Constructive intent?

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Charles Barkley
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Constructive intent?

Postby Charles Barkley » Thu Dec 02, 2010 1:55 am

I have this term in my notes for intentional torts. All I have written down is it is intent that is inferred to exist from a reckless act, such as driving drunk and hitting someone with your car. Is this correct?

How is it any different from negligence?

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ggocat
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Re: Constructive intent?

Postby ggocat » Thu Dec 02, 2010 2:01 am

Charles Barkley wrote:I have this term in my notes for intentional torts. All I have written down is it is intent that is inferred to exist from a reckless act, such as driving drunk and hitting someone with your car. Is this correct?

How is it any different from negligence?

Negligence does not require intent. Maybe you're mixing up constructive knowledge (a common term) with constructive intent (a term I have never heard before).

Is your prof using "constructive intent" to mean "substantial certainty" or something similar? A person who drinks and gets behind the wheel of a car has a substantial certainty that they will injure someone.

EDIT: Oh yeah, just googled and got this: "4. “Doctrine of Constructive Intent”: If the plaintiff had the knowledge of the substantial certainty of risk that is bringing the harmful result, he has the intent to cause harm and is liable for this conduct. Garrant v. Dailey (D was visiting P and moved the chair on which the P previously sit on, the P fell on the floor by attempt to sit. JNOV entered for the P.) "
Last edited by ggocat on Thu Dec 02, 2010 2:06 am, edited 1 time in total.

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Charles Barkley
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Re: Constructive intent?

Postby Charles Barkley » Thu Dec 02, 2010 2:04 am

Yeah I know that, but intentional torts do. I guess I'm just unsure as to why someone would sue for a battery in this situation rather than negligence.

Also, on a practice exam, a person was driving while drunk off egg nog, lost control of the car and hit someone's house. The question asked if the person would be liable for a trespass. I said there was no substantial certainty or purpose but that there would be intent under constructive intent. It was a reckless act and driving while drunk is a reckless act. Is this correct usage of the doctrine? More or less?

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Charles Barkley
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Re: Constructive intent?

Postby Charles Barkley » Thu Dec 02, 2010 2:06 am

The professor definitely mentioned it as something separate from purpose and substantial certainty. I don't really get it. I haven't seen this term in the E&E or a horn book.

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Charles Barkley
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Re: Constructive intent?

Postby Charles Barkley » Thu Dec 02, 2010 2:07 am

So constructive intent IS just substantial certainty?

EDIT: Thanks for your help, btw.

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Re: Constructive intent?

Postby ggocat » Thu Dec 02, 2010 2:14 am

Charles Barkley wrote:Yeah I know that, but intentional torts do. I guess I'm just unsure as to why someone would sue for a battery in this situation rather than negligence.

Well, you sue for both and let the jury figure it out (hopefully correctly). EDIT: And if asked an open-ended question, of course, this is what you do on a law school exam, especially an open-ended torts exam--issue spot everything.

Charles Barkley wrote:Also, on a practice exam, a person was driving while drunk off egg nog, lost control of the car and hit someone's house. The question asked if the person would be liable for a trespass. I said there was no substantial certainty or purpose but that there would be intent under constructive intent. It was a reckless act and driving while drunk is a reckless act. Is this correct usage of the doctrine? More or less?

I wouldn't know how to answer this question for your prof because I am not familiar with "constructive intent." Although it appears from googling that constrictive intent = substantial certainty. So I would identify the substantial certainty issue (and use buzz phrase "constructive intent"), but those don't appear to be two different concepts.
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Re: Constructive intent?

Postby ggocat » Thu Dec 02, 2010 2:16 am

Charles Barkley wrote:The professor definitely mentioned it as something separate from purpose and substantial certainty. I don't really get it.

Yikes, neither do I. Good luck!

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Charles Barkley
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Re: Constructive intent?

Postby Charles Barkley » Thu Dec 02, 2010 2:18 am

Yeah, after googling, it does look like its the same as substantial certainty. I'm not sure why I had it set up differently in my notes. However, I looked at other people's outlines too and they have it set up the same way (something different from substantial certainty).

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Re: Constructive intent?

Postby Total Litigator » Thu Dec 02, 2010 3:11 am

Somebody acts recklessly when he/she knows that it is unreasonble to act because there is a substantial and unjustifiable risk that an injury will result from his conduct, but he acts anyway and causes an injury (doesn't necessarily have to be the contemplated injury, but that's a whole nother discussion...) You act negligently simply when you take less care in your actions than a reasonable person would have. (Those are the tort definitions, for criminal recklessness and negligence, the deviation from reasonable behavior must meet a higher standard of a gross deviation from reasonable behavior). Thus the fundamental difference between recklessness and negligence is that negligence does not require knowledge of the risks involved. However, you can see that this provides an easy out for a defendant to say "but I didn't know there was a risk," hence courts have created "constructive" knowledge(/intent).

