The following article has been written by Ishani Samajpati, who is pursuing B.A. LL.B. (Hons) under the University of Calcutta. This article aims to provide a thorough understanding of the defenses available in cases of intentional torts committed against people or property in the United States. At first, it provides an overview as to what constitutes intentional torts to person and property, followed by a detailed discussion of available defenses.

It has been published by Rachit Garg.

Introduction

A tort is a civil wrong committed against a person. Intentional tort is a category under tort that arises when civil wrongs take place due to the intention, intentional actions, or conduct of the tortfeasor. However, it does not always imply that the wrongdoer had the intention to cause harm to the victim. But, he or she must possess the intention to perform the said act that ultimately caused the harm. When faced with a civil action for an intentional tort, the defendant has certain defense mechanisms to escape liability.

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There are some defenses commonly used against intentional torts. This article first focuses on the types of intentional torts. Thereafter, it discusses defenses such as self-defense, defense of a person by another, defense of property of another, necessity, and abatement of nuisance.

What are intentional torts

Intentional torts are those that are committed with the intent to cause harm rather than by accident or negligence. Although it may seem that they fall under the purview of crimes, it must be remembered that all torts are civil wrongs and not criminal activities. Hence, the person guilty will not face any punishment for the offense committed; rather, he or she will be ordered to pay damages for the offense.

Intentional tort occurs when the tortfeasor knowingly intends to cause harm. The harm caused may be both physical and emotional in nature. Intentional property damages also fall under intentional torts. 

Broadly, intentional torts can be divided into two types. They are:- trespass to persons and trespass to property. 

Traditionally, there are a total of seven intentional torts to persons and property. Out of them, four are intentional torts to persons (trespass to persons), and the rest three are torts to property (trespass to property).

Intentional torts to person

Intentional torts to a person are sometimes referred to as trespass to the person. The four intentional torts to a person are battery, assault, false imprisonment, and outrage. In the United States, the tort of outrage is also known as intentional (or reckless) infliction of emotional distress, or IIED, in short.

Battery

In layman’s terms, “battery” is defined as the direct or indirect physical contact with the plaintiff. The contact can be either harmful, causing bodily harm, or offensive, offending personal dignity or outraging personal modesty.

There are two types of intentions in a battery. They are- single intent and dual intent. Single intent occurs when the defendant only desires or intends to cause either harmful or offensive contact. However, when the defendant intends to cause both harmful and offensive contact, it is known as dual intent.

The requirement of intention in a tort of battery is comparatively moderate. The knowledge of the defendant with “substantial certainty” is enough for a tort of battery.

A battery may or may not cause the plaintiff injury, especially in the case of offensive contact by the defendant. Hence, there is no strict requirement for injury in battery.

Battery encompasses a wide range of behaviors, some of which are inappropriate and others of which can have disastrous consequences. The defense of consent is immensely important to a tort of battery. If the plaintiff provides consent to the defendant, the tort of battery is invalid.

Assault

The tort of assault occurs when someone threatens or attempts to harm another without actually touching him or her. Unlike battery which involves direct or indirect contact with the plaintiff, assault is a direct threat of violence. 

In other words, if the defendant creates the apprehension that makes the plaintiff think that he or she is going to receive battery, it amounts to a tort of assault. However, threats of future battery also do not constitute an assault.

The tort of assault also does not include the requirement of injury. 

False imprisonment

If the defendant restricts or intends to restrict the ability of the plaintiff to move freely by setting a particular boundary, the tort of false imprisonment occurs. False imprisonment can be direct or indirect, through the use of restraints or by means of unreasonable duress or coercion.

However, if the plaintiff is unaware of the restriction, there is no tort of false imprisonment. The sole intention to restrict an individual in a bounding area constitutes the tort of false imprisonment. 

False imprisonment is also referred to as the intentional confinement of a person. It encompasses several degrees of offenses, ranging from kidnapping to locking someone in a room for a short period of time.

Multiple defenses are available in the case of a tort of false imprisonment. Consent is one of the most important defenses available in such a case. Other defenses include the lawful arrest privilege available to employees of law enforcement and the shopkeeper’s privilege, widely used by shopkeepers to detain shoplifters.

Outrage or intentional or reckless infliction of emotional distress

When the defendant, either intentionally or recklessly, causes severe emotional distress to the plaintiff by means of his or her conduct, the tort of outrage occurs. It is also referred to as the intentional or reckless infliction of emotional distress, shortened as IIED. 

