Intentional Torts to the Person

Every tort in this chapter requires intent; IIED also accepts recklessness. The intent element therefore decides many cases. The examiners tested intent on 5 of the last 50 exams and transferred intent on 2 more. On the MBE, intent is often the hidden issue: the defendant “did not mean any harm,” or hit the wrong person. This section gives you the definition, the transfer rule and the capacity rule.

intentional tort – A tort that requires proof that the defendant acted with intent, such as battery, assault, false imprisonment, trespass or conversion.

intent – The actor’s purpose to cause a result, or the actor’s knowledge that the result is substantially certain to follow from the act.Restatement (Second) of Torts § 8A

The two branches cover different people. Purpose is the ordinary meaning: the defendant wants the result. Substantial certainty covers the defendant who does not want the result but knows it will almost surely happen. A worker who throws a heavy box from a roof onto a crowded sidewalk may hope to miss everyone. The worker still knows that someone will be hit, so the worker has intent.

Substantial certainty is not the same as high risk. If the defendant knows only that harm is likely or possible, there is no intent. The conduct may then be reckless (a conscious disregard of a known, serious risk) or negligent (a failure to use reasonable care). Neither is intent. Reckless or careless conduct is judged under the rules for negligence, except in intentional infliction of emotional distress, where recklessness is enough (section 5).

The classic case is Vosburg v. Putney. During class, a schoolboy lightly kicked a classmate’s shin. The kick reopened an old injury, and the classmate lost the use of his leg. The kicker did not intend any harm. The court held that the kick was a battery and that the kicker would be liable for all harm that directly resulted, even harm he could not foresee.

A mistake of fact does not remove intent either. A defendant who hugs a stranger in a crowd, believing she is a friend, intended the contact and has committed a battery. Mistake can matter later, when the defendant claims a privilege such as self-defense. Chapter 2 covers those privileges.

Transferred intent

transferred intent – A legal rule that moves the defendant’s intent from the intended victim to the actual victim, or from the intended tort to the tort that actually resulted.

Capacity: children and mentally ill defendants

A parent is not liable for a child’s tort just because of the family relationship. California makes parents liable, up to a statutory cap, for a minor’s willful misconduct (Civ. Code § 1714.1). Chapter 6 covers parental liability.

The next two torts protect the body and a person’s sense of physical security. They often appear in the same facts: a raised fist creates one tort, and the blow that lands creates the other. Battery was tested on 6 of the last 50 essay exams, and assault on 3 exams. On the MBE both appear as short fact patterns that turn on a single element.

Battery

battery – An intentional act that causes a harmful or offensive contact with the plaintiff’s person.Restatement (Second) of Torts §§ 13, 18

offensive contact – A contact that offends a reasonable sense of personal dignity. The test is objective: it asks about a reasonable person, not an unusually sensitive one.Restatement (Second) of Torts § 19

Each part of this rule has a reason. Indirect contact counts: pulling a chair away so that the plaintiff falls, putting poison in a drink, or throwing a rock are all contacts. Awareness is not needed: kissing a sleeping person is a battery even if the person learns of it only later. The closely connected rule protects things in the plaintiff’s hand or on the body, such as a plate, a purse or a hat.

The reasonable-person test also excludes the ordinary contacts of daily life. A tap on the shoulder to get attention, or a push in a crowded train, does not offend a reasonable person. Those contacts are treated as accepted. Consent, including consent implied from custom, is a privilege covered in chapter 2.

Assault

assault – An intentional act that puts the plaintiff in reasonable apprehension of an imminent harmful or offensive contact.Restatement (Second) of Torts § 21

apprehension – The plaintiff’s awareness that a harmful or offensive contact is about to happen. Fear is not required; a brave plaintiff who expects a blow has apprehension.

The classic case of words that remove a threat is Tuberville v. Savage. One man put his hand on his sword and said to another: “If it were not assize-time, I would not take such language from you.” Assize-time was when the royal judges were in town, and they were. The words showed that he would not strike, so there was no assault.

