Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 1. Introduction
Dailey, 279 P.2d 1091 (Wash. 1955). According to the Third Restatement, “A person acts with
the intent to produce a consequence if: (a) the person acts with the purpose of producing that
consequence; or (b) the person acts knowing that the consequence is substantially certain to
result.” RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 1 (2010).
2. Knowledge with substantial certainty as intent. The Restatement’s position on
knowledge of the substantial certainty that a consequence will result raises important questions
about the boundaries of intentional torts. When does knowledge of the likelihood of a
consequence amount to substantial certainty? Consider, for example, an employer who employs
many employees in work with known hazards. Is the employer substantially certain that injury to
one or more employees will result? It follows from the law of large numbers that a certain
number of injuries will occur in such situations. Some courts have held that being aware of the
risk of harm is not the same as knowing that harm will occur with substantial certainty. See
Tomeo v. Thomas Whitesell Constr. Co., 823 A.2d 769, 772 (N.J. 2003) (holding that plaintiffemployee,
who was injured by a snow blower in the scope of employment, could not use
defendant-employer’s awareness of the inherent risks in operating a snow blower to establish
substantial certainty). The Tomeo Court held that “mere knowledge and appreciation of risk—
something short of substantial certainty—is not intent.” Id. (internal quotation marks omitted).
Courts in other jurisdictions have echoed Tomeo’s holding. See, e.g., Adams v. Time Saver Stores,
615 So. 2d 460, 462 (La. Ct. App. 1993) (holding that the mere foreseeability of an injury does
not establish substantial certainty).
Other cases, however, have approached the issue differently. For example, in Laidlow v.
Hariton Machinery Co., 790 A.2d 884 (N.J. 2002), the plaintiff-employee successfully established
that the defendant-employer acted with substantial certainty of the consequences of injury to the
plaintiff where the defendant disabled a safety device and enabled it only when OSHA inspectors
were present.
The more common position, consistent with cases like Tomeo, was adopted in Shaw v.
Brown & Williamson Tobacco Corp., 973 F. Supp. 539 (D. Md. 1997), in which plaintiff truckdriver,
who shared a cab with a heavy smoker, sued his partner’s cigarette manufacturer for
battery by smoke. The Shaw case also raised a different aspect of intent: its supposed
“transferability.” It is well accepted that the law of battery will allow for transferred intent: when
A intentionally strikes at B and hits B’s companion C instead, the error does not undercut A’s
battery liability to C. If the common law recognizes a theory of transferred intent, why not also a
doctrine of transferred intent on a larger scale where the defendant knew to a certainty that its
smoke would come into contact with many third parties? District Judge Walter E. Black, Sr.,
rejected the extension of the transferred intent doctrine to the more general smoking context:
Brown & Williamson did not know with a substantial degree of certainty that
second-hand smoke would touch any particular non-smoker. While it may have had
knowledge that second-hand smoke would reach some non-smokers, the Court finds
that such generalized knowledge is insufficient to satisfy the intent requirement for
battery. Indeed, as defendant points out, a finding that Brown & Williamson has
committed a battery by manufacturing cigarettes would be tantamount to holding
manufacturers of handguns liable in battery for exposing third parties to gunfire.
Such a finding would expose the courts to a flood of farfetched and nebulous
litigation concerning the tort of battery.
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