Intentional Torts: Is Intent Necessary?

In law school we learned intentional torts require intent. But is this true?

Sometimes "no," said the New Mexico Court of Appeals when asked to decide the following: Can a person be liable for assault and battery even though he only provided aid and encouragement to the perpetrator?

The Facts

While visiting the home of Emilio Cadena, Eddie Rael was beaten by Emilio's nephew, Manuel Cadena. After the attack began, Emilio yelled to Manuel "Kill him! Hit him more!" Eddie Rael sued Emilio and Manuel Cadena for civil battery. The trial court found Emilio jointly liable with Manuel for the battery. On appeal the judgement was affirmed.

The Rael court stated "t is clear...that in the United States, civil liability for assault and battery is not limited to the direct perpetrator, but extends to any person who, by any means, aids or encourages the act." Rael v. Cadena, 604 P.2d 822 (N.M. Ct. App. 1979)

The Support: American Case Law

In support, Rael cited several American cases, including:

1) Hargis v. Horrine, 230 Ark. 502, 323 S.W.2d 917 (1959) ( holding that a person who is present, encouraging or inciting an assault and battery by words, gestures, looks, or signs, or who by any means approves the same, is in law deemed to be an aider and abettor and liable as a principal) (parenthetical added);

2) Ayer v. Robinson,163 Cal.App.2d 424, 329 P.2d 546 (1958) ("A party injured by an unjustified assault may recover damages not only from the actual assailant, but from any other person who aids, abets, counsels or encourages the assault")(parenthetical added);

3) Guilbeau v. Guilbeau, 326 So.2d 654 (La. App. 1976)(holding that "One who causes another to do an unlawful act or assists or encourages in the commission of such an act is liable in solido with that person for the damage caused by the act.")(parenthetical added);

4) Duke v. Feldman,245 Md. 454, 226 A.2d 345 (1967) ( "A person may be held liable as a principal for assault and battery if he, by any means [words, signs, or motions]encouraged, incited, aided or abetted the act of the direct perpetrator of the tort)"(parenthetical added);

5) Brink v. Purnell, 162 Mich. 147, 127 N.W. 322 (1910);

Further Support: Legal Encyclopedias and American Law Reports

Rael also cited 6 Am.Jur.2d Assault and Battery 128 (1963); 6A C.J.S. Assault and Battery 11 (1975); Annot., 72 A.L.R.2d 1229 (1960).

Even More Support: The Restatement of Torts

And Rael court cited with approval the Restatement of Torts:

"[f]or harm resulting to a third person from the tortious conduct of another, one is subject to liability if he ... (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself...." Restatement (Second) of Torts 876 (1979).

The Rael court clarified that, "...verbal encouragement at the scene gives rise to liability."

And that: "[A] person may be held liable for the tort of assault and battery if he encouraged or incited by words the act of the direct perpetrator. ..."

Rex Bush handles personal injury cases in Utah. For info on injury issues visit his website: Personal Injury Utah.

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