However, the conduct of the defendant must be so extreme or outrageous that it causes the plaintiff considerable emotional distress. In such a situation, the liability is on the defendant for  causing any emotional distress to the plaintiff, which may ultimately result in any bodily harm or physical illness.

The emotional distress experienced by the plaintiff must be extremely serious and prolonged. Temporary sadness or unhappiness for a short time does not constitute outrage.

There are many defenses and exceptions available for outrage, and they have been discussed later. Some of them include conduct directed at some other persons, proximate cause, the doctrine of transferred intent, and limitations under the First Amendment of the Constitution of the United States.

Intentional torts to property

The three intentional torts to property are discussed as follows:

Trespass to land

The intentional tort of trespass to land occurs in the following three situations:

  • When the defendant enters the property of the plaintiff without the latter’s consent.
  • The defendant continues to remain on the plaintiff’s property even after the expiration of the defendant’s privilege or after the plaintiff has withdrawn consent; or,
  • When the defendant helps a third party enter the plaintiff’s property or does not remove anything which he is duty bound to remove.

Trespass to the land may be done without harm, and injury is not a requirement to prove the tort. The defendant may not have had a specific intent to cause harm, but the mere initiative taken by the defendant to trespass on land is sufficient to prove this. Consent is commonly used as a defense to trespass to land.

Trespass to chattels

Chattel refers to tangible and movable property such as cars, jewelry, livestock, etc. The tort of trespass to chattels is committed whenever the defendant intends to interfere, either physically or by means of taking it away from the plaintiff. However, the plaintiff must have present or future possession of the said chattels, and he or she has to prove the damages.

The tort of trespass to chattels has stricter requirements compared to trespass to land. In the former, mere touching qualifies as a tort, which is not the same as trespass to chattels. The tort of trespass to chattels is only committed when the right of the plaintiff to enjoy the rights to chattels is interfered with. Some examples of trespass to chattels include stealing, damaging, or destroying an item.

Conversion

The tort of conversion occurs when someone, without authority or permission, intentionally exercises ownership rights over another’s property or chattels and deprives the latter. It is the most serious intentional tort to property. 

Conversion occurs when the defendant takes possession, moves, transfers, or delivers the chattel without authority. Withholding possession or destroying or materially altering the chattels also qualifies as the tort of conversion.

Defenses to intentional torts

In intentional torts, the available defenses are limited in number since the defendant acts with an intention. However, there are some concrete defenses that the defendant can use, subject to the facts and circumstances of the case.

The defenses to intentional torts can be classified into two types – affirmative and negative. Most of the defenses available to the defendant are affirmative defenses. A negative defense is based on the defendant’s denial of the plaintiff’s claim. The negative defense in any intentional tort is the consent of the plaintiff. However, there are differences of opinion among legal scholars regarding this. 

Privileges

Defenses to intentional torts are often referred to as “privileges.” The offenses that provide the defendant with an opportunity to defend himself or herself are termed “privileged offenses.”

It is a generalized term that is used to justify a conduct that will be otherwise considered as an intentional tort. It provides a legal justification to the defendant’s conduct in certain circumstances, which would otherwise be considered as tortious. For example, if the defendant enters into a third party’s property to save a child trapped in a fire, he has the privilege to use the defense against the trespass to land. For example, the defendant enters a third party’s property to save a child trapped in a fire. Later, the third party files a lawsuit against the defendant for trespass to land, and he is privileged to use the defense of a person by another against the intentional tort of trespass to land. 

Elements 

The main element to privileges in intentional torts are balancing tests. The courts use this method to find out the motive, intentions, and justifications if any are available.

The elements that are examined are as follows:

  • Whether the motives of the defendant is more important than the damage caused to the victim or the property?
  • Whether the actions of the defendant were justifiable enough in the said situation?
  • If the defendant’s action is motivated by certain beneficial motives, such as catching a criminal, saving a drowning child, or extinguishing a fire, etc.?
  • Whether the defendant has the option to opt for a less injurious alternative?

Consent

Consent is a very frequently used defense in cases of intentional torts. Consent takes place when an individual (in this case, a plaintiff) is interested in having a certain conduct happen. Consent totally depends on the subjective state of mind of the plaintiff, meaning there is no appropriate right or wrong answer to the question. However, the plaintiff is allowed to revoke consent at his or her own choice.

