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Traditional Intentional Torts - Module 1 of 5

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Traditional Intentional Torts

Intentional Torts: Overview

Intentional torts are civil wrongs that result from the intentional actions of a party. That does not always mean that the wrongdoer intended to harm the victim, but she must have at least intended to perform the act that ultimately caused the harm. For example, willfully kicking someone is an intentional tort even if the defendant did not intend the kick to cause damage or even if he intended the kick to be a harmless joke or game.

Tort law derives from common law, which was derived from social customs and eventually transformed into law.[1] When studying torts and preparing for cases, legal professionals often refer to The Restatement (Second) of Torts, which is a treatise created by the American Law Institute to provide a detailed summary of tort law in the United States.[2] Many state criminal statutes are based on intentional torts, such as laws prohibiting assault and battery. Violators of these laws may face civil tort liability and criminal cases brought by the state.

Torts cases are brought to determine liability and appropriate damages to compensate the victim. While state or federal governments institute criminal cases, tort actions are brought by individuals or groups. Also, unlike criminal cases, there is no determination regarding criminal guilt or innocence. In criminal cases, the dichotomy is “guilty” or “not guilty.” In civil cases, it is “liable” or “not liable.”

Each intentional tort has its own elements, and the courts look at whether those elements were met in determining civil liability.

Damage awards for intentional torts vary greatly depending on the details of the event, the severity of the tort and the degree of harm experienced by the victim. Since most of these cases are brought at the state level, state laws also affect the level of damages that can be awarded in a tort action. In general, courts may award compensatory damages[3] to compensate for such financial consequences as:

·         Medical expenses

·         Loss of income

·         Loss of future earnings

·         Disfigurement, and

·         Loss of enjoyment of life.  

The court may also award consequential damages,[4] which are damages that reasonably result from actual damages (perhaps lost profits from a deal that the plaintiff had to miss due to a tort), and punitive damages, which are awarded to punish the wrongdoer and deter future harms.[5]


There are many types of intentional torts, and some of the most commonly litigated fall under the category of intentional torts to the person. These are acts that cause physical, mental or emotional harm. Battery, assault, and intentional infliction of emotional distress are three examples.  

Battery is an intentional harmful or offensive contact with another person.[6] It does not have to be with the intention of hurting the person. It only requires that the contact itself be intentional. The case of Garratt v. Dailey is widely used in the legal profession for its examination of intent in the tort of battery.[7] There, a child pulled a chair out from under his aunt as she was about to sit down, causing an injury. The trial court, relying on the child’s assertion that he did not intend to harm the victim, ruled in favor of the defendant, stating that the child must know with “substantial certainty” that his actions would result in an injury to the victim for battery to apply. On appeal, the court remanded the case for further clarification into the boy’s intent when moving the chair. It held that if he had knowledge that his actions would cause the victim to come in contact with the floor, even if he did not intend to injure her, the required element of intent had been met. On remand, the trial court revered its decision and found in favor of the injured woman.  

As battery case law has evolved, state courts have also defined parameters for determining whether contact is offensive. In Tichon v. Wright Tool & Forge, the Ohio court explored the definition of offensive contact.[8] The plaintiff was injured, in the course of employment, by a machine after a safety guard was removed by the employer. Though the removal of the safety guard was an intentional act, as required under the elements of battery, it denied the plaintiff’s contention that the act constituted offensive contact, as the injury was not intended.

Another aspect of battery that has developed through case law is the “eggshell skull” rule. It states that wrongdoers take their victims in the condition that they find them. Vosburg v. Putney[9] involved a school-aged boy who was kicked in the shin by a classmate. The victim had previously been injured in the same knee and developed a serious infection as a result of the kick. The court ruled that, even though the defendant did not know about the previous injury, he was still liable for the severity of injury suffered by the plaintiff’s kick. The court stated that this was a “very strange and extraordinary case. The cause would seem to be very slight for so great and serious a consequence. And yet the plaintiff's limb might have been in just that condition when such a slight blow would excite and cause such a result, according to the medical testimony… It is sufficient that it is the opinion of the medical witnesses that such a cause even might produce such a result under the peculiar circumstances, and that the jury had the right to find, from the evidence and reasonable inferences therefrom, that it did.”


The tort of assault has various definitions from state to state. It is generally defined as an intentional action causing reasonable apprehension or fear of a harmful or offensive contact.[10] Assault differs from battery in that it does require the victim’s fear or apprehension, but does not require actual contact. As explained in the 1902 case of Kline v. Kline, assault constitutes “touching of the mind, if not the body.”[11]

For example, assume that two men are having an argument. One picks up a crow bar and threatens to hit the other person with it while stepping towards him. Even if he backs down, the man may be found liable for assault for engaging in an act that caused reasonable apprehension of imminent harm.  

