INTENTIONAL TORTS TO PERSONS by cometjunkie43

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									Chapter 12
INTENTIONAL TORTS
TO PERSONS
MARY M. MCGOLDRICK, ESQ.
Campbell Campbell Edwards & Conroy, PC, Boston


§ 12.1     BATTERY ........................................................................ 12–1
§ 12.1.1   Prima Facie Case ............................................................... 12–2
           (a)     The Necessity of an Act............................................ 12–2
           (b)     Harmful or Offensive Contact .................................. 12–2
           (c)     Intent......................................................................... 12–3
           (d)     Lack of Consent........................................................ 12–5
§ 12.1.2   Causation and Damages .................................................... 12–6
§ 12.1.3   Defenses ............................................................................ 12–7
           (a)     Privilege.................................................................... 12–7
           (b)     Defense of One’s Self, Another or One’s Property... 12–8
           (c)     Capacity.................................................................... 12–9
           (d)     Provocation as Mitigation of Damages .................. 12–10

§ 12.2     ASSAULT ....................................................................... 12–10
§ 12.2.1   Prima Facie Case ............................................................. 12–10
           (a)     An Overt Act .......................................................... 12–10
           (b)     Apprehension of Immediate Physical Harm............12–11
           (c)     Intent....................................................................... 12–12
           (d)     Lack of Consent...................................................... 12–13
§ 12.2.2   Causation and Damages .................................................. 12–13
§ 12.2.3   Defenses .......................................................................... 12–13



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                                            MASSACHUSETTS TORT LAW MANUAL


§ 12.3       FALSE IMPRISONMENT ............................................12–13
§ 12.3.1     Prima Facie Case ..............................................................12–14
             (a)     Confinement ............................................................12–14
             (b)     Awareness of Harm .................................................12–15
             (c)     Intent .......................................................................12–15
§ 12.3.2     Causation and Damages ...................................................12–16
§ 12.3.3     Defenses ...........................................................................12–16
             (a)     Shoplifting...............................................................12–16
             (b)     Arrest.......................................................................12–16

§ 12.4       COMMON LIABILITY ISSUES..................................12–17
§ 12.4.1     Vicarious Liability for Intentional Torts...........................12–17
§ 12.4.2     The Duty of Care of a Common Carrier...........................12–18

EXHIBIT 12A—Plaintiff’s Interrogatories to the Defendant.....12–19

EXHIBIT 12B—Defendant’s Interrogatories to the Plaintiff .....12–23

EXHIBIT 12C—Requests for Production of Documents
(Plaintiff’s or Defendant’s) .............................................................12–27

EXHIBIT 12D—Sample Jury Instructions...................................12–29




12–ii                                                                            2nd Edition 2009
Chapter 12
INTENTIONAL TORTS
TO PERSONS
MARY M. MCGOLDRICK, ESQ.
Campbell Campbell Edwards & Conroy, PC, Boston


                                Scope Note
         This chapter addresses in detail each of the elements required
         to prove battery, assault, and false imprisonment. It then dis-
         cusses applicable defenses. The chapter concludes by review-
         ing two issues common to all three of these causes of action:
         vicarious liability and duties of care owed by common carriers.



§ 12.1       BATTERY
Battery is the intentional and unpermitted harmful or offensive touching of
another. The essence of the grievance is the contact. The tort is as much directed
toward protection against bodily harm as it is against insult to personal dignity
flowing from invasion of the inviolability of the person.

Under Massachusetts law, battery is “the intentional and unjustified use of force
on the person of another, however slight, or the intentional doing of a wanton or
grossly negligent act causing personal injury to another.” Jesionowski v. Beck,
937 F. Supp. 95, 105 (D. Mass. 1996) (quoting Commonwealth v. McCan, 277
Mass. 199, 203 (1931)). “Use of force” is synonymous with the Restatement of
Torts’ terminology “harmful or offensive contact.” The Restatement provides the
following definition of battery: “An actor is subject to liability to another for
battery if (a) he acts intending to cause a harmful or offensive contact with the
person of the other or a third person, or an imminent apprehension of such
contact and (b) a harmful [or offensive] contact with the person of the other
directly or indirectly results.” Restatement (Second) of Torts §§ 13, 18 (1965);
see also Waters v. Blackshear, 412 Mass. 589, 590 (1992).




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§ 12.1.1 Prima Facie Case
To establish a prima facie case of battery, the plaintiff must show:

       • a voluntary act,

       • a harmful or offensive touching,

       • intent, and

       • lack of consent.

These are discussed below.

(a)       The Necessity of an Act
The contact that forms the basis of a battery must be caused by an act done by
the defendant. The act is the voluntary contraction of some muscle or muscles of
the body, such as a finger pulling the trigger of a gun or an arm swinging a fist.
The act must be a deliberate and intended movement. A purely reflexive action,
such as an epileptic seizure or a movement while sleepwalking, is not sufficient.
Restatement (Second) of Torts § 14 (1965).

(b)       Harmful or Offensive Contact
To constitute a battery, the act must result in some contact with the person of
another. The contact may be harmful or it may be merely offensive. Contact is
offensive where it causes no tangible harm but offends a reasonable sense of
personal dignity or violates the social usages prevalent at the time and place. It
must be contact that would offend the ordinary person, not the unduly sensitive
individual. Restatement (Second) of Torts §§ 13, 18, 19 (1965).

The contact may be slight. It may also be indirect and not amount to an actual
touching of the plaintiff by the defendant. It is enough if the defendant causes
his or her clothing, something in his or her hand, or something or someone he or
she directs, such as an employee or dog, to come into contact with the plaintiff.
It is also enough to show that the defendant set in motion forces that resulted in
contact with the plaintiff, such as pulling away a chair just as the plaintiff is
sitting down or digging a hole into which the plaintiff falls. A battery is also
accomplished by unpermitted contact with something so connected to the body
of the plaintiff as to customarily be considered part of his or her person, such as
his or her clothing or cane. Restatement (Second) of Torts § 18 cmt. c (1965);
see also Schultz v. Purcell’s, Inc., 320 Mass. 579, 581 (1947) (defendant directed


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agent to attack plaintiff); Grenier v. O’Gara, 219 Mass. 15, 17 (1914) (defen-
dants liable for battery in removing plaintiff to a place of danger and leaving him
or her there unprotected while incapable of looking out for himself or herself);
Ryan v. Marren, 216 Mass. 556, 559 (1914) (defendant set dog on plaintiff).

It is not necessary that the plaintiff be aware of the contact at the time it occurs.
The offense may be as keenly felt when it is learned of at a later time, such as
the molestation of a person who is sleeping and learns of the events upon
awakening. Restatement (Second) of Torts § 18 cmt. d (1965).

      Practice Note
      The harmful and offensive act that constitutes a battery is rarely an
      inherently unknowable wrong, and thus the discovery rule that tolls
      the statute of limitations until a plaintiff has the opportunity to dis-
      cover his or her cause of action generally does not apply. There is
      an exception for claims arising out of the sexual abuse of children. ;
      G.L. c. 260, § 4C; Phinney v. Morgan, 39 Mass. App. Ct. 202, 205
      (1995). As a practical matter, however, unless an adult victim of
      childhood sexual abuse has lost or repressed all memory of the
      abuse, it is difficult to establish that he or she did not know, or
      should not have known, that the abuse caused him or her harm. A
      forensic evaluation detailing the impact of childhood sexual abuse
      and explaining the psychological defense mechanisms of denial, re-
      pression and self-blame employed by victims of abuse to survive the
      experience is recommended.


(c)      Intent
Under Massachusetts law, the element of intent necessary to create a battery is
established by showing either actual or constructive intent. Actual intent refers to
the purpose or desire to bring about given consequences. A person who acts with
the specific intent of causing harm or an unpermitted contact exhibits actual
intent. Actual intent also incorporates those consequences that the actor believes,
or knows to a substantial certainty, will ensue from his or her actions. Waters v.
Blackshear, 412 Mass. 589, 590 (1992); Quincy Mut. Fire Ins. Co. v. Abernathy,
393 Mass. 81, 86–87 (1984); Sheehan v. Goriansky, 321 Mass. 200, 204 (1947);
Forbush v. City of Lynn, 35 Mass. App. Ct. 696, 700 (1994).

Constructive intent is established by showing that the actor intentionally in-
curred an unreasonable risk in the face of a strong likelihood that bodily harm
would result or acted in total disregard of the probable harmful consequences of
his or her act. The conduct is willful, wanton and reckless. A reckless act differs
from an intentional act in that it is the conduct, not the resulting harm, that is


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intended. It is enough that the actor realizes, or should realize, that there is a
strong probability that harm may result. A strong probability is different from the
substantial certainty that constitutes actual intent. Quincy Mut. Fire Ins. Co. v.
Abernathy, 393 Mass. 81, 85–86 (1984); Sheehan v. Goriansky, 321 Mass. 200,
204 (1947); Le Saint v. Weston, 301 Mass. 136, 138 (1938); Forbush v. City of
Lynn, 35 Mass. App. Ct. 696, 700 (1994).

Wanton or reckless misconduct is also different in kind from negligence. The
same conduct cannot be both negligent and intentional. Willful, wanton or
reckless behavior is the legal equivalent of intentional wrongdoing. It incorpo-
rates an undertaking of a substantially greater degree of risk than that necessary
to make the conduct negligent. Sandler v. Commonwealth, 419 Mass. 334, 337
(1995); Waters v. Blackshear, 412 Mass. 589, 590 (1992); Worcester Ins. Co. v.
Fells Acres Day Sch., Inc., 408 Mass. 393, 411 (1990); Commonwealth v.
Welansky, 316 Mass. 383, 397–401 (1944); Aiken v. Holyoke St. Ry. Co., 184
Mass. 269, 271 (1903).

