Torts E&E - Question, re: False Imprisonment, Example #1 Forum

[echooo23]

The answer to #1 of the false imprisonment chapter of the torts E&E seems to clash with an example given in Restatement § 35 on false imprisonment. Can someone please help clarify?

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1. Lewis, a school bus driver, completes her route, returns the bus to the lot, locks the door, and heads for home. Unbeknownst to him, Gretel, a small first grader, had fallen asleep curled up in a back seat, and wasn't visible from the front of the bus. Lewis had looked to the back before getting off the bus, but did not see her. Gretel awoke and was terrified. She was not discovered until the following morning. Her parents bring suit on her behalf for false imprisonment. What result?

Answer:

Gretel will lose this case, since Lewis did not act with tortious intent. He did act "intentionally," in the sense that he deliberately locked the bus before leaving. But he did not act with a purpose to confine Gretel, or with substantial certainty that she would. Lewis may have been negligent, for failure to walk to the back of the bus and check for sleeping kids; this doesn't seem like a totally unlikely scenario. If so, Gretel may have a claim for negligence against him. But false imprisonment is an intentional tort, which means that Gretel can only recover for it if she proves that Lewis acted with intent to confine or with knowledge to a substantial certainty tha this act would confine her. That isn't true here.

However, Restatement Second § 35(2) reads:

An act which is not done with the intention stated in Subsection (1,a) does not make the actor to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm.

Illustration 2 of the Restatement § 35 reads:

Just before closing time, A, a shopkeeper, sends B into a cold storage vault to take inventory of the articles therein. Forgetting that he has done so, he locks the door of the vault on leaving the premises. If in a few moments thereafter, he remembers that B is in the vault and immediately goes back and releases B, he is not liable to B for the momentary confinement to which B has been subjected. On the other hand, if he does not remember that B is in the vault until he reaches home and, therefore, although he acts immediately, he cannot release B until B has been confined in the cold vault for so long a time as to bring on a heavy cold which develops into pneumonia, he is subject to liability to B for the illness so caused.

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My question is why wouldn't Lewis be liable, seeing as how the confinement was not merely momentary or transitory (it lasted the whole night) and Greta was likely harmed by it (emotionally, because she's just a little first grader; and physically, because she was probably starved during her confinement - maybe even cold enough to get sick after, though the facts don't indicate it)?

[kalvano]

False imprisonment requires intent (shockingly, this is why it is called an intentional tort). Recklessness or negligence will not suffice.

The shopkeep isn't liable for false imprisonment because he didn't intend to lock the dude in the freezer, but he is liable for the illness he caused by locking him in there.

Same with the school bus. No false imprisonment, but if a roaming pack of rabid ocelots had broken into the bus and bitten tasty little Gretel, the bus driver could be liable for that under a negligence theory. The jury would be all like "damn, it's like meowschwitz in there."

[Scotusnerd]

I was gonna say something awesome, but Kalvano wins in that area.

Also, in the second example, the shpokeeper intentionally puts the other person in the cold room. Lewis did not put the girl in there; he didn't even know she was still on the bus. The shopkeeper knew he was there, even if he forgot temporarily.

[echooo23]

So, to clarify:

The shopkeeper isn't liable for intentional false imprisonment because he didn't purposefully lock the employee in the freezer. But the negligent imprisonment was not merely transitory, so he is liable for the injury of pneumonia.

But what about the bus driver? Using the above analogy, the bus driver would also not be liable for intentional false imprisonment because he didn't purposefully lock the kid in. But the negligent imprisonment was not merely transitory, so shouldn't he be liable for any injuries? Are you guys saying that the kid's emotional harm and possible physical harm is not sufficiently serious that the bus driver should be liable?

[kalvano]

So, to clarify:

The shopkeeper isn't liable for intentional false imprisonment because he didn't purposefully lock the employee in the freezer. But the negligent imprisonment was not merely transitory, so he is liable for the injury of pneumonia.

But what about the bus driver? Using the above analogy, the bus driver would also not be liable for intentional false imprisonment because he didn't purposefully lock the kid in. But the negligent imprisonment was not merely transitory, so shouldn't he be liable for any injuries? Are you guys saying that the kid's emotional harm and possible physical harm is not sufficiently serious that the bus driver should be liable?

No. Neither is liable for false imprisonment.

Both would be liable for injuries that resulted from their negligence. There is no "negligent imprisonment," false imprisonment is an intentional tort, which by definition means it can't be done negligently.

[echooo23]

So when the E&E says "Greta will lose this case" it means Greta will not prevail on a claim for false imprisonment, but it does not say one way or another whether the bus driver will be liable to her for injuries?

[kalvano]

So when the E&E says "Greta will lose this case" it means Greta will not prevail on a claim for false imprisonment, but it does not say one way or another whether the bus driver will be liable to her for injuries?

Does the question ask "what are the liabilities of each party?" No. It says "her parents bring suit for false imprisonment. What result?" That's it. Don't add extra stuff to a question, you won't get points for it. The question is "is the driver liable for false imprisonment" and the answer is "no." You'd go through the elements of false imprisonment, compare them to the facts, and say "whoops, no intent, therefore no false imprisonment." You give one line that say "however, Driver may be liable for injuries based on a negligence theory" because you might get a point for that, and move on.

[echooo23]

Got it. Thanks!

[Scotusnerd]

This is why E&E doesn't need to mention negligence before it starts talking about it. I had similar problems.