A Restatement Third of Intentional Torts?
Kenneth W. Simons
Boston University - School of Law
Arizona Law Review, Vol. 48, 2006
Boston Univ. School of Law Working Paper No. 06-18
Some intentional tort doctrines have developed in intriguing ways since the Restatement Second was published, and other doctrines remain contentious or obscure. For example, disagreement persists about whether the tort of battery requires merely the (single) intent to make a nonconsensual contact, or the (dual) intent both (1) to contact and (2) either to harm or to offend. The single intent view is much more plausible; the dual intent view cannot make much sense of the liability of well-intentioned doctors for battery if they exceed the patient's consent, or the liability of pranksters, or the well-accepted doctrine of apparent consent.
From a broader perspective, we should beware of the simplistic picture of intentional law in which "intentional wrongdoers" are those who exhibit the most serious level of fault, relative to the fault of negligent and strictly liable tortfeasors. Although doctrinal and practical consequences do follow from the bare characterization of a tort as intentional, in many contexts this simple view distorts the underlying legal phenomena, or fails to offer a plausible justification.
The first ("apples and oranges") problem is with the assumption that "intentional" torts invariably or systematically exhibit a more serious degree of fault than torts of negligence display. Many actual tort doctrines, including even battery, belie this assumption.
The second problem is (a lack of) generality: intentional tort law is not organized into a series of straightforward umbrella rules, e.g., prohibiting intentionally causing physical harm, intentionally causing emotional harm, and intentionally causing economic harm. Nor would streamlining intentional tort doctrine in this manner be realistic or justifiable (e.g., the distinct protections in such varied torts as false imprisonment, invasion of privacy, and defamation cannot be understood as merely salient instances of a general norm against unjustified intentional causation of emotional harm).
Third, the hierarchy of fault is imperfect. Not all intentional torts involve fault; some are better characterized as imposing a kind of strict liability. And others contain a complex set of fault requirements that in aggregate approximate negligence, or are no more culpable than negligence.
Three possible responses to these problems include:
(1) More explicitly distinguish multiple fault elements within a single tort doctrine (as is commonly done in modern criminal statutes employing the analytic structure of the Model Penal Code);
(2) Develop distinct standards for intentional tort doctrine and for ancillary doctrines such as the insurance exclusion for intentional torts;
(3) Recognize intentional torts as an alternative paradigm of tort doctrine, in stark contrast to the reasonableness paradigm that has come to dominate much of tort law in the last century.
Number of Pages in PDF File: 47
Keywords: tort, liability, intent, intentional, intentional tort, battery, fault
JEL Classification: K13Accepted Paper Series
Date posted: July 26, 2006
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