Intentional Torts and Common Defenses

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.

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.