One who wantonly and recklessly exposes another to danger is held to have
intended the natural consequences of his or her behavior. It is on this basis that
constructive intent is imputed to him or her in the absence of actual intent. The
defendant is held to have acted intentionally, and in this way, a charge that
would otherwise amount to negligence becomes an intentional wrongdoing.
Sandler v. Commonwealth, 419 Mass. 334, 337 (1995); Aiken v. Holyoke St. Ry.
Co., 184 Mass. 269, 271 (1903).

Constructive intent is imposed only on proof of an actual physical injury. The
injury must have some impact on the health or comfort of the victim. It need not
be permanent but must be more than transient or trifling. This differs from the
mere offensive touching that constitutes a battery in an actual-intent case.
Commonwealth v. Burno, 396 Mass. 622, 626–27 (1986); Commonwealth v.
Welch, 16 Mass. App. Ct. 271, 275–76 (1983); see also Aiken v. Holyoke St. Ry.
Co., 184 Mass. 269, 271 (1903); Restatement (Second) of Torts § 18 cmt. g (1965).

The standard for reckless misconduct is both subjective and objective. A defen-
dant who voluntarily undertakes an act that he or she knows poses a risk of grave
danger to others behaves wantonly and recklessly. However, the person who
does not appreciate the risk of his or her behavior is nevertheless held to a
standard of wantonness and recklessness if an ordinary person under the same
circumstances would realize the gravity of the danger. A person may still be held
to have acted recklessly, even though he or she believed he or she was acting
carefully. Commonwealth v. Welansky, 316 Mass. 383, 398–99 (1944).

Intent is distinguished from motive. Motive is the remote objective or reason that
inspires the act and the intent. Liability in battery does not require a finding that

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INTENTIONAL TORTS TO PERSONS                                                     § 12.1


the actor is motivated by personal hostility or a desire to cause harm. The
defendant may intend nothing more than a practical joke or may believe that he
or she is acting in the plaintiff’s best interest. W. Page Keeton et al., Prosser and
Keeton on the Law of Torts, § 8 (West 5th ed. 1984); see Le Saint v. Weston, 301
Mass. 136 (1938) (defendant motivated by the desire to play a practical joke).

Finally, the element of intent is satisfied whether the defendant’s target is the
plaintiff or a third person. Intent in the latter situation is referred to as “trans-
ferred intent.” The defendant’s intent to harm another is transferred to the
plaintiff when the act results in contact with the plaintiff instead of the intended
victim. For example, a defendant is liable in battery to the plaintiff when the
defendant throws a stone intending to strike a third person but that person ducks
and the stone hits the plaintiff. Restatement (Second) of Torts §§ 16, 20 (1965).

      Practice Note
      A challenge often encountered in battery cases is the accessing of
      insurance coverage to compensate plaintiffs for their injuries. Insur-
      ance policies generally contain intentional acts exclusions. Massa-
      chusetts law has interpreted such exclusions as requiring a showing
      of actual intent; that is, the insured either specifically intended to
      cause harm or was substantially certain that such harm would occur.
      Constructive intent arising from reckless misconduct will not negate
      coverage. However, there are limited circumstances in which spe-
      cific intent to injure, including an adult’s sexual molestation of chil-
      dren and pushing a person down the stairs, is inferred as a matter of
      law. Preferred Mut. Ins. Co. v. Gamache, 426 Mass. 93, 94–95
      (1997); Hanover Ins. Co. v. Talhouni, 413 Mass. 781, 784 (1992);
      Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393,
      398–404 (1990); Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass.
      81, 84–86 (1984).

      It should also be noted that the Massachusetts Torts Claims Act ex-
      cludes coverage for intentional torts, including assault, battery and
      false imprisonment. G.L. c. 258, § 10(c). The exemption has been
      held, at least in limited circumstances, not to immunize municipali-
      ties from claims based on wanton or reckless conduct. Molinaro v.
      Town of Northbridge, 419 Mass. 278, 279 (1995).


(d)      Lack of Consent
Lack of consent is an essential element of the tort of battery on which the
plaintiff bears the burden of proof. Belger v. Arnot, 344 Mass. 679, 684 (1962).
The Restatement defines consent as “willingness in fact for conduct to occur.”


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Consent may be express, as in written consent to surgery, or it may be implied,
as in jostling by a crowd. It must, however, be given freely and without fraud,
misrepresentation, duress or mistake by one capable of consenting. Restatement
(Second) of Torts §§ 13 cmt. d; 18 cmt. f (1965); Restatement (Second) of Torts
§§ 892, 892A (1979); see also Howard J. Alperin & Lawrence D. Shubow, Summary
of Basic Law (14C Massachusetts Practice Series) § 20.9 (West 3d ed. 1996).

         Practice Note
         Although a physician who performs a surgical procedure without the
         patient’s consent has technically committed a battery, it is generally
         preferable to treat such claims as an aspect of negligence. Liability
         for lack of informed consent in a medical malpractice context arises
         from a physician’s departure from accepted standards of profes-
         sional conduct. Such acts rarely constitute intentional wrongdoing.
         See Feeley v. Baer, 424 Mass. 875, 878 n.4 (1997).

         A lack-of-informed-consent claim, in the absence of a claim for neg-
         ligence, is subject to the medical malpractice tribunal statute. Lubanes
         v. George, 386 Mass. 320, 325 (1982). In addition, such claims usu-
         ally require the testimony of an expert witness. Expert testimony is
         generally necessary to establish the nature of the patient’s medical
         condition, the materiality of the risks of the proposed procedure, the
         benefits to be reasonably expected, the available alternatives and
         the damages sustained. See Harnish v. Children’s Hosp. Med. Ctr.,
         387 Mass. 152, 156 (1982).


§ 12.1.2 Causation and Damages
The plaintiff who proves a battery may recover all the damages that are the
natural and probable consequence of the defendant’s wrongful act. He or she may
recover for any bodily injuries sustained, including physical and mental pain and
suffering, as well as loss of earning capacity, medical expenses and other out-of-
pocket losses.

Upon a showing of actual intent, recovery in battery is not limited to proof of
bodily harm. Recovery is permitted for an entirely harmless yet offensive or
insulting touching, such as spitting in a person’s face. The plaintiff may recover
for his or her humiliation, indignity, distress and injury to feelings. Burns v.
Jones, 211 Mass. 475 (1912). In addition, the plaintiff is entitled to recover at
least nominal damages where there is no showing of harm.




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§ 12.1.3 Defenses
A defense is a justification asserted by the defendant to excuse conduct that
would ordinarily be actionable. The burden of pleading and proving a defense is
on the defendant. If properly substantiated, the defense will relieve the defendant
of liability for an intentional tort.

(a)      Privilege
There is no liability for battery where the defendant is privileged or legally
justified in acting as he or she did. Certain legal relationships give rise to a right
to use reasonable force against another. If the use of force is legally justified,
liability is occasioned only where the force is unreasonable or excessive, that is,
force in excess of that necessary to overcome the plaintiff’s resistance. Howard
J. Alperin & Lawrence D. Shubow, Summary of Basic Law (14C Massachusetts
Practice Series) § 20.9 (West 3d ed. 1996).

Right to Enter Land

A person who has the right to enter the land of another and to do an act there may
use what force is required to accomplish his or her purpose. He is only liable in an
action for battery if he or she uses excessive force. Lambert v. Robinson, 162
Mass. 34, 38 (1894).

Right to Eject

A landowner has the right to use reasonably necessary force to eject a trespasser.
A person who lawfully enters a home or establishment, such as a restaurant,
theater or shop, who because of his or her unruly conduct has been rightfully
asked to leave and refuses to do so becomes a trespasser. The person may be
removed by such force as is reasonably necessary under the circumstances.
Stager v. G.E. Lothrop Theatres Co., 291 Mass. 464, 465 (1935); Ryan v.
Marren, 216 Mass. 556, 559 (1914); Hudson v. Lynn & Boston R.R. Co., 178
Mass. 64, 67 (1901).

Right to Arrest

A police officer authorized to make an arrest has a right to use such force as he
or she may reasonably believe necessary to effect an arrest and to overcome
physical resistance by the person sought to be arrested. The reasonableness of
the force used is judged from the perspective of a reasonable officer on the scene.
It will depend on the circumstances, including the seriousness of the crime and


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the degree of resistance involved. Julian v. Randazzo, 380 Mass. 391, 396
(1980). The authority of a private person to arrest is limited to cases of actual
guilt, and he or she is liable for his or her force if the person arrested is not
guilty. Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts
Practice Series) § 181 (West 2d ed. 1989).

(b)      Defense of One’s Self, Another or One’s Property
Generally, a person may raise as a defense to battery the use of reasonable force
to protect oneself, another or one’s possession of property.

Self-Defense

A person has a right to defend himself or herself against attack. He or she is
privileged to use reasonable and necessary force to prevent a threatened harmful
contact. A person may defend himself or herself with the use of nondeadly force,
such as his or her fists, if he or she reasonably fears for his or her personal
safety. Deadly force, force that is likely to cause death or great bodily harm, may
be employed only on a reasonable belief that one is in imminent danger of death
or serious bodily harm and no other means will suffice to prevent the harm.
Commonwealth v. Cataldo, 423 Mass. 318, 321 (1996).

