978-0077733711 Chapter 6 Lecture Note Part 1

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Chapter 06 – Intentional Torts

CHAPTER 06

INTENTIONAL TORTS

I. OBJECTIVES:

This chapter’s examination of intentional torts may be supplemented, in the instructor’s

discretion, with Chapter 8’s discussion of competitive torts. After reading Chapter 6 and

attending class, students should be able to:

A. Distinguish between tort liability and criminal liability, identify the basic types of damages

recoverable in a tort case, and explain the differences among the different sorts of culpability

exhibited within tort law.

B. Identify the elements of the various intentional torts and give examples of situations in which

each form of intentional tort liability would be applicable.

In addition, see the Learning Objectives that appear near the beginning of the chapter.

II. ANSWER TO INTRODUCTORY PROBLEM:

A. In Stanton v. Metro Corp., 357 F. Supp. 2d 369 (D. Mass. 2005), the district court granted

Metro’s motion to dismiss Stanton’s complaint for failure to state a claim on which relief

would be granted. In concluding that Stanton did not have a valid defamation claim, the

district court placed considerable emphasis on the disclaimer, whose presence caused the

court to conclude that the article’s statements were not false and defamatory in regard to

Stanton. As for the invasion of privacy claim, the court concluded that the taking of the

photograph was not an intrusion on Stanton’s solitude (one form of invasion of privacy) and

that the magazine’s publication of the photograph could not be seen as such an intrusion.

There was no public disclosure of private facts (another type of invasion of privacy) and no

false light publicity because Massachusetts law did recognize that variety of invasion of

privacy. Even if Massachusetts law had recognized the tort of false light publicity, it seems

likely that the district court would have concluded that the disclaimer prevented any

placement of Stanton in a false light.

B. After noting that Stanton appealed the district court’s decision, the introductory problem asks

students to make a prediction about how the appellate court ruled. Stanton actually appealed

only the dismissal of her defamation claim. She did not appeal the invasion of privacy

aspects of the district court’s decision. In Stanton v. Metro Corp., 438 F.3d 119 (1st Cir.

2006), the U.S. Court of Appeals for the First Circuit reversed the district court’s dismissal of

Stanton’s defamation claim and remanded the case for further proceedings. The First Circuit

stressed that the smaller font size used for the disclaimer (as compared with the font sizes

used for the byline and the body of the story) and the placement of the disclaimer (below the

main article’s text) would have made the disclaimer easy to overlook. If the disclaimer were

overlooked by reasonable readers, the article could be seen as false and defamatory in regard

to Stanton.

C. The ethical questions raised by this problem should make for interesting discussion. Are law

and ethics consistent with each other here, or do the two point in different directions? Ask

the students to justify their positions.

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Chapter 06 – Intentional Torts

III. SUGGESTIONS FOR LECTURE PREPARATION:

A. Introduction

1. The material on types of culpability applies to Chapters 6 and 7. Explain the different

levels of fault addressed in tort law, noting that negligence involves a less severe degree

of fault than intentional wrongdoing and that recklessness more closely resembles the

latter than the former. The Mathias case (discussed below) provides a nice illustration of

the types of fault explained in the text. Note that strict liability runs contrary to the usual

tendency in the law, by removing questions of fault from the analysis. Because strict

liability falls outside tort law’s norms, its application is restricted to narrow

circumstances (to be addressed in Chapters 7 and 20). Problem #1 involves the intent-

recklessness distinction in those troublesome cases where the defendant may not have

had a conscious purpose to bring about a certain result, but nonetheless knew that it was

substantially certain to occur.

2. Make sure that students understand the crime-tort distinction. Refer to Chapter 1, as

necessary. Explain the different standards of proof applicable in criminal and civil cases.

Note that the preponderance-of-the-evidence standard applicable in tort cases is the

general standard of proof in all civil cases. Point out that these different standards of

proof mean that it would be possible for a battery victim to win a tort lawsuit against a

defendant who was acquitted of the criminal charge arising out of the same incident.

Further examples: O.J. Simpson and Robert Blake (each acquitted in criminal case but

held liable in tort case for wrongful death).

