Tort Law

Intentional Torts and Common Defenses

Intentional Torts

Intentional torts are types of civil wrongs that are considered to be done with a purposeful state of mind. These include battery, false imprisonment, trespass, fraud, and misrepresentation.

An intentional tort is classified as a tort against persons, a tort against property, or a tort against economic interests.

Intentional torts against persons include defamation, public disclosure of private facts, false light, appropriation, and intentional infliction of emotional distress.

Defamation is the intentional publication to a third party of a false statement that hurts the plaintiff's reputation. Defamation is either libel or slander. Libel is the written form of defamation, where the statements that are damaging to one's reputation are reduced to written or permanent form. For example, it is defamation to falsely publicly declare that an opponent of yours is a child abuser as a matter of defaming their character. Writing that allegation down and publishing it in the local newspaper would be libelous. Slander is spoken.

Public disclosure of private facts is a privacy tort that happens when the defendant makes facts public about the plaintiff that the plaintiff is entitled to keep private—for instance, disseminating medical records.

False light is a privacy tort that takes place when the defendant makes an offensive statement with reckless disregard and intentionally publishes statements that lead others to make false assumptions about the plaintiff. For example, it is defamation if a newspaper publishes a false story that a local school teacher was arrested for burglary. If the same newspaper runs a general article about burglaries in the area and uses a picture of a teacher next to the article, it may be subject to a false light claim, as such an action implies that the teacher is accused of such actions when in fact the teacher is not.

Appropriation is when the defendant uses the plaintiff's name or likeness for commercial gain without permission. For example, Disney owns the right to many iconic characters such as Mickey Mouse and seeks to maintain a family-friendly image of its cartoons, amusement parks, toys, and other products. If a liquor distiller began selling vodka with a logo of Mickey Mouse on the bottle, Disney would be able to sue to block the sale of such an item, as the distiller would be illegally appropriating a trademarked icon without the consent of the owner of that character. This would be considered appropriation even if the product were something family-friend such as juice because the logo belongs to Disney, not a distiller or juice-making company. However, in this vodka case, the distiller would be appropriating in a way that not only provides economic gain to them, but also causes economic harm to Disney, as many parents would not want to purchase children's toys and merchandise that is associated with that type of product.

Intentional infliction of emotional distress occurs when the defendant acts outrageously, in a way that is intended to cause extreme emotional pain toward the person to whom the conduct was directed. For example, Brian knows that Howard has a debilitating fear of spiders. As a joke, Brian puts a fake spider on Howard's desk. Howard is so frightened that he suffers a panic attack and is taken to the hospital. Howard could sue Brian for intentional infliction of emotional distress, as the target of such a trick likely would suffer nervous shock and emotional distress prior to finding out that the spider was a fake.

Intentional torts against property include trespass and conversion.

Trespass can happen as trespass to real property or trespass to chattels. Trespass to real property is when a defendant intentionally enters the land of another or causes an object to be placed on the land without permission. Trespass to chattels, or trespass to personal property, is when a defendant intentionally interferes with the right of possession of the plaintiff's personal property. Trespass to real property can also include the intrusion of unpleasant odors, noises, and vibrations from neighboring land without intrusion onto property. Chattel is another term for personal property. Chattels differ from real property, which is property that is difficult or impossible to move, such as land or buildings.

Conversion is when the defendant intentionally and permanently removes the plaintiff's ability to possess and control their property. For example, suppose a bakery owner hires movers to transport his stock of sugar and flour from one store to another. The movers take the supplies, but instead of delivering to the other bakery, they use the supplies to make cakes. The movers may be liable for conversion because their theft and use of the sugar and flour prevents the bakery owner from being able to recover those goods for use as he intended.

Intentional torts against economic interests include unfair competition, fraud, misrepresentation, and misappropriation, which is the use of an unsolicited idea without compensating the creator of the idea.

Unfair competition is an intentional tort by a business that is using some market advantage to cause injury or damages to either its consumers or competitors. For example, suppose a business owner decides to open a local burger shop called McDowell's, complete with golden arcs instead of golden arches, a signature sandwich called the Big Mic instead of the Big Mac and buns with flax seeds instead of sesame seeds. McDonald's Inc. would have a claim against the local burger shop, arguing that the business is too close to its own in name and product offerings and would be confusing to customers who would likely confuse or equate McDowell's with McDonald's.