Although words alone are insufficient to create a right of self-defense, the
defendant is not obligated to wait until he or she has been struck before taking
action if he or she reasonably believes an attack is imminent. Commonwealth v.
Niemic, 427 Mass. 718, 723 (1998). The reasonableness of his or her conduct
will be judged with due regard to the exigency of the circumstances. A person
threatened with attack is not expected to exercise detached reflection and
reasoned judgment. Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massa-
chusetts Practice Series) § 177 (West 2d ed. 1989); Richard W. Bishop, Prima
Facie Case-Proof and Defense (17A Massachusetts Practice Series) § 37.15
(West 4th ed. 1997).

The defendant is not privileged, however, in pressing an attack beyond what is
necessary for self-protection. He or she cannot continue to assault the plaintiff
after the plaintiff has stopped all menacing activity. If he or she uses force that is
disproportionate to the attack levied against him or her, he or she is liable for the
harm stemming from his or her excessive violence. Joseph R. Nolan & Laurie J.
Sartorio, Tort Law (37 Massachusetts Practice Series) § 177 (West 2d ed. 1989);
Richard W. Bishop, Prima Facie Case-Proof and Defense (17A Massachusetts
Practice Series) § 37.15 (West 4th ed. 1997).




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Historically, a defendant has been required to use all reasonable means to avoid
combat before resorting to self-defense. Therefore, a defendant who can rea-
sonably and safely retreat is required do so. Commonwealth v. Niemic, 427
Mass. 718, 722 (1998). The duty to retreat, however, has been abrogated in part
by statute. General Laws c. 231, § 85U permits a lawful occupant of a dwelling,
without retreating, to use reasonable means to defend himself or herself or
against someone unlawfully in the dwelling whom he or she reasonably believes
is about to inflict great bodily injury or death on him or her. Joseph R. Nolan &
Laurie J. Sartorio, Tort Law (37 Massachusetts Practice Series) § 177 (West 2d
ed. 1989); Richard W. Bishop, Prima Facie Case-Proof and Defense (17A
Massachusetts Practice Series) § 37.15 (West 4th ed. 1997).

Defense of Others

Although there appear to be no civil cases on point in Massachusetts, our
criminal law and the Restatement adhere to the view that a person acting in
defense of another has the same rights that a person would have in defense of
himself or herself. “An actor is justified in using force against another to protect
a third person when (a) a reasonable person in the actor’s position would believe
his or her intervention to be necessary for the protection of the third person and
(b) in the circumstances as that reasonable person would believe them to be, the
third person would be justified in using such force to protect himself.” Com-
monwealth v. Martin, 369 Mass. 640, 649 (1976); see also Joseph R. Nolan &
Laurie J. Sartorio, Tort Law (37 Massachusetts Practice Series) § 178 (West 2d
ed. 1989).

Defense of Property

A person has a right to use reasonable force to hold or protect his or her property
but will be liable for any excess force employed. Unlike the right to defend
oneself or another, however, the use of deadly force is never reasonable in the
defense of property. Further, the right is directed at protecting the present
possession of property. Although it extends to force employed promptly after
dispossession, a person must resort to legal remedies if there has been any
significant lapse of time. Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37
Massachusetts Practice Series) § 179 (West 2d ed. 1989).

(c)      Capacity
The general rule is that minors are liable for their torts, although clearly there is
an age below which a child is incapable of forming the intent necessary to commit
a battery. Similarly, it has been held that insane persons are liable for their torts.


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Nolan & Sartorio, Tort Law (37 Massachusetts Practice Series) § 187 (West 2d
ed. 1989).

(d)        Provocation as Mitigation of Damages
In an action for battery, evidence of provocation, though not a defense per se, is
admissible in mitigation of damages. Insulting or abusive language or insolent
conduct by the plaintiff at the time of the attack may constitute provocation.
Where the words or conduct of the plaintiff incite the defendant and provoke the
attack, the plaintiff bears some responsibility for the events that follow. The
plaintiff’s behavior does not justify the defendant’s use of force but will serve to
mitigate his or her damages. Benjamin v. McLellan, 237 Mass. 141, 145 (1921);
Comeau v. Currier, 35 Mass. App. Ct. 109, 112 (1993).


§ 12.2         ASSAULT
An assault is either an attempt to commit a battery or an unlawful act placing
another in reasonable apprehension of an immediate battery. Commonwealth v.
Henson, 357 Mass. 686, 692 (1970). The actor is liable if he or she acts intend-
ing to cause a harmful or offensive contact or intending to cause an apprehension
of such contact and apprehension is created. Restatement (Second) of Torts § 21
(1965). The essence of the tort is the intentional invasion of a person’s right to
be free from the apprehension of bodily harm. No physical contact is required.
The plaintiff is protected against a purely mental disturbance.


§ 12.2.1 Prima Facie Case
The elements necessary to establish an assault are:

      1.   an overt act,

      2.   apprehension of immediate physical harm,

      3.   intent, and

      4.   lack of consent.

(a)        An Overt Act
Mere words are not sufficient to create an assault. It is necessary to show an
overt act or gesture, however insubstantial, by the defendant. A threatening or


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menacing act, such as pointing a gun, will suffice. A benign act may qualify
when it is accompanied by threatening words; for example, a defendant, during
an argument, reaches for his or her pocket and says, “I am going to kill you.”
The combined gesture and words create the apprehension. Words, however, may
have the effect of eliminating apprehension from an otherwise threatening act,
such as when the gesture is accompanied by a qualifying statement. For exam-
ple, “I would shoot you, if you were not such an old man.” Restatement (Sec-
ond) of Torts § 31 (1965); Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37
Massachusetts Practice Series) § 12(3) (West 2d ed. 1989).

(b)      Apprehension of Immediate Physical Harm
The creation of an apprehension of physical harm is the basis of assault. Appre-
hension is the belief or awareness that the act may result in imminent contact
unless stopped by the other’s self-defensive act or flight or by intervention from
an outside force. Restatement (Second) of Torts §§ 24, 27 (1965). Fear is not
necessary, nor is it the equivalent of apprehension. It is enough that the person
believes that the act is capable of inflicting contact unless something further
occurs. Restatement (Second) of Torts §§ 24, 27 (1965).

If the defendant intentionally creates a reasonable apprehension that harm is
imminent, it is no excuse that he or she gives the plaintiff the option of avoiding
the harm by obeying a command; for example, “Get out of my house or I will
shoot you.” Liability is established where the defendant stands ready to carry out
the threat immediately on the plaintiff’s refusal to comply. The plaintiff is under
no obligation to acquiesce. Restatement (Second) of Torts § 31 (1965); Joseph
R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts Practice Series)
§ 12(2) (West 2d ed.1989); see also Ross v. Michael, 246 Mass. 126 (1923).

Apparent ability to carry out the threat is all that is required. It does not matter
that the defendant is unable to complete the threatened act if the plaintiff
reasonably believes otherwise. For example, liability may arise where the
defendant knows that the gun he or she is pointing at the plaintiff is not loaded,
but the plaintiff thinks that it is. Commonwealth v. Henson, 357 Mass. 686, 692,
259 N.E.2d 769, 773 (1970); Restatement (Second) of Torts § 33 (1965); Joseph
R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts Practice Series)
§ 12(2) (West 2d ed. 1989).

An exception arises where the plaintiff firmly believes, even though he or she is
wrong, that the means adopted by the defendant are incapable of causing the
threatened contact. For example, the plaintiff believes that the defendant’s gun is
not loaded and therefore has no apprehension of being shot. Restatement (Second)
of Torts § 21 (1965).


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To constitute an assault, the threatened contact must be imminent. Imminent
contact is contact that will occur without significant delay. An act done in
preparation for a future contact is not sufficient. Whether an act constitutes
preparation or an imminent threat depends on the circumstances. Threatening to
shoot someone and then starting to load the gun is an assault, but leaving the
room to retrieve the gun is preparation. Restatement (Second) of Torts § 29
(1965); Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts
Practice Series) § 12(2) (West 2d ed. 1989).

Generally, it must be shown that the conduct is sufficient to cause apprehension
in an ordinary, reasonable individual. Joseph R. Nolan & Laurie J. Sartorio, Tort
Law (37 Massachusetts Practice Series) § 12(2) (West 2d ed. 1989). Further,
awareness by the plaintiff at the time is required. Once apprehension is created,
however, termination or frustration of the attempt does not absolve the defen-
dant. Restatement (Second) of Torts §§ 22, 23 (1965); Joseph R. Nolan & Laurie
J. Sartorio, Tort Law (37 Massachusetts Practice Series) § 12(2) (West 2d ed.
1989).

The source of the danger need not be the defendant. The defendant is responsi-
ble for causing an apprehension of harm from some other source. For example,
the defendant frightens the plaintiff by creating the sound of gunfire. Restate-
ment (Second) of Torts § 25 (1965). The object of the assault, however, must be
the plaintiff. Apprehension that the defendant will harm another, even the plain-
tiff’s child, does not constitute assault. Restatement (Second) of Torts § 26 (1965).

(c)      Intent
Actual intent is necessary to establish assault. The act must be done with

      • the intent to cause harmful or offensive contact;

      • the intent to cause an apprehension of such contact; or

      • the knowledge, to a substantial certainty, that such apprehension
        will result.

Restatement (Second) of Torts § 21 cmt. d (1965). Constructive intent inferred
from reckless misconduct that creates liability for battery is insufficient for the
tort of assault. The interest at issue, freedom from apprehension of harmful or
offensive contact, is protected only against acts intended or substantially certain
to cause contact or the apprehension of contact. Restatement (Second) of Torts
§ 21 cmt. d (1965).



