13.2 Intentional Torts and Strict Liability

Negligence punishes unreasonable risk. Intentional torts punish a volitional act done with a particular intent. Strict liability imposes liability without fault because of the nature of an activity or a product. Domain 2 tests the labels, the elements, and the difference among the three families. A PCCE stem that looks like a slip-and-fall may actually be a battery (the shove) or a § 402A product claim (the exploding bottle). Classify before you recite the negligence four.

Intent is not motive

Intent is purpose to cause the contact, confinement, or apprehension, or substantial certainty that the result will occur. Garratt v. Dailey is the illustration: a child who pulls a chair is liable for battery if the child knew with substantial certainty the person would hit the ground, even if the child did not "want" an injury. Motive — why the actor moved — is not intent. A practical joke, a misguided effort to help, or the absence of spite does not defeat battery, trespass, or conversion if the actor desired the invasion or knew it was substantially certain.

Transferred intent applies among the classic trespassory torts: battery, assault, false imprisonment, trespass to land, and trespass to chattels. Intent to batter A that instead batters B, or that instead becomes an assault on A, still supplies intent. Transferred intent is not the usual path into IIED, defamation, or conversion; do not transfer freely across the whole tort catalog.

A volitional act is required. A seizure or a shove from behind that turns the defendant's body into an involuntary projectile is not the defendant's intentional tort. Once the act is volitional, the intent goes to the consequences described above, not to every downstream injury (eggshell plaintiffs still apply).

Battery and assault

Battery is an intentional harmful or offensive contact with the plaintiff's person. Contact includes anything intimately associated with the body — a plate, a hat, a cane, a camera snatched from the hand. Offensiveness is measured by a reasonable sense of personal dignity, not by the plaintiff's unusual sensitivity (unless the defendant knows of that sensitivity and exploits it). The plaintiff need not be aware of the contact at the time: surgery on the wrong site while the patient is unconscious is a battery. Physical injury is not required. The offensive kiss, the spit, and the unconsented tap can all be batteries. Consent, self-defense, and privilege are defenses (section 13.3), not missing elements.

Assault is an intentional act that creates a reasonable apprehension of an imminent harmful or offensive contact. Apprehension is awareness, not necessarily fear. A sleeping plaintiff is not assaulted. Words alone are usually not enough; words plus an apparent present ability ("I will hit you now" while drawing back a fist) can be. A future threat ("I will get you next year") is not assault. A punch the plaintiff sees coming and that misses is assault; if it lands, it is assault and battery. Do not require contact for assault, and do not require a missed punch for battery.

False imprisonment and IIED

False imprisonment is the intentional confinement of the plaintiff within a bounded area, by force, threat of force, or improper assertion of legal authority. The plaintiff must be aware of the confinement or harmed by it. A room with a reasonable, known, safe exit is not confinement. Blocking one door of a building with other exits open is usually not enough. Brief detention can suffice if the other elements are met. The shopkeeper's privilege, in many jurisdictions, lets a merchant detain a person reasonably suspected of shoplifting, in a reasonable manner, for a reasonable time, to investigate. An unreasonable lock-in of a customer who asked to leave is false imprisonment, not a pricing dispute.

Intentional infliction of emotional distress (IIED) requires (1) extreme and outrageous conduct — beyond all possible bounds of decency, regarded as atrocious and utterly intolerable in a civilized community; (2) intent or recklessness; (3) severe emotional distress; and (4) causation. Insults, rudeness, collection-call irritation, and ordinary workplace friction are not enough. Targeting a known vulnerability, a common carrier's or innkeeper's abuse of a patron, or a pattern of harassment can help meet the outrageousness bar. IIED is a gap-filler. If the facts are a battery, assault, or false imprisonment, name those first; do not skip to IIED because the plaintiff cried.

