4.3 Intentional Torts

Keeping these dimensions of torts in mind, let’s turn to a discussion of intentional torts. There are several intentional torts, and some common ones are illustrated in this section.

Assault and Battery

One of the most obvious intentional torts is assault and battery as tort law seeks to restrain individuals from using physical force on others. Assault is (1) the threat of immediate harm or offense of contact or (2) any act that would arouse reasonable apprehension of imminent harm. Battery is unauthorized and harmful or offensive physical contact with another person that causes injury. At common law, these were two separate torts. Some states now merge these torts and treat them together as a single tort.

Often an assault results in battery, but not always. Consider these three examples:

Alex is walking down the street when they suddenly become angry with Taylor. Alex clenches their fist and shouts at Taylor, “I’m going to punch you!” This is an assault as this could create a reasonable apprehension in Taylor’s mind that imminent harmful physical contact is about to occur.

Alex is walking down the street when they suddenly become angry with Taylor. Alex runs up to Taylor from behind and punches Taylor in the back. This is a battery. This physical contact is an intentional act which (without consent or justification) caused harm.

Alex is walking down the street when they suddenly become angry with Taylor. Alex clenches their fist and shouts at Taylor, “I’m going to punch you!” Alex runs up and punches Taylor. Both assault and battery are present in this situation. The initial threat created the apprehension of imminent harm, and their subsequent physical act of the punch fulfilled that threat.

Transferred intent allows for the intent behind an action to be transferred from the intended victim to the actual victim. For example, If Alex becomes angry at Taylor and runs up to Taylor intending to land a punch, but Alex mistakenly punches Hermione, this is still an intentional tort. The intent to touch in an offensive way (battery) would transfer from Alex to Hermione, thus Hermione could sue Alex for battery for any damages she had suffered.

False Imprisonment

The tort of false imprisonment originally implied a locking up, as in a prison, but today it can occur if a person is restrained in a room or a car or even if his or her movements are restricted while walking down the street. People have a right to be free to go as they please, and anyone who, without cause, deprives another of that personal freedom has committed a tort. The intent requirement in the context of false imprisonment refers to the defendant’s state of mind when engaging in the actions that led to the confinement. Specifically, the plaintiff needs to show that the defendant intended to confine or restrain them against their will. However, it’s important to understand that the intent requirement does not necessarily mean that the defendant must have intended to cause harm to the plaintiff or to commit false imprisonment. The key aspect is the defendant’s intent to confine the plaintiff, and the loss of liberty to the Plaintiff is enough to show harm.

Damages are allowed for time lost, discomfort and resulting ill health, mental suffering, humiliation, and loss of reputation or business.

Intentional Infliction of Emotional Distress

The tort of intentional infliction of emotional distress (IIED) is a legal claim that allows individuals to seek compensation for severe emotional distress or mental anguish caused by the intentional and outrageous conduct of another party. Like other intentional torts, the defendant’s actions must be intentional. The conduct of the defendant must involve extreme and outrageous behavior that goes beyond the bounds of decency. The plaintiff must suffer severe emotional distress as a result of the defendant’s actions. Proving an IIED claims can be challenging as the threshold for establishing extreme and outrageous conduct is a high one. Examples of conduct that might lead to a successful IIED claim include intentional acts such as deliberate humiliation, intentional infliction of fear, or intentional spreading of false and harmful rumors. Many states require that this distress must result in physical symptoms such as nausea, headaches, ulcers, or, as in the case of the pregnant wife, a miscarriage. Other states have not required physical symptoms, finding that shame, embarrassment, fear, and anger constitute severe mental distress.