Consent can be direct, i.e., expressed, or indirect, i.e., implied. Even certain omission of acts by the plaintiff, silence or inaction on the part of the plaintiff may also constitute consent, based on the circumstances of the case.

Expressed consent

When an individual directly expresses his or her willingness or interest in the conduct of the defendant, it is said to be expressed consent. It relieves the defendant from any tortious liability.

In the case of Reavis v. Slominski (1996), the plaintiff bought a suit of torts of sexual assault and intentional infliction of emotional distress. The defendant claims that all the actions with the plaintiff were consensual. The Supreme Court of Nebraska held that the threat of loss of employment did not weaken the plaintiff’s ability to refuse the sexual advancements and there was a valid and effective consent.

Consent by mistake

Consent by mistake is valid in cases where the plaintiff himself or herself caused the mistake or is aware of the mistake caused and provides due consent. Unless the mistake is caused by the defendant or the defendant is aware of the same, the expressed consent is effective.

Implied consent

Implied consent can be categorized into two types. They are – apparent consent and consent implied by law.

Apparent consent 

Apparent consent refers to any circumstance in which the plaintiff’s actions or words are sufficient for the defendant or any other reasonable person to infer the former’s consent.

Apparent consent can also be inferred from the plaintiff’s actions or conduct or any other pre-existing prior dealings or behaviors between the parties.

Consent implied by law

In some situations, such as in an emergency, there may not be any opportunity or time to obtain any consent from an individual. He or she may not be in a position to disclose his or her consent. Consent implied by law is common in cases of bodily injury or serious life-threatening conditions.

In other words, the consent is said to be implied by law, and the act by the defendant would not be tortious if:

  • The plaintiff is incapable to consent;
  • It can be inferred that any other reasonable person will consent;
  • An emergency or life-threatening situation. 

Informed consent

In the doctrine of informed consent, the defendant is expected to disclose all the material facts and associated risks to the plaintiff before obtaining the consent. However, if the defendant fails to disclose or misrepresents the facts, the consent so obtained cannot be said to be an informed one.

Informed consent is commonly used in medical fields, especially for a treatment or operation which may turn unsuccessful or may have serious side effects. 

In the case of Ashcraft v. King (1991), the patient consented to a blood transfusion on the condition that only blood from family members should be used. However, the doctor used blood from general supplies. As a result, the patient acquired HIV. A suit for battery was filed.

The court held that the defendant doctor exceeded the scope of consent provided to him.

Scope 

Once the plaintiff consented to the defendant to act in a certain way, he or she cannot complain about the outcome. On the other hand, the defendant’s privilege is only limited to the acts for which the consent was given. Once the plaintiff revokes the consent, it cannot be used as a defense.

Validity of consent

Consent as a defense to intentional tort is valid if the plaintiff providing consent has the capacity or authority to provide so. Consent provided by minors, mentally unsound or intoxicated individuals is not valid. However, consent provided by legal guardians in cases of minors or mentally unsound adults is valid. 

Exceptions

  • Duress: Consent given by the plaintiff under duress is not valid. Duress includes threats of violence or causing bodily harm to the plaintiff or coercion but does not include any future deprivation of the plaintiff or any threat of future harm.
  • Free consent: The consent so obtained must be free on the part of the plaintiff. If fraud is a factor while obtaining consent, it is not effective.
  • Inability to consent: If the individual does not have the capacity to consent, it renders the consent ineffective. Similarly, if the defendant is aware of the inability of the plaintiff to provide consent, it cannot be used as a defense.
  • Exceeding the scope of consent: If the defendant exceeds the scope of the consent or acts completely differently for which the consent was obtained.
  • Consent to criminal activities: Views on whether consent to criminal activities can be considered as a defense to intentional tort is divided. A majority view states that the defense of consent to any criminal activities is not effective. The minority view, or the Restatement view, states that it can be used as a valid defense in cases of intentional torts unless any statute declares it to be a criminal activity, irrespective of the consent.
  • Withdrawal of consent: Withdrawal of consent is also known as revocation of consent. As stated earlier, the plaintiff is entitled to revoke the consent whenever he or she wishes through communicating with the defendant. If the defendant still continues the action even after the plaintiff has revoked consent, the former is said to exceed the scope of the consent and such a defense will not be valid.

Necessity

The defense of necessity is applicable when the action by the defendant is necessary to avoid substantially serious harm that causes some injury, bodily harm or personal loss of the plaintiff. The defendant should act to minimize overall risk, thus protecting a greater interest. 

