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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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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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
6-5
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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).
6-6
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
