Clem on Torts: Chapter 2: Intentional Torts

Copyright 2014, Richard P. Clem
Richard P. Clem Continuing Legal Eduction

Clem on Torts is a comprehensive review of the material covered in a first-year torts class in an American law school. It is available free of charge on this website, and is also available for purchase as an Amazon Kindle book.

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Before we begin, we need to learn some of the terminology. One word that you will see over and over throughout your law school career, and as a lawyer, is the word element. An element is simply one of a list of things that a plaintiff needs to prove in order to establish their case. In order to win, the plaintiff needs to show that A, B, and C are true. A, B, and C are the elements of the cause of action. If the plaintiff proves that all of them are true, then the plaintiff wins. If the plaintiff doesn’t prove all of them, then the plaintiff loses.


For all of the intentional torts, one of the elements is intent. A person acts with intent if he or she desires to cause the consequences of an act, or if he or she believes that the consequences are substantially certain to result. Generally, for the intentional torts, the intent that is required is to carry out a certain act. Generally, it is not required that the actor intend a certain type of injury. For example, in the case of trespass, the law requires merely that the person intend to enter a particular piece of property.


In most torts classes, the first tort discussed (usually in excruciating detail) is battery, and that is where we begin. Battery is the fancy word that lawyers use when they mean that one person beat up another person. However, the plaintiff can be successful even in the absence of a savage beating. To be successful, the plaintiff (the person who got beat up) needs to prove that the defendant did the following things. In other words, these are the elements of the battery cause of action:

  1. The defendant intended to cause a harmful or offensive contact with the plaintiff’s body.
  2. The defendant actually touched the plaintiff.
  3. The contact was harmful or offensive to the plaintiff.


Many laypersons use the terms “assault” and “battery” interchangeably. However, they are actually somewhat different. The elements for the tort of assault as the following:

  1. The first element is the same as for battery: The defendant intended to cause a harmful or offensive contact with the plaintiff’s body.
  2. The plaintiff was placed in apprehension of an immediate battery. This apprehension must be justified.

“Apprehension” is not necessarily the same thing as fear. Some cases define apprehension as “anticipation with discomfort”. In other words, the battery which plaintiff thinks he is about to receive need not be a savage beating. If the plaintiff believes that some discomfort is going to result, that is sufficient.

The apprehension must be justified. Normally, to decide this, we use an objective standard. In other words, we ask the question of whether a reasonable person would be justified in feeling apprehensive. But there is one exception to this rule. If the plaintiff had some special sensitivity, and the defendant knew about this special sensitivity, then we can look at the plaintiff’s actual apprehension. But normally, we look at whether a reasonable person would have been placed in apprehension.

The plaintiff must believe that the battery was going to be immediate. If the plaintiff believes that the defendant is going to hit him or her tomorrow, this is not sufficient. It must be something that the plaintiff believes is coming immediately. And what the plaintiff is anticipating must constitute a battery. In other words, if it had happened, it would have met the three elements for battery.

Finally, the apprehension must be caused by something more than mere words. If the defendant said, “I am going to hit you”, that by itself would not constitute assault. The defendant must take some action which causes the apprehension.

False Imprisonment

The next intentional tort is false imprisonment. The elements of false imprisonment are:

  1. The conduct must be intentional: In other words, the defendant must intend that a confinement will take place.
  2. Confinement of plaintiff.

Confinement means overcoming the plaintiff’s will to leave. If the plaintiff does not want to leave, then he or she is not being confined. For example, it is impossible to confine a person who is unconscious, since they do not have a will to leave.

It is never confinement to keep a person out of a place. For there to be confinement, the plaintiff must be kept in a place.

Anything that will overcome a reasonable person’s will to leave is sufficient. Some examples would be force, barriers, or threats of force. Some things are closer calls. Taking the plaintiff’s property away might be sufficient. For example, if the plaintiff is trying to leave a place on a bicycle, and the defendant prevents this by taking away the bicycle, this might be sufficient, depending on the other facts of the case. Depending on the circumstances, mere words or the threat of extreme embarrassment might be sufficient. The threat of future harm or prosecution probably is not enough.

Two common exceptions to the tort of false imprisonment would be a police officer detaining a suspicious person, or a shopkeeper who reasonably believes that the plaintiff is a shoplifter. Neither of these situations would constitute false imprisonment.

Intentional Infliction of Emotional Distress

The elements of intentional infliction of emotional distress are:

  1. Outrageous conduct
  2. The conduct is calculated to cause mental suffering.
  3. The conduct must actually cause severe mental suffering.

Outrageous conduct is defined as conduct which exceeds all bounds normally tolerated by decent society.

The conduct must be “calculated to” cause mental suffering. This means that it is intentional, but it goes beyond mere intent. The emotional suffering must be almost inevitable, according to an objective standard. In other words, it must be almost inevitable to a reasonable person. There is one exception: If the plaintiff has a particular sensitivity, and the defendant was aware of that sensitivity, then we don’t need to consider what a reasonable person would believe.

The mental suffering must be severe. In a majority of jurisdictions, this means that there will be no recovery in the absence of physical symptoms. However, some jurisdictions do not require physical symptoms if the mental suffering is severe enough.


The elements of trespass are:

  1. It must be intentional.
  2. Unauthorized entry.
  3. The entry is on to real property.
  4. The property must be possessed by the plaintiff.

The intent required is merely the intent to enter a particular piece of land. In other words, the defendant doesn’t necessarily need to know that it is owned by the plaintiff.

The entry can be any kind of tangible contact with the property.

The plaintiff must possess the property, but this does not necessarily mean that he or she is the owner of the property. He or she must be the one lawfully entitled to possess it. In the case of vacant land, the owner is presumed to be in possession. The land might be possessed by the plaintiff’s agent, and this would be sufficient possession.

In the case of trespass (as well as some other intentional torts), the plaintiff is not required to prove any damages. If the elements are proven, then there would be at least nominal damages awarded.

But in addition to the nominal damages, the trespasser is liable for all damages caused by his or her entry. The actual damages do not need to be intentional or even negligent.

Trespass to Chattels

Here, we have a new word, chattel. A chattel is merely an archaic name for a piece of personal property, in other words, any piece of property that is not land or a building. The elements of trespass to chattels are:

  1. Intent that a particular chattel would be affected
  2. Interference: Some act by the defendant that only the rightful owner had the right to perform.
  3. The chattel was possessed by the plaintiff. The plaintiff must be the actual possessor or one with a right to possess.
  4. Damages. (The damages must be to the plaintiff, not merely to the chattel.)


The elements for conversion are the same as those for trespass to chattels. The difference is a matter of degree: In the case of conversion, the interference is such that the rightful possessor is completely deprived of his or her rights. Examples would be acquiring possession of the item, misdelivering it, destroying it, or materially altering it.

At common law, the damages for conversion were a “forced sale” of the item.

Clem on Torts is also available at Amazon as a Kindle book.

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