3. Distinguish between compensatory (actual) and punitive damages. Give a rough

indication of the circumstances under which the latter are awarded, and why (to punish

and to deter). Mathias (discussed below) provides helpful insights regarding damages

issues. Note that some acts may give rise to both criminal and civil liability. The reason

more crime victims do not pursue tort litigation is that many criminal defendants are

judgment-proof (i.e., they don’t have sufficient assets to pay the judgment entered against

them.)

4. Mathias v. Accor Economy Lodging, Inc. (p. 183): The U.S. Court of Appeals for the

Seventh Circuit upholds a $191,000 jury verdict ($5,000 compensatory damages and

$186,000 punitive damages) in favor of the plaintiff and against a hotel owner that

engaged in “willful and wanton” conduct by consciously disregarding–and hence doing

nothing about–a multiple-room bedbug infestation problem at the hotel.

Points for Discussion: Why wasn’t the defendant’s inaction mere negligence? What

made the defendant’s inaction amount to recklessness (willful and wanton conduct)?

What makes recklessness more similar to intentional wrongdoing than to negligence?

What intentional torts does the court indicate may also have been committed by the

defendant? (Fraud and battery.) What are the purposes of punitive damages, and how do

those purposes differ from those underlying compensatory damages? When, as a general

rule, are punitive damages assessed? Why is a case of recklessness likely to be a good

candidate for punitive damages? Why aren’t punitive damages available in negligence

cases? In a case such as this one, where the amount of compensatory damages is fairly

small, is a significantly larger amount of punitive damages necessary? How does the

court attempt to harmonize the award of punitive damages in this case with the Supreme

Court’s decisions regarding the relationship between amounts of punitive damages

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Chapter 06 – Intentional Torts

awarded and amounts of compensatory damages awarded?

5. Note the two broad classes of intentional torts discussed in this chapter (interference with

personal rights and interference with property rights). To these you might add—

depending on the time you have available–Chapter 8’s discussion of competitive torts.

B. Interference With Personal Rights

1. Battery

a. Note that the touching required for a battery can be either harmful or offensive—

offensive in regard to a reasonable sense of personal dignity. On the latter point, see

Problem #2 (Wishnatsky v. Huey, a former text case).

b. Discuss the doctrine of transferred intent in tort law. Note that the public policy basis

of this doctrine is the general public policy against breaches of the peace.

c. Note that for battery, there need not be direct contact between the defendant’s body

and the plaintiff’s body. This is obvious when, for example, the defendant shoots the

plaintiff. There also can be battery liability, however, when the defendant makes

contact with something attached to the plaintiff’s body. How far does this go? Does

it including the shooting of a dog that is on a leash?

c. Discuss consent as a defense to battery liability.

d. Note how the “implied consent” doctrine prevents many normal social contacts, even

offensive contacts, from giving rise to battery liability.

e. Howard v. Wilson (p. 186): The Mississippi Supreme Court holds that even though

the plaintiff’s complaint sought to characterize the defendant’s ‘violent attack” as an

instance of negligence, the complaint really alleged a claim of battery that was time-

barred because of the operation of the applicable statute of limitations on intentional

tort claims.

Points for Discussion: Ask why the plaintiff, Wilson, was so desperate to have the

court buy the argument that her claim was a negligence claim rather than a battery

claim. (Because the statute of limitations on negligence claims provided for a longer

period of limitations than did the statute of limitations on intentional tort claims. If

Wilson’s claim were regarded as a battery claim, the statute of limitations would bar

it because Wilson waited too long to file suit. Use the case as an opportunity to

explore basic issues regarding the operation of statutes of limitation.) Why does the

Mississippi Supreme Court reject Wilson’s argument that she was pleading a

negligence claim? (Note that the court takes a substance-over-form approach. Just

characterizing something as negligence doesn’t make it a case involving a failure to

use reasonable care, where the substantive facts indicate that there was intentional

action on the part of the scissors-wielding (according to the complaint) defendant.)

Ask the students to identify each element of battery in the allegations set forth in

Wilson’s complaint.

