A. Introduction

The tort of negligence is complemented by a number of independent, named (nominate) torts that deal with the intentional interference with the person, property (land and chattels), and economic interests. The tort of negligence and the intentional torts are, however, divided by more than the degree of culpability of the defendant's conduct. There are significant differences in form, substance, and policy between these two regimes of tortious responsibility. Identification of some of these differences will enhance an understanding of the nature and function of the intentional torts.

The tort of negligence is a modern tort. It is essentially a product of the twentieth century. The basic structure of some of the nominate intentional torts is centuries old. While there was some modification of them in the twentieth century, the general outlines of liability have been clear for a long time.

The tort of negligence is a tort of broad and general application. It focuses primarily on the quality of the defendant's conduct and is, consequently, inherently ubiquitous in its range of application. Most of the intentional torts are quite narrow in scope. They are restricted to closely defined fact patterns and particular categories of damage. This reflects the cautious and incremental development of the early common law, which focused on discrete categories of wrongs with clearly identifiable boundaries.

The tort of negligence is characterized by general principles and the use of highly discretionary concepts such as reasonableness and foreseeability. The nominate intentional torts are defined by rules that tend to be more precise, narrow, and rigid than the negligence principles. Indeed, some seem to have been elevated to a status akin to statutory provisions.

The tort of negligence underwent a transition in the twentieth century from a limited number of duties of care arising from discrete categories of relationships to an unlimited number of duties arising from a general conception of relationships based on the reasonable foreseeability of harm to others. This process has not occurred in the intentional torts. The courts have been slow in generalizing and integrating the discrete intentional torts into a more coherent and cohesive system of general principles. [Note 1: The only exception is the nascent tort of intentional interference with economic interests by unlawful means, which may lead to an integration of various business torts within a general principle.]

The tort of negligence is dynamic, expansionary, and largely reflective of current public attitudes and policies. It displays a vitality and capacity for vigorous growth that is not mirrored in the intentional torts. The intentional torts tend to be static and are, in the main, characterized by convention, orthodoxy, and conservatism. The courts have been slow to discard historical technicalities, and there has been a reluctance to recognize new interests deserving of protection from intentional interference such as the interests in privacy, equality, peace of mind, dignity, and fair market practices. This has prompted some legislatures to fill the void with privacy legislation, human rights codes, and legislation policing the marketplace.

Liability insurance and loss distribution policies are central to the development, operation, and expansion of the tort of negligence. As a rule, liability insurance does not cover intentional damage. Consequently, the intentional torts operate more as a conventional loss-shifting system emphasizing corrective justice and allocating responsibility between the individual litigants. This enhances the punitive, deterrent, and educational functions of the intentional torts and encourages a greater emphasis on the accountability of individual defendants for culpable wrongdoing. The downside of the absence of liability insurance is that the victims of intentional wrongdoing are much less likely to receive adequate compensation for their losses. Consequently, the victims of intentional wrongdoing are forced to place much more reliance on their own first-party (loss) insurance and on governmental compensation schemes. The availability of these alternative means of compensation depends greatly on the kind of damage that is suffered. Persons suffering physical injury often have no first-party disability insurance and they therefore need to rely greatly on the no-fault criminal injury compensation schemes or on the social welfare system. Those who suffer intentional property loss or damage will often have first-party insurance and generally will have little need to rely on tort law. Some economic losses suffered by commercial entities may be covered by business interruption insurance. In the business arena, however, defendants who cause economic loss are more likely to be capable of paying damages.

All these characteristics of the intentional torts have a subtle but significant effect on the amount of litigation arising from intentional conduct, on the practical significance of the intentional torts as compensatory vehicles, and on the general vitality of this area of tort law.

CHAPTER 4, INTENTIONAL TORTS