Elements

  • The action of the defendant must be performed to avert greater harm. The lesser evil principle is applicable here.
  • If the damage is created by any external force, the defendant, despite being in charge, is not responsible.

The defense of necessity is of two types: public and private.

Public necessity

If a danger affects a large number of communities and the defendant commits an act to save a larger number of involved public interest, it justifies the tortious liability of the defendant. If any “state actor” is involved in public necessity, some states may extend the “Takings” clause in the respective state constitution to provide compensation.

The defense is absolute if the act so committed is for the greater good, even if the defendant mistakes the fact of the public interest. However, the defense is not valid if any better alternative exists against such an act.

In the case of Surocco v. Geary (1853), the defendant, a public official, decided to destroy the plaintiff’s property to prevent the fire from spreading. The court held that since the action by the defendant was performed in good faith to avert greater danger, he has not committed any tort.

Private necessity

If the danger affects only the defendant, he or she is entitled to commit an act of intentional tort to save himself or herself from the danger. However, the defendant is liable to pay any damages so caused.

In the case of Vincent v. Lake Erie (1910), the defendant’s ship was docked at the plaintiff’s wharf. It was damaged during the storm and a recovery to damage was filed. The Court ruled that the defendant was liable for the damages caused.

Scope

The defendant should have reasonable cause to believe that the extent of the harm would be serious enough to cause damage.

Self-defense

Self-defense is the reasonable use of force to protect one from any immediate danger or bodily harm from the perpetrator. It is another defense used in cases of intentional torts, such as assault, battery, or false imprisonment.

The defendant is entitled to use as much force as necessary to protect in cases of imminent danger or if he or she feels threatened by the conduct of the other. The force used by the defendant must not be greater than the force used by the opponent. It implies a non-deadly force cannot be combated by using deadly force, resulting in serious life-threatening conditions.

Scope

Self-defense as a defense to intentional tort is only valid when:

  • The defendant has reasonable cause to believe that he or she is in serious danger;
  • There are no ways to retreat or escape;
  • The reasonable cause of the defendant is judged based on what an ordinary person with a prudent mind would consider a threat.
  • The defense is valid even when the defendant mistakenly interprets an act to be a threat, provided it was reasonable enough for him or her in the said circumstances.

Right to protect: The defendant is entitled to protect his or her lands and chattels with the use of reasonable force.

Forms of self-defense: The defendant’s conduct in self-defense may resemble assault, battery, or false imprisonment.

Requirements

The requirements that constitute self-defense are as follows:

  • Necessity: It is important that the defendant believes it is necessary to act, though the belief may be wrong. 
  • Proportionality of force used: The force used by the defendant should be proportional.  The defendant may use reasonable force only required to neutralize the attacking force. This defense is limited to the proportionality of the force used to prevent the imminent threat.

Once the perpetrator has been prevented, the defendant cannot attack in turn. If he or she does so, the defense will lose its effectiveness and may face charges of assault or battery.

  • Deadly and non-deadly force: Use of deadly force resulting in death or serious injury is allowed in cases when there is an imminent threat or the defendant has been attacked in a secluded place with no one’s dwelling nearby. The retreat rule states that if a retreat is possible, an individual should choose it instead of resorting to using deadly force. However, an individual is entitled to use deadly force to counter an attack or offensive force. However, the castle doctrine is an exception to this rule which states that if the defendant finds the perpetrator in his or her own area, the use of deadly force may be justified. 

The defendant is also entitled to use non-deadly force when faced with intentional and harmful contact.

  • Immediate threat: The threat must be immediate. If the defendant continues to use force even after the threat subsists, the defense will be nullified.
  • Retreat: It must be noted that while using a limited force that will not cause any serious injury to the opponent, it is not necessary to retreat. However, when it comes to using deadly force, as discussed earlier, the defendant must try to retreat at first.

Exceptions

Self-defense cannot be used as a defense when: 

  • There is no immediate threat.
  • The defendant has attacked physically after merely being provoked by words or insults.
  • The defendant has the capacity to avoid the situation.
  • There are scopes to retreat or relinquish the rights. However, these are not valid as exceptions if the events take place in the defendant’s own place.
  • There are differences of opinion regarding whether a mistake negates the defense. 

Defense of a person by another

The defendant has the privilege to defend another in the same way he or she would defend himself or herself. This defense is based on the facts of reasonable belief and reasonable force.