I too can't really remember learning about constructive intent, but the concept makes sense and I would imagine it is similar to constructive knowledge. "Constructive" anything really just occurs whenever the court comes to a conclusion regarding the Defendant's mental state which the Defendant denies. When the circumstantial evidence all points to the fact that the defendant knew there was a risk (constructive knowledge) or that he really meant to do "it" (constructive intent), but the defendant still attests that he had no knowledge of the risk or no intention of doing "it", constructive knowledge/intent would come into play. Constrructive anything is just a fancy way for the judge to say "Nice try, but I really don't believe you." Anything constructive probably has the legal requirement that "No reasonable jury could decide otherwise," or else the judge would be required to let the jury decide whether the defendant met the knowledge or intent requirement of the crime.

Thus when you drive drunk and cause an injury, you are guilty of a reckless action. If the Defendant argued, "but I didn't know I was drunk," then the the judge would bring constructive knowledge into play. However, it is no accident that the question involves egg nog, and not say, shots of hard liquor. There at least is an argument here that, because the alcohol content of eggnog is not necessarily known by anyone but the person who makes the egg nog, he actually lacked the knowledge that he was too impaired to drive. Thus you bring in constructive knowledge. What are the circumstances? Did he have 2 cups of spiked egg nog or did he have 5 cups of spiked egg nog? Is there a chance that he didn't actually know it was spiked? Was teh amount of alcohol in each of his five cups of egg not enough to not change the taste of the egg nog to a sufficient degree?

Are you guiltu of trespassing when you crash into someones lawn? Tresspass requires intent, not intent to tresspass per se, but at least intent to enter the geographic area. Therefore when you crash into someones lawn, you probably didn't mean to go there. Sounds pretty straightforward to me. I guess if you inentionally went into their lawn to avoid an oncoming car you would have the requisite intent but you would also argue a necessity defense.

You probably think I'm crazy for writing this much, but I see it as good practice for exams coming up.
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Re: Constructive intent?

Postby Total Litigator » Thu Dec 02, 2010 3:13 am

Seeing the post above me, substantial certainty is probably the correct standard of proof for constructive intent/knowledge, but it probably equates with / is derived from the requirement that no reasonable jury could decide otherwise.

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Re: Constructive intent?

Postby Charles Barkley » Thu Dec 02, 2010 3:25 am

That helped a ton. Thank you.

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Re: Constructive intent?

Postby Total Litigator » Thu Dec 02, 2010 4:19 am

No problem.I'll add a couple thoughts as well.

I just saw that the drunk driving and tresspassing questions are related. I think the answer would probably be (I say probably because it of course depends on the minutia of the facts) that the person is liable for reckless destruction of property (based on the above analysis), but arguably not for tresspass. However, because he acted recklessly he is liable for the damage he caused (there is a causation issue here as well, but usually when you act recklessly the court is pretty liberal when attributing injury to your actions). Tresspassing is an offense per se and comes with its own damages (no injury necessary to collect damages for tresspass), seperate from the damage stemming from D's recklessness behavior.

So we have a question of constructive knowledge in relation to the recklessness charge and a question of constructive intent in regards to the trespass charge.
We've already established that the Defendant will probably attest to the fact that they had no intent to crash into the plaintiff's lawn (unless he dodged traffic or something, as I stated earlier. He would probably use the necessity defense in that case. The necesity defense would not work against a recklessness charge for drunk driving, as the reason he had to dodge traffic can be attributed to his recklessness, but it could serve as a viable defense for a tresspassing claim, as recklessness is technically insufficient to meet the intent requirement of tresspass). Thus we must bring in constructive intent (that would be the plaintiff's last refuge for a successful tresspass claim). Remember you can look at intent at multiple stages of the D's action. So, if we were to use the substantial certainty proxy for constructive intent, you have to ask (1) when the D first started driving drunk, was there a substantial certainty that the D intended to end up on P's lawn? and (2) right before D's accident, was there a substantial certainty that P intended to end up on the lawn? You would probably argue that at (1) there was not a substantial certainty he intended to end up on P's lawn (this is an easy no), but at (2) you have at least an opportunity to apply the constructive intent rule.

