Intentional Torts

• Author: Philip H. Osborne
• Pages: 222-307

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A. Introduction

The tort of negligence is complemented by a number of independent,

named (nominate) torts that deal with the intentional interference with

the person, property (land and chattels), and economic interests. The

tort of negligence and the intentional torts are, however, divided by

more than the degree of culpability of the defendant’s conduct. There

are significant differences in form, substance, and policy between these

two regimes of tortious responsibility. Identification of some of these

differences will enhance an understanding of the nature and function

of the intentional torts.

The tort of negligence is a modern tort. It is essentially a product

of the twentieth century. The basic structure of some of the nominate

intentional torts is centuries old. While there was some modification of

them in the twentieth century, the general outlines of liability have

been clear for a long time.

The tort of negligence is a tort of broad and general application. It

focuses primarily on the quality of the defendant’s conduct and is, con-

sequently, inherently ubiquitous in its range of application. Most of the

intentional torts are quite narrow in scope. They are restricted to close-

ly defined fact patterns and particular categories of damage. This

reflects the cautious and incremental development of the early com-

mon law, which focused on discrete categories of wrongs with clearly

identifiable boundaries.

Intentional Torts

chapter 4

The tort of negligence is characterized by general principles and

the use of highly discretionary concepts such as reasonableness and

foreseeability. The nominate intentional torts are defined by rules that

tend to be more precise, narrow, and rigid than the negligence princi-

ples. Indeed, some seem to have been elevated to a status akin to statu-

tory provisions.

The tort of negligence underwent a transition in the twentieth cen-

tury from a limited number of duties of care arising from discrete cat-

egories of relationships to an unlimited number of duties arising from

a general conception of relationships based on the reasonable foresee-

ability of harm to others. This process has not occurred in the inten-

tional torts. The courts have been slow in generalizing and integrating

the discrete intentional torts into a more coherent and cohesive system

of general principles.1

The tort of negligence is dynamic, expansionary, and largely reflec-

tive of current public attitudes and policies. It displays a vitality and

capacity for vigorous growth that is not mirrored in the intentional

torts. The intentional torts tend to be static and are, in the main, char-

acterized by convention, orthodoxy, and conservatism. The courts have

been slow to discard historical technicalities, and there has been a

reluctance to recognize new interests deserving of protection from

intentional interference such as the interests in privacy, equality, peace

of mind, dignity, and fair market practices. This has prompted some

legislatures to fill the void with privacy legislation, human rights codes,

and legislation policing the marketplace.

Liability insurance and loss distribution policies are central to the

development, operation, and expansion of the tort of negligence. As a

rule, liability insurance does not cover intentional damage. Conse-

quently, the intentional torts operate more as a conventional loss-shift-

ing system emphasizing corrective justice and allocating responsibility

between the individual litigants. This enhances the punitive, deterrent,

and educational functions of the intentional torts and encourages a

greater emphasis on the accountability of individual defendants for

culpable wrongdoing. The downside of the absence of liability insur-

ance is that the victims of intentional wrongdoing are much less likely

to receive adequate compensation for their losses. Consequently, the

victims of intentional wrongdoing are forced to place much more

reliance on their own first-party (loss) insurance and on governmental

Intentional Torts 223

1 The only exception is the nascent tort of intentional interference with economic

interests by unlawful means, which may lead to an integration of various busi-

ness torts within a general principle.

compensation schemes. The availability of these alternative means of

compensation depends greatly on the kind of damage that is suffered.

Persons suffering physical injury often have no first-party disability

insurance and they therefore need to rely greatly on the no-fault crim-

inal injury compensation schemes or on the social welfare system.

Those who suffer intentional property loss or damage will often have

first-party insurance and generally will have little need to rely on tort

law. Some economic losses suffered by commercial entities may be cov-

ered by business interruption insurance. In the business arena, howev-

er, defendants who cause economic loss are more likely to be capable

of paying damages.

All these characteristics of the intentional torts have a subtle but

significant effect on the amount of litigation arising from intentional

conduct, on the practical significance of the intentional torts as com-

pensatory vehicles, and on the general vitality of this area of tort law.

B. The Meaning of Intention

In tort law the culpability of the defendant’s conduct is defined with

reference to the consequences of that conduct. Negligence is conduct

that gives rise to a foreseeable and substantial risk of its consequences.

As the likelihood of the consequences increases, the conduct of the

defendant may be described first as grossly negligent and then as reck-

less.2Conduct is not, however, intentional unless the defendant either

desires the consequences of his conduct or the consequences are sub-

stantially certain to result from the conduct.

The first definition of intentional conduct is intuitive. Intent com-

monly connotes a subjective desire to cause the consequences of one’s

actions. When one person stabs another he wants to injure him. The

injury is said to be caused with actual intent. Conduct is also intention-

al if the consequences, while not desired, are substantially certain to

result from the defendant’s conduct. Imagine, for example, a defendant

who shot into a crowd of people, hitting and injuring B. He cannot

avoid liability for the intentional infliction of harm to B by claiming

that he meant to hit C. It was substantially certain that he would injure

224 The Law of Torts

2 These concepts play no significant role in tort law. At common law they are

drawn within the umbrella concept of negligence. There are, however, some leg-

islative provisions that require the proof of gross negligence or recklessness in

order to establish a statutory cause of action.