support liability for battery. The doctrine reflects the idea that the defendant set out to invade a protected interest, and the law will not allow escape merely because the wrong occurred in a slightly different way than planned.

Transferred intent is a favorite exam tool because it tests whether the student understands that intent is not always tied to the exact victim or exact result imagined by the defendant.

III. Battery

Battery is the intentional causing of harmful or offensive contact with the plaintiff’s person.

Battery protects bodily integrity and personal dignity. The contact may be harmful, such as a punch, kick, shove, or slap. It may also be offensive, meaning it would offend a reasonable sense of personal dignity. Offensive contact does not require physical pain. Spitting on someone, grabbing someone’s clothing, or deliberately touching someone in a degrading way may be enough.

The contact may be direct or indirect. If the defendant punches the plaintiff, the contact is direct. If the defendant causes a dog to attack, sets a trap, throws water, pulls a chair, or causes an object to strike the plaintiff, the contact is indirect but still sufficient.

Contact with something closely connected to the plaintiff’s person may also qualify. A plate held in the plaintiff’s hand, a cane, clothing, a purse, or an object being carried may be treated as part of the plaintiff’s personal sphere. The law recognizes that personal dignity can be invaded without skin-to-skin contact.

The plaintiff need not be aware of the contact when it occurs. If a defendant kisses a sleeping person without consent, battery may be present even though the plaintiff was unaware at the time. Assault requires apprehension; battery does not.

IV. Assault

Assault is the intentional causing of reasonable apprehension of imminent harmful or offensive contact.

Assault protects mental tranquility and personal security. The plaintiff must anticipate or be aware of an imminent contact. Apprehension does not mean fear. A professional boxer may not fear an untrained attacker, but if the boxer is aware that an immediate punch is about to occur, apprehension may exist.

The threatened contact must be imminent. A threat to cause harm next week is not assault, though it may be relevant to other claims. "I will hit you tomorrow" usually lacks imminence. "I am going to hit you right now," combined with movement toward the plaintiff, may be assault.

Words alone are usually not enough, but words plus conduct may be enough. If a defendant says, "I’m going to break your nose," while raising a fist and stepping toward the plaintiff, assault may be present. Circumstances matter. A threat made during a heated confrontation at close range is different from the same words spoken jokingly from across a crowded room.

Conditional threats can create assault if they communicate immediate danger. "If you do not leave now, I will hit you," while blocking the plaintiff’s path and raising a weapon, may create reasonable apprehension of imminent contact. But words can also negate assault. If a defendant says, "If we were not in court, I would hit you," the statement may show there is no immediate threat.

V. False Imprisonment

False imprisonment is the intentional confinement of the plaintiff within fixed boundaries, with the plaintiff aware of the confinement or harmed by it.

The protected interest is freedom of movement. Confinement means the plaintiff is restrained within boundaries set by the defendant. It is not enough that the plaintiff is prevented from going in one direction if other reasonable routes remain open. Blocking one sidewalk does not confine a person who can safely walk around. Locking a person in a room does.

Confinement can occur through physical barriers, force, threats of force, invalid assertion of legal authority, or failure to provide a means of escape when there is a duty to do so. A defendant who locks doors, stands in the only exit, threatens immediate violence, or falsely claims police authority may confine the plaintiff.

The plaintiff must have no reasonable means of escape. An escape route that is dangerous, hidden, humiliating, or unreasonable does not defeat confinement. If the only exit from a second-floor room is a dangerous jump from a window, the plaintiff is confined. If the only escape requires public humiliation or serious risk, the law may treat it as no reasonable escape.

Awareness or harm is required. If a person is locked in a room while sleeping and released before waking, false imprisonment may fail unless actual harm occurred. The tort protects experienced confinement or harm from confinement.

VI. Trespass to Land

Trespass to land is the intentional entry onto land in possession of another. It also includes causing a thing or third person to enter land, or remaining on land after permission has ended.

The protected interest is possession of real property. The defendant need only intend to enter the land. The defendant does not need to know that the land belongs to someone else. Mistake is usually not a defense to intentional entry. If a hiker intentionally walks across land believing it is public, but it is private, trespass may still occur.

Trespass may be committed by personal entry or by causing something to enter. Throwing debris onto another’s land, sending water or objects onto the property, or directing another person to enter can qualify. Remaining after consent expires is also trespass. A customer invited into a store during business hours may become a trespasser by refusing to leave after lawful permission is revoked.

Actual damages are not required. Trespass protects the right to exclusive possession. Even a harmless unauthorized entry can be actionable. Of course, if the entry causes physical damage, additional damages may be available.

VII. Trespass to Chattels

Trespass to chattels involves intentional interference with another’s personal property that causes legally recognized harm. Personal property includes movable property such as cars, phones, tools, computers, furniture, animals, and other objects.

The interference may consist of dispossession, impairment of condition, deprivation of use for a substantial time, or harm to the possessor or to something in which the possessor has a legally protected interest. Brief or harmless contact with another’s property may not be enough. The tort requires interference plus a sufficient consequence.

For example, if Alex takes Jordan’s bicycle without permission and rides it for several hours, Jordan may have a trespass to chattels claim because Jordan was deprived of use. If Alex scratches Jordan’s car, the impairment may support the claim. If Alex briefly moves Jordan’s chair a few inches without damage or inconvenience, the claim is much weaker.

Trespass to chattels is less serious than conversion. It protects against partial interference rather than complete or substantial dominion.

VIII. Conversion

Conversion is a serious intentional interference with personal property that so substantially interferes with the plaintiff’s rights that the defendant may be required to pay the full value of the property.

Conversion is sometimes described as a forced sale. The defendant’s interference is so serious that the law may require the defendant to pay the property’s value and keep the item, rather than merely compensate for temporary interference.