2. Assault

a. Note that the apprehension element at the heart of assault does not require that the

plaintiff experience any fear as a result of the assault. It is possible, therefore, that a

120-pounder who takes a swing at an All-American defensive tackle could be liable

for assault.

b. Note the limitation inherent in the requirement that the victim’s apprehension be of

imminent battery: threats of future battery do not satisfy this requirement, even

though such threats may cause as much or more mental suffering as threats of

imminent harm. You might give students the example of the bully who threatens to

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Chapter 06 – Intentional Torts

beat up another kid after school. Point out, however, that in some cases, threats of

future harm may give rise to tort liability for intentional infliction of emotional

distress.

c. Note that the plaintiff’s apprehension must be reasonable. In this connection, note

also that even though words typically are not an assault, words that color a gesture

can constitute an assault. Suppose that the defendant says that “I’m going to blow

you away” while reaching inside his coat for the place where a holster would reside.

On the other hand, words may render non-tortious certain conduct that might

otherwise constitute an assault. Suppose that the defendant threatens to hit the

plaintiff while saying that “if you weren’t an old man, I’d beat your head in.”

d. On assault and battery, see Problem #1. On assault, battery, and false imprisonment,

see Problem #4. On battery alone, see Problem #2. On assault alone, see Problem

Case #8.

3. Intentional Infliction of Emotional Distress

a. Note the old suspicions and concerns regarding claims of emotional harm. These

suspicions and concerns go a long way toward explaining why the elements of this

tort are difficult for plaintiffs to establish.

b. Emphasize a key lesson related to the requirement of outrageous behavior on the part

of the defendant: that many instance of bad behavior won’t be classified by courts as

“bad enough” to justify the imposition of liability for this tort. For an illustration of

this lesson, see Problem #6. Examples of outrageous behavior: falsely telling a

parent that her child has been horribly injured; and extreme instances of stalking

behavior. Certain collection agency tactics and sexual harassment may also qualify.

c. Note that the plaintiff’s emotional distress must be severe and that some courts

require physical manifestations. As a general rule, sufficient culpability on the part

of the defendant will exist if the defendant either intentionally or recklessly inflicted

the distress.

d. Not all courts require, as one of the elements of the tort, that the plaintiff’s distress

have been reasonable under the circumstances. Yet it would seem that there almost

has to be a rule of this kind, or liability for infliction of mental distress would expand

considerably. Note, however, two situations in which defendants may be liable even

for arguably unreasonable distress: when the defendant plays upon a person’s

emotional susceptibility with knowledge of its existence, and when the defendant

abuses a position of authority. Courts typically regard such behaviors as outrageous.

e. Briefly note the Restatement rules on liability for threats directed at third persons.

f. Durham v. McDonald’s Restaurants of Oklahoma, Inc. (p. 189): The Supreme Court

of Oklahoma holds that summary judgment should not have been granted in favor

defendant McDonald’s in regard to Durham’s claim for intentional infliction of

emotional distress and that the case should proceed to trial. A reasonable jury could

conclude, the court holds, that the actions of a McDonald’s manager were extreme

and outrageous (an element of intentional infliction of emotional distress).

Points for Discussion: Ask what the manager did and said. (Issued three denials

of the 16-year-old Durham’s requests that he be allowed to take his anti-seizure

medication; also called Durham a “f . . . ing retard,” but without the ellipsis used

here.) Note the court’s gatekeeper function as to the elements of the tort. What

considerations probably went into the court’s conclusion that a reasonable jury could

regard the manager’s actions as extreme and outrageous? (Speaking to 16-year-old

rather than adult; medical needs factor; language used was crude and particularly

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Chapter 06 – Intentional Torts

insulting and humiliating, under the circumstances.) Note these cases are highly fact-

specific. Compare, for instance, this case with the one in Problem #6 (where court

said managers’ actions were bad, but not bad enough to give rise to liability). But

either way—whether it’s a potential liability instance such as Durham or a no-

liability instance such as Problem #6, isn’t such behavior by managers problematic?

Is treating people in that manner any way to run a business? Also, work through the

court’s rejection of the argument that the ruling in the separate case under the ADA

wasn’t dispositive of the extreme and outrageous element. Ask the students what

evidence indicated to the court that a reasonable jury could conclude that Durham

suffered “severe” emotional distress (also an element of the tort). Finally, you might

also mention why McDonald’s could be liable here along with the manager, as

opposed to the manager’s being the only potentially liable defendant. (Respondeat

superior—employer liable for tort of employee if committed in scope of

employment.)

g. Most intentional infliction of emotional distress cases are conduct-based. However,

some are speech-based. (Threats of violence involve words but are generally

classified as conduct for imposition of liability purposes.) Note the text’s discussion

of the Falwell case (beginning at p. 188) and the resulting difficulty, thanks to the