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INTENTIONAL TORTS TO PERSONS                                                 § 12.2


The doctrine of transferred intent, applicable to battery, applies to assault.
Restatement (Second) of Torts § 21 (1965). For a more detailed description of
the law of intent, see § 12.1.1(c), Intent.

(d)      Lack of Consent
As with battery, lack of consent is an essential element of assault. The plaintiff
bears the burden of proving that he or she did not consent to the invasion
resulting from defendant’s conduct. At issue is consent to be put in apprehension,
not consent to the act that is done. Restatement (Second) of Torts § 21 cmt. e
(1965).


§ 12.2.2 Causation and Damages
The plaintiff is entitled to recover all the damages that are a natural and probable
consequence of the defendant’s wrongful act. Since assault is essentially a
mental disturbance, he or she may recover for injury to feelings, including fright,
humiliation and indignity, as well as any physical illness resulting therefrom.
Further, the plaintiff may recover nominal damages without proof of injury.
Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts Practice
Series) § 13 (West 2d ed. 1989).


§ 12.2.3 Defenses
Generally, the same defenses applicable to battery are available to excuse an
assault. Usually, a person may threaten the use of force in an effort to eject a
trespasser or to defend himself or herself or another against the threat of harm.
As with battery, evidence of provocation is admissible in mitigation of damages.
For a more detailed description of defenses to intentional torts, see § 12.1.3,
Defenses.


§ 12.3       FALSE IMPRISONMENT
False imprisonment is the unlawful confinement or restraint of a person, directly
or indirectly, by force or by the threat or appearance of force of which the person
is aware or by which he or she is harmed. Coblyn v. Kennedy’s, Inc., 359 Mass.
319, 321 (1971); Wax v. McGrath, 255 Mass. 340, 342 (1926). The interest
protected is the individual’s right to freedom of movement. Coblyn v. Kennedy’s,
Inc., 359 Mass. at 321. The Restatement defines the tort as follows: “An actor is
subject to liability to another for false imprisonment if (a) he [or she] acts


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§ 12.3                                MASSACHUSETTS TORT LAW MANUAL


intending to confine the other or a third person within boundaries fixed by the
actor and (b) his or her act directly or indirectly results in such a confinement of
the other and (c) the other is conscious of the confinement or is harmed by it.”
Restatement (Second) of Torts § 35 (1965).


§ 12.3.1 Prima Facie Case
To establish a prima facie case of false imprisonment, the plaintiff must show

      • an act directly or indirectly causing confinement,

      • awareness of the confinement or harm caused by it,

      • intent, and

      • causation and damages.

(a)      Confinement
Any general restraint on a person’s freedom of movement is confinement.
Confinement may be accomplished by a threat of physical force or harm or by
actual or apparent physical force or barriers. Forcing submission by threatening
harm to another, such as the plaintiff’s child, is sufficient. Physical contact is not
required and no showing of resistance by the plaintiff is necessary. Foley v.
Polaroid Corp., 400 Mass. 82, 90 (1987); Restatement (Second) of Torts §§ 39,
40, 40A (1965); Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachu-
setts Practice Series) § 16(3) (West 2d ed. 1989).

Confinement may be achieved by threatening personal difficulty. A person who
relinquishes his or her right to move about freely as the only alternative to
forfeiting another right, such as the right to an unsullied reputation, is tortiously
restrained. Submitting to protect one’s employment, however, is insufficient.
Foley v. Polaroid Corp., 400 Mass. 82, 90–92 (1987); Coblyn v. Kennedy’s, Inc.,
359 Mass. 319, 321 (1971); Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37
Massachusetts Practice Series) § 16(3) (West 2d ed. 1989).

The confinement must be complete and it must be within boundaries fixed by
the defendant. If the plaintiff knows of a safe and reasonable avenue of escape,
he or she is not confined. Further, if he or she is merely prevented from going
someplace he or she wishes to go, he or she is not confined. The area of con-
finement, however, may be extensive, such as a town, as long as it is not so large
as to constitute exclusion instead of confinement. The area may be mobile, such
as a car, or it may be the act of forcing the plaintiff to accompany the defendant


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INTENTIONAL TORTS TO PERSONS                                                      § 12.3


from place to place. Restatement (Second) of Torts § 36 (1965); Joseph R. Nolan
& Laurie J. Sartorio, Tort Law (37 Massachusetts Practice Series) § 16(3) (West
2d ed. 1989).

Confinement must be against a person’s will. A person who freely consents to
being confined does not suffer an imprisonment. Joseph R. Nolan & Laurie J.
Sartorio, Tort Law (37 Massachusetts Practice Series) § 16(3) (West 2d ed. 1989).

Confinement may be accomplished by a direct or indirect act. One who insti-
gates or orders a confinement or acts to cause confinement, such as digging a
hole for the plaintiff to fall into, is liable. So, too, is a person who fails to release
another from confinement when he or she has a duty to do so. Restatement
(Second) of Torts §§ 37, 45, 45A (1965); Joseph R. Nolan & Laurie J. Sartorio,
Tort Law (37 Massachusetts Practice Series) §§ 16(3), 16(4) (West 2d ed. 1989).

(b)      Awareness of Harm
There is no liability for false imprisonment unless the person restrained knows
of the confinement at the time it occurs or unless he or she is harmed by it. The
harm must be more than the indignity of having been confined but need not be
more than hunger, thirst or neglect. Restatement (Second) of Torts § 42 (1965);
Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts Practice
Series) § 16(5) (West 2d ed. 1989).

(c)      Intent
The intent necessary to create liability for false imprisonment is the actual intent
to imprison or restrain, or substantial certainty that such confinement will result.
The intent need not arise from malice or personal hostility. Reckless confinement
is insufficient to create liability but may give rise to damages under a negligence
theory if harm is caused. Restatement (Second) of Torts §§ 35 cmts. d, h; 44
(1965); Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts
Practice Series) § 16(5) (West 2d ed. 1989).

The doctrine of transferred intent applies to the tort of false imprisonment.
Restatement (Second) of Torts §§ 35, 43 (1965); Joseph R. Nolan & Laurie J.
Sartorio, Tort Law (37 Massachusetts Practice Series) § 16(5) (West 2d ed.
1989).




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§ 12.3.2 Causation and Damages
One who is falsely imprisoned may recover for damages that are the direct or
proximate result of the defendant’s wrongful act. The plaintiff may recover
damages for physical injury as well as emotional distress, such as indignity,
humiliation, shame, anguish and other mental suffering. Further, because false
imprisonment is an intentional tort, the plaintiff may recover nominal damages
without proving actual injury. Foley v. Polaroid Corp., 400 Mass. 82, 92–93
(1987); see also Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachu-
setts Practice Series) § 17 (West 2d ed. 1989).


§ 12.3.3 Defenses
The most common causes of action for false imprisonment arise in the context of
(1) persons being detained who are suspected of shoplifting and (2) persons
alleging a false or wrongful arrest. In such instances, the burden is on the
defendant to justify restraint of the plaintiff’s liberty.

(a)      Shoplifting
General Laws c. 231, § 94B, allows a merchant or innkeeper to detain a person
for questioning for a reasonable length of time and in a reasonable manner if he
or she has reasonable grounds to believe the person is committing or attempting
to commit larceny of goods for sale on the premises or larceny of the personal
property of persons on the premises. “Reasonable grounds” is synonymous with
“probable cause.” The reasonably prudent person test applies, that is, “a state of
facts as would lead a man of ordinary caution and prudence to believe, or
entertain an honest and strong suspicion, that the person [detained] is guilty.”
Coblyn v. Kennedy’s, Inc., 359 Mass. 319, 326 n.5 (1971) (quoting Bacon v.
Towne, 58 Mass. (4 Cush.) 217, 238–39 (1849)). If investigation is warranted,
the person may be detained for a reasonable length of time and in a reasonable
way. See Foley v. Polaroid Corp., 400 Mass. 82, 89–92 (1987); Coblyn v.
Kennedy’s, Inc., 359 Mass. at 323–25; Proulx v. Pinkerton’s Nat’l Detective
Agency, Inc., 343 Mass. 390, 392–93 (1961).

(b)      Arrest
Arrests may be effected either by officers of the law or by private individuals. A
wrongful arrest, accompanied by confinement, may give rise to a claim for false
imprisonment. The burden of justifying the arrest is on the defendant. Joseph R.
Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts Practice Series)
§§ 16(2), 181 (West 2d ed. 1989).

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INTENTIONAL TORTS TO PERSONS                                                 § 12.3


Generally, a police officer is entitled to make an arrest without a warrant if he or
she reasonably believes the individual has committed a felony. The arrest is
privileged on a showing of probable cause. The officer need not establish that a
felony was actually committed. In addition, an officer may make an arrest
without a warrant for a misdemeanor that involves a breach of peace and is
committed in his or her presence. Similarly, a showing of probable cause is a
defense in an action against him or her for false arrest. G.L. c. 231, § 94B. If the
arrest is made pursuant to a warrant, the officer is permitted to rely on the
warrant if it appears proper and valid on its face. He will, however, be liable if
he or she arrests someone other than the person named. Joseph R. Nolan &
Laurie J. Sartorio, Tort Law (37 Massachusetts Practice Series) §§ 16(2) at 181
(West 2d ed. 1989).

The right of a private person to make an arrest is more limited than the right of a
police officer. A private citizen is privileged to arrest only in cases of actual
guilt. The arrest can be justified only by proving the person’s guilt. Joseph R.
Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts Practice Series) § 16(2)
at 181 (West 2d ed. 1989).