Trespass to land, trespass to chattels, conversion

Trespass to land is an intentional physical invasion of the plaintiff's real property — by the defendant, by an object the defendant causes to enter, or by remaining after permission expires. Intent is intent to enter that land, not intent "to trespass" and not a purpose to harm. A good-faith surveyor who is on the wrong lot, or a driver who cuts a corner believing it is a public way, still commits trespass. No damage to the land is required; the invasion is the harm. Particles and invisible invasions may be trespass or nuisance depending on the jurisdiction; a person or a boulder is classic trespass.

Trespass to chattels is an intentional interference with personal property that causes dispossession or actual damage, including loss of use for a substantial time. Modest, harmless touching of another's goods — picking up a book and setting it down — is not enough. Intermeddling that scratches, drains, or disables the chattel is.

Conversion is an intentional exercise of dominion or control over a chattel that so seriously interferes with the right of control that the actor may justly be required to pay the full value. Stealing, destroying, substantially altering, delivering to the wrong person, or a long unauthorized use is conversion. The usual remedy is a forced sale: the defendant pays fair market value at the time of conversion and is treated as owner. The line between trespass to chattels and conversion is the seriousness of the interference, not a magic number of days. When in doubt on a stem that destroys or permanently takes the item, conversion is the better label.

Defamation

Defamation is a false and defamatory statement of fact (not pure opinion or rhetorical hyperbole), of and concerning the plaintiff, published to at least one third person, that harms reputation, plus the fault and damages rules the First Amendment requires.

• Libel is written, printed, or equally permanent (broadcast, and in many courts online posts). Common-law libel often presumed damages.
• Slander is spoken. Slander per se — imputing a serious crime, a loathsome disease, incompetence in business or office, or (classically) unchastity — can proceed without proof of special damages. Other slander typically requires special (pecuniary) damages.

Public officials and public figures must prove actual malice: knowledge that the statement was false, or reckless disregard for whether it was false (New York Times Co. v. Sullivan; Curtis Publishing Co. v. Butts). That is a subjective awareness-of-probable-falsity standard, not ordinary negligence. Private-figure plaintiffs on matters of public concern must typically prove at least negligence as to falsity (Gertz v. Robert Welch, Inc.). Truth is a complete defense. Absolute privilege covers statements in judicial and legislative proceedings. Qualified privilege can cover good-faith statements to a person with a corresponding interest (an employer reference); abuse — malice, excessive publication — defeats the privilege.

Publication means communication to a third person who understands it. A statement made only to the plaintiff is not published. Repeating a defamatory statement is a new publication; a librarian who merely lends a book is usually not treated as a republisher in the same way as the author.

Invasion of privacy — four classic branches

Dean Prosser's four privacy torts are tested as separate theories. Do not collapse them into "defamation" or into one another.

1. Intrusion upon seclusion — an intentional intrusion, physical or otherwise, into a private place, conversation, or matter, that would be highly offensive to a reasonable person. Bugging a bedroom, hidden cameras in a changing room, and unauthorized snooping in medical or personnel files are the core. Photographing a person on a public street is usually not intrusion.
2. Appropriation (and the commercial right of publicity) — unauthorized use of the plaintiff's name or likeness for the defendant's commercial advantage (a face on a cereal box; a look-alike ad). Newsworthy use is a First Amendment limit, not a blanket excuse to sell the image as an endorsement.
3. Public disclosure of private facts — widespread publication of private, non-newsworthy facts that would be highly offensive to a reasonable person (medical details, sexual history). The facts are true; that is why this is not defamation. Truth is not a defense.
4. False light — widespread publication that places the plaintiff in a false, highly offensive light. Many courts require actual malice. It overlaps defamation but protects mental distress and image, not only reputation.

Truth is a defense to defamation and often to false light. It is not a defense to intrusion or to private-facts disclosure. That contrast is an exam favorite.

Strict liability: activities and animals

Strict liability means the plaintiff need not prove negligence or intent. The defendant is liable because of what the defendant did or sold, not because the defendant was careless.