The view regarding the defense of third parties justifies using force on the ground that since the third party can use force to defend himself or herself, it is reasonable for the defendant to use force to save another. Even if the third party has no defense,  the defendant shall not have any liability so long as he reasonably believes that the third party may use self-defense for its own protection.

Reasonable force refers to the amount of force the defendant would have ordinarily used for his or her own protection.

Defense of property

This defense is commonly used in intentional tort cases like assault, battery and false imprisonment, etc.

The rule of defense of property states that one may use reasonable force to protect one’s own land or chattels from an outsider. One is allowed to expel a third party or prevent unwanted intrusion. If an outsider interferes with the right to possession of land and chattels, the steps taken to prevent such interference or dispossession of property are not considered tortious. 

However, in order to defend property, setting deadly traps that put others’ lives and limbs at risk is also considered illegal.

Requirements

  • Defendant is allowed to use reasonable force. It is defined in the same way as in the case of self-defense.
  • The perpetrator has forcefully entered or occupied the defendant’s land or chattels. An intrusion takes place, thereby.
  • Usage of deadly or non-deadly force is both permissible, but it depends on the situations discussed later.
  • Punitive damage is available if the plaintiff is able to prove that the tortfeasor (defendant) acted maliciously.

Methods to defend property

The rule in this situation is to avoid and minimize unnecessary violence. For example, the use of slight force is considered unnecessary if the perpetrator can be deterred by a simple verbal warning. Hence, it is important that the owner of the property first ask the intruder to leave. However, if the situation is such that a request will not be fruitful or may lead to substantial harm, property can be defended in the following ways:

Non-deadly force

The defendant may use reasonable force to terminate the intruder only in the following cases:

  • The defendant has a reasonable belief that the intruder may cause serious harm if no force is used. However, it must be remembered that in case of mere warning or apprehension of danger, no force can be used. A reasonable mistake is also not an excuse to be used in this situation. The usage of force is valid only if the defendant perceives physical signs of danger.
  • Non-deadly force can only be used if the defendant faces an imminent threat despite a prior request.

Deadly force

Before using deadly force, it must be kept in mind that the laws have always prioritized the value of human life above all else. Hence, it must be carefully used after judging that the force used is not disproportionate. 

Deadly force is only justified in cases of felonies or when the defendant’s life or limbs are in danger. When there is no threat to life and only property is threatened, the use of deadly force is prohibited.

In the case of Brown v. Martinez (1961), the plaintiff and other boys were shot by the defendant when they entered the property to steal watermelons. The defendant stated that his intention was to scare the boys. However, he was held liable.

Defense of Habitation

Defense of habitation can be done by any means, including the use of deadly forces for self-defense. However, this does not apply if the property is not occupied.

Defense of habitation can be done through the use of deterrents, but it does not allow the installation of any mechanical devices that subject the intruder to greater force and subsequent harm than the defendant would be capable of using in such a case.

For example, barbed wire fences around a house act as a deterrent to prevent intrusion. However, the use of electric fences without any prior warning signs on the property is the use of excessive force. If it causes any harm to the intruder, it is considered illegal.

Similarly, spring guns, hidden traps, or ferocious watchdogs at the defendant’s property subject the defendant to liability. It is considered that they use a greater force than the defendant himself or herself would possibly inflict.

In the case of Katko v. Briney (1971), the mechanism of the spring gun was set in an uninhabited house. Upon trespassing into the house to collect antique bottles, the husband suffered a permanent deformity in the leg. The Iowa Supreme Court held that human lives have a higher value than the safety of any property. Besides, the spring gun is a much deadlier force than the defendant himself would have inflicted.

Mistake

If the mistake is committed by the intruder, it does not affect the defendant, and he or she is allowed to use reasonable force. On the other hand, if the intruder makes a mistake due to the defendant’s fault or the mistake is on the part of the defendant, the privilege is not applicable. 

Repossession of property

  • The defense is used in cases of trespass to land, conversion, assault, and battery.
  • The use of non-deadly force is allowed to recover stolen or lost property. If the individual acts promptly to recover the property upon knowing the dispossession, he or she would not have any tortious liability.
  • The modern statutes in most of the states in the US do not allow “self-help” repossession. It is thought that there is a greater potential for violence and disorder. Also, the remedies available in court for recovery of property are adequate.