§ 12.4        COMMON LIABILITY ISSUES

§ 12.4.1 Vicarious Liability for Intentional Torts
An employer is vicariously liable for the intentional torts of its employees
committed within the scope of employment. An act is committed within the
scope of employment if it is done during the course of doing the employer’s
work and for the purpose of accomplishing it. An employer who authorizes an
employee to perform acts that involve the use of force, such as a bouncer, is
liable if the employee uses excessive force under the circumstances. An em-
ployer is also responsible for a battery committed by an employee whose work
does not normally require the use of force if the attack was provoked by the
plaintiff’s attempt to interfere with the employee’s ability to do his or her job,
for example, blocking a delivery person’s way. An employer is not responsible,
however, if an employee accosts another in a spirit of vindictiveness, to gratify
personal animosity or to carry out an independent purpose of his or her own.
Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393, 404–05 (1990);
Miller v. Federated Dep’t Stores, Inc., 364 Mass. 340, 350 (1973); Cowan v.
E. Racing Ass’n, Inc., 330 Mass. 135, 145 (1953).




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§ 12.4.2 The Duty of Care of a Common Carrier
As a matter of public policy, common carriers, innkeepers and the like are held
to the highest standard of care, approaching that of an insurer. The carrier is
obligated to use a very high degree of care to guard its passengers against
injuries caused not only by the negligence of its employees, but also by their
intentional torts as well as the willful misconduct of others. A carrier is liable for
the misconduct of its employees, whether or not it occurs within the scope of
employment, and also for the wrongs of strangers committed against persons in
its care. Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393, 405–06
(1990); Gilmore v. Acme Taxi Co., 349 Mass. 651, 653 (1965).

         Judicial Commentary
         These can be good cases for plaintiffs if they are crisply presented
         and the damages are not too soft.

         The challenges for the defendant are to avoid looking offensive and
         to minimize damages.




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INTENTIONAL TORTS TO PERSONS



EXHIBIT 12A—Plaintiff’s Interrogatories
                 *
to the Defendant

In addition to general interrogatories propounded in all tort actions, the following
specific inquiries may be made of defendants in actions for intentional torts to
persons:


BATTERY
Battery claims may incorporate the following interrogatories to the defendant:

1.   Please describe in full any contact with the plaintiff, including in your
     answer what contact occurred, how it occurred, when it occurred and where
     it occurred.

2.   Please describe your relationship, if any, with the plaintiff or what, if any,
     prior contact you have had with the plaintiff, including in your answer when
     and where such contact occurred.

3.   If it is your contention that the contact that occurred was privileged or
     justified, please provide in detail all facts and circumstances that form the
     basis of your contention, including in your answer any contention that you
     acted in self-defense, defense of another, defense of property or under a
     privilege to use force.

4.   If it is your contention that your use of force was both privileged and
     reasonable under the circumstances, please provide in detail all facts and
     circumstances that form the basis of your contention.

5.   If it is your contention that you took reasonable steps to avoid the use of
     force before resorting to such force, please provide in detail all facts and
     circumstances that form the basis of your contention.




*
  Practitioners involved in Superior Court discovery matters should review Superior
Court Standing Order 1-09, which sets forth nine standard definitions “deemed
incorporated by reference into all discovery requests” as well as specific provisions
governing responses to interrogatories and requests for production, including
limitations on objections. Cf. D. Mass. Local R. 26.5.


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6.   If it is your contention that the plaintiff consented to the contact that
     occurred, please provide in detail all facts and circumstances that evidence
     such consent.

7.   If it is your contention that the plaintiff provoked the contact that occurred,
     please provide in detail all facts and circumstances that evidence provocation.

8.   Please describe your motive, desire or purpose in using force against the
     plaintiff, including in your answer whether you appreciated the risk of harm
     associated with your conduct.

9.   If it is your contention that you acted involuntarily or unintentionally, or that
     what occurred was accidental, please provide in detail all facts and circum-
     stances that form the basis of your contention.

10. Please identify any and all primary and/or excess insurance against occur-
    rences of the kind alleged by the plaintiff in the complaint, including the
    name and address of the insurer(s), the limit of any applicable policy,
    whether the policy or policies were in effect at the time of the occurrences
    alleged in the complaint and whether the policy or policies contain inten-
    tional acts exclusions, and if they do, please provide the wording of any such
    exclusion.

11. For any and all insurance policies identified in response to interrogatory
    number 10, above, please state whether such insurer has been notified of the
    plaintiff’s claims herein, whether the insurer has denied coverage for such
    claims or whether such insurer has asserted a reservation of rights.


ASSAULT
Assault claims may incorporate the following interrogatories to the defendant:

1.   Please describe in full any threatened or attempted contact with the plaintiff,
     including in your answer what threatened or attempted contact occurred,
     how it occurred, when it occurred and where it occurred.

2.   Please describe your relationship, if any, with the plaintiff or what, if any,
     prior contact you have had with the plaintiff, including in your answer when
     and where such contact occurred.

3.   If it is your contention that the threatened or attempted contact that occurred
     was privileged or justified, please provide in detail all facts and circum-
     stances that form the basis of your contention, including in your answer any


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INTENTIONAL TORTS TO PERSONS


     contention that such threats or attempts were made in self-defense, defense
     of another, defense of property or under a privilege to threaten or use force.

4.   If it is your contention that the plaintiff consented to the threatened or
     attempted contact or apprehension that occurred, please provide in detail all
     facts and circumstances that evidence such consent.

5.   If it is your contention that the plaintiff provoked the threatened or
     attempted contact that occurred, please provide in detail all facts and cir-
     cumstances that evidence provocation.

6.   What was your motive, desire or purpose in threatening or attempting to use
     force against the plaintiff?

7.   If it is your contention that you acted unintentionally, or that what occurred
     was accidental, please provide in detail all facts and circumstances that form
     the basis of your contention.

8.   Please identify any and all primary and/or excess insurance against occur-
     rences of the kind alleged by the plaintiff in the complaint, including the
     name and address of the insurer(s), the limit of any applicable policy,
     whether the policy or policies were in effect at the time of the occurrences
     alleged in the complaint and whether the policy or policies contain inten-
     tional acts exclusions, and if they do, please provide the wording of any
     such exclusion.

9.   For any and all insurance policies identified in response to interrogatory
     number 8, above, please state whether such insurer has been notified of the
     plaintiff’s claims herein, whether the insurer has denied coverage for such
     claims or whether such insurer has asserted a reservation of rights.


FALSE IMPRISONMENT
False imprisonment claims may incorporate the following interrogatories to the
defendant:

1.   Please describe in full any confinement of the plaintiff that occurred,
     including in your answer how it occurred, when it occurred and where it
     occurred.

2.   If it is your contention that the plaintiff was not confined, please provide in
     detail all facts and circumstances that form the basis of your contention,



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     including in your answer the identity of any available avenue of escape or
     facts that evidence that the plaintiff was free to leave.

3.   If it is your contention that you had reasonable grounds to detain the
     plaintiff for questioning and were privileged to do so, please provide in de-
     tail all facts and circumstances that form the basis of your contention, including
     in your answer your grounds for detaining the plaintiff, the manner in which
     the plaintiff was detained and how long the plaintiff was detained.

4.   If it is your contention that you detained the plaintiff pursuant to a valid
     arrest, please provide in detail all facts and circumstances that form the ba-
     sis of your contention, including in your answer what crime you contend the
     plaintiff committed, the grounds you had for believing the plaintiff commit-
     ted such crime and any evidence that the plaintiff committed such crime.

5.   If it is your contention that you effected the arrest of the plaintiff pursuant to
     a warrant, please provide in detail all facts that evidence that the warrant was
     proper and valid, and that the plaintiff was the person named on the warrant.

6.   If it is your contention that the plaintiff consented to the confinement that
     occurred, please provide in detail all facts and circumstances that evidence
     such consent.

7.   What was your motive, desire or purpose in restraining or confining the
     plaintiff?

8.   If it is your contention that you acted unintentionally, or that what occurred
     was accidental, please provide in detail all facts and circumstances that form
     the basis of your contention.

9.   Please identify any and all primary and/or excess insurance against occur-
     rences of the kind alleged by the plaintiff in the complaint, including the
     name and address of the insurer(s), the limit of any applicable policy,
     whether the policy or policies were in effect at the time of the occurrences
     alleged in the complaint and whether the policy or policies contain inten-
     tional acts exclusions, and if they do, please provide the wording of any
     such exclusion.

10. For any and all insurance policies identified in response to interrogatory
    number 9, above, please state whether such insurer has been notified of the
    plaintiff’s claims herein, whether the insurer has denied coverage for such
    claims or whether such insurer has asserted a reservation of rights.




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INTENTIONAL TORTS TO PERSONS



EXHIBIT 12B—Defendant’s Interrogatories
                 *
to the Plaintiff

In addition to general interrogatories propounded in all tort actions, the follow-
ing specific inquiry may be made of plaintiffs pursuing actions for intentional
torts to persons:


BATTERY
A battery claim may incorporate the following interrogatories to the plaintiff:


1.   Please describe in full the conduct of the defendant that forms the basis of
     the allegations in your complaint, including in your answer what contact
     occurred, how it occurred, when it occurred and where it occurred.

2.   Please describe in detail everything you did just prior to the incident alleged
     in your complaint.

3.   Please describe your relationship, if any, with the defendant or what, if any,
     prior contact you have had with the defendant, including in your answer
     when and where such contact occurred.

4.   If it is your contention that the contact that forms the basis of your com-
     plaint was unpermitted and/or unjustified, please provide in detail all facts
     and circumstances that form the basis of your contention.

5.   If it is your contention that you did not consent to the contact that forms the
     basis of your complaint, please provide in detail all facts and circumstances
     that evidence your lack of consent.