Fraud is an intentional tort in which the defendant deceives with false statements to obtain money or property. A common example of a business fraud is a small business owner manufacturing sales and financial data to convince a bank to give them a loan. Here, the fraud is using untrue financial information knowing that the bank would not approve a loan if the true financial status of the business were known. Individuals also often engage in fraud on the individual level through identity theft and other means.

Misrepresentation is when a defendant makes a statement that they know is false, with the intent of inducing reliance, and the plaintiff believes and relies on the statement. For example, a trickster rents out their next-door neighbors' house when the neighbors are on vacation. By lying and telling the renting tenant that they are the true owner of the property and authorized to rent it out, they would be liable for the fraud of misrepresentation against both the tenant and the neighbors who actually own the property.

Criminal Acts and Intentional Torts

Many intentional torts are also criminal acts. Individuals bring claims for intentional torts, and the government prosecutes crimes. Generally, intentional torts have a money penalty. Criminal prosecution may result in imprisonment, fines, and other forms of punishment under criminal law.

Criminal law involves the government's prosecution of a crime and punishing the offender. Civil law is concerned with private relationships between members of society. Actions that give rise to criminal charges may also give rise to a civil suit, a lawsuit based on civil law.

Many intentional torts are also criminal acts. Whether the defendant was criminally convicted has no definitive bearing on whether the same defendant will be held liable in a civil suit and vice versa. Torts are brought by individuals, and crimes are prosecuted by the government.

The burden of proof is much higher in criminal cases than civil cases. The burden of proof in criminal cases is beyond a reasonable doubt, and the burden of proof in civil cases is by a preponderance of the evidence. Despite the differences between civil and criminal law, they both require the accuser (either the plaintiff or the prosecutor) to satisfy the required burden of proof.

The plaintiff in a civil suit has no power to incarcerate the defendant. In contrast, criminal prosecution may result in imprisonment, fines, and other forms of punishment.

Torts versus Crimes

Torts and crimes differ in many ways. Most notably, they differ in their intentions, enforcement methods, burdens of proof, and punishments.

Torts of Economic Relations

Torts of economic relations are intentional torts that come from direct interference with a person's business agreement, relationship, or prospect and that cause a quantifiable loss. Torts of economic relations that impact business have three categories: injurious falsehood, interference with contractual relations, and interference with prospective advantage.

There are three types of torts of economic relations that impact business. Injurious falsehood means false statements that disparage the plaintiff's business interests and cause the plaintiff economic loss. Injurious falsehood differs in many ways from the intentional tort of defamation, which is the intentional publication of a false statement that harms the plaintiff's reputation. In a cause of action for injurious falsehood, the plaintiff must prove that the defendant's disparaging statement was false. It does not matter whether the public would have presumed the statement to have been true. The plaintiff must also be able to prove that the defendant acted with malicious intent. This can be proved when the plaintiff can demonstrate that the defendant intended to cause harm to the plaintiff's reputation. Last, the plaintiff must also be able to demonstrate that they suffered actual damages. The plaintiff's showing of damages need not be precise but must generally demonstrate some identifiable harm.

Tortious interference with contractual relations is when a defendant deliberately harms a contractual relationship between two other parties. The purpose of this tort is to promote freedom to contract and allow parties to complete their contractual obligations without intervention by a third party. This is a tort claim rather than a contract claim because the defendant interfered with a contract between the plaintiff and a third party for their own financial gain.

A claim for tortious interference with a contract has five distinct elements that the plaintiff must prove:

  • A valid contract existed
  • The defendant knew of this contract
  • The defendant improperly interfered, inducing the party to breach the contract (direct) or making performance of the contract impossible (indirect)
  • A breach of contract occurred
  • The breach caused damages to the plaintiff

If the plaintiff's claim is successful, then the plaintiff may retrieve economic losses, punitive damages, an injunction, or all three of these remedies. Punitive damages exceed simple compensation and are awarded to plaintiffs in order to punish the defendant. An injunction is a court order that requires a person to act a certain way—for example, to stop certain behavior such as the invasion of another's legal right.