Abnormally dangerous (ultrahazardous) activities (Rylands v. Fletcher; Restatement (Second) of Torts §§ 519–520) are activities that create a high risk of serious harm even when reasonable care is used, that are not a matter of common usage, and that are inappropriate to the place — blasting, storing large quantities of explosives, some large-scale toxic storage, in many courts crop dusting or similar aerial chemical work. The harm must be the kind of risk that made the activity abnormally dangerous. A blasting company is strictly liable for concussion damage to a neighboring warehouse. It is not strictly liable, on an abnormally-dangerous theory, for a truck that merely runs a red light on the highway to the site — that is ordinary negligence.

Animals. Keepers of wild animals (lions, tigers, venomous snakes — animals not customarily domesticated in the community) are strictly liable for harm that results from a dangerous propensity characteristic of the class, even if this particular animal had been "tame." Keepers of domestic animals (dogs, cats, livestock) are generally strictly liable only if they knew or should have known of a dangerous propensity of that particular animal (the loose "one-bite" label is not a free first bite; it is a knowledge idea). Many statutes impose stricter dog-bite rules. Trespassing livestock have their own traditional strict rules. A pit-bull-versus-poodle debate is a statute-and-knowledge problem, not a reason to ignore the wild/domestic split.

Products liability

A defective product can support several theories. The PCCE wants you to name them, not to litigate every Restatement comment.

Restatement (Second) of Torts § 402A is the classic strict-liability formulation: one who sells a product in a defective condition unreasonably dangerous to the user or consumer is liable if the seller is engaged in the business of selling such a product and the product is expected to and does reach the user without substantial change. Privity is not required. The plaintiff need not prove the seller was negligent. Casual one-time sellers (a neighbor selling a used lawnmower at a garage sale) are generally outside § 402A; manufacturers, distributors, and retailers in the chain are inside.

Three defect types:

• Manufacturing defect — this unit departed from the intended design (a cracked soda bottle; a missing bolt; a contaminated pill). The rest of the line may be fine.
• Design defect — the entire line is defective. Tests include consumer expectation (more dangerous than an ordinary consumer would expect) and risk-utility (a reasonable alternative design would have reduced the foreseeable risk at acceptable cost). Crashworthiness and missing guards are typical design stories.
• Warning (marketing) defect — failure to give an adequate warning or instruction about non-obvious risks the seller knew or should have known. An adequate warning is specific, prominent, and comprehensible. Obvious dangers and sophisticated-user settings can cut the duty off.

Negligence remains available: careless design, careless inspection, careless failure to warn. Warranty theories — UCC express warranty, implied warranty of merchantability, and fitness for a particular purpose — are contract-flavored product claims and matter especially when the loss is purely economic (the product itself disappointed) rather than personal injury or other-property damage. Modern Restatement (Third) of Torts: Products Liability restates manufacturing defects as strict and treats design and warning through a reasonableness / reasonable-alternative-design lens. For the PCCE, keep § 402A, the three defect types, and the parallel negligence and warranty paths. Substantial change after leaving the seller (a user removes the guard) can break the strict-liability chain.

Worked path. A chemist dumps a rival's papers into a dumpster to "teach him a lesson." That is conversion (serious dominion) and possibly trespass to chattels. If the chemist instead shoves the rival, that is battery; if the rival sees the shove coming and flinches, assault as well. Saying "I was joking" does not negate intent if the contact was purposeful or substantially certain. A newspaper that prints, with reckless disregard, that a mayor took a bribe is libel and requires actual malice. A hidden camera in an employee locker room is intrusion, even if every published fact is true. If a blasting company levels a nearby warehouse despite perfect care, think abnormally dangerous activity, not negligence. If a toaster's heating coil was installed backward on one unit, think manufacturing defect under § 402A. If every toaster of that model overheats because of a cheap uninsulated design, think design defect. If the coil is fine but the box never says the unit will ignite when used with an extension cord the seller should have anticipated, think warning defect — and still consider a negligence and a warranty count.