Compare a conditional threat such as “Your money or your life.” The defendant has no right to make that demand, and the plaintiff expects a blow if there is no payment. That threat is an assault. The difference is simple: in Tuberville the words said the blow would not come; here the words say it will come unless the plaintiff gives in.

Imminent means that the contact will come without significant delay. A threat of future harm, such as “I will beat you tomorrow,” is not an assault, although it may support another tort. The plaintiff must also be aware of the threat when it happens. A person struck from behind without warning has a battery claim but no assault claim.

False imprisonment protects freedom of movement. It appears on the exam in store detentions, locked rooms, workplace interviews and false arrests. The tort needs no physical harm and no jail; a few minutes in a locked office can be enough. The hard questions are what counts as confinement and whether the plaintiff had a reasonable way out.

false imprisonment – An intentional act that confines the plaintiff within boundaries fixed by the defendant, when the plaintiff knows of the confinement or is harmed by it.Restatement (Second) of Torts § 35

confinement – Restraint of a person within a bounded area, so that the person’s freedom of movement is limited in every direction.

A bounded area is any space closed on all sides: a room, a car, a moving train or even a large building. Blocking only one direction is not confinement if the plaintiff can go another way. In Bird v. Jones, the defendants fenced off part of a public bridge and stopped the plaintiff from going forward. He could turn back and take another route, so there was no false imprisonment.

A false arrest is one form of false imprisonment. The defendant confines the plaintiff by claiming a legal authority that the defendant does not have. The plaintiff need not resist; submitting to an apparent arrest is confinement. The length of the confinement matters only to damages. A short confinement is still a tort, but it usually earns small damages.

Preview: the shopkeeper’s privilege

The shopkeeper’s privilege is a defense, so it comes after the prima facie case. First prove the confinement. Then ask whether the store had good grounds, held the plaintiff only as long as an investigation needed, and acted without threats or unnecessary force. Chapter 2 teaches this privilege and the other privileges in full.

The fourth tort protects peace of mind. It is younger than the other three: most courts recognized it as an independent tort only in the twentieth century. Its elements are open-ended, so courts keep it narrow. It was tested on 4 of the last 50 essays. On the MBE the usual question is whether the conduct is outrageous enough, or whether another tort fits better.

intentional infliction of emotional distress – Extreme and outrageous conduct that intentionally or recklessly causes another person severe emotional distress. Abbreviated IIED.Restatement (Second) of Torts § 46

extreme and outrageous conduct – Conduct so extreme in degree that it goes beyond all possible bounds of decency and would be regarded as atrocious in a civilized community.Restatement (Second) of Torts § 46

severe emotional distress – Distress so substantial or so long-lasting that no reasonable person in a civilized society should be expected to endure it.Hughes v. Pair (2009) 46 Cal.4th 1035

Outrageousness is the element that decides most cases. Insults, rude language, threats of minor harm and ordinary unkindness are not enough, because people are expected to tolerate some rough treatment. In Hughes v. Pair, the California Supreme Court held that a trustee’s vulgar sexual comments to a beneficiary’s mother were not outrageous. The conduct must exceed all bounds of what a civilized community usually tolerates.

Each factor appears in exam facts. Repetition turns one rude call into a campaign. Common carriers and innkeepers owe their passengers and guests a special duty of courtesy. Known vulnerability covers children, elderly or ill people and pregnant women. Position of power covers employers, landlords, debt collectors, police officers and school officials.

In Alcorn v. Anbro Engineering, Inc., a supervisor shouted racial insults at an employee and fired him on the spot. The California Supreme Court held that the complaint stated a claim. The employment relationship, and the defendants’ knowledge that the employee was especially sensitive to such insults, could support a finding of outrageous conduct.

The distress must be severe, but it need not produce a physical injury. Evidence usually includes medical treatment, an inability to work or sleep, or a long period of anxiety. In Hughes, “discomfort, worry, anxiety, upset stomach, concern, and agitation” were not severe. The more outrageous the conduct, the more readily a court accepts that severe distress followed.

Bystanders, transferred intent and free speech

California asks the same question in one sentence. The conduct must be directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware (Christensen v. Superior Court). A daughter who watches strangers beat her father can sue for her own distress only if the attackers knew that she was watching.

