PART IV INTENTIONAL TORTS Chapter 12 Intentional Torts: The Prima Facie Case Introduction Intentional torts are among the oldest causes of must ordinarily find that the defendant subjectively action recognized in tort law. Although the intended to inflict a certain consequence upon the negligence principle has come to dominate tort plaintiff. It must be borne in mind that the plaintiff law, this is a relatively recent development, can rarely provide tangible proof of the defendant' s attributable in part to the importance of insurance state of mind other than by showing what the as a compensation mechanism,1 and in part to the defendant did, and asking the jury to infer his utility of the negligence test as a means of intent. The defendant can usually claim that the balancing competing social interests. Relatively injury to the plaintiff was accidental rather than little of the personal injury practice of modern intentional, and the plaintiff cannot offer an X-ray lawyers is taken up by intentional torts. However, of the defendant' s brain as proof. Nonetheless, the for a variety of reasons they figure prominently in jury must find as a fact (based upon their most law school torts courses. 2 Thus, most experience in the world and their common sense) students' education would be incomplete without an that the defendant' s conduct was intentional (or in understanding of intentional torts, despite the fact some cases highly reckless) rather than merely that they may never see one again, except careless before the legal requirements of the (possibly) on a bar exam. intentional tort are met. The unique thing about intentional torts is the Once the plaintiff has met his burden of proof, emphasis upon the defendant' s state of mind. the defendant can always claim that his conduct Whereas in the negligence case the jury is was "privileged" or justified, and thereby escape instructed to judge the defendant's conduct by an liability. objective standard, i.e., the hypothetical reasonably The "rules" governing intentional torts are prudent person, in intentional torts cases the jury relatively well settled; they are set forth in the RESTATEMENT (2D) OF TORTS. Their application, however, is often quite complex, as the succeeding 1 Insurance is important in part because it usually provides cases demonstrate. coverage only for "accidental" harms. Intentional torts are frequently excluded from coverage because they do not meet the requirement that the loss arise from an "occurrence," which is typically defined as "an accident RESTATEMENT (2D) OF TORTS or a happening ... which unexpectedly and unintentionally results in personal injury...." § 8A. Intent 2 One commonly cited reason is that the rules for intentional The word "intent" is used throughout the torts are relatively clear, and thus easier for the beginning student to understand and apply. Relative to product RESTATEMENT of this Subject to denote that the liability law, this statement is certainly true. actor desires to cause consequences of his act, or 12-2 INTENTIONAL TORTS: THE PRIMA FACIE CASE that he believes that the consequences are liable to the other for an apprehension caused substantially certain to result from it. thereby although the act involves an unreasonable risk of causing it and, therefore, would be § 13. Battery: Harmful Contact negligent or reckless if the risk threatened bodily harm. An actor is subject to liability to another for battery if § 35. False Imprisonment (a) he acts intending to cause a harmful or (1) An actor is subject to liability to another for offensive contact with the person of the other false imprisonment if or a third person, or an imminent apprehension of such a contact, and (a) he acts intending to confine the other or a third person within boundaries fixed by the (b) a harmful contact with the person of the actor, and other directly or indirectly results (b) his act directly or indirectly results in such § 15. What Constitutes Bodily Harm a confinement of the other, and Bodily harm is any physical impairment of the (c) the other is conscious of the confinement or condition of another's body, or physical pain or is harmed by it. illness. (2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor § 18. Battery: Offensive Contact liable to the other for a merely transitory or otherwise harmless confinement, although the act (1) An actor is subject to liability to another for involves an unreasonable risk of imposing it and battery if therefore would be negligent or reckless if the risk (a) he acts intending to cause a harmful or threatened bodily harm. offensive contact with the person of the other or a third person, or an imminent apprehension § 36. What Constitutes Confinement of such a