6.   Were you aware of the contact at the time it occurred, and if not, how and
     when did you learn of such contact?




*
  Practitioners involved in Superior Court discovery matters should review Superior
Court Standing Order 1-09, which sets forth nine standard definitions “deemed
incorporated by reference into all discovery requests” as well as specific provisions
governing responses to interrogatories and requests for production, including
limitations on objections. Cf. D. Mass. Local R. 26.5.


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7.   Please describe in detail all facts and circumstances that form the basis of
     your contention that the defendant’s conduct was intentional.

8.   Please provide the names and addresses of all persons who witnessed the
     alleged incident or were present at or about the time of such incident.

9.   Please describe fully, and in complete detail, all physical, mental and/or
     emotional harm or injury that you sustained as a result of the alleged incident.

10. If you claim that the defendant’s alleged contact was offensive, please
    describe fully how you were offended and any emotional or physical harm
    that resulted therefrom.

11. Please describe in detail what you did, if anything, in response to defendant’s
    conduct, including in your answer whether you notified the police or other
    authorities and/or filed criminal or other charges against the defendant.


ASSAULT
An assault claim may incorporate the following interrogatories to the plaintiff:

1.   Please describe in full the conduct of the defendant that forms the basis of
     the allegations in your complaint, including in your answer what acts or
     gestures you observed on the part of the defendant and what words, if any,
     accompanied such acts or gestures.

2.   Where and when did the conduct that forms the basis of your complaint
     occur?

3.   Please describe in detail everything you did just prior to the incident alleged
     in your complaint.

4.   Please describe your relationship, if any, with the defendant or what, if any,
     prior contact you have had with the defendant, including in your answer
     when and where such contact occurred.

5.   If it is your contention that the conduct that forms the basis of your com-
     plaint placed you in apprehension of imminent harmful or offensive contact,
     please describe in full such apprehension.

6.   If it is your contention that the conduct that forms the basis of your com-
     plaint placed you in apprehension of imminent harmful or offensive contact,
     please describe in full how and when you believed such contact would
     occur.

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INTENTIONAL TORTS TO PERSONS


7.   If it is your contention that you did not consent to the conduct that forms the
     basis of your complaint, please provide in detail all facts and circumstances
     that evidence your lack of consent.

8.   Were you aware of the contact at the time it occurred?

9.   Please describe in detail all facts and circumstances that form the basis of
     your contention that the defendant’s conduct was intentional.

10. Please provide the names and addresses of all persons who witnessed the
    alleged incident or were present at or about the time of such incident.

11. Please describe fully, and in complete detail, all physical, mental and/or
    emotional harm or injury that you sustained as a result of the alleged incident.

12. Please describe in detail what you did, if anything, in response to the
    defendant’s conduct.


FALSE IMPRISONMENT
A false imprisonment claim may incorporate the following interrogatories to the
plaintiff:

1.   Please describe in full the conduct of the defendant that forms the basis of
     the allegations in your complaint, including in your answer all acts, gestures,
     threats or words used by the defendant to confine or restrain you.

2.   Where did the confinement occur, and for how long were you confined?

3.   Please describe your relationship, if any, with the defendant or what, if any,
     prior contact you have had with the defendant, including in your answer
     when and where such contact occurred.

4.   Were you aware at any time during your confinement of any available
     means of escape, and if so, why did you fail to use such means?

5.   If it is your contention that you did not consent to the conduct that forms the
     basis of your complaint, please provide in detail all facts and circumstances
     that evidence your lack of consent.

6.   Were you aware of the confinement at the time it occurred?

7.   Please describe in detail all facts and circumstances that form the basis of
     your contention that the defendant’s conduct was intentional.

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                                     MASSACHUSETTS TORT LAW MANUAL


8.   Please provide the names and addresses of all persons who witnessed the
     alleged incident or were present at or about the time of such incident.

9.   Please describe fully, and in complete detail, all physical, mental and/or
     emotional harm or injury that you sustained as a result of the alleged incident.

10. Please describe in detail what you did, if anything, in response to the
    defendant’s conduct, including in your answer whether you notified the
    police or other authorities and/or filed criminal or other charges against the
    defendant.




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INTENTIONAL TORTS TO PERSONS



EXHIBIT 12C—Requests for Production
                                          *
of Documents (Plaintiff’s or Defendant’s)

Requests for production of documents in actions of battery, assault and false
imprisonment largely mirror production requests in other tort actions. All parties
are requested to produce written statements of the parties and witnesses, police
reports, photographs and other documentary evidence bearing on the events at
issue. The plaintiff is expected to produce medical records and bills and other
evidence documenting his or her claim for damages. The defendant will be
asked to produce any insurance policies that may be applicable to the plaintiff’s
claims. An area of inquiry that may deviate from other tort claims is documen-
tary evidence bearing on the propensity of the parties to act or respond by
violence. Such requests, which, depending on the facts, may be directed at either
or both parties, may include the following and may, in addition, be the subject of
propounded interrogatories:

      • Documentation of Psychiatric Illness or Condition

         A complete copy of any and all documents relating in any way to
         psychiatric and/or psychological care or treatment you have
         received for the period 10 years prior to the events at issue to the
         present, including but not limited to psychological, psychiatric or
         psychotherapeutic notes, tests and/or evaluations, reports, corre-
         spondence or any other record.

      • Documentation of Treatment for Alcoholism or Substance Abuse

         A complete copy of any and all documents relating in any way to
         care or treatment you have received for alcohol or substance abuse
         for the period 10 years prior to the events at issue to the present,
         including but not limited to all outpatient and inpatient records.

      • Employment Records/Personnel Records

         A complete copy of any and all employment or personnel records
         relating to your employment for a period 10 years prior to the


*
  Practitioners involved in Superior Court discovery matters should review Superior
Court Standing Order 1-09, which sets forth nine standard definitions “deemed
incorporated by reference into all discovery requests” as well as specific provisions
governing responses to interrogatories and requests for production, including
limitations on objections. Cf. D. Mass. Local R. 26.5.


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        events at issue to the present, including but not limited to the
        name and address of all employers and any and all records docu-
        menting complaints, suspensions, discipline or terminations from
        such employment.

    • Professional Board or Licensing Complaints

        Any and all complaints regarding the plaintiff/defendant with any
        state or federal board or other governmental agencies, including
        but not limited to all professional licensing boards, and all records
        concerning such complaints and all actions taken by such boards
        or agencies as a result of such complaints.

    • Criminal/Civil Complaints or Actions

        Copies of any and all documentation, including but not limited to
        docket numbers and name of court of any and all civil and/or
        criminal complaints filed against or brought by the plaintiff/defen-
        dant in any state, federal or district court for the period 10 years
        prior to the events at issue to the present.

    • Divorce Records

        Any and all documents relating in any way to any legal action taken
        concerning your present or past marital relationship(s), including
        all documents pertaining to separation or divorce, irrespective of
        dates.

    • Abuse Complaints

        Copies of any and all 51A, 209A or any other complaints or alle-
        gations of abuse of any kind filed against you in the past 10 years,
        including but not limited to documentation relative to allegations,
        investigations, findings and disposition of any such complaints.




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EXHIBIT 12D—Sample Jury Instructions

The following are sample jury instructions specific to the elements of the
intentional torts of battery, assault and false imprisonment and the common
defenses applicable to such torts.


BATTERY
Battery is “the intentional and unjustified use of force on the person of another,
however slight, or the intentional doing of a wanton or grossly negligent act
causing personal injury to another.” Jesionowski v. Beck, 937 F. Supp. 95, 105
(D. Mass. 1996) (quoting Commonwealth v. McCan, 277 Mass. 199, 203 (1931)).

“An actor is subject to liability to another for battery if (a) he acts intending to
cause a harmful or offensive contact with the person of the other or a third
person or an imminent apprehension of such contact and (b) a harmful [or
offensive] contact with the person of the other directly or indirectly results.”
Restatement (Second) of Torts §§ 13, 18 (1965); see also Waters v. Blackshear,
412 Mass. 589, 590, 591 N.E.2d 184, 185 (1992). “To make the actor liable for a
battery, the harmful bodily contact must be caused by an act done by the
[defendant].” Restatement (Second) of Torts § 14 (1965).

The contact may be harmful or it may be merely offensive. Contact is offensive
where it causes no tangible harm but offends a reasonable sense of personal
dignity or violates the social usages prevalent at the time and place. Restatement
(Second) of Torts §§ 13, 18, 19 (1965).

The contact may be indirect. It is enough if the defendant causes his or her
clothing, something in his or her hand or something or someone he or she directs
to come into contact with the plaintiff or something so connected to the body of
the plaintiff as to customarily be considered part of his or her person. It is also
enough if defendant set in motion forces that resulted in contact with the
plaintiff. Restatement (Second) of Torts § 18, cmt. c (1965); see also Schultz v.
Purcell’s, Inc., 320 Mass. 579, 581 (1947); Grenier v. O’Gara, 219 Mass. 15, 17
(1914); Ryan v. Marren, 216 Mass. 556, 559 (1914).

The plaintiff need not show that he or she was aware of the harmful or offensive
contact at the time it occurred. Restatement (Second) of Torts § 18, cmt. d (1965).