Many states have incorporated assault into criminal statutes, often differentiating between the various levels of severity. For example, under Georgia law, a person commits simple assault when she: “(1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.”[12] The Georgia state code also includes a section for aggravated assault, which is considered more serious. It states that a person commits aggravated assault when he or she acts: “(1) With intent to murder, to rape, or to rob; (2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; or (3) … [W]ithout legal justification by discharging a firearm from within a motor vehicle toward a person or persons.”[13]  

Other states separate levels of assault based on degrees. Minnesota is a good example, with five degrees of assault.[14] The fifth degree is the least serious and first degree is the most serious. While these offenses are included within criminal statutes, victims can also bring civil tort suits corresponding to the crimes. The victim of a criminal assault can also sue the wrongdoer for financial damages.[15]

Intentional Infliction of Emotional Distress

The tort of intentional infliction of emotional distress requires proof that the defendant (1) acted intentionally or recklessly; (2) engaged in conduct that was extreme and outrageous; and (3) that the conduct caused (4)  severe emotional distress.[16] Unlike cases involving acts of negligence, intentional infliction requires an intentional or reckless act of extreme and outrageous behavior. 

Mitchell v. Rochester Railway, an 1896 case, demonstrates the difference between intentional infliction of emotional distress and emotional distress caused by negligence.[17] The case involved a pregnant woman who was standing by a crosswalk. When the defendant approached the corner in a horse-drawn carriage, he came close to striking the plaintiff. She claimed to have suffered a miscarriage due to the fright and excitement she experienced due to the defendant’s behavior. The court held that the plaintiff could not “recover for injuries occasioned by fright, as there was no immediate personal injury.” The ruling further stated that allowing an award based solely on fright “would naturally result in a flood of litigation” based solely on speculation. With its ruling, the court affirmed the requirement of an intentional action by the wrongdoer in intentional infliction of emotional distress cases. It should be noted that, while unavailable in 1896, many modern jurisdictions recognize a separate cause of action of “negligent infliction of emotional distress.”

In determining whether conduct qualifies as extreme and outrageous, the court must determine that an average member of the community, upon learning of the facts alleged by the plaintiff, would exclaim, "Outrageous!”[18] In the 1998 case, Taylor v. Metzger,[19] the plaintiff brought an intentional infliction suit based on racial slurs and hostilities in the workplace. In reversing a lower court’s summary judgment in favor of the defendant, the court ruled that racial slurs and consistent similar behavior could constitute extreme and outrageous conduct.

Trespass to Land

Intentional torts to property involve the damaging, taking or even entering onto another person’s property. This might include the intentional interference with someone’s right to enjoyment of her private property.[20] Like torts to the person, torts to property come in numerous forms, including trespass to real and personal property. It is also important to note that, just like intentional torts to person, many states have taken these torts and created analogous criminal laws. People whose property is damaged by criminal trespassers can also typically recover damages in civil courts

Trespass to land occurs when someone enters onto another person’s real property without authorization.[21]  It does not require an intention to trespass, but only requires intent to enter the land. Trespass does not require damage or injury. The trespasser is liable under this tort for mere unauthorized taking or presence.  

Case law regarding this intentional tort often centers on the examination of what constitutes property and trespass. For example, in Environmental Processing Systems v. FPL Farming, a landowner sued a neighbor based on subsurface wastewater that traveled underneath the plaintiff’s land, contaminating groundwater beneath his farmland.[22] In ruling against the farm owner, the court examined a definition of trespass. It stated trespass “means an entry on the property of another without having consent of the owner.  To constitute a trespass, entry upon another’s property need not be in person, but may be made by causing or permitting a thing to cross the boundary of the property below the surface of the earth.  Every unauthorized entry upon the property of another is a trespass, and the intent or motive prompting the trespass is immaterial.”  

Disputes about trespass to land have also centered around air space, including ownership of the space above a property and an uninvited party’s movement into that space. In the 1946 case of United States vs. Causby, the Supreme Court confirmed a landowner’s right to prevent “intrusions of airspace.”[23] They also ruled that property ownership extends to “at least as much of the space above the ground as he can occupy or use in connection with the land.” It does not, of course, include airplanes flying at airplane-level heights. While it’s not 100% clear at what height a person’s airspace ends, case law indicates that anything above 1,000 feet off the ground is certainly not within a property owner’s airspace.[24]

This debate continues today with the prevalence of unmanned aerial vehicles, commonly referred to as drones. In 2014, the FAA issued special rules for the operation of these aircraft.[25]

Trespass to Chattel and Conversion

The torts of trespass to chattel[26] and conversion[27] both involve intentional interference with someone’s right to ownership and enjoyment of “chattel,” which is an old English word for personal property. Like trespass to land, the intention of harming the property or its owner is not required. Tortfeasors, or persons who commit a tort, only need have the intent to exercise control over it. The elements for both torts are the same, requiring a showing that (1) the plaintiff rightfully owned or had the right to possess the personal property; (2) the tortfeasor intentionally interfered with the plaintiff's right of ownership or possession; (3) the tortfeasor deprived the plaintiff of possession or use of the property; and (4) the interference caused damage to the plaintiff.  

