In Module 1, you learned the differences between negligence (which governs the risk of injury and requires that people use ordinary (or reasonable) care in their conduct); strict liability (which imposes liability without fault or intent); and the intentional torts, which are organized around some level of intent to act in a way that causes harm. This last domain is our focus in Module 2, as we explore how tort law regulates conduct that reflects the intention to invade the legally protected interests of another, whether those interests are in the person’s body, mind, property, possessions, privacy or reputation.
The intentional torts are, in some respects, an artificial grouping of torts characterized by what they lack: a purely accidental character. Even activities that cause policymakers to apply strict liability can rise to the level of intentional torts if in their conduct the parties cease to seem merely careless, or even reckless, and instead seem aware that their actions will invade legally protected interests. Despite the contemporary treatment of the many intentional torts under one umbrella, in fact the category is an invented one and these torts differ quite a bit from each other. The intent standard is not consistent across all of the intentional torts, for example: for one tort it drops down to recklessness (intentional infliction of emotional distress) and for another tort it rises to specific intent (false imprisonment). The proof requirements also differ: battery and trespass require no proof of harm for liability to arise (but without proof of harm, damages are likely to be only nominal). Yet false imprisonment requires confinement along with awareness of false imprisonment and intentional infliction of emotional distress requires not just distress but severe distress.
That the intentional torts continue to be grouped and taught together may owe something to their early English predecessors. In the early tort law (roughly from the 13th through 18th centuries), a system developed that required that legal actions be pled in specific ways using particular forms and “writs.” Failure to comply with strict pleading requirements or use of the wrong form resulted in dismissal of the case with prejudice and many actions were thus decided on formal rather than substantive grounds. The system worked well for plaintiffs who complied with pleading requirements, however; if they could correctly plead all the necessary elements, they were likely to win. The English writ system laid the foundation for our current intentional torts, most of which are characterized by a “rule-like” aspect. The international torts’ elements are often more easily pled and proven than the elements of negligence.
Over time, the writ system sorted wrongful actions into two kinds. The first were known as actions in “trespass” and they typically required that the plaintiff prove the defendant used force to cause a direct invasion of some protected interest. The second, which came only later, were actions known as “trespass on the case” and these permitted recovery more broadly, including for harm not caused by force and harms caused indirectly. Trespass on the case grew into a body of law that eventually provided the basis for American negligence law, which reflects that injured plaintiffs may be able to recover even when a defendant did not act with a particular intent or force but were merely negligent, and even when the defendant’s conduct was indirect or attenuated in some way. The contemporary intentional torts system likewise reflects the earlier trespass actions and share characteristics of the writ system, such as distinct and rigid pleading requirements, a narrow scope of applicability and high likelihood of success for plaintiffs who can successfully plead the requisite elements. These “rule-like” aspects are characteristic of the writ system and an important difference from negligence which is governed not by a rule but a standard—reasonableness.
Rules vs. Standards
In the legal understanding “rules” tend to be characterized in the following way: they are clear, easier (and thus cheaper) to apply, generalized, rigid, inflexible (and perhaps sometimes unfair as a result). “Standards” tend to be characterized thus: they are less clear or even indeterminate; they are harder (and usually more expensive) to apply partly because they are capable of flexibility; they can be tailored to the facts at hand (but this also means they must be tailored to the facts at hand). A rule is conceptually something that can be applied without recourse to a body of norms or additional evidence (such as no smoking allowed). A standard is something that may require contextual information or extrinsic evidence (such as smoke only when other customers are reasonably far away). Philosophers and debaters among you will immediately spot that in fact rules are much more complicated than that; there are open-textured rules or rules with complicated terms and standards in some instances develop predictable patterns that make them easier to apply than it might seem. However, it’s a helpful distinction to employ especially when you shift gears from intentional torts to Negligence in later Modules.
