Intent

The MEANING OF "INTENT" in TORTS

Professor Edward C. Martin

INTRODUCTION.

The general notion of "intent" in the law as it relates to intentional torts is somewhat confusing due to the variety of legal terms that are typically used to describe it. Moreover, throughout the course of its long history of use in the common law, the concept of "intent" itself has actually changed over the years from one which was initially quite "simplistic" and mechanical in its application to one that often now incorporates some degree of legal culpability into it. Obviously, the resulting case law can be quite confusing as well. For this reason, it is certainly wise to understand something of the common law history of intent.

CRIMINAL INTENT.

Even apart from the historical changes which have occurred in the interpretation of the meaning of "intent," the courts have also recognized a variety of other entirely different categories of "intent." For example, criminal intent (i.e., mens rea) is obviously not the type of intent that is required for an intentional tort action. Indeed, the focus of mens rea upon the Defendant's personal MOTIVE in committing the criminal act is completely irrelevant to the analysis of a typical intentional tort case. For example, a Defendant could have the very best of motives in striking the Plaintiff on the back (e.g., to swat a bee that was about to sting the Plaintiff). Still, such an action by the Defendant (whatever his/her personal motive may have been) would certainly satisfy the necessary requirement for establishing the requisite "intent" for a "Battery" upon the Plaintiff.

Likewise, even if the Defendant had a very BAD, evil motive and purposefully INTENDED to cause the Plaintiff actual harm by carefully planning an outright attack upon him, absent any OVERT action committed by Defendant toward Plaintiff in an effort to actually carry out his/her evil plan or scheme, the necessary legal "intent" to justify a "Battery" against the Plaintiff by the Defendant simply would be lacking. By contrast, the Defendant's evil "motive" in planning his/her scheme might still be sufficient by itself to otherwise justify at least some type of criminal prosecution.

"SIMPLE" INTENT.

Contrary to the concept of criminal intent which usually requires a showing of some very specific intent by the Defendant (e.g., an intent to commit murder), the common law courts have taken a different view of the notion of "intent" with respect to establishing liability for intentional torts. Often referred to by the term "simple intent," this concept views the notion of intent in its simplest form: as merely an intent to do "the act" (e.g., step onto the land where the Defendant is standing; swing the baseball bat; extend a fist in a threatening manner; etc). Thus, "simple intent" does not require any showing that the Defendant knew that the land onto which she stepped actually belonged to the Plaintiff; or that the Defendant actually intended to strike the Plaintiff with the baseball bat which he was swinging; or that the Defendant intended to frighten the Plaintiff by making the threatening gesture with his fist.

In this way, "simple" intent is much more easily proven for purposes of establishing the requisite "intent" in an intentional tort action than the entirely different concept of "criminal intent" that is required to establish the Defendant's liability in a criminal prosecution. This difference is explainable in part from the fact that the law (of Torts) is designed to protect the interests of those plaintiffs whose various interests have been invaded by the alleged tortious actions of various defendants, whereas the criminal law (at least modern criminal law) is more concerned with protecting the interests of those who have been accused of committing criminal acts. Thus, not only do these two different branches of the law impose completely different standards of proof (i.e., "beyond a reasonable doubt" in criminal law as compared with the "preponderance" standard used in tort law), they also define the entire concept of "intent" differently.

"ACTUAL" VERSUS "IMPLIED" INTENT.

Another terminology often utilized in classifying the concept of "intent" in intentional tort actions is based upon a determination as to whether the Defendant had an actual intent or whether the requisite intent can at least be implied from the circumstances surrounding the Defendant's actions. The reason for this analytical distinction is fairly obvious, given that few Defendants are ever willing to admit that they "actually intended" their tortious behavior. (e.g., The Defendant in a "Battery" action" is not likely to testify that "Yes, I actually did INTEND to strike the Plaintiff in the head with a baseball bat!" More likely, the Defendant will testify merely that "when I swung the bat, I did not see the Plaintiff standing behind me.")

