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Chapter 06 – Intentional Torts

6-1

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CHAPTER 06

INTENTIONAL TORTS

I. OBJECTIVES:

students should be able to:

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

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

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

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.

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.

students to justify their positions.

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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

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

certain to occur.

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

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

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

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

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

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

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

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

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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).

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.

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

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

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

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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

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

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

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

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

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

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

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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

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

course, Snyder v. Phelps furnishes a clear illustration that the First Amendment

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.

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 on these facts.

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

confinement results in actual harm to the plaintiff.

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

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

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

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

reasonable under the circumstances).

5. Defamation

a. Introduce this tort by noting that two competing interests are at stake: (1) the

two categories: first, the common law elements of a defamation claim (though some

b. Discuss the libel-slander distinction and why it matters (no need to prove special

damages in libel cases, because presumed damages are available). Also discuss the

basis for this rule (the presumed greater harm to reputation resulting from libel).

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through the four categories of slander per se and emphasize that in a slander per se

case, the common law has traditionally allowed the plaintiff to recover presumed

damages. In slander cases not amounting to slander per se, the common law has

special damages must be demonstrated. The authors recommend not muddying the

waters by addressing this approach unless the instructor believes there are special

eliminated this tort law “oddity.”

c. Define the term “defamatory” and stress that its application is a case-by-case matter.

Stress that the defendant’s statement must also have been false in order for potential

supposed fact regarding Evel Knievel and that his reputation therefore would not be

lowered in their eyes. What does this conclusion indicate about the companies that

terminated Evel Knievel as a paid endorser of their products? Is the court effectively

saying that those companies were unreasonable?

Action box at pp. 197–98); Problem #3; and Barger v. Playboy Enterprises, Inc., 564

F. Supp. 1151 (N.D. Cal. 1983) (Hell’s Angels’ wives too large a group to be

individually defamed by magazine article). Stress that because they are neither

demonstrably true nor demonstrably false, statements of pure opinion aren’t actionable

must have made the communication to the third party in order for there to have been

publication. The plaintiff’s “self–publication” does not constitute publications. For

example, Student A says to Student B: “Professor Jones accused me of cheating on the

last exam.” Note, however, the “compelled self-publication” exception that some

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f. You may wish to raise a business-specific defamation issue at this point: Are

place in such situations.

g. Note also that one who repeats or republishes a defamatory statement is as liable for

defamation as the originator of the statement.

h. Explain the traditional publisher vs. distributor distinction. Note the role played by §

another party.

i. Regarding common law defenses and privileges in defamation cases:

1) Truth, of course, is an absolute defense to defamation liability. (Note, however,

say why they exist.

3) Note how conditional privileges are different from absolute privileges. Work

through each of the major conditional privilege situations outlined in the text, and

emphasize the policy reasons for recognizing a privilege in those situations. The

j. Defamation and the Constitution

1) Note the reasoning that led the Supreme Court, in the landmark New York Times

case, to supplement the common law elements of defamation with First

Amendment-based fault requirements. Mention the Court’s concern about the

undesirable effects, in a free speech sense, that could result from the common

First Amendment concerns.

2) Public official plaintiffs, public figure plaintiffs, and proof of actual malice

First Amendment interest in engaging in speech regarding such persons.

plaintiffs (and later public figure plaintiffs).

for the truth) and what it isn’t (ill will, spite motives, etc.). Note the

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further First Amendment-based bit of protection for defendants. (On the

voluntary placement of themselves in the public spotlight. Therefore, the

Court concluded that the proof-of-actual-malice requirement should be

imposed on public figure plaintiffs (along with the requirement that actual

malice be proven by clear-and-convincing evidence).

the relevant facts.

e) Stress the usual effect of the proof-of actual-malice requirement: that the

public official or public figure plaintiff will lose the case because of an

inability to prove actual malice. Example: the Bertrand case (a text case

make a defendant liable for defamation in a case brought by a public

official or public figure plaintiff. (It is a different story for the private

figure plaintiff, as will be seen.) If the public official or public figure

plaintiff manages to demonstrate actual malice—and this does sometimes

officials and public figures.

Bertrand v. Mullin (p. 199): The Supreme Court of Iowa tosses out a

defamation verdict in favor of a public official/public figure plaintiff,

ruling that the plaintiff failed to prove actual malice and that the

(Because he’s a public figure who must prove actual malice by clear and

convening evidence, and he can’t carry that burden here). Ask and work