Learning to navigate the common law system requires that you develop skills of reading accurately, synthesizing case law and predicting outcomes and changes, to some extent. That’s one significant reason why history matters. Understanding a bit about the history of tort law’s origins, for instance, helps you understand why the intentional torts are narrowly construed and informs your educated guesses about what a court is likely to do in a case of first impression. This historical context also helps explain why the intentional torts were eventually deemed insufficient to protect the range of interests considered vital and necessary to protect. The intentional torts were originally a narrowly defined set of torts meant to protect bodily autonomy. Assault, even though it captures non-physical harm, does so only because it was conceived of as a means of protecting the body and the mental state that arises when anticipating bodily harm. The tort of false imprisonment protects the freedom of movement, but though this is conceptual, it too orients the protection in the body. The tort of defamation protects the interest in maintaining one’s reputation but this requires external manifestations in the form of communications to others that are provably harmful in some way. The big gap in coverage concerned suffering emotionally or psychologically in the absence of physical harm. When tortious conduct of any kind causes physical harm, a plaintiff may also recover for their emotional or psychological distress, which is considered “parasitic” of—or derived from—the physical harm. But what about the cases in which bad behavior results in emotional distress alone?
In Wilkinson v. Downton, 2 Queen’s Bench Division 57 (1897), a court in England held that a woman could recover when she suffered shock after being the victim of a prank:
“In this case the defendant, in the execution of what he seems to have regarded as a practical joke, represented to the plaintiff that he was charged by her husband with a message to her to the effect that her husband was smashed up in an accident, and was lying at The Elms at Leytonstone with both legs broken, and that she was to go at once in a cab with two pillows to fetch him home. All this was false. The effect of the statement on the plaintiff was a violent shock to her nervous system, producing vomiting and other more serious and permanent physical consequences at one time threatening her reason, and entailing weeks of suffering and incapacity to her as well as expense to her husband for medical attendance. These consequences were not in any way the result of previous ill-health or weakness of constitution; nor was there any evidence of predisposition to nervous shock or any other idiosyncrasy. [***] The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff — that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act.”
The judge declined to find fraud and distinguished prior cases that had withheld damages for emotional distress produced in connection with slander. Here, he found there was sufficient intent to cause some form of impact on the plaintiff and that should be enough, even though “no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.” The court’s recognition of what would be called “intentional infliction of mental shock” laid the groundwork for American courts to begin to consider and eventually adopt the tort of intentional infliction of emotional distress. However, that such an action was now viewed as possible did not mean that it was soon or routinely used. The Restatement of Torts Second § 46 was only amended in 1947 to reflect the possibility of recovery under IIED and California, a progressive jurisdiction with respect to torts, adopted it only in 1952. In the 1960s, some states began recognizing the tort as a standalone cause of action; others came later, such as Florida, which did not recognize the tort until 1985.
Many courts continue to cite to the Restatement’s formulation of the tort in language that may be more evocative than helpful: “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”” Restatement (Second) of Torts § 46 cmt. d (1965)
Whatever the similarities and differences in the technical aspects of the various intentional torts, their core conceptual difference remains that intent, rather than fault or policy, is present in a way that the law deems important. An oft-quoted line from the jurist Oliver Wendell Holmes suggests an intuition about why we divide these regimes in this way: “Even a dog knows the difference between being stumbled over and being kicked.” Oliver Wendell Holmes, The Common Law, Mark DeWolfe Howe, ed. (Little Brown, 1963), p. 3. Something attaches to the knowledge that a harmful action was purely accidental in character; even if negligence or another claim is available against the actor, the moral judgment—and possibly legal implications—will weigh less heavily on the actor. If a person intentionally acts in such a way that another suffers harm, the pleading and proof standards will generally be easier for a plaintiff to meet and the defendant will be unable to assert the powerful defense of comparative negligence against the plaintiff. These differences reflect the system’s recognition that the scale tips slightly towards the victim right from the start. The starting premise is that intent matters. The question will be how to define it. In many respects, defining intent is the most challenging aspect of the intentional torts whose rule-like qualities often otherwise make them more straightforward to learn than negligence law will prove to be.