However, this is a potentially dangerous use of the "substantial certainty" test. You have to keep in mind that we are using it as a proxy for intent, and I'm pretty sure that the correct question is not whether there a substantial certainty that he would end up on the lawn," but whether there was a substantial certainty that he intended to end up on the lawn. There are some circumstances that could lead to a good discussion both ways, but if he really was driving drunk and accidentally lost control and landed on the P's lawn, I don't think there is much ground for a pro-tresspassing liability argument. I would think that most courts would find that P did not have the requisite intent, as his crash would have been an unintentional accident. He might have been reckless, but that is not enough to fulfill an intent requirement. However, I could see some indignent courts finding that P did have the constructive intent, under an arguably tenous position that driving drunk (voluary engagement in a risky activity) is no excuse for lack of intent, or by expanding upon the literal interpretation of intent. That being said, the D would already be liable for the damage he caused under the recklessness charge, so I don't see why a court would make the stretch of charging tresspasing as well.

Hope that helps. I could be completely missing something, but the tresspassing charge seems like a relativly straightforward no, at least if you were to apply the standards technically, without bringing in creative judging or public policy arguments into the discussion. I'm a little confused as to where the gray area is in this question, and you should probably ask your Prof what a good argument for tresspass liability would be.

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Re: Constructive intent?

Postby christmas mouse » Thu Dec 02, 2010 8:29 am

Charles Barkley wrote:Yeah I know that, but intentional torts do. I guess I'm just unsure as to why someone would sue for a battery in this situation rather than negligence.

Also, on a practice exam, a person was driving while drunk off egg nog, lost control of the car and hit someone's house. The question asked if the person would be liable for a trespass. I said there was no substantial certainty or purpose but that there would be intent under constructive intent. It was a reckless act and driving while drunk is a reckless act. Is this correct usage of the doctrine? More or less?


Well a person would rather sue for an intentional tort because of damages. For intentional torts you are liable for all damages as a result of your tort whereas with negligence foreseeability will limit how much one is liable.

If the person lost control of the car then he did not have the intent to commit a trespass. I wouldn't call it reckless either just because I think torts r either intentional negligent or strict liabilty. He was negligent and possibly neg per se if their is a statute on point about drunk driving that is designed to protect against the risk Defendant created.

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Re: Constructive intent?

Postby Total Litigator » Thu Dec 02, 2010 11:58 am

christmas mouse wrote: I wouldn't call it reckless either just because I think torts r either intentional negligent or strict liabilty.

Sorry, totally forgot about this. There is no charge of reckless behavior in torts. However, recklessness can be "constructed" by the court to rise to intent if the circumstances show that any reasonable person would have known there was a substantial certainty that the injury (or a injury) would follow his/her actions. In that case, the intent is constructive and the court disregards the D's claim of "but I really didn't know!" So there is no recklessness charge in torts, but "extreme" recklessness will result in intent. That means that he is probably liable (as per my earlier analysis) for neligent destruction of property, but not for tresspass.

christmas mouse wrote: He was negligent and possibly neg per se if their is a statute on point about drunk driving that is designed to protect against the risk Defendant created.

This is a very good point, I forgot about that as well. Definitely want to mention this on a test.

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Re: Constructive intent?

Postby kswiss » Thu Dec 02, 2010 1:18 pm

No need for a long explanation...

"constructive" is used for lots of things
- constructive notice (not notice in fact, like newspaper, but court treats it as if it is notice in fact)
- constructive trust (not an express trust, but the court treats it as one.)

Basically, constructive means that that court "constructs" the element instead of you having to prove some subjective factor like intent.

So, if you throw a baseball into a crowd, it doesn't matter whether you actually intended to hit someone. A reasonable person would know that throwing a baseball into the crowd will hit someone, so the court will construct intent. Its basically read into the RST §8 as "or substantially certain." Even if your mind doesn't make the connection that something harmful will occur from a certain action, if a reasonable person should have known, then the court will make the connection for you.

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Re: Constructive intent?

Postby Charles Barkley » Thu Dec 02, 2010 2:07 pm

Well, I wouldn't mention negligence per se because it was an intentional tort question on trespassing. It was a very specific question just about whether or not he was liable for a trespass.

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Re: Constructive intent?

Postby skoobily doobily » Thu Dec 02, 2010 8:42 pm

A good example of constructive intent: intentional infliction of emotional distress. You need to have intent that the harm would occur, but if you did something like write a teacher a note that you were going to rape and kill her and kill her whole family in a fit of rage, then the court is going to say a reasonable person should have known that emotional distress would result, and you'll have satisfied the intent element even without intent.

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Re: Constructive intent?

Postby ggocat » Thu Dec 02, 2010 11:23 pm

skoobily doobily wrote:A good example of constructive intent: intentional infliction of emotional distress. You need to have intent that the harm would occur, but if you did something like write a teacher a note that you were going to rape and kill her and kill her whole family in a fit of rage, then the court is going to say a reasonable person should have known that emotional distress would result, and you'll have satisfied the intent element even without intent.

i'm sorry, but lolwut

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Re: Constructive intent?