When establishing intentional interference to property, mistake of ownership does not create a viable defense.[28] For instance, if you mistakenly pick up a friend’s cell phone and take it home, that could satisfy the elements of trespass to chattel or conversion. However, the friend would also have to show that he suffered some damage in order to meet the required elements. That could be damage to the cell phone or some other type of harm that occurred as a result of his not having possession of the phone, such as a missed job interview or financial opportunity.

The difference between trespass to chattel and conversion is that the former is considered a less serious interference and recovery is limited to the damages suffered by the plaintiff. Conversion is serious enough that it warrants a “forced sale,” allowing the plaintiff to recover the full value of the item. Whether something is trespass to chattel or conversion depends on the seriousness of the interference and the level of damage done to the item.

For example, wrongfully keeping a rental car for two extra days before returning it to the rental company is probably just trespass to chattel. Damages would likely be limited to the value of the car rental for the two extra days (unless stated otherwise in the rental agreement). On the other hand, if the renter of the car sells the car to a third party, the car rental agency may have a cause of action for conversion, allowing the court to award damages of the total fair market value of the car.  

As with other intentional torts, many states have created criminal statutes based on common law trespass or conversion. These theft statutes vary from state to state and generally have varying degrees based on the value of the converted property and the circumstances surrounding the theft. Some states, like Texas, also have civil liability theft laws. Under the Texas Theft Liability Act, a person who commits a theft is liable for damages resulting from it.[29] The statute defines theft as "unlawfully appropriating property with intent to deprive the owner of property" without the owner's "effective consent."[30]

Case law involving conversion has evolved, with advancements in technology, to include both tangible and intangible items in the definitions of property for trespass and conversion claims. For example, in Kremen v. Cohen Network Solutions, the plaintiff sued for conversion of an internet domain name.[31] In overturning a lower court’s ruling that conversion did not apply to intangible property, the Ninth Circuit Court of Appeals used a three-part test to determine whether a property right existed. "First, there must be an interest capable of precise definition; second, it must be capable of exclusive possession or control; and third, the putative owner must have established a legitimate claim to exclusivity." In applying the test, the court found that “domain names satisfy each criterion. Like a share of corporate stock or a plot of land, a domain name is a well-defined interest.”

In our next module, we’ll continue to discuss intentional torts, turning to some “newer” torts, such as misrepresentation, interference with contract, malicious prosecution and nuisance.

[1] James Gordley, The Common Law in the Twentieth Century: Some Unfinished Business, 88 Cal.L.Rev. 1815 (2000).

[2] Restatement (Second) of Torts (Am. Law Inst. 1965).

[3] Restatement (Second) of Torts § 903(Am. Law Inst. 1965).

[4]  Kaste v. Land O’Lakes Purina Feed, 392 P. 3d 805 (Ore. Ct. App. 2017).

[5] Restatement (Second) of Torts § 908, cmt. b (Am. Law Inst. 1965).

[6] McDonald v. Ford, 223 So. 2d 553 (Fla. Dist. Ct. App. 1969).

[7] Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955).

[8] Tichon v. Wright Tool & Forge, 974 N.E.2d 746 (Ohio Ct. App. 2012).

[9] Vosburg v. Putney, 50 N.W. 403 (Wisc. 1891).

[10] Restatement (Second) of Torts § 21 (Am. Law Inst. 1965).

[11] Kline v. Kline,  64 N.E. 9 (Ind. 1902).

[12] Ga.CodeAnn. § 16-5-20 (2010).

[16] Restatement (Second) of Torts § 46(Am. Law Inst. 1965).

[18] Restatement Second of Torts § 46, cmt. d (Am. Law Inst. 1965).

[19] Taylor v. Metzger, 706 A.2d 685 (N.J. 1998).

[20] Restatement (Second) of Torts §§  157-162(Am. Law Inst. 1965).

[21] Dougherty v. Stepp, 18 N.C. 371 (N.C. 1835).

[23] U.S. v. Causby, 328 U.S. 256 (1946).

[24] City of Newark, New Jersey v.Eastern Airlines, 159 F. Supp. 750 (D.N.J. 1958).

[25] Interpretation of the Special Rule for Model Aircraft, 79 Fed. Reg. 36171 (proposed June 23, 2014) (to be codified at 14 C.F.R. 91) https://www.faa.gov/uas/educational_users/media/model_aircraft_spec_rule.pdf.

[26] Restatement (Second) of Torts §§ 216-222 (Am. Law Inst. 1965).

[28] William P. Statsky, Essentials of Torts 105 (3rd Ed. 2011).

[31] Kremen v. Cohen Network Solutions,  337 F.3d 1024 (9th Cir. 2003).