Anomalies in Intentional Tort Law

Tennessee Journal of Law and Policy, Vol. 1, p. 187, 2005

77 Pages Posted: 20 May 2005


Under tort law's modern theoretical paradigm, all intentional torts are governed by three basic principles: (1) intent is a necessary and sufficient basis for holding someone liable; (2) each intentional tort must violate its own specific behavioral rule; and (3) all intentional torts require proof of the defendant's fault. Together, these principles appear to make intentional tort law both unique and self-contained. The first principle justifies creating an intentional tort theory of recovery. The second principle distinguishes that theory from negligence, which bases liability on the fixed standard of reasonable care. The third principle separates intentional torts from the no-fault theory of strict liability.

Of course, this jurisprudential scheme has always contained some rather obvious anomalies. For example, the concept of tortious intent, defined as scienter, includes behavior that clearly is not purposeful. In addition, the doctrine of transferred intent creates a legal fiction that artificially shifts intent from one person to another. More discretely, the mistake doctrine imputes intent to persons whose conduct clearly is not intentional. Until now, these anomalies have been viewed as rather trivial blemishes on an otherwise healthy corpus juris. In this article, however, I show that the flaws in intentional tort law are far greater in number, and far more serious, than previously thought. Indeed, they are so numerous and substantial, they actually undercut each of the law's three sustaining tenets. The truth, I argue, is that intent is never a sufficient basis for imposing liability. Instead, liability is always based on the negligence concept of reasonableness. Since unreasonableness is presumed from intent, proof of fault is not necessarily required. Rather, all intentional torts actually impose a form of strict liability.

From these observations, I conclude that tort law's modern theoretical superstructure requires more than the slight renovation currently undertaken by the ALI in the Restatement (Third) of Torts. Instead, it requires a total paradigm shift. Thus, in my Conclusion and Proposal, I suggest one possible option for change: a theoretical paradigm - based on the concept of reasonableness - which not only captures the spirit of intentional tort law, but also eliminates its most enervating anomalies.

Suggested Citation

Calnan, Alan, Anomalies in Intentional Tort Law. Tennessee Journal of Law and Policy, Vol. 1, p. 187, 2005, Available at SSRN:

Alan Calnan (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States
(213) 738-6811 (Phone)

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