In an early California case, bill collectors came to the debtor’s home repeatedly and threatened the debtor’s pregnant wife. Among other things, they claimed that the wife would have to deliver her child in prison. The wife miscarried and had emotional and physical complications. The court found that the behavior of the collection company’s two agents was sufficiently outrageous to prove the tort of intentional infliction of emotional distress

Trespass and Nuisance

Trespass is intentionally going on land that belongs to someone else or putting something on someone else’s property and refusing to remove it. This part of tort law shows how strongly the law values the rights of property owners. The right to enjoy your property without interference from others is also found in common law of nuisance. To illustrate the difference between trespass and nuisance, consider this scenario. Roberto owns a piece of land, and Ysabel, without Roberto’s permission, regularly enters his property to access a shortcut to a nearby park. In this scenario, Ysabel’s repeated unauthorized entry onto Roberto’s property constitutes a trespass. Trespass occurs when someone intentionally enters another person’s property without permission. Even if Ysabel is just using the shortcut and doesn’t cause any damage, the act of entering the property without authorization constitutes a trespass. Over time, Ysabel’s continuous use of the shortcut and the resulting annoyance and inconvenience to Roberto and his neighbors can be considered a nuisance. Nuisance involves the unreasonable interference with another person’s use and enjoyment of their property. Trespass focuses on the physical presence on the property without permission, while nuisance focuses on the unreasonable interference with the enjoyment of the property.

There are limits to property owners’ rights, however. In the case of Katko v. Briney, a property owner set up a spring gun in an abandoned farmhouse on his property. The gun was rigged in such a way that if an intruder entered the farmhouse unlawfully, the gun would discharge and potentially cause harm. When an intruder entered the farmhouse, it triggered the spring gun to discharge, severely injuring him. He sued the property owner claiming that the use of the spring gun constituted an unreasonable use of force. The Court found that the use of a spring gun in a potentially lethal way was unreasonable as an intruder to an abandoned house posed no threat to human life.

The rigging of a spring gun is an intentional act, but in the case of negligence on the part of the landowner, states have differing rules about trespass and negligence. In some states, a trespasser is only protected against the gross negligence of the landowner. In other states, trespassers may be owed the duty of due care on the part of the landowner. For example, consider if a very small child wanders off his own property and falls into a gravel pit on a nearby property; if the pit should (in the exercise of due care) have been filled in or some barrier erected around it, then there was negligence. But if the state law holds that the duty to trespassers is only to avoid gross negligence, the child’s family would lose, unless the state law makes an exception for very young trespassers. In general, guests, licensees, and invitees are owed a duty of due care; a trespasser may not be owed such a duty, but states have different rules on this.

Intentional Interference with Contractual Relations

The tort of intentional interference with contractual relations involves a situation where a third party intentionally takes actions to disrupt or interfere with an existing contractual relationship between two parties, causing harm to one of the parties involved. This tort can generally be established by proving four elements:

• There was a contract between the plaintiff and a third party.
• The defendant knew of the contract.
• The defendant improperly induced the third party to breach the contract or made performance of the contract impossible.
• There was injury to the plaintiff.

In a famous case of interference with contract relations, Texaco was sued by Pennzoil for interfering with an agreement that Pennzoil had with Getty Oil. After complicated negotiations between Pennzoil and Getty, a takeover share price was struck, a memorandum of understanding was signed, and a press release announced an agreement in principle between Pennzoil and Getty. Texaco’s lawyers, however, believed that Getty Oil was “still in play,” and before the lawyers for Pennzoil and Getty could complete the paperwork for their agreement, Texaco announced it was offering Getty shareholders an additional $12.50 per share over what Pennzoil had offered.

Texaco later increased its offer to $228 per share, and the Getty board of directors soon began dealing with Texaco instead of Pennzoil. Pennzoil decided to sue in Texas state court for tortious interference with a contract. After a long trial, the jury returned an enormous verdict against Texaco: $7.53 billion in actual damages and $3 billion in punitive damages. The verdict was so large that it would have bankrupted Texaco. After appeals were filed, Texaco agreed to pay $3 billion to Pennzoil to dismiss its claim of tortious interference with a contract.