contact, and (1) To make the actor liable for false (b) an offensive contact with the person of the imprisonment, the other' s confinement within the other directly or indirectly results. boundaries fixed by the actor must be complete. (2) An act which is not done with the intention (2) The confinement is complete although there is stated in Subsection (1,a) does not make the actor a reasonable means of escape, unless the other liable to the other for a mere offensive contact with knows of it. the other' s person although the act involves an unreasonable risk of inflicting it and, therefore, (3) The actor does not become liable for false would be negligent or reckless if the risk imprisonment by intentionally preventing another threatened bodily harm. from going in a particular direction in which he has a right or privilege to go. § 21. Assault § 46. Outrageous Conduct Causing Severe (1) An actor is subject to liability to another for Emotional Distress assault if (1) One who by extreme and outrageous conduct (a) he acts intending to cause a harmful or intentionally or recklessly causes severe emotional offensive contact with the person of the other distress to another is subject to liability for such or a third person, or an imminent apprehension emotional distress, and if bodily harm to the other of such a contact, and results from it, for such bodily harm. (b) the other is thereby put in such imminent (2) Where such conduct is directed at a third apprehension. person, the actor is subject to liability if he (2) An act which is not done with the intention intentionally or recklessly causes severe emotional stated in Subsection (1, a) does not make the actor distress RESTATEMENT (2D) OF TORTS INTENTIONAL TORTS: THE PRIMA FACIE CASE 12-3 (a) to a member of such person' s immediate (a) the other is about to inflict upon him an family who is present at the time, whether or intentional contact or other bodily harm, and not such distress results in bodily harm, or that (b) to any other person who is present at the (b) he is thereby put in peril of death or time, if such distress results in bodily harm. serious bodily harm or ravishment, which can be safely be prevented only by the immediate § 63. Self-Defense by Force not Threatening use of such force. Death or Serious Bodily Harm (2) The privilege stated in Subsection (1) exists (1) An actor is privileged to use reasonable force, although the actor correctly or reasonably believes not intended or likely to cause death or serious that he can safely avoid the necessity of so bodily harm, to defend himself against defending himself by unprivileged harmful or offensive contact or other (a) retreating if he is attacked within his bodily harm which he reasonably believes that dwelling place, which is not also the dwelling another is about to inflict intentionally upon him. place of the other, or (2) Self-defense is privileged under the conditions (b) permitting the other to intrude upon or stated in Subsection (1), although the actor dispossess him of his dwelling place, or correctly or reasonably believes that he can avoid (c) abandoning an attempt to effect a lawful the necessity of so defending himself, arrest. (a) by retreating or otherwise giving up a right (3) The privilege stated in Subsection (1) does not or privilege, or exist if the actor correctly or reasonably believes (b) by complying with a command with which that he can with complete safety avoid the necessity the actor is under no duty to comply or which of so defending himself by the other is not privileged to enforce by the (a) retreating if attacked in any place other means threatened. than his dwelling place, or in a place which is also the dwelling of the other, or § 65. Self-Defense by Force Threatening Death or Serious Bodily Harm (b) relinquishing the exercise of any right or privilege other than his privilege to prevent (1) Subject to the statement in Subsection (3), an intrusion upon or dispossession of his dwelling actor is privileged to defend himself against place or to effect a lawful arrest. another by force intended or likely to cause death or serious bodily harm, when he reasonably believes that § A. Battery and Assault Introductory Note. In Dickens v. Puryear, ROGERS v. LOEWS L'ENFANT PLAZA already considered in Chapter Seven, there is a HOTEL good introduction to the general requirements of 526 F. Supp. 523 (D.C. D.C. 1981) battery and assault. Joyce Hens GREEN, District Judge Plaintiff, Norma Rogers, alleges in her complaint that while employed by the defendant Loews L' Enfant Plaza Hotel (Hotel) she was subjected to physical and emotional harassment by her superiors. Claiming that defendants' conduct has deprived her of rights guaranteed under the ROGERS v.