Repossession of chattels

Repossession of chattels can be used as a defense in all the cases, such as trespass to land, conversion, assault, battery, and, moreover in the case of trespass to chattel. Following are the conditions for repossession of chattels, along with the use of reasonable force:

  • The chattels were wrongfully taken away or withheld from the owner.
  • The defendant should make efforts to repossess the property immediately and promptly. The conditions of promptness on the part of the defendant depend on the specific facts and circumstances of the case.  It is sometimes termed as “hot pursuit” by the courts, though the term is more specifically used in criminal law.

Denial of possession or wrongful dispossession

This defense is applicable when an individual who possesses the owner’s personal property or chattel either denies returning it or wrongfully fails to return it at the agreed time. For example, in a case of bailment, if the bailee denies returning the property or chattels of the bailor or fails to return the chattels to the bailor, it is a case of denial of possession or wrongful dispossession. The same happens in the case of a mortgage.

Reasonable force may be applied, but seeking the recovery of property or chattels in court is the most appropriate way. The individual has to prove that he or she is the rightful owner of the property.

Shopkeeper’s privilege

A shopkeeper’s privilege is a conditional privilege available to shopkeepers. It enables them to detain individuals suspected of shoplifting (chattels) without any tortious liability. It is used as a defense by shopkeepers in cases of false imprisonment. 

The three elements satisfying the shopkeeper’s privilege are as follows:

  • The shopkeeper must act with reasonable cause.
  • It must be done in a reasonable manner.
  • Finally, the suspect should not be detained longer than a reasonable time. Reasonable time refers to the maximum time required to put the suspect in the custody of law enforcement agencies.

In the case of Great Atlantic and Pacific Tea Co. v. Paul (1970), an old man with multiple health issues was suspected of shoplifting. However, no stolen item was recovered from him. In a case of intentional tort, the court in Great Atlantic ruled that the shop owner acted without appropriate legal authority. It was also ruled that an individual cannot be detained for shoplifting unless he attempts to leave the shop without making the payment.

Defense of property of another

This defense is only available if the said person is related to the defendant, a family member, or if the defendant has the legal responsibility to protect the said property. All the other conditions mentioned in defense of property are identical and valid in this case.

Legal Authority

The rule of this defense is that an individual acting under the legal authority is privileged to such acts which would otherwise constitute a tortious liability. These include charges of assault, battery, false imprisonment, trespass, or conversion. It is only valid for specific circumstances. If that individual surpasses the legal authority, it would be a case of an intentional tort. Hence, the scope depends mainly on the type of authority being exercised.

Scope

Any act by the lawful authority may be ministerial or discretionary. Discretionary acts depend on the sole discretion and reasoning capacities of the individual. Conversely, ministerial acts are government actions committed irrespective of discretion and according to legal authority, with instructions and without any individual reasoning.

Discretionary acts by legal authority are privileged under this defense if they are done in good faith. However, ministerial acts are not privileged if committed improperly, regardless of the defendant’s intention or good faith.

Another important factor, in this case, is the jurisdiction. If the act is done outside the jurisdiction of the authority, it constitutes an intentional tort.

Types of allowed acts 

The following are some examples of intentional acts to which the legal authorities are immune.

Service of process: It is the process through which the defendant is notified that the plaintiff has filed any suit against him or her. It may involve any law enforcement officer or postal official who will personally deliver the summons to the defendant. While in the service of the process, they are not liable for any tortious activity, such as trespassing to land.

Execution sales: Execution sales are carried out by court orders. It is the public sale of the property(ies) of an individual to satisfy outstanding debts or other liabilities after being decreed by the court. The concerned authorities are barred from any tortious liability, such as trespass to land or chattel or conversion, for seizing the said property. 

Attachment and Replevin: It is also carried out as per the directions of the court. Here, the court orders the law enforcement officers to attach the properties of the concerned individual in case of any default or if there are chances that the property may be misused.

On the other hand, replevin is also a court-directed remedy, but, in this case, the court directs the lawful repossession of the property back to the original owner.

In both cases, the authorities carrying out the actions are immune from any tortious liability, especially trespass to chattel, trespass to land, or conversion.

Lawful arrest: A criminal or a person harmful to society may be legally arrested with the help of a warrant. A warrant is a legal document that is used to arrest a criminal for cases of crimes committed in the absence of law enforcement agents, typically police. The warrant arrest provides them with the legal immunity from any type of intentional torts such as trespass, false imprisonment, assault, battery, or intentional or reckless infliction of emotional distress. Such legal immunity, however, does not apply if the arrest is unauthorized and illegal. 

