Simons and Pryor Respond to Wright's Comments on the Restatement of Intentional Torts

Last Tuesday, the membership of the ALI considered for the first time a draft of the Restatement of Intentional Torts.  We published Richard Wright's comments on the draft here.  Reporters Ken Simons and Ellen Pryor respond:

1. Professor Wright's answer to the "consent to what?" question is intriguing: P must consent to D's "engaging in the conduct with the [relevant] intent."  We have yet to decide on a formulation, so this is one that we will consider.

2.  Prof. Wright is correct, that we need to make clearer that the required legal injury must be caused by the tortious aspect of D's conduct.

3.  We are not yet convinced that the offensiveness requirement should be eliminated from battery doctrine; there are some cases that don't readily count as consented to (even under the doctrines of apparent or implied in law consent), but in which P does not recover because P does not suffer legally adequate offense, e.g., Illus 20 on p. 26, and Illus 22 on p. 27.

4.  Prof. Wright expresses the concern that § 101(2)(b) is too narrow in the protection it offers (and specifically, that the "unduly burdensome" qualification should be eliminated).  This is a valid concern.  But many ALI members have been very troubled by even this narrow provision for liability where D knows that P will suffer serious offense.

5.  The "substantially certain" language might indeed be infelicitous, but it has already been adopted by the ALI in Rest. Third Liab. for Phys. and Emotional Harm §1.  Still, we might say more in the current draft to emphasize that substantial certainty should be understood as "nearly" or "almost" certain, and should require a subjective belief in a probability greater than recklessness.

6.  Thanks for catching the typo in § 103(c), which indeed should say "the other does not actually consent..."  The gremlins are responsible for that one.

7.  We will consider your suggestion that the transferred intent section should contain stricter scope of liability limits.  If you know of cases that clearly support this view, we would be grateful if you would share them.  Alas, our research did not disclose very many transferred intent cases since the Second Restatement.

--CJR