Misuse of the Legal System

Malicious prosecution, abuse of process, and wrongful use of civil proceedings are all torts that involve misuse or abuse of the legal system. Here’s a brief explanation of each:

Malicious Prosecution

Malicious prosecution is a tort causing someone to be prosecuted for a criminal act, knowing that there was no probable cause to believe that the plaintiff committed the crime. To be clear, the Plaintiff in the tort case would have been the Defendant accused of, but did not commit, a criminal act. Key to this tort is there must be a lack of reasonable grounds to initiate a criminal legal action, and malice in so initiating that action. The criminal proceeding must terminate in the plaintiff’s favor in order for his suit to be sustained. As with all torts, there must be a legal injury.

Wrongful Use of Civil Proceedings

Wrongful use of civil proceedings is similar to malicious prosecution but applies to civil cases. It involves the initiation of a civil lawsuit without proper grounds or with an improper motive, resulting in harm to the defendant. Civil litigation is usually costly and burdensome, and one who forces another to defend himself against baseless accusations should not be permitted to saddle the one he sues with the costs of defense. Like malicious prosecution, this tort provides a remedy for those who have been wrongfully sued in civil court. However, because, as a matter of public policy, litigation is favored as the means by which legal rights can be vindicated—indeed, the Supreme Court has even ruled that individuals have a constitutional right to litigate—the plaintiff must meet a heavy burden in proving his case.

Abuse of Process

Abuse of process is another legal tort related to the misuse of legal proceedings. It involves using a legal process itself to achieve some ulterior motive, such as intimidation or gaining an unfair advantage. In malicious prosecution and in wrongful use of civil proceedings, someone falsely accuses another person and starts a lawsuit without any real reason. In abuse of process differs because it focuses more narrowly on a legal process. So, there could be a real case for the Courts, but a litigant might be using a legal procedure within that case in a tricky or unfair way.

Defamation

Defamation involves making a false statement that causes injury to a person’s good name or reputation. The Restatement (Second) of Torts defines a defamatory communication as one that “so tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” 

In general, if the harm is done through the spoken word—one person to another, by telephone, by radio, or on television—it is called slander. If the defamatory statement is published in written form, it is called libel.

A statement is not defamatory unless it is false. Truth is an absolute defense to a charge of libel or slander. Moreover, the statement must be “published”—that is, communicated to a third person. You cannot be libeled by one who sends you a letter full of false accusations and scurrilous statements about you unless a third person opens it first (your roommate, perhaps). Any living person is capable of being defamed, but the dead are not. Corporations, partnerships, and other forms of associations can also be defamed if the statements tend to injure their ability to do business or to garner contributions.

The statement must have reference to a particular person, but he or she need not be identified by name. A statement that “the company president is a crook” is defamatory, as is a statement that “the major network weathermen are imposters.” The company president and the network weathermen could show that the words were aimed at them. But statements about large groups will not support an action for defamation (e.g., “all doctors are butchers” is not defamatory of any particular doctor). Publishing false information about another business’s product constitutes the tort of slander of quality, or trade libel. In some states, this is known as the tort of product disparagement. It may be difficult to establish damages, however. A plaintiff must prove that actual damages proximately resulted from the slander of quality and must also show the extent of the economic harm.

That a person did not intend to defame is not an excuse; a typographical error that converts a true statement into a false one in a newspaper, magazine, or corporate brochure can be sufficient to make a case of libel. Even the exercise of due care is usually no excuse if the statement is in fact communicated. Repeating a libel is itself a libel; a libel cannot be justified by showing that you were quoting someone else.

On the other hand, even if a plaintiff is able to prove that a defamatory statement was made, and a harm to reputation resulted, he is not necessarily entitled to an award of damages. That is because the law contains a number of privileges that excuse the defamation.

Absolute Privilege

Statements made during the course of judicial proceedings are absolutely privileged, meaning that they cannot serve as the basis for a defamation suit. Accurate accounts of judicial or other proceedings are absolutely privileged; a newspaper, for example, may pass on the slanderous comments of a judge in court. “Judicial” is broadly construed to include most proceedings of administrative bodies of the government. The Constitution exempts members of Congress from suits for libel or slander for any statements made in connection with legislative business. The courts have constructed a similar privilege for many executive branch officials.