Acts that may constitute conversion include stealing, destroying, substantially altering, selling, misdelivering, refusing to return, or exercising serious dominion over another’s property. The seriousness of the interference is key. Courts may consider the extent and duration of control, the defendant’s intent to assert rights inconsistent with the owner’s rights, the defendant’s good or bad faith, the harm done, and the inconvenience caused.

The difference between trespass to chattels and conversion is one of degree. Borrowing someone’s laptop without permission for an hour may be trespass to chattels if it causes loss of use. Selling the laptop to a third person is conversion.

IX. Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress (IIED) requires extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress.

This tort has a high threshold. The law does not provide a remedy for every insult, annoyance, indignity, rude comment, or hurt feeling. The conduct must go beyond all ordinary bounds of decency. It must be the kind of behavior a civilized community would regard as intolerable.

The defendant must act intentionally or recklessly. Intent means the defendant desired to cause severe emotional distress or knew it was substantially certain to occur. Recklessness means the defendant consciously disregarded a high risk that severe emotional distress would result.

The distress must be severe. Temporary embarrassment or irritation is usually not enough. Severe distress may include lasting anxiety, humiliation, trauma, physical symptoms, inability to function, or other serious emotional harm.

Courts are more likely to find outrageousness when the defendant abuses a position of power, targets a known vulnerability, engages in repeated harassment, exploits grief, threatens serious harm, or mistreats a vulnerable plaintiff. A debt collector using extreme threats, an employer engaging in sustained humiliating abuse, or a person deliberately targeting someone’s known trauma may raise IIED issues.

X. Consent

Consent is one of the most important defenses to intentional torts. A person who validly consents to conduct usually cannot complain that the conduct was tortious, so long as the defendant stays within the scope of consent.

Consent may be express or implied.

• Express consent is stated directly, either orally or in writing. If a patient signs a form authorizing a specific medical procedure, express consent may exist.
• Implied consent may arise from conduct, custom, circumstances, or emergency. In a contact sport, participants impliedly consent to contacts ordinary within the game. A person who extends an arm for a vaccination impliedly consents to the injection. In an emergency, consent may be implied when immediate action is necessary and the person is unable to consent.

Consent has limits. A boxer consents to punches within the rules of the match, not to being struck with a weapon after the bell. A patient who consents to surgery on one knee does not necessarily consent to unrelated surgery on the other. Exceeding the scope of consent may create liability.

Consent may also be invalid if obtained by fraud, duress, or incapacity. A person who consents because of a material deception about the nature of the act may not have given valid consent. A person who lacks capacity may be unable to consent.

XI. Self-Defense and Defense of Others

Self-defense permits a person to use reasonable force to protect against imminent harmful or offensive contact. The defendant must reasonably believe that force is necessary, and the amount of force must be proportionate to the threatened harm.

Nondeadly force may be used to prevent ordinary harmful or offensive contact. Deadly force is allowed only when the defendant reasonably believes it is necessary to prevent death or serious bodily harm. A person may not use deadly force in response to a minor shove or insult.

The privilege is based on reasonable appearance. A person may be privileged even if the threat later turns out not to be real, so long as the belief was reasonable under the circumstances. But unreasonable mistakes may destroy or limit the defense.

Defense of others generally follows similar principles. A person may use reasonable force to protect another from imminent harm. The defender’s belief in the need for intervention must be reasonable, and the force used must be proportionate.

XII. Defense of Property

Defense of property allows reasonable force to protect possession of land or personal property. However, the law places stricter limits on force used to protect property than on force used to protect persons.

Reasonable nondeadly force may be permitted after a request to desist or leave, unless such a request would be futile or dangerous. For example, a landowner may use reasonable means to remove a trespasser who refuses to leave.

Deadly force is not allowed solely to protect property. Human life and bodily safety are valued more highly than property interests. A person generally may not set a deadly trap to protect an empty building or use deadly force to prevent theft of ordinary property.

Mechanical devices are judged by similar principles. A landowner cannot use a spring gun or deadly trap if the landowner could not personally use that level of force.

Defense of property must also be timely. Force used after the property has been taken may become retaliation rather than defense, though reasonable efforts to recover property immediately after dispossession may sometimes be privileged.

XIII. Necessity

Necessity is especially important in property torts. It allows a person to interfere with property in order to prevent a greater harm.

• Public necessity applies when the defendant interferes with property to prevent a public disaster or widespread harm. It may be a complete privilege. For example, destroying property to stop the spread of a massive fire may be privileged if reasonably necessary to protect the public.
• Private necessity applies when the defendant interferes with another’s property to protect the defendant’s own interests or a limited group of people. Private necessity is usually an incomplete privilege. The defendant may be privileged to enter or remain on the property, but may still have to pay for actual damage caused.

Suppose a sailor ties a boat to a private dock during a sudden violent storm to avoid sinking. The sailor may have a privilege of private necessity and may not be liable for trespass merely for being there. But if the boat damages the dock, the sailor may have to pay for the damage.

Necessity reflects a balance. The law recognizes that emergencies may justify property interference, but it may still require compensation when private property is damaged for private benefit.

XIV. Shopkeeper’s Privilege

A common false imprisonment issue involves detention of suspected shoplifters. The shopkeeper’s privilege allows a merchant or security employee to detain a suspected shoplifter when there is reasonable suspicion, in a reasonable manner, for a reasonable time, for the purpose of investigation or recovery of goods.

The privilege is limited. The suspicion must be reasonable. The detention must not be excessive. The manner must not be unnecessarily humiliating, violent, or prolonged. The purpose must relate to investigation, recovery, or summoning law enforcement.