14.1 Intentional Torts
Key Takeaways
- Intentional torts require intent — either purpose to cause the result or knowledge with substantial certainty that the result will occur — and intent can transfer between torts and between victims
- Assault requires reasonable apprehension of an imminent harmful or offensive contact; no actual touching is needed, while battery is the completed contact
- Slander generally requires proof of special damages unless the statement falls into a slander per se category: loathsome disease, crime of moral turpitude, unchastity, or statements harming the plaintiff's trade or profession
- Public officials and public figures must prove actual malice — knowledge of falsity or reckless disregard for the truth — under New York Times v. Sullivan
- A shopkeeper may reasonably detain a suspected shoplifter for a reasonable time in a reasonable manner under the shopkeeper's privilege, a defense to false imprisonment
A tort is a civil wrong — other than a breach of contract — for which the law provides a remedy, usually money damages. Tort law serves three goals: compensating injured persons, deterring wrongful conduct, and shifting losses to the party who caused them. The NALA Certified Paralegal (CP) Knowledge Exam expects you to identify the elements of each tort, apply them to short fact patterns, and spot the correct defense.
Intent and Transferred Intent
An intentional tort requires that the defendant act with intent, which means either (1) the defendant acted with the purpose of causing the harmful result, or (2) the defendant knew with substantial certainty that the result would occur. Intent does not require hostility or a desire to injure — a practical joker who pulls a chair out from under a coworker intends the contact even if he meant no harm.
Under the transferred intent doctrine, intent transfers in two ways: between persons (A swings at B but hits C — A is liable to C for battery) and between torts among the classic five: battery, assault, false imprisonment, trespass to land, and trespass to chattels. Transferred intent does not apply to intentional infliction of emotional distress, defamation, or conversion.
Tort by Tort
Battery is an intentional act causing a harmful or offensive contact with the plaintiff's person. 'Person' includes anything closely connected to the body — a plate the plaintiff is holding, a hat, a coat. Offensive contact is judged by what would offend a reasonable sense of personal dignity.
Assault is an intentional act causing the plaintiff's reasonable apprehension of an imminent harmful or offensive contact. No touching is required. Words alone generally do not create apprehension without an overt act, and the threat must be of imminent harm — 'I will get you next week' is not assault. If the contact actually occurs, the tort is battery, and the assault merges into it.
False imprisonment is the intentional confinement of the plaintiff within boundaries fixed by the defendant, where the plaintiff is conscious of the confinement or harmed by it, and has no reasonable means of escape. Confinement can result from physical barriers, physical force, threats of force, or invalid assertion of legal authority. An unlocked door the plaintiff could safely use defeats the claim.
Intentional infliction of emotional distress (IIED) requires (1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. 'Outrageous' means conduct exceeding all bounds of decency tolerated in a civilized society — mere insults and indignities are not enough. Classic exam examples include a debt collector's campaign of midnight threats or a prankster falsely telling a spouse that her husband was killed.
Trespass to land is the intentional physical invasion of another's real property. The invasion can be by the defendant's person, by objects the defendant sets in motion, or by failing to remove something the defendant had a duty to remove. Airspace intrusions and below-surface intrusions can also qualify. No damage is required.
Trespass to chattels is the intentional interference with the plaintiff's possession of personal property by dispossession or intermeddling. Unlike trespass to land, the plaintiff must show actual damages — harm to the chattel, loss of use, or bodily harm.
Conversion is the intentional exercise of dominion or control over a chattel that seriously interferes with the owner's right to control it. The seriousness of the interference is what distinguishes conversion from trespass to chattels: in conversion, the interference is so substantial the defendant is forced to buy the chattel — the remedy is its full fair market value at the time of conversion (a 'forced sale'). Stealing a car is conversion; borrowing it for an afternoon without permission is trespass to chattels.
Defamation
Defamation requires (1) a defamatory statement of fact that tends to harm the plaintiff's reputation, (2) 'of and concerning' the plaintiff, (3) publication — communication to at least one third person who understands it, (4) falsity, and (5) damages. Libel is written or otherwise recorded defamation and is actionable without proof of special damages. Slander is spoken defamation and ordinarily requires proof of special (economic) damages, unless it falls into a slander per se category:
- Accusation of a loathsome disease (historically leprosy or venereal disease)
- Accusation of a crime of moral turpitude
- Imputation of unchastity to a woman (modern formulations apply to serious sexual misconduct generally)
- Statements harming the plaintiff in his trade, business, or profession
Constitutional limits apply when the plaintiff is a public figure. Under New York Times v. Sullivan (1964), public officials and all-purpose public figures must prove actual malice — that the defendant knew the statement was false or acted with reckless disregard for its truth. Under Gertz v. Robert Welch, Inc. (1974), private figures need prove only negligence regarding falsity, but punitive and presumed damages still require actual malice.
Invasion of Privacy
Four distinct torts protect privacy: (1) appropriation — unauthorized use of the plaintiff's name or likeness for commercial advantage; (2) intrusion upon seclusion — highly offensive prying into private affairs, such as wiretapping or peeping; (3) public disclosure of private facts — widespread publicity of private information that would be highly offensive and is not of legitimate public concern; and (4) false light — publicity that places the plaintiff in a false position highly offensive to a reasonable person.
Defenses to Intentional Torts
| Defense | Key Rule | Exam Trap |
|---|---|---|
| Consent | Express or implied; invalid if obtained by fraud, duress, or exceeding scope | A boxer consents to legal blows, not a punch after the bell |
| Self-defense | Reasonable, proportionate force against imminent threat | Deadly force only against threat of death/serious bodily harm; no duty to retreat in most states |
| Defense of others | Reasonable force to protect third parties | Modern rule: no need to 'stand in the shoes' of the person defended |
| Defense of property | Reasonable, non-deadly force only | Spring guns and traps are never privileged — you cannot use deadly force to protect property alone |
| Shopkeeper's privilege | Reasonable detention of suspected shoplifter, reasonable manner, reasonable time, reasonable belief | Detaining for hours or using force destroys the privilege |
| Privilege (defamation) | Absolute (judicial, legislative, spousal) or qualified (job references, good-faith reports) | Qualified privilege is lost if abused or made with malice |
| Truth | Complete defense to defamation | Truth is not a defense to public disclosure of private facts |
Paralegal Scenario
A client reports that a store security guard stopped her at the exit, accused her loudly of stealing, searched her bag in front of customers, and detained her for four hours before the manager reviewed the tape and released her. You flag potential claims for false imprisonment (the detention exceeded any reasonable time, defeating the shopkeeper's privilege), defamation (the loud accusation published to bystanders, likely slander per se as an accusation of a crime of moral turpitude), and IIED. Your supervising attorney asks you to draft the intake memo identifying each tort, its elements, and the store's likely defenses — a classic personal-injury paralegal task.
Common exam traps: (1) confusing assault (apprehension) with battery (contact); (2) applying transferred intent to IIED; (3) forgetting that slander needs special damages outside the per se categories; (4) treating the plaintiff's fear of future harm as assault; (5) assuming any detention by a merchant is false imprisonment — remember the shopkeeper's privilege.
Dan throws a rock intending to hit Victor, but the rock misses Victor and strikes Paula, a bystander Dan never saw. Under which doctrine is Dan liable to Paula for battery?
A newspaper publishes an article stating that a city council member took bribes. The statement is false, and the reporter negligently failed to check an easily available record that would have disproved it, but did not know it was false. In the council member's defamation suit, what must be proven for her to recover?