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

Witt & Tani, TCPI 1. Introduction
for Intentional Explanations, 108 COGNITION 771 (2008). This work suggests that we tend to
adopt a default assumption that actions are undertaken intentionally and that it takes mental effort
to persuade ourselves to abandon our initial stance. This finding is consistent with the
developmental pattern showing that sensitivity to harm is relatively automatic, manifests early in
childhood, and is continuous throughout development, while sensitivity to intentions emerges
later and requires more cognitive resources.
4. Intent to be harmful or offend? In cases where a defendant has the requisite mental state
with respect to the consequences of a volitional act—the movement of his foot, culminating in
contact with another’s leg—there is still a question of whether the defendant’s mental state must
extend not only to the fact of the contact but also to its harmfulness or offensiveness. Need the
plaintiff show that the defendant intended a harmful or offensive contact, with specific intent to do
harm or cause offense? Or is it sufficient to establish that the defendant intended a contact, where
the contact is properly deemed harmful or offensive by the community? By whose standards must
a contact have been harmful or offensive? The defendant’s or the court’s? Vosburg sheds a little
light on this question, but not much. Judge Lyon held that the plaintiff need not establish that a
defendant intended to harm him, but merely that the defendant intended to make an “unlawful”
contact. But Judge Lyon’s formulation is decidedly unhelpful, since, after all, what we want to
know is what kinds of contact the law rules out. Telling us that the law will sanction unlawful
contacts gets us nowhere!
The Utah Supreme Court took on precisely this question in Wagner v. State, 122 P. 3d 599
(Utah 2005), involving a mentally disabled person who, while out at a K-Mart store with
caretakers, allegedly grabbed another shopper by the head and hair and threw her to the ground.
If it was true, as one party to the litigation argued, that the person who inflicted the harm did not
have the capacity to appreciate the harmful or offensive nature of his actions, could the intent
requirement for battery be established? The Court offered the following discussion:
The Restatement defines a battery as having occurred where “[an actor] acts
intending to cause a harmful or offensive contact.” Restatement (Second) of Torts
§ 13. The comments to the definition of battery refer the reader to the definition of
intent in section 8A. Id. § 13 cmt. c. Section 8A reads:
The word “intent” is used throughout the Restatement of this Subject to denote
that the actor desires to cause the consequences of his act, or that he believes
that the consequences are substantially certain to result from it.
Id. § 8A (emphasis added).
Although this language might not immediately seem to further inform our analysis,
the comments to this section do illustrate the difference between an intentional act
and an unintentional one: the existence of intent as to the contact that results from
the act. Because much of the confusion surrounding the intent element required in
an intentional tort arises from erroneously conflating the act with the consequence
intended, we must clarify these basic terms as they are used in our law before we
analyze the legal significance of intent as to an act versus intent as to the
consequences of that act.
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