An actor is subject to liability to another for battery if he or she acts specifically
intending to bring about a harmful or offensive contact. “A result is intended if
the act is done for the purpose of accomplishing the result or with knowledge

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that to a substantial certainty such result will ensue.” Waters v. Blackshear, 412
Mass. 589, 590, 591 N.E.2d 184, 185 (1992); see also Quincy Mut. Fire Ins. Co.
v. Abernathy, 393 Mass. 81, 86–87 (1984); Sheehan v. Goriansky, 321 Mass.
200, 204 (1947); Forbush v. City of Lynn, 35 Mass. App. Ct. 696, 700 (1994).
“The act of the defendant must cause, and must be intended to cause, an unper-
mitted contact.” Waters v. Blackshear, 412 Mass. 589, 590, (1992) (quoting W.
Page Keeton et al., Prosser and Keeton on the Law of Torts, § 9, at 41 (West 5th
ed. 1984)).

Intentional conduct cannot be negligent conduct and negligent conduct cannot
be intentional conduct. Waters v. Blackshear, 412 Mass. 589, 590 (1992).

An actor is subject to liability to another for battery if he or she acts willfully,
wantonly and recklessly; that is, the defendant intentionally incurred an unrea-
sonable risk in the face of a strong likelihood that bodily harm would result to
the plaintiff, or, stated another way, he or she acted in total disregard of the
probable harmful consequences of his or her act. Quincy Mut. Fire Ins. Co. v.
Abernathy, 393 Mass. 81, 85–86 (1984); Sheehan v. Goriansky, 321 Mass. 200,
204 (1947); Le Saint v. Weston, 301 Mass. 136, 138 (1938); Forbush v. City of
Lynn, 35 Mass. App. Ct. 696, 700 (1994).

“Where there is wanton or reckless conduct there is willful, intentional conduct,
whose tendency to injure is known or ought to be known, accompanied by a
wanton and reckless disregard of the probable harmful consequences from
which others are likely to suffer, so that the whole conduct together is of the
nature of a willful, intentional wrong.” Sheehan v. Goriansky, 321 Mass. 200,
204 (1947).

“[The] conduct involves a high degree of likelihood that substantial harm will
result to another.” Sheehan v. Goriansky, 321 Mass. 200, 204 (1947).

“It is enough that [the defendant] realizes or, from facts which he knows, should
realize that there is a strong probability that harm may result, even though he
hopes or even expects that his conduct will prove harmless.” Sheehan v. Gori-
ansky, 321 Mass. 200, 204 (1947).

Willful, wanton or reckless conduct is the legal equivalent of intentional con-
duct. Sheehan v. Goriansky, 321 Mass. 200, 204 (1947).

One who wantonly and recklessly exposes another to danger is held to have
intended the natural consequences of his or her behavior. Sandler v. Common-
wealth, 419 Mass. 334, 337 (1995); Aiken v. Holyoke St. Ry. Co., 184 Mass. 269,
271 (1903).



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Liability is only imposed for wanton and reckless conduct on proof of an actual
physical injury. The injury must have some impact on the health or comfort of
the victim. It need not be permanent but must be more than transient or trifling.
Commonwealth v. Burno, 396 Mass. 622, 626–27 (1986); Commonwealth v.
Welch, 16 Mass. App. Ct. 271, 275–76 (1983); see also Aiken v. Holyoke St. Ry.
Co., 184 Mass. 269, 271 (1903); Restatement (Second) of Torts §§ 18, 18, cmt. g
(1965).

A defendant who voluntarily undertakes an act that he or she knows poses a risk
of grave danger to others behaves wantonly and recklessly. A defendant also acts
wantonly and recklessly, even if he or she does not appreciate the risk of his or
her behavior, as long as an ordinary man under the same circumstances would
realize the gravity of the danger. Commonwealth v. Welansky, 316 Mass. 383,
398–99 (1944).

Liability in battery does not require a finding that the defendant was motivated
by personal hostility or a desire to cause harm. W. Page Keeton et al., Prosser
and Keeton on the Law of Torts, § 8, at 36 (West 5th ed. 1984); see Le Saint v.
Weston, 301 Mass. 136 (1938).

The defendant is liable to the plaintiff for battery if he or she acts intending to
cause a harmful or offensive contact to a third person and the act results in
contact to the plaintiff instead. Restatement (Second) of Torts §§ 16, 20 (1965).

Lack of consent is an essential element of the tort of battery on which the
plaintiff bears the burden of proof. Belger v. Arnot, 344 Mass. 679, 684 (1962).

Consent is the “willingness in fact for conduct to occur.” Restatement (Second)
of Torts §§ 892, 892A (1965).

The plaintiff is entitled to recover all the damages that are the natural and
probable consequence of the defendant’s wrongful conduct, including physical
and mental pain and suffering, as well as loss of earning capacity, medical
expenses and other out-of-pocket losses.

The plaintiff may recover for his or her humiliation, indignity, distress and injury
to feelings. Burns v. Jones, 211 Mass. 475 (1912).

The plaintiff is entitled to recover at least nominal damages where there is no
showing of harm.

Evidence of provocation by the plaintiff, though not a defense to battery, is
admissible to mitigate the plaintiff’s damages. The defendant is entitled to show
that insulting or abusive language or insolent conduct by the plaintiff at the time
of the attack provoked or incited the defendant to act. You, the jury, are entitled

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to consider such conduct by the plaintiff in determining what damages, if any, to
award him or her. Benjamin v. McLellan, 237 Mass. 141, 145 (1921); Comeau v.
Currier, 35 Mass. App. Ct. 109, 112 (1993).


ASSAULT
An assault is an attempt to commit a battery or an unlawful act placing another
in reasonable apprehension of an immediate battery. Commonwealth v. Henson,
357 Mass. 686, 692 (1970).

The defendant is liable for assault if he or she acts intending to cause harmful or
offensive contact or intending to cause apprehension of such contact, and
apprehension is created. Restatement (Second) of Torts § 21 (1965).

Mere words are not sufficient to create liability for assault. The plaintiff is
required to show some overt act or gesture, however insubstantial, by the
defendant. The act or gesture may be accompanied by words, the combined
effect of which creates the apprehension. Restatement (Second) of Torts § 31
(1965); Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts
Practice Series) § 12(3) (West 2d ed. 1989).

Apprehension is the belief or awareness that the act may result in imminent
contact unless stopped by the other’s self-defensive act or flight or by interven-
tion from an outside force. Restatement (Second) of Torts §§ 24, 27 (1965).

The plaintiff is not required to show that he or she was fearful of the threatened
contact. It is enough that he or she believed that the act was capable of inflicting
contact unless something further occurred. Restatement (Second) of Torts §§ 24,
27 (1965).

If the defendant intentionally created a reasonable apprehension that harm was
imminent, it is no excuse that he or she gave the plaintiff the option of avoiding
the harm by obeying a command. Liability is established on a showing that the
defendant stood ready to carry out the threat immediately on the plaintiff’s
refusal to comply. Restatement (Second) of Torts § 31 (1965); Joseph R. Nolan
& Laurie J. Sartorio, Tort Law (37 Massachusetts Practice Series) § 12(2) (West
2d ed. 1989); see also Ross v. Michael, 246 Mass. 126 (1923).

A showing of apparent ability to carry out the threat is all that is required.
Commonwealth v. Henson, 357 Mass. 686, 692 (1970); Restatement (Second) of
Torts § 33 (1965); Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massa-
chusetts Practice Series) § 12(2) (West 2d ed. 1989).



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There is no liability, however, where the plaintiff possesses a firmly held belief,
even though wrong, that the means adopted by the defendant are incapable of
causing the threatened contact. Restatement (Second) of Torts § 21 (1965).

To create liability for assault, the threatened contact must be imminent. Immi-
nent contact is contact that will occur without significant delay. An act done in
preparation for a future contact is not sufficient. Restatement (Second) of Torts
§ 29 (1965); Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts
Practice Series) § 12(2) (West 2d ed. 1989).

To establish liability for assault, the plaintiff must show that he or she became
aware of the defendant’s attempted or threatened act at some time before it
terminated. Restatement (Second) of Torts § 22 (1965); Joseph R. Nolan &
Laurie J. Sartorio, Tort Law (37 Massachusetts Practice Series) § 12(2) (West 2d
ed. 1989).

The source of the danger need not be the defendant. Restatement (Second) of
Torts § 25 (1965).

The object of the assault must be the plaintiff. Restatement (Second) of Torts
§ 26 (1965).

To establish liability for assault, the plaintiff must show that the defendant’s act
was done with (1) the intent to cause a harmful or offensive contact; (2) the
intent to cause an apprehension of such contact; or (3) the knowledge, to a
substantial certainty, that such apprehension would result. Restatement (Second)
of Torts §§ 21, 21, cmt. d (1965).

The defendant is liable to the plaintiff for assault if he or she acted intending to
cause a harmful or offensive contact with a third person that resulted in the
plaintiff’s being placed in apprehension of such contact. Restatement (Second)
of Torts § 21 (1965).

Lack of consent is an essential element of assault. The plaintiff bears the burden
of proving that he or she did not consent to be put in apprehension. Restatement
(Second) of Torts § 21, cmt. e (1965).

The plaintiff is entitled to recover all the damages that are a natural and probable
consequence of the defendant’s wrongful act, including fright, humiliation, and
indignity, as well as any physical illness resulting therefrom. Further, the
plaintiff is entitled to recover nominal damages without proof of injury. Joseph
R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts Practice Series) § 13
(West 2d ed. 1989).



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Evidence of provocation by the plaintiff, though not a defense to assault, is
admissible to mitigate the plaintiff’s damages. The defendant is entitled to show
that insulting or abusive language or insolent conduct by the plaintiff at the time
provoked or incited the defendant to act. You, the jury, are entitled to consider
such conduct by the plaintiff in determining what damages, if any, to award him
or her. Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts
Practice Series) § 13 (West 2d ed. 1989).