Citizen’s arrest: In citizen’s arrest, a civilian is also legally immune to any tortious liability if he or she arrests any criminal for committing a crime in front of them. However, the criminal should be handed over to law enforcement authorities as quickly as possible. Though this defense is meant to safeguard the common citizen, it is also available to law enforcement authorities. A classic example of such a case is an off-duty police officer who catches a criminal after watching him commit any felony offenses and takes him into custody.

The defense of citizen’s arrest is available if:

  • The common citizen suspects or sees an individual to commit any crime, breach of peace or felony in his or her own presence.
  • In case of a suspect, the citizen should have a reasonable belief that the individual has committed any crime.
  • The defense of citizen’s arrest is available to intentional tort cases such as, trespass to land, false imprisonment, assault, battery or intentional or reckless infliction of emotional distress etc.

Discipline

The defense of discipline is only available to parents, legal guardians, nurses or caregivers such as nannies or babysitters, and teachers. It involves intentional tort cases related to children.

The aforementioned persons are privileged to use reasonable force or impose reasonable confinement on their children. They must have the reasonable belief that their actions are directed towards the betterment of the concerned child.

The defense is mainly available in cases of false imprisonment, assault, battery, or infliction of emotional distress.

Loco parentis

Loco parentis is a Latin term that literally means “in the place of a parent.” It refers to the rights and responsibilities that certain organizations or the persons having responsibility for the custody, control, training, or education of the child possess in relation to minors under their care. The term is usually used in reference to how individuals who have the charge of a child should behave. It implies that such individuals have the authority to do what is necessary for the child’s best interests.

In other words, the said individuals are given the charge by the parents of the children to act on their behalf.

Hence, the privilege of loco parentis is available to the persons with the child’s responsibility, as permitted by the parents. Exceeding the restriction by parents renders the defense invalid.

Elements

The elements for applicability of this defense are as follows:

  • The defendant has legal authority over the child.
  • The action is consistent with the age, gender, physical and mental health of the children. If it affects the child in any way, the defendant will be liable for an intentional tort.
  • The nature of the action and apparent intention of the defendant are proper. There has been no malicious intent or intention to harm the concerned child.
  • The action is not unnecessary and is likely to cause the child substantial harm or injury.

Scope

The actions must be performed in good faith, with reasonable force, and without any malicious intention. No use of excessive force is permissible, and the concerned person will be liable for intentional tort for violating this. The sole purpose behind the action would be to discipline the child.

Mistake

Under certain circumstances, the defense of mistake can be used in cases of intentional torts. It is only justified when the defendant has a belief in good faith which is based on the incorrect information provided to the defendant.

Elements 

  • The defendant has a reasonable belief that his or her intention is correct based on the information he or she got.
  • The incorrect information was not due to the defendant’s fault, rather, it was the action of some third party.
  • For the defense of a mistake to be applicable, had the incorrect information the defendant got been true, it would have justified the acts committed by the defendant.

Conditions to intentional torts

Statutes of Limitations

Statutes of limitations are the particular time limit during which an intentional tort lawsuit must be initiated against the defendant. Otherwise, the lawsuit may be barred from filing forever.

The limitation period depends on the various state laws in the US. Each state has its own different limits for bringing cases. The cause of action for the lawsuit typically begins from the moment one faces intentional torts.

Common time periods vary from two to five years, depending on the circumstances of the case.

Worker’s compensation

Worker’s compensation is a defense to  intentional torts and is a form of strict liability. It is also subject to state laws. For example, Chapter 440.11(1)(b)2 of the Florida Statutes (2022) provides that workers’ compensation immunity is applicable until the employee proves that the actions of the employer are not mere accidents but an intentional tort, by providing evidence.

Conclusion

The “intent” factor in intentional torts does not always cause an immediate effect. In some cases, the defendant’s prior knowledge or suppression of facts serves as evidence of his intent. According to Edward J. Kionka (2013), intentional torts may also result from situations that the offender may feel to be excusable.

As described in the article, certain situations allow the defendant to use the particular defenses. Again, there are certain situations where the defendant will not be held tortiously liable. In some cases, the defendant directly benefits from legal immunity from actions that would otherwise be considered tortious.

Finally, it is possible to conclude that there are no absolute defenses to any intentional tort. Rather, the defenses to intentional torts to person and property wholly depend upon the facts and circumstances of the situations.

References

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