Absent other evidence which could be used to PROVE that the Defendant acted INTENTIONALLY (e.g., eyewitness testimony from a third party who saw the Defendant raise a baseball bat over the Plaintiff's head and strike the Plaintiff with the bat), few intentional tort actions could ever be successful if the only way that a Plaintiff could establish the requisite "intent" was by proving that the Defendant had an "actual intent." Thus, the common law expanded the notion of "intent" to include the concept of implied intent. Utilizing this concept of "implied" intent, even where the Plaintiff is unable to establish that the Defendant actually intended the tortious act, intentional tort liability can still be established if the Plaintiff is at least able to prove that the Defendant did some kind of act, the tortious consequences of which were substantially certain to follow. Hence, cases such as Garratt v. Dailey, permit the imposition of liability for intentional torts even where actual intent cannot be proven, so long as the consequences of the Defendant's actions were at least "substantially certain" to occur.

"TRANSFERRED" INTENT.

Still another term utilized in conjunction with proving "intent" is the notion of "transferred intent." If the Defendant throws a rock intending to strike A, and the rock misses A (or even if it bounces off A) and subsequently hits B, an unintended target, the law of intentional torts applies the concept of transferred intent to satisfy the requisite element of intent necessary to impose liability against the Defendant. Even though the Defendant never actually intended to hit B at all, and may never even have known about the presence of B so as to justify a finding of implied intent (e.g., B was hiding behind a tree at the time when Defendant threw the rock at A, and never saw nor had any reason to believe that B was even present in the vicinity), the concept of "transferred intent" is really just a legal "fiction" created by the common law courts to permit a finding of "intent" where none could otherwise be proven. Of course, once it was created, the courts then struggled with just how far such a concept should be extended. Consider, for example, the following scenario:

Defendant shoots at a tree on A's wooded property (a trespass to land), but after striking the tree, the bullet richocets away and strikes B's dog (which would constitute a trespass to B's chattel) that was asleep under the tree and hidden from Defendant's view. Later, when B discovers that his beloved
pet dog has been shot, he becomes so emotionally distraught that he suffers severe emotional distress

Should Defendant be liable for the tort of "trespass to chattels" with respect to B's dog?

And what about Defendant's intentional tort liability for B's emotional distress (i.e., intentional infliction of emotional distress). Clearly, Defendant never intended to interfere in any way with B's dog. He was merely shooting at a tree in the woods. Likewise, since he was unaware of the presence of B's dog, he could scarcely have intended to cause any emotional distress to B.

Just how far should the concept of "transferred intent" be allowed to extend?

These, and similar questions, were answered by early common law courts with a fairly consistent approach that is follwed even today with respect to the concept of "transferred intent." These courts simply concluded that the Defendant's intent "follows the bullet!" Thus, in the example, supra, the Defendant would be liable to B for the tort of trespass to chattels. However, since the bullet stopped with the dog, the Defendant's intent was said to extend only that far, Thus, B could not also recover for intentional infliction of emotional distress, at least absent some separate proof of the Defendant's intent with respect to thge tort of IIED.

This explanation is easy enough to apply, and in most situations it does produce the legally "correct" result. However, a more analytically sound basis for determining precisely WHEN intent can be "transferred" from ONE intentional tort to ANOTHER, arises from an historical understanding of the nature of the early English common law causes of action for intentional torts. Since not all of the intentional tort actions that are recognized today by modern courts even existed at English common law, the courts today only apply the concept of "transferred intent" to those specified intentional actions that were originally recognized by one of the early English writs known as "trespass." Thus, in any intentional tort action today, the requisite intent can only be "transferred" where BOTH the tort intended AND the tort accomplished derived from the English common law writ of trespass. Specifically, these torts include:

ASSAULT
BATTERY
TRESPASS TO LAND
TRESPASS TO CHATTELS
FALSE IMPRISONMENT

In all other situations, the concept of "transferred intent" simply does not apply in most courts today, regardless of the "directness" or "indirectness" of the Defendant's actions.