Chapter 6 Intentional Torts

• Library: The South Carolina Law of Torts (SCBar) (2023 Ed.)

CHAPTER 6 INTENTIONAL TORTS

This chapter addresses "intentional" torts against person or property.¹ Many of these torts derive from the common law form of action in trespass² and can be viewed as "simple direct interference with the person, such as assault, battery and false imprisonment, or with property, as in the case of trespass or conversion...."³ The chapter also discusses intentional infliction of emotional distress because it is, in part, an extension of the protection against mental disturbance afforded by the action for assault. The chapter briefly notes the federal "civil rights torts" because state law supplements federal law in such cases as the underlying source of remedies. Intentional interference with relational interests such as reputation and privacy are dealt with separately in Chapter 7 because of the intangible nature of the interests involved and because of the need to consider developments in constitutional law. Intentional infliction of economic harm is treated in Chapter 5 along with other economic injuries.

The concept of "intent" is central to this chapter, but the term is not easily defined and contradictory or conclusory usages are common.⁴ Prosser defines "intent" as follows:

"Intent" is the word commonly used to describe the purpose to bring about stated physical consequences; the more remote objective which inspires the act and the intent is called "motive." Both intent and motive are steps removed from volition to move the muscles of the finger. Intent is concerned with consequences of that movement; motive, with reasons for desiring certain consequences. Intent is thus less removed from act than is motive. Each has its own importance in the law of torts, and a justifiable motive, such as that of self-defense, may avoid liability for the intent to kill.
Both intent and motive are states of mind. Act is a combination of muscular movement and the state of mind of volition to make that movement.
As already noted, however, intent is broader than a desire or purpose to bring about physical results. It extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does. The actor who fires a bullet into a dense crowd may fervently pray that the bullet will hit no one, but if the actor knows that it is unavoidable that the bullet will hit someone, the actor intends that consequence.⁵

Perhaps the most fundamental difficulty with this definition is the vagueness of the term "consequences." The actor clearly need not desire to bring about as a consequence a harm or a wrong.⁶ It is difficult, however, to generalize about "intent" and consequences in a more positive or precise manner because the cases are not always clear concerning precisely "what consequence must be intended to meet the requirements of the legal theory at issue."⁷

The fact that many aspects of intentional torts involve not only negligence but also strict liability further complicates the analysis. For example, liability for negligence results, in effect, where an actor makes an unreasonable mistake about the need for force to defend himself. In such a case, the actor commits a battery, even though he thought he was acting within his legal rights and did not intend to commit a battery.⁸ Similarly, negligence liability or strict liability results where a person commits a trespass because there is no requirement that one intends to trespass; all that is required is that one commit an intentional act that results in a trespass. Thus, a trespass results if one "intentionally cut trees growing on land which proves upon investigation to be the land of another, although he honestly believed that the trees were on his own land...."⁹

In any event, since the torts this chapter discusses involve "intentional" wrongdoing (however defined), these torts often involve situations where punitive damages are appropriate. For example, assault, battery, and intentional interference with property may involve outrageous misconduct, evil motive, or ill will, all of which justify awards of punitive damages over and above compensation for injuries. Punitive damages as such are discussed in Chapter 8.

Intentional torts may give rise to vicarious liability for damages, and an employer is generally vicariously liable for both compensatory and punitive damages for intentional torts an employee commits while acting within the scope of employment.¹⁰ Insurability against liability for intentionally inflicted damages, including punitive damages, is a matter of practical importance, but involves issues of insurance contract construction and of public policy that are beyond the scope of this book. ¹¹

In suits against the government the difference between negligence and intentional torts is important because the sovereign is immune from liability for some intentional torts. The Federal Tort Claims Act provides that there is no waiver of immunity for "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights."¹² More generally, attempts to recast claims for intentional torts excepted from the Federal Torts Claims Act as negligence or "negligent supervision" have been "consistently eschewed by the courts."¹³ In such cases, however, the FTCA specifically denies immunity for the employee as an individual.¹⁴

For instance, in Taylor v. Barkes,¹⁵ the United States Supreme Court held that the Commissioner of the Department of Corrections had qualified immunity because at the time of inmate's suicide there was no "clearly established" right for an incarcerated person to the proper implementation of adequate suicide prevention protocols. Even if the institution's suicide screening and prevention measures contained the shortcomings that Barkes alleged, no precedent on the books in November 2004 (when Barkes was arrested and killed himself while in custody) would have made clear to the Commissioner that he was overseeing a system that violated the Constitution. Because, at the very least, the Commissioner was not contravening clearly established law, he was entitled to qualified immunity for alleged Eighth Amendment violations.¹⁶

The South...