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Vanderbilt Law Review

First Page

1165

Abstract

The concept of intent has always been at the root of some of tort law's most basic categories. The primitive action for trespass, for example, assumed that, at the very least, the trespasser intended to perform the act that resulted in the touching about which the plaintiff complains; a man thrown into another's close is not a trespasser. After the development of the modern categories of tort law, trespass helped form the foundation of the category of intentional torts. Sometimes, though, the very fact that a great deal of effort is required to do something is evidence of controversy or at least confusion. One might draw this conclusion from looking at the treatment of intent-and its close cousin, "recklessness" in the Restatements.

It is interesting to note, for example, that the Restatement (First) did not define "intent." The Restatement (First) referred to intent in the course of defining battery.' In Section 13, at Comment (d), the Reporter noted that, in addition to purposeful contact, battery may include contacts performed with "the knowledge on the part of the actor that such contact ... is substantially certain to be produced." This commentary is the only clue that the concept of intent assumed by the Restatement may not be identical to that contained in laypersons' use of the term. On the other hand, the Re- statement (First) did define "recklessness." To what can we attribute this differential treatment? It seems that, in contrast to recklessness, the American Law Institute ("ALI") seemed to think that the concept of "intent" was so well-understood, so deeply a part of the language, that it was no more necessary to define the word "in- tent" than it would have been to define the word "person."

Unlike the Restatement (First), the Restatement (Second) did define "intent" in a section devoted to just that purpose: Section 8A. As the Reporter noted, 8A represented an expansion of the Re- statement (First)'s Section 13, Comment d. Apparently, by 1965 the ALI had recognized the need to clarify the definition of intent, and they did so by offering a generic definition-one which intended to govern the entire Restatement. Unlike comment d, 8A was to serve modularly: its abstract definition was designed to work as well in battery as in defamation. Nonetheless, like Comment d, 8A had been designed as a response to a need that had arisen in the context of a battery case, Garrett v. Dailey. In order to explain why the eight year old boy in Garrett could have been found liable for battery, the Washington Supreme Court explained that intent means not only having a desire to do harm, but also knowing with "substantial certainty" that one will do harm, even if one does not desire to do harm. Without doubt, the "substantial certainty" prong is one solution to the problem posed by Garrett. The purpose of this Essay is to point out that the solution adopted in the Restatement (Second) is not optimal, and that it should not be carried forward into the Restatement (Third).

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