Supreme Court’s decision there, that public figure plaintiffs face in trying to make

out a speech-based intentional infliction of emotional distress case. The First

Amendment barrier constructed by the Court–the same one present in defamation

cases–prohibits public figure plaintiffs from using intentional infliction of emotional

distress claims as an end-run around the stern First Amendment requirements that

apply to defamation cases (see later discussion in Chapter 6). The First Amendment

contours of a private figure’s speech-based emotional distress case are less clearly

defined. However, after the Supreme Court’s 2011 decision in Snyder v. Phelps

(discussed at p. 190), it appears that a speech-based intentional infliction of

emotional distress case will be very hard to win if the speech dealt with a matter of

public concern. Briefly note–or ask students about–this decision, which generated

considerable media attention. Of course, Snyder v. Phelps furnishes a clear

illustration that the First Amendment protects a great deal of speech whose message

offends others.

4. False Imprisonment

a. List the different ways in which confinement might occur, and note that each

effectively involves the defendant’s keeping the plaintiff within a circle of the

defendant’s creation. See Problem #4.

b. Note that the confinement required for liability must be complete. What if the

defendant locks the plaintiff in a house, but the plaintiff is a young and athletic

person who could easily climb out a first-floor window? Confinement? Probably

not. What if the plaintiff is 80 years old and has a serious heart condition? Most

likely, such a plaintiff has been confined.

c. Discuss the traditional requirement that the plaintiff must have knowledge of his

confinement. Rigid application of this requirement would mean that if someone

confines another who is unconscious, an infant, or so mentally disturbed as to be

unaware of his surroundings, the person who did the confining might not be liable for

false imprisonment. What about a situation in which the defendant surreptitiously

drugs the plaintiff, rendering him unconscious, and ties him to a tree from which he is

later released by another before regaining consciousness? A literal application of the

knowledge-of-confinement requirement would suggest no false imprisonment

liability here (but clear battery liability). However, because the battery effectively

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Chapter 06 – Intentional Torts

deprived the plaintiff of his ability to know of his confinement, many courts would

find liability for false imprisonment on these facts.

Some states have dispensed with the knowledge requirement because of a general

public policy against the nonconsensual confinement of others. The Restatement

(Second) of Torts, §42, comment b, dispenses with the knowledge requirement when

confinement results in actual harm to the plaintiff.

d. Discuss the conditional privilege statutes many states have passed to afford

merchants some limited protection against tort liability when they stop suspected

shoplifters. Note that these statutes usually cover not only false imprisonment but

also other torts. Example: the Pope case (discussed below). See also Problem #4.

e. Pope v. Rostraver Shop and Save (p. 191): A federal district court holds that the

defendants were entitled to summary judgment in a case in which the plaintiff (Pope)

contended that the defendants committed assault, battery, and false imprisonment in

allegedly detaining her because of their suspicion that she had shoplifted. (A federal

court of appeals later affirms.)

Points for Discussion: Note the identities of the various defendants here—including

not only the store and the store manager but also an investigating policy officer, the

police department, and the township. Have a student summarize the facts that led to

the store manager’s suspicion that Pope had shoplifted (even though she evidently

didn’t), and the manager’s brief detention of her before calling the police officer.

Why was there no assault here? (No apprehension of imminent battery.) Why was

there no battery here? (No touching by store manager; any touching by police officer

was minimal and reasonably related to investigative purpose). Obviously, the false

imprisonment claim is the big one here. What’s the main reason why Pope loses?

(Her belief that she was not free to leave was unreasonable. Because she could have

left the store easily during the interim between the manager’s interaction with her and

the arrival of the police, her confinement was not complete.) Do the students agree

with the court’s conclusion that Pope unreasonably believed she was confined? Do

they agree that Pope’s case is closer to Caswell than to Pinkett (the precedent cases

noted by the court)? Finally, ask about the role of the Pennsylvania statute that sets

up a conditional privilege to detain suspected shoplifters. The court notes it as

effectively a backup rationale (i.e., if Pope’s belief she was confined had been

reasonable—which it wasn’t, according to the court—the statute would have

protected the defendants against false imprisonment liability because their detention

of Pope was reasonable under the circumstances).

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