Qualified Privilege

Absolute privileges pertain to those in the public sector. A narrower privilege exists for private citizens. In general, a statement that would otherwise be actionable is held to be justified if made in a reasonable manner and for a reasonable purpose. Thus, you may warn a friend to beware of dealing with a third person, and if you had reason to believe that what you said was true, you are privileged to issue the warning, even though false. Likewise, an employee may warn an employer about the conduct or character of a fellow or prospective employee, and a parent may complain to a school board about the competence or conduct of a child’s teacher. There is a line to be drawn, however, and a defendant with nothing but an idle interest in the matter (an “officious intermeddler”) must take the risk that his information is wrong.

In 1964, the Supreme Court handed down its historic decision in New York Times v. Sullivan, holding that under the First Amendment a libel judgment brought by a public official against a newspaper cannot stand unless the plaintiff has shown “actual malice,” which in turn was defined as “knowledge that [the statement] was false or with a reckless disregard of whether it was false or not.” In subsequent cases, the court extended the constitutional doctrine further, applying it not merely to government officials but to public figures, people who voluntarily place themselves in the public eye or who involuntarily find themselves the objects of public scrutiny. Whether a private person is or is not a public figure is a difficult question that has so far eluded rigorous definition and has been answered only from case to case. A CEO of a private corporation ordinarily would be considered a private figure unless he puts himself in the public eye—for example, by starring in the company’s television commercials.

Video on Defamation Lawsuits

Invasion of Privacy

Invasion of privacy involves violating an individual’s right to keep certain aspects of their personal life private – it is a right “to be let alone.” This tort encompasses a range of situations where someone’s privacy is intruded upon without their consent, leading to emotional distress, embarrassment, or other negative consequences. Courts and commentators have discerned at least four different types of interests: (1) the right to control the appropriation of your name and picture for commercial purposes, (2) the right to be free of intrusion on your “personal space” or seclusion, (3) freedom from public disclosure of embarrassing and intimate facts of your personal life, and (4) the right not to be presented in a “false light.”

Appropriation of Name or Likeness

This happens when someone uses an individual’s name, likeness, or identity for commercial purposes without their permission, such as using someone’s photo in an advertisement without their consent. This is the earliest privacy interest recognized by the courts. The aggrieved person can sue and recover damages for use of their likeness including unauthorized profits and also to have the court enjoin (judicially block) any further unauthorized use of the plaintiff’s name, likeness, or image.

Personal Space

This occurs when someone intentionally intrudes upon an individual’s private space or personal affairs without a legitimate reason. Developed and extended over time, today, for example, taking photos of someone else with your cell phone in a locker room could constitute invasion of the right to privacy. Reading someone else’s mail or e-mail could also constitute an invasion of the right to privacy. Photographing someone on a city street is not tortious, but subsequent use of the photograph could be. Whether the invasion is in a public or private space, the amount of damages will depend on how the image or information is disclosed to others.

Public Disclosure of Embarrassing Facts

This involves revealing private and sensitive information about an individual to the public without their consent, causing harm or embarrassment. While circulation of false statements that do injury to a person are actionable under the laws of defamation, public disclosure protects the invasion of privacy into true statements when they are private and of no legitimate concern to the public. This might include publishing personal medical records, private conversations, or other intimate information, but may not extend as broadly to those that live life in the public eye.

False Light

False light occurs when false information is presented about an individual that portrays them inaccurately and in a false light, leading to harm or emotional distress. Though false, this might not be the same as defamation as the information presented may not be libelous or harm an individual’s reputation. Indeed, the publication might even glorify the plaintiff, making them seem more heroic than they actually are. Subject to the First Amendment requirement that the plaintiff must show intent or extreme recklessness, statements that put a person in a false light, like a fictionalized biography, are actionable.

Summary Table of Invasion of Privacy Torts

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