Torts: Intentional Torts to Persons

The Restatement of the Law Third, Torts: Intentional Torts to Persons (Intentional Torts Restatement) is one of several projects that, taken together, will constitute the Restatement Third of Torts.

This project addresses intentional torts to natural persons—specifically, battery, purposeful infliction of bodily harm, assault, and false imprisonment. It also includes the privilege of consent and certain nonconsensual privileges (self-defense, defense of others, privilege to restrain, and others). The project intersects with several topics that are included in Restatement Third, Torts: Liability for Physical and Emotional Harm. These include the general definition of intent, § 1; scope of liability for intentional torts, § 33; and intentional infliction of emotional harm, § 46. As appropriate, this project refers to and incorporates this material.

The Restatement Second of Torts black letter and Comments on battery, assault, and false imprisonment have been widely adopted or referenced by American courts. However, important disagreements have arisen about their meaning, and uncertainties about their scope remain. This Restatement addresses these issues and simplifies the black letter of many of the provisions. It also develops a clearer framework for analyzing how various sub-doctrines relate to each other.

The intentional torts to persons—battery, purposeful infliction of bodily harm, assault, and false imprisonment—share important features. They are intentional because they involve an action that is intended to affect another person and that results in an invasion of the rights of another. Unlike the tort of negligence, intentional torts upon persons cannot be committed through simple inadvertence. Further, intentional torts protect fundamental interests in autonomy, dignity, and security. Their shape is more rule-like and more precise than negligence doctrines, which often take the form of flexible and general standards of reasonableness. And, unlike negligence doctrines addressed in Restatement Third, Torts: Liability for Physical and Emotional Harm, they frequently permit tort recovery—in the form of at least nominal damages—even absent proof of physical harm or emotional harm.

At the same time, the different intentional torts to persons developed differently as a historical matter, and are distinct in their structure and in the interests they protect. They do not simply amount to arbitrary categories within a broader umbrella tort of intentionally causing physical harm or intentionally causing emotional harm. (Excerpt from the Scope Note of Tentative Draft No. 1)

Tentative Table of Contents

CHAPTER 1: Definitions of Intentional Torts to Persons; Transferred Intent

  • 1. Battery: General Definition
  • 2. Battery: Required Intent
  • 3. Battery: Definition of Offensive Contact
  • 4. Purposeful Infliction of Bodily Harm
  • 5. Assault
  • 6. Intentional (or Reckless) Infliction of Emotional Harm
  • 7. False Imprisonment: General Definition
  • 8. False Imprisonment: What Constitutes a Confinement
  • 9. False Imprisonment: Confinement by Assertion of Legal Authority
  • 10. Participation in an Intentional Tort
  • 11. Transferred Intent

Chapter 2: Consent

  • 12. Categories of Consent That Preclude Liability
  • 13. Actual Consent: Definition and Conditions
  • 14. Actual Consent: Scope Conditions
  • 15. Actual Consent: Requirements of Capacity, Absence of Duress, and
    Absence of Substantial Mistake
  • 16. Apparent and Presumed Consent
  • 17. Emergency Doctrine
  • 18. Consent to Sexual Conduct
  • 19. Medical Treatment Without Legally Effective Consent as Battery

Chapter 3: Privileges

  • Topic 1: Definitions for Privileges
  • Topic 2: Self-Defense and Defense of Third Persons
  • Topic 3: Defense of Actor’s Interest in Possession of Land and Personal Property
  • Topic 4: Arrest and Prevention or Termination of Crime
  • Topic 5: Privileges to Discipline Children

Chapter 4: Miscellaneous Provisions

About the Restatement of the Law Third, Torts in general: The Restatement of Torts is one of the Institute’s most influential projects and its most cited one. While the First and Second Torts Restatements were done as a single project, the Third was split up into a number of components in light of the enormity of the undertaking. Three components have been completed, approved, and published: Products Liability (1998), Apportionment of Liability (2000), and two volumes of Liability for Physical and Emotional Harm (2010 and 2012). Two are currently ongoing: Liability for Economic Harm and Intentional Torts to Persons. (Excerpted from the Forward of Tentative Draft No. 1 by ALI Director Richard L. Revesz)

Reporters

Kenneth W. Simons

Reporter, Restatement of the Law Third, Torts: Intentional Torts to Persons

Kenneth W. Simons is a leading scholar of tort law, criminal law, and law and philosophy. He has published influential scholarship concerning assumption of risk and contributory negligence; the nature and role of mental states in criminal, tort and constitutional law; and negligence as a moral and legal concept. He has published influential scholarship concerning assumption of risk and contributory negligence; the nature and role of mental states in criminal, tort and constitutional law; and negligence as a moral and legal concept. Professor Simons was a law clerk to U.S. Supreme Court Justice Thurgood Marshall and to Judge James L. Oakes, U.S. Court of Appeals for the Second Circuit.

W. Jonathan Cardi

Associate Reporter, Restatement of the Law Third, Torts: Intentional Torts to Persons

Jonathan Cardi is a professor at Wake Forrest University School of Law. Professor Cardi specializes in tort law, the law of remedies, and the intersection of race and the law. He is co-author of a torts casebook, a remedies casebook, two commercial outlines, and is co-editor of a book entitled Critical Race Realism. He has served as President of the Southeastern Association of Law Schools and Chair of the Remedies Section of the AALS.

Ellen S. Pryor

Associate Reporter (2014-2015), Restatement of the Law Third, Torts: Intentional Torts to Persons

Ellen S. Pryor has been a co-author of several casebooks, and her writings in the area of torts, insurance, and compensation theory have appeared in, among other journals, the Harvard Law Review, Virginia Law Review, Journal of Legal Studies, George Washington Law Review, Maryland Law Review, Texas Law Review, Tulane Law Review, Georgetown Law Journal, and the University of Chicago Press.