Intentional Torts
Author | Philip H. Osborne |
Pages | 265-360 |
265
CHAPTER 4
INTENTIONAL TORTS
A. INTRODUCTION
The tort of negligence is complemented by a number of independent,
named (nominate) torts that deal with t he 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 di fferences 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,
consequently, inherently ubiquitous in its range of application. Most of
the intentional torts are quite narrow in scope. They are restricted to
closely 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.
THE LAW OF TORTS266
The tort of negligence is characterized by general principles and the
use of highly discretionary concepts such as reasonableness and foresee-
ability. The nominate intentional torts a re defined by rules that tend to be
more precise, narrow, and rigid than the 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 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.
The tort of negligence is dynamic, expansionary, and largely
reflective of current public attitudes and policies. It displays a vitality
and capacity for vigorous growth that is not mirrored in the inten-
tional torts. The intentional torts tend to be static and are, in the main,
characterized 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 intere sts in privacy, equality, peace
of mind, dignity, and fair market practices. This has prompted some
legislatures to fil l the void w ith 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 in surance does not cover intentional damage. Consequently,
the intentional torts operate more as a conventional loss-shifting system
emphasizing corrective justice and allocating responsibility between the
individual litigants. This enhances the punitive, deterrent, and educa-
tional functions of the intent ional torts and encourages a greater emphasi s
on the accountability of individual defendants for culpable wrongdoing.
The downside of the absence of liability insurance is that the victims of
intentional wrongdoing are much less likely to receive adequate compen-
sation for their losses. Consequently, the victims of intentional wrong-
doing are forced to place much more reliance on their own first-party
(loss) insurance and on governmental compensation schemes. The avail-
ability 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 criminal injury compensation schemes or
on the social welfare system. Those who suffer intentional property loss
Intentional Torts267
or damage will often have first-party insurance and generally will have
little need to rely on tort law. Some economic losses suffered by commer-
cial entities may be covered by business interruption 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 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.1 Conduct 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 inten-
tional if the consequences, while not desired, are substantially certain
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 liability for the intentional infliction of harm to B by claiming
that he meant to hit C. He knew that it was substantially certain that
he would injure someone and that is sufficient to make the act inten-
tional.2 To excuse the defendant from liability would reward stupidity
and exclude extremely dangerous and morally culpable conduct from
the reach of the intentional tort s. In such circumstances, the defendant
is said to have constructive or imputed intent.
1 These conce pts play no significant role in tor t law. At common law they 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 statutory causes of act ion.
[Piresferreira].
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeUnlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations
