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Intentional Torts

An intententional tort requires an overt act, some form of intent, and causation. In most cases, transferred intent, which occurs when the defendant intends to injure an individual but actually ends up injuring another individual, will satisfy the intent requirement. Causation can be satisfied as long as the defendant was a substantial factor in causing the harm.


Related to the Person

Battery: A harmful or offensive touching of the plaintiff’s person with intent and causation. The touching can be indirect. The standard to determine whether a touching is offensive is a reasonable person with ordinary sensitivity.

Assault: An overt act that puts the plaintiff in reasonable apprehension that an immediate battery will occur with intent and causation. Reasonable apprehension is based on the plaintiff’s perception of the situation (e.g., it is considered assault if the defendant points an unloaded gun at the plaintiff as long as the plaintiff believes the gun to be loaded).

  • Words alone are not considered an overt act and they can negate the immediacy of the conduct (e.g., if the defendant points a gun at the plaintiff and says, “in three weeks, I will kill you,” this eliminates the immediacy required for the action to be considered an assault).

False Imprisonment: An act of restraint that confines the plaintiff in a bounded area. The length of the imprisonment is immaterial, but the plaintiff either must be aware of or suffer harm from the imprisonment. Words alone can be considered an act of restraint if the plaintiff believes they are a threat. An act of restraint can also occur through omission if specific preexisting conditions apply (e.g., if a prison guard refuses to release a prisoner at the end of his or her sentence, the guard has committed an act of restraint.)

  • For an area to be considered bounded, the plaintiff must be confined in all directions and there cannot be a reasonable means of escape that the plaintiff can reasonably discover.

Intentional Infliction of Emotional Distress: For this claim to be supported, the plaintiff must prove that he or she suffered damages due to extreme distress. The defendant must have engaged in outrageous conduct (conduct that exceeds all bounds of decency) with intent or recklessness and causation. Generally, courts are more likely to find that outrageous conduct has occurred if the plaintiff is a member of a fragile class of persons (e.g., very old or very young), there is continuous conduct, the conduct occurs in public, or the defendant is an innkeeper or common carrier.


Related to Property

Trespass to land: Occurs when the defendant physically invades the plaintiff’s land with intent and causation. Any physical entry on the land, no matter how small, meets the standard. An intangible invasion (e.g., smell) is not considered a trespass (although, intangible invasion may be recoverable under nuisance law). The invasion can occur on the surface or a reasonable distance above or below the surface of the land. The defendant does not need to be aware that he or she crossed onto plaintiff’s land; he or she must only have the intention to be on the challenged location. Unintentional entry (e.g., sleepwalking) does not count.

Trespass to chattel: Occurs when the defendant interferes with the plaintiff’s right of possession of chattel. The plaintiff must prove actual damage to the chattel.

  • Chattel: A personal article of property. Unlike real property, it is moveable. Chattel can be animate (e.g., the family pet) or inanimate.

Conversion: Occurs when the defendant’s interference with the plaintiff’s chattel is so egregious that the chattel is practically destroyed or it is never returned to the plaintiff. The plaintiff is not required to prove damages. In a successful claim, either the plaintiff can recover compensatory damages based on the fair market value of the chattel or the court can order replevin (return of the chattel to the plaintiff).


Defenses to Intentional Torts

Protection: Includes self-defense, defense of others, and defense of property. They are only available if the defendant acts during the event, and exercises a reasonable degree of force under the circumstances. Deadly force is allowed in self-defense or defense of others only out of necessity. Deadly force is not permitted for defense of property, but threats of deadly force are allowed.

  • Self–defense: The defendant must reasonably believe he or she is in danger. Mistakes are allowed as long as the defendant’s beliefs were reasonable.

  • Defense of others: To support a claim of defense of others, the individual the defendant was protecting must actually have been in danger. Mistakes are not allowed even if the defendant’s beliefs were reasonable.

  • Defense of property: Defense of property claims require a reasonable belief of injury. As discussed above, deadly force, including traps set on property, is never permissible for defense of property.

Consent: This is generally a complete defense to an intentional tort as long as it is an effective consent. To be effective, the consent must not have been coerced or gained under false or mistaken pretenses, and the individual giving consent must have the capacity to do so. In many jurisdictions, there are certain actions to which no individual can give legal consent (e.g., injury from mutual combat). Minors, mentally incompetent individuals, and intoxicated individuals generally do not have the capacity to consent, but a legal authority for an incapacitated individual (e.g., parent or guardian) can have a limited power to consent.

Necessity: Occurs when the defendant invades the plantiff’s property in an emergency situation. This is only a defense for intentional torts related to property. There are two types of necessity.

  • Public necessity: Occurs when the invasion is designed to protect the community. The public necessity defense is a complete bar to recovery.

  • Private necessity: Occurs when the invasion is to preserve the defendant’s own interest. The private necessity defense is limited. The defendant does not have to pay nominal or punitive damages, but is responsible for any property damage caused by his or her actions. In a private necessity, the plaintiff cannot force the defendant to exit the land until the emergency is over.

Arrest: There are different rules for police officers and private citizens regarding the right to arrest. When the right to arrest exists, the individual making the arrest has the right to enter the arrestee’s land.

  • Police officers: Police officers with warrants have the right to arrest when they use reasonable force and follow the correct procedure. When there is no warrant, the right to arrest varies based on the type of crime. For felonies, the police officer must have reasonable grounds to suspect that the individual has committed a felony. For a breach of the peace, the incident must have occurred in the presence of the police officer. For all other misdemeanors, jurisdictions disagree—some treat them like a breach of the peace and some prohibit arrests.

  • Private citizens: When a felony is involved, the right to arrest exists only if the felony has been committed and the private citizen has reasonable grounds to suspect that the individual committed the felony. The private citizen must bear the risk that an actual felony occurred because if he or she is mistaken, no right to arrest exists. When a breach of the peace is involved, the right to arrest only exists if the incident occurs in the presence of the private citizen. The private citizen has no right to arrest for any other misdemeanor.

Discipline: Parents, guardians, and teachers have the right to discipline children using reasonable force, which includes corporal punishment. Military officers also have the right to discipline their subordinates as long as reasonable force is used.