Intentional Torts

• Author: Philip H. Osborne
• Profession: Faculty of Law. The University of Manitoba
• Pages: 249-340

249

CHA PTER 4

INTENTIONAL TORTS

A. INTRODUCTION

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

named (nominate) tort s that deal with the intentional interference w ith

the person, property (land and chattel s), 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 w ill enh ance an understanding of the nature and function

of the intentional torts.

The tort of negligence is a moder n tort. It is essenti ally a product

of the t wentieth centur y. The basic str ucture 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 t he qua lity of the defendant’s conduct and is,

consequently, inherently ubiquitous in its range of application. Most of

the intentiona l torts are quite nar row in scope. They are restricted to

closely def‌ined fact patterns a nd particul ar categories of damage. This

ref‌lects the cautious and incremental development of the early com-

mon law, which focused on d iscrete categories of w rongs with clearly

identif‌iable boundaries.

THE LAW OF TORTS250

The tort of negligence is characterized by general principles and the

use of highly discretionary concepts such as reasonableness and foresee-

ability. The nomi nate intentional torts are def‌ined by rules that tend

to be more precise, narrow, and rigid tha n t he negligence principles.

Indeed, some seem to have been elevated to a status akin to statutory

provisions.

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

tury from a limited number of duties of ca re arisi ng from discrete cat-

egories of relationships to an unlimited number of dutie s arising from

a general conception of relationships based on the rea sonable foresee-

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

tional torts. The courts have been slow in generaliz ing and integrati ng

the discrete intentional torts into a more coherent and cohesive system

of general principles.1

The tort of negligence i s dynamic, expansionar y, and largely re-

f‌lective of current public attitudes and policies. It displays a v itality

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 conser vatism. The courts have

been slow to di scard hi storical techn icalities, and there ha s been a re-

luctance to recognize new interests deserv ing of protection from inten-

tional interference such a s t he interests in privacy, equality, peace of

mind, dignity, and fair market pract ices. This has prompted some legis-

latures to f‌ill the void with privacy legislation, human rights codes, and

legislation policing the marketplace.

Liability in surance and loss distr ibution policies are central to the

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

rule, liability insurance doe s not cover intentional dam age. Consequent-

ly, the intentional torts operate more as a conventional loss-shifti ng

system emphasizing corrective justice and allocating responsibility

between the individual litigants. This enhances the punitive, deter-

rent, and educational functions of the intentional torts and encourages

a gre ater emphasis on the accountability of individual defendants for

culpable w rongdoing. The downside of t he abs ence of liability insur-

ance is that the v ictims of intentional w rongdoing are much less likely

to receive adequ ate compensation for their los ses. Consequently, the

victims of intentional w rongdoing are forced to place much more reli-

ance on their own f‌irst-pa rty (loss) insurance and on governmental

1 The only exception is t he tort of intentional interfere nce with economic inter-

ests by unl awful means, which m ay lead to an integration of var ious business

torts wit hin a general principle. See sec tion F, below i n this chapter.

Intentional Torts 251

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 in-

surance and they therefore need to rely greatly on the no-fault criminal

injury compensation schemes or on the social welfare system. Those

who suffer intentional property loss or damage w ill 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 covered

by business i nterruption insurance. In the business arena, however,

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 t he amount of litigation arising from intentional

conduct, on t he practical signif‌icance of the intentional torts a s com-

pensatory vehicles, and on the general v itality 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 substant ial 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.2 Conduct is not, however, intentional unless the defendant either

desires t he consequences of his conduct or the con sequences are sub-

stantially certain to result from the conduct.

The f‌irst def‌inition of intentional conduct i s intuitive. Intent com-

monly connotes a subjective desire to c ause the con sequences of one’s

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

injury is said to be c aused with actual intent. Conduct is also inten-

tional if t he consequences, while not desired, are substanti ally certa in

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

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

avoid liabil ity for the intentional inf‌liction of harm to B by claiming

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

someone and that is suff‌icient to make the act intentional. To excuse

2 These concepts pla y no signif‌icant role in tort law. At common law t hey are

drawn wit hin the umbrella concept of negl igence. There are, however, some

legislative prov isions that require t he proof of gross negligence or reckle ssness

in order to establ ish a statutory cause of act ion.