U.S. courts should not adjudicate the novel theories of tort in Nazi forced labor cases.

• Author: Campbell, D. Jeffrey

Both private and public interest considerations argue against American courts attempting to resolve these novel cases

MANY cases have been filed recently in the United States in which one or a small group of plaintiffs has instituted suit on behalf of a purported class of persons to obtain damages for injuries sustained as a result of "forced labor" during World War II. The plaintiffs maintain that they were injured when they were forced to work under inhumane conditions in German factories that manufactured products to be used in Germany's war effort.

These cases have been filed, for the most part, in U.S. federal courts against commercial and industrial concerns, as well as banking institutions and insurance companies. The allegations raised sound in tort, contract and quasi-contract and include, but are not limited to, claims of wrongful conversion of services, false imprisonment, loss of childhood, civil assault and battery, conspiracy to exploit, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of implied contract for employment, unjust enrichment, and violations of the "law of nations."

Pleading novel torts in this context makes for interesting litigation, as it raises new issues and stretches commonly accepted definitions in novel ways. Some of the torts alleged are of the more traditional type: wrongful conversion, false imprisonment, civil assault and battery, and intentional and negligent infliction of emotional distress. Others are more innovative, such as wrongful conversion of services, conspiracy to exploit, and loss of childhood.

One must delve into the historical bases and requirements in order to assess whether these torts are properly applicable in this context. And the best place to start is with an acknowledged American tort expert--William Prosser.

HISTORY AND REQUIREMENTS

1. Traditional Torts

   The action for the tort of false imprisonment protects the personal interest in freedom from restraint of movement.(1) While the restraint does not have to be physical-that is, prison bars or stone walls--it does have to be total in nature. A mere obstruction of one's right to go where one pleases does not meet the essential criteria of "imprisonment" for the purposes of this tort. The interest is, in a sense, a mental one, much like the apprehension of contact in assault cases, as a plaintiff can be restrained by physical barriers as well as by threats of force which intimidate the plaintiff into compliance with orders.

   While a plaintiff need not necessarily be aware of the restraint at the time, the restraint must be against the plaintiff's will, it need only be for an appreciable length of time and no damage need result from it other than the confinement itself, since the tort is complete following even a brief restraint of the plaintiff's freedom. The types of damages that are recoverable are compensation for loss of time, for physical discomfort or inconvenience, and for any resulting physical illness or injury to health. It is obvious that the plaintiffs involved in the forced labor suits meet the traditional requirements of this tort.

   The interest in freedom from apprehension of a harmful or offensive contact with the person, as distinguished from the contact itself, is protected by an action for the tort of assault.(2) Assault, as distinguished from battery, is essentially a mental rather than a physical invasion, and therefore the damages that are recoverable for it are those for the plaintiff's mental disturbance--that is, fright and humiliation--as well as any resulting physical illness. The defendant need not intend to harm. It is enough that there is an intent to arouse apprehension--for instance, shooting a gun to frighten the plaintiff. Punitive damages also may be awarded where appropriate. Battery is actual physical contact, and except for this distinction in the character of the invasion of the plaintiff's interests, it is identical to assault.

   Again, the plaintiffs in the forced labor actions have alleged facts that, if proved, could easily satisfy the criteria for this more traditional tort, as well as for the torts of intentional and negligent infliction of emotional distress.

2. Novel Torts

   The more novel tort theories--wrongful...