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

Witt & Tani, TCPI 1. Introduction
973 F. Supp. at 548. The Restatement authors agree with Judge Black. The substantial certainty
doctrine, the Restatement asserts, should be limited to cases in which “the defendant has
knowledge to a substantial certainty that the conduct will bring about harm to a particular victim
or to someone within a small class of potential victims within a localized area.” RESTATEMENT
(THIRD) OF TORTS: PHYS. & EMOT. HARM § 1 cmt. e (2010) (emphasis added). Why limit the tort
of battery in this way?
3. Is intentionality intuitive? The famed Supreme Court justice Oliver Wendell Holmes, Jr.,
once claimed that “even a dog knows the difference between being kicked and being stumbled
over.” OLIVER WENDELL HOLMES, JR., THE COMMON LAW 3 (1881). Yet research from
developmental psychology paints a more complicated picture.
It is true that the ability to distinguish intentional from unintentional action is a
foundational skill that emerges early in development. Chimpanzees, orangutans, and eightmonth-old
human infants can reliably discriminate between purposeful and accidental action.
Josep Call & Michael Tomasello, Distinguishing Intentional from Accidental Actions in
Orangutans (Pongo Pygmaeus) and Chimpanzees (Pan Troglodytes) and Human Children, 122 J.
COMP. PSYCHOL. 192 (1998). This faculty plays an essential role in helping children acquire
language and develop interpersonal skills. In fact, preschoolers whose ability to infer others’
intentions is disrupted, often due to maltreatment or physical abuse, are at heightened risk for later
social maladjustment and behavioral problems. See Kenneth A. Dodge, John E. Bates & Gregory
S. Petit, Mechanisms in the Cycle of Violence, 250 SCIENCE 1678 (1990). Indeed, some have
argued that our ability to identify unintentional harms as accidents and to respond with
forgiveness is what allows for the evolution of cooperative societies in which individuals
coordinate their behavior to maximize collective welfare. E.g., Drew Fudenberg, David G. Rand
& Anna Dreber, Slow to Anger and Fast to Forgive: Cooperation in an Uncertain World, 102
AM. ECON. REV. 720 (2012).
Yet while the distinction between intentional and accidental behavior is intuitive for apes
and babies alike, we do not always use this distinction when forming moral judgments. For
instance, the celebrated developmental psychologist Jean Piaget observed in 1932 that young
children consider it morally worse (“naughtier”) for a child to make a large ink stain accidentally
than to make a small stain intentionally. Older children, he noticed, felt just the opposite. Since
Piaget’s discovery, this developmental trajectory has been extensively documented. Preschoolers
tend to judge the moral valence of an act by focusing on its outcome and largely ignoring the
agent’s beliefs and intentions. By around age 6, children begin to condemn actions on the basis of
the agent’s mental states such as intent to harm. In other words, children shift from outcomebased
moral judgment to intent-based moral judgment as they age. Fiery Cushman, Rachel
Sheketoff, Sophie Wharton & Susan Carey, The Development of Intent-Based Moral Judgment,
127 COGNITION 6 (2013).
Under some circumstances, adults will also exhibit a tendency to focus on outcomes rather
than intentions when judging actions that result in harm. Research from cognitive psychology
demonstrates that adults who are placed under time pressure and asked to make hurried moral
judgments show a systematic bias toward judging actions as intentional. In their haste, these
decision-makers will say that harms were intentional. Given more time to make their decisions,
they revert to saying that harms were unintentional. Evelyn Rosset, It’s No Accident: Our Bias
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