Tortious interference with prospective advantage is when the defendant acts intentionally to harm the economic relationship between the plaintiff and at least one other party. To successfully state a cause of action for tortious interference with prospective advantage, the plaintiff must demonstrate these factors:

  • The plaintiff was going to benefit from an economic relationship with another party.
  • The defendant knew about this relationship.
  • The defendant acted intentionally to disrupt the relationship.
  • The defendant's acts really did disrupt the relationship.
  • The disruption caused the plaintiff to suffer damages.

For example, if the owner of a local restaurant, Burger Joe's, wanted to stop their competitor MegaBurger from opening up across the street, they could commit the tort of injurious falsehood and publicly defame the proposed MegaBurger by declaring that MegaBurger uses horse meat instead of beef from cows in its sandwiches. They could also commit the tort of interference with contractual relations by approaching the owner of the land MegaBurger has leased to build their new restaurant and offer to pay a higher rental amount if the landowner breaks their lease with MegaBurger. Finally, the owner of Burger Joe's could commit the tort of interference with prospective advantage by contacting the area distributor of soft drink products to restaurants and aim to convince them to refuse to provide soft drink products to the new MegaBurger.

Defenses to Intentional Torts

Several defenses are available for intentional torts, including self-defense, the defense of others, defense of property, consent, and necessity.
There are three common defenses that involve physical force. Self-defense states that the defendant is entitled to use reasonable force against a reasonably perceived threat to prevent immediate bodily harm. For example, in a fight, if one party threatens to break the other party's nose and aims to punch the person but misses, the party that was threatened can act to physically protect himself by punching back at the assailant. Defense of others is a companion defense to self-defense that allows the defendant to use reasonable force against a reasonably perceived threat to prevent the immediate bodily harm of another. For example, parents in a store with their child are allowed to physically protect their child if a third party attempts to abduct the child. They can legally physically intervene to restrain or prevent the child abductor as necessary to protect their child. Defense of property is another companion defense tort in which an individual can use reasonable force to prevent damage or theft of property. For example, if an owner catches a thief breaking into her car to steal change from the console, she can physically restrain and hold the thief until the police arrive if she catches him in person. However, if she notices the thief after he has absconded with a few dollars of loose change, it is unreasonable that her response is to run over the thief repeatedly with the vehicle. The law would consider this response to be disproportionate to the harm that was suffered and not related to preventing the crime from occurring, as it would have happened after the thief had already stolen the loose change.

Defenses to Intentional Torts

There are five distinct defenses a defendant can raise in response to an intentional tort claim, which the defendant bears the burden of proving: self-defense, defense of others, defense of property, consent, and necessity.
Consent means the defendant asserts that the plaintiff voluntarily agreed to a particular act and cannot claim that it resulted in an intentional tort. Actual consent is when the plaintiff expressly provides consent to the defendant, either orally or in writing. A part of implied consent, apparent consent is when a reasonable person would infer from a person's conduct or as a matter of custom that the plaintiff consented. Implied consent is when the words, gestures, or conduct reasonably indicate that both parties consent to an action. Implied consent is also referred to as consent implied by law and is important when an action is necessary to save a life or other important property interest. Turning on porch lights on October 31 during the designated trick-or-treat times and placing Halloween decorations in the yard imply that children are welcome to receive candy when dressed up in costumes. Other considerations when evaluating whether valid consent was given include capacity, duress, and fraud.

Even if consent was given, it can be revoked at any time. If the intentional tort was committed after consent was revoked, then the defendant could still be liable. The defendant could also be liable if they exceeded the scope of the consent given. For instance, consenting to surgery to remove a mole doesn't give the doctor permission to also perform a face-lift.

Necessity is a defense that applies to emergency situations. It excuses wrongful behavior because it prevents a greater harm. Private necessity involves the trespass or damage of another's property to protect oneself, property, or others. The defense of private necessity extends to the acts that happen while the emergency is ongoing and does not cover harm caused after the emergency ends. Public necessity is a defense that involves the trespass or damage of another's property to prevent harm to the public.