Postby skoobily doobily » Fri Dec 03, 2010 1:03 am

ggocat wrote:
skoobily doobily wrote:A good example of constructive intent: intentional infliction of emotional distress. You need to have intent that the harm would occur, but if you did something like write a teacher a note that you were going to rape and kill her and kill her whole family in a fit of rage, then the court is going to say a reasonable person should have known that emotional distress would result, and you'll have satisfied the intent element even without intent.

i'm sorry, but lolwut

It's a legal fiction, the courts are saying "there isn't ACTUALLY intent, but for the sake of fulfilling this element we're going to say there was"

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Re: Constructive intent?

Postby ggocat » Fri Dec 03, 2010 1:15 am

skoobily doobily wrote:
ggocat wrote:
skoobily doobily wrote:A good example of constructive intent: intentional infliction of emotional distress. You need to have intent that the harm would occur, but if you did something like write a teacher a note that you were going to rape and kill her and kill her whole family in a fit of rage, then the court is going to say a reasonable person should have known that emotional distress would result, and you'll have satisfied the intent element even without intent.

i'm sorry, but lolwut

It's a legal fiction, the courts are saying "there isn't ACTUALLY intent, but for the sake of fulfilling this element we're going to say there was"

I think you're mixing up the intent element of IIED with what a reasonable fact finder could infer.

An affirmative finding that "a reasonable person should have known" will not satisfy the intent element of IIED. But, based on the facts presented, a reasonable fact finder could infer intent--that is, a reasonable fact finder could infer that the person who wrote the letter acted with purpose, knowledge, or substantial certainty this his/her actions would cause severe emotional distress.

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Re: Constructive intent?

Postby skoobily doobily » Fri Dec 03, 2010 1:21 am

ggocat wrote:
skoobily doobily wrote:
ggocat wrote:
skoobily doobily wrote:A good example of constructive intent: intentional infliction of emotional distress. You need to have intent that the harm would occur, but if you did something like write a teacher a note that you were going to rape and kill her and kill her whole family in a fit of rage, then the court is going to say a reasonable person should have known that emotional distress would result, and you'll have satisfied the intent element even without intent.

i'm sorry, but lolwut

It's a legal fiction, the courts are saying "there isn't ACTUALLY intent, but for the sake of fulfilling this element we're going to say there was"

I think you're mixing up the intent element of IIED with what a reasonable fact finder could infer.

An affirmative finding that "a reasonable person should have known" will not satisfy the intent element of IIED. But, based on the facts presented, a reasonable fact finder could infer intent--that is, a reasonable fact finder could infer that the person who wrote the letter acted with purpose, knowledge, or substantial certainty this his/her actions would cause severe emotional distress.


Ummm yes it would. The language of the restatement says "intentional or reckless", a person can have no intention of committing the harm, but if his actions are reckless enough that a reasonable person would have known that harm would occur, then the intent element is satisfied.

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Re: Constructive intent?

Postby gwuorbust » Fri Dec 03, 2010 2:02 am

what I have in my outline:


L only if Constructive Intent to cause harmful or offensive contact
- Actual knowledge to a substantial certainty
- A ‘grave risk’ is not enf to create L

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ggocat
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Re: Constructive intent?

Postby ggocat » Fri Dec 03, 2010 2:22 am

skoobily doobily wrote:Ummm yes it would. The language of the restatement says "intentional or reckless", a person can have no intention of committing the harm, but if his actions are reckless enough that a reasonable person would have known that harm would occur, then the intent element is satisfied.

"A reasonable person should have known" is a standard for negligence, not recklessness.

The Restatement (Second) of Torts, section 46, note i, defines recklessness for IIED as "deliberate disregard of a high degree of probability that the emotional distress will follow."

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skoobily doobily
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Re: Constructive intent?

Postby skoobily doobily » Fri Dec 03, 2010 2:32 am

ggocat wrote:
skoobily doobily wrote:Ummm yes it would. The language of the restatement says "intentional or reckless", a person can have no intention of committing the harm, but if his actions are reckless enough that a reasonable person would have known that harm would occur, then the intent element is satisfied.

"A reasonable person should have known" is a standard for negligence, not recklessness.

The Restatement (Second) of Torts, section 46, note i, defines recklessness for IIED as "deliberate disregard of a high degree of probability that the emotional distress will follow."

hmmm, i'm inserting jurisdiction specific language into the definition (this was my memo) sorry. But can we at least agree that you don't need ACTUAL intent to satisfy the intent element?




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