Actual malice is a speech-law term. It is not the malice that supports punitive damages in section 6. Chapter 9 covers these constitutional limits together with defamation.

Every tort answer ends with the remedy. The intentional torts to the person help plaintiffs in three ways. Battery, assault and false imprisonment need no proof of harm. A defendant who acts intentionally pays for all the harm the act causes, even harm that was unexpected. And intentional wrongdoing opens the door to punitive damages.

nominal damages – A small sum, such as $1, awarded when a tort is proved but the plaintiff shows no actual loss. It declares that the plaintiff’s right was violated.

compensatory damages – Money that puts the plaintiff, as far as money can, in the position the plaintiff was in before the tort. Also called actual damages.

punitive damages – Damages beyond compensation, awarded to punish a defendant for malicious or similar conduct and to deter others. Also called exemplary damages.

The last point is the eggshell plaintiff rule: a defendant cannot complain that the plaintiff was unusually fragile. For intentional torts the reach of liability is wide, as Vosburg shows. The California Civil Code states the same measure. Under Cal. Civ. Code § 3333, the plaintiff recovers the amount that compensates for all the detriment proximately caused, “whether it could have been anticipated or not.” Chapter 4 applies the eggshell rule to negligence.

Punitive damages

In plain English: in a tort case, the plaintiff may recover punitive damages only by proving oppression, fraud or malice by clear and convincing evidence. That standard is higher than the usual preponderance of the evidence. The statute defines the three words. Malice is conduct intended to injure, or despicable conduct carried on with a willful and conscious disregard of the rights or safety of others.

Oppression is despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. Fraud is an intentional misrepresentation, deceit or concealment of a material fact, made to deprive a person of property or rights or otherwise to cause injury. On intentional-tort facts, malice is usually the word to use.

This review has 5 multiple-choice questions in the MBE style. The real exam gives you about 1.8 minutes for each question: 200 questions in two 3-hour sessions. Time yourself. For each question, name the tort first, then find the element that the facts put in doubt, then read the options. After the questions, the glossary lists the new terms from this chapter.

The examiners test this chapter in predictable ways. On the MBE, the trap option usually names the wrong element. It requires harm for battery, fear instead of apprehension for assault, a minimum time for false imprisonment, or physical contact for IIED. On the essay, points go to a heading for each tort, a complete rule and the use of the facts for each element. Both formats reward the same habit: element by element, one tort at a time.

substantial certainty – Knowledge that a result will almost surely follow from an act. It satisfies the intent element even without any wish to cause the result.

recklessness – Conscious disregard of a known and serious risk. It is less than intent and more than negligence, and it satisfies IIED.

harmful contact – A contact that causes physical injury, pain, illness or other damage to the body.

imminent – About to happen without significant delay. A threat of harm in the future is not imminent.

overt act – A physical action, such as raising a fist or reaching for a weapon, that gives threatening words the force of an assault.

bounded area – A space closed on all sides, large or small, that limits a person’s movement in every direction.

false arrest – False imprisonment by a person who claims legal authority to hold the plaintiff but does not have it.

shopkeeper’s privilege – A store owner’s right to detain a suspected shoplifter on reasonable grounds, for a reasonable time and in a reasonable manner.

eggshell plaintiff – A plaintiff with a hidden weakness who suffers more harm than an ordinary person would. The defendant pays for all of it.

bystander – A person who is present when the defendant’s conduct is aimed at someone else.

malice – For California punitive damages: conduct intended to injure, or despicable conduct in willful and conscious disregard of the rights or safety of others.

clear and convincing evidence – A standard of proof higher than a preponderance of the evidence: the fact must be shown to be highly probable.

Chapter 2 continues with the intentional torts to property: trespass to land, trespass to chattels and conversion. It then teaches the privileges that can defeat intentional torts: consent, self-defense, defense of others and of property, the shopkeeper’s privilege in full, and necessity. Before you go on, write from memory the elements of the four torts in this chapter and the five torts that share transferred intent.