FALSE IMPRISONMENT
False imprisonment is the unlawful confinement or restraint of a person, directly
or indirectly, by force, or by the threat or appearance of force, of which the
person is aware or by which he or she is harmed. Coblyn v. Kennedy’s, Inc., 359
Mass. 319, 321 (1971); Wax v. McGrath, 255 Mass. 340, 342 (1926).

“An actor is subject to liability to another for false imprisonment if (a) he acts
intending to confine the other or a third person within boundaries fixed by the
actor and (b) his act directly or indirectly results in such a confinement of the
other and (c) the other is conscious of the confinement or is harmed by it.”
Restatement (Second) of Torts § 35 (1965).

Any general restraint on a person’s freedom of movement is confinement.
Confinement may be accomplished by a threat of physical force or harm or by
actual or apparent physical force or barriers. Foley v. Polaroid Corp., 400 Mass.
82, 90 (1987); Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachu-
setts Practice Series) § 16(3) (West 2d ed. 1989); Restatement (Second) of Torts
§§ 39, 40, 40A (1965).

Confinement may be accomplished by threatening personal difficulty. A person
who relinquishes his or her right to move about freely as the only alternative to
forfeiting another right is tortiously restrained. Foley v. Polaroid Corp., 400
Mass. 82, 90–92 (1987); Coblyn v. Kennedy’s, Inc., 359 Mass. 319, 321 (1971);
Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts Practice
Series) § 16(3) (West 2d ed. 1989).

The confinement must be complete and it must be within boundaries fixed by
the defendant. If the plaintiff knows of a safe and reasonable avenue of escape,
he or she is not confined. Further, if he or she is merely prevented from going
someplace he or she wishes to go, he or she is not confined. The area of con-
finement, however, may be extensive, such as a town, as long as it is not so large
as to constitute exclusion instead of confinement. The area may be mobile, such
as a car, or it may be the act of forcing the plaintiff to accompany the defendant
from place to place. Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massa-

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INTENTIONAL TORTS TO PERSONS


chusetts Practice Series) § 16(3) (West 2d ed. 1989); Restatement (Second) of
Torts § 36 (1965).

Confinement must be against a person’s will. A person who freely consents to
being confined does not suffer false imprisonment. Joseph R. Nolan & Laurie J.
Sartorio, Tort Law (37 Massachusetts Practice Series) § 16(3) (West 2d ed.
1989).

Confinement may be accomplished by a direct or indirect act. Joseph R. Nolan
& Laurie J. Sartorio, Tort Law (37 Massachusetts Practice Series) §§ 16(3),
16(4) (West 2d ed. 1989); Restatement (Second) of Torts §§ 37, 45A (1965).

To create liability for false imprisonment, the plaintiff must show that he or she
was aware of the confinement at the time it occurred, unless he or she was
harmed by it. The harm must be more than the indignity of having been confined
but need not be more than hunger, thirst or neglect. Joseph R. Nolan & Laurie J.
Sartorio, Tort Law (37 Massachusetts Practice Series) § 16(5) (West 2d ed.
1989); Restatement (Second) of Torts § 42 (1965).

To create liability for false imprisonment, the plaintiff must show that the
defendant acted intending to confine the plaintiff or knowing to a substantial
certainty that such confinement would result. Joseph R. Nolan & Laurie J.
Sartorio, Tort Law (37 Massachusetts Practice Series) § 16(5) (West 2d ed.
1989); Restatement (Second) of Torts §§ 35, cmts. d, h; 44 (1965).

The defendant is liable to the plaintiff for false imprisonment if he or she acted
intending to confine a third person, but confinement of the plaintiff resulted.
Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts Practice
Series) § 16(5) (West 2d ed. 1989); Restatement (Second) of Torts §§ 35, 43
(1965).

The plaintiff is entitled to recover for damages that are the direct or proximate
result of the defendant’s wrongful act, including physical injury and emotional
distress. Further, the plaintiff is entitled to recover nominal damages without
showing actual harm. Foley v. Polaroid Corp., 400 Mass. 82, 92–93, 508 N.E.2d
72, 78 (1987); see also Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37
Massachusetts Practice Series) § 17 (West 2d ed. 1989).




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DEFENSES

Right to Enter Land
A person who has the right to enter the land of another and to do an act there
may use what force is required to accomplish his or her purpose. He or she is
only liable if he or she uses excessive force. Lambert v. Robinson, 162 Mass. 34,
38 (1894).


Right to Eject
A landowner has the right to use reasonably necessary force to eject a trespasser,
and he or she is liable only if he or she uses excessive force under the circum-
stances. Stager v. G.E. Lothrop Theatres Co., 291 Mass. 464, 465 (1935); Ryan
v. Marren, 216 Mass. 556, 559 (1914); Hudson v. Lynn & Boston R.R. Co., 178
Mass. 64, 67 (1901).


Right to Use Reasonable Force to Effect an Arrest
A police officer authorized to make an arrest has a right to use such force as he
or she may reasonably believe necessary to effect an arrest and to overcome
physical resistance by the person sought to be arrested. Julian v. Randazzo, 380
Mass. 391, 396 (1980).


Self-Defense
A person has a right to defend himself or herself against attack. He or she is
privileged to use reasonable and necessary force to prevent a threatened harmful
contact. He or she may use nondeadly force to defend himself or herself if he or
she reasonably fears for his or her personal safety. He or she may use deadly
force, force that is likely to cause death or great bodily harm, only on a reason-
able belief that he or she is in imminent danger of death or serious bodily harm
and no other means will suffice to prevent the harm. Commonwealth v. Cataldo,
423 Mass. 318, 321 (1996).

The defendant is not obligated to wait until he or she has been struck before
taking action to defend himself or herself if he or she reasonably believes an
attack is imminent. Commonwealth v. Niemic, 427 Mass. 718, 723 (1998).

The reasonableness of his or her conduct will be judged with due regard to the
exigency of the circumstances. Joseph R. Nolan & Laurie J. Sartorio, Tort Law

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INTENTIONAL TORTS TO PERSONS


(37 Massachusetts Practice Series) § 177 (West 2d ed. 1989); Richard W.
Bishop, Prima Facie Case: Proof and Defense (17A Massachusetts Practice
Series) § 37.15 (West 4th ed. 1997).

The defendant will be liable if he or she uses force that is disproportionate to the
attack against him or her or excessive under the circumstances. Joseph R. Nolan
& Laurie J. Sartorio, Tort Law (37 Massachusetts Practice Series) § 177 (West
2d ed. 1989); Richard W. Bishop, Prima Facie Case: Proof and Defense (17A
Massachusetts Practice Series) § 37.15 (West 4th ed. 1997).

The defendant must use all reasonable means to avoid combat before resorting to
self-defense, including retreat, unless he or she is the lawful occupant of a
dwelling employing reasonable means to defend himself or herself against
someone unlawfully in his or her dwelling who he or she reasonably believes is
about to inflict great bodily injury or death on him or her. Commonwealth v.
Niemic, 427 Mass. 718, 722 (1998); G.L. c. 231, § 85U; Joseph R. Nolan &
Laurie J. Sartorio, Tort Law (37 Massachusetts Practice Series) § 177 (West 2d
ed. 1989); Richard W. Bishop, Prima Facie Case: Proof and Defense (17A
Massachusetts Practice Series) § 37.15 (West 4th ed. 1997).


Defense of Others
“An actor is justified in using force against another to protect a third person
when (a) a reasonable person in the actor’s position would believe his interven-
tion to be necessary for the protection of the third person and (b) in the circum-
stances as that reasonable person would believe them to be, the third person
would be justified in using such force to protect himself.” Commonwealth v.
Martin, 369 Mass. 640, 649 (1976); see also Joseph R. Nolan & Laurie J.
Sartorio, Tort Law (37 Massachusetts Practice Series) § 178 (West 2d ed. 1989).


Defense of Property
A person has a right to use reasonable force, but not deadly force, to hold or
protect one’s property. He or she is liable only if he or she uses excessive force.
Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts Practice
Series) § 179 (West 2d ed. 1989).


Right to Detain a Suspected Shoplifter
A merchant or innkeeper may detain a person for questioning for a reasonable
length of time and in a reasonable manner if he or she has reasonable grounds to
believe the person is committing or attempting to commit larceny of goods for

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sale on the premises, or larceny of the personal property of persons on the
premises. G.L. c. 231, § 94B; see also Foley v. Polaroid Corp., 400 Mass. 82,
89–92 (1987); Coblyn v. Kennedy’s, Inc., 359 Mass. 319, 323–25 (1971); Proulx
v. Pinkerton’s Nat’l Detective Agency, Inc., 343 Mass. 390, 392–93 (1961).


Right to Arrest
A police officer is entitled to make an arrest without a warrant if he or she
reasonably believes the individual has committed a felony. A police officer is
entitled to make an arrest without a warrant for a misdemeanor that involves a
breach of peace and that is committed in his presence. A showing of probable
cause is a defense in an action against him or her for false arrest. G.L. c. 231,
§ 94B; Joseph R. Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts
Practice Series) §§ 16(2), 181 (West 2d ed. 1989).

A police officer is permitted to rely on an arrest warrant in making an arrest if it
appears proper and valid on its face. Joseph R. Nolan & Laurie J. Sartorio, Tort
Law (37 Massachusetts Practice Series) §§ 16(2), 181 (West 2d ed. 1989).

A private citizen may make an arrest only in cases of actual guilt. Joseph R.
Nolan & Laurie J. Sartorio, Tort Law (37 Massachusetts Practice Series)
§§ 16(2), 181 (West 2d ed. 1989).




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