Even if [the debtor] should have believed that his [conduct] was substantially certain to produce serious harmful consequences, he would be guilty only of [negligence or recklessness], not of an intentional tort.
The opinion goes on to say: “At best, the facts here present a case for breach of contract.
The situation in the case you cited, would not qualify as an intentional tort under any circumstances.
In support of an objective test, Miller recites what is actually a subjective formulation from the literature on intentional tort: "`the defendant acted with . . . the substantial certainty that his action would injure the plaintiff.'" Miller, 156 F.3d at 604 (quoting Kenneth J. Vandevelde, A History of Prima Facie Tort: The Origins of a General Theory of Intentional Tort, 19 Hofstra L. Rev. 447 (1990)) (emphasis added).
The above statement is inconsistent with other court decisions as noted in the case you cited:
Other courts, following the Fifth Circuit, have used an objective notion of
substantial certainty, looking to the factfinder's assessment of the likelihood of injury instead of the debtor's knowledge or belief. See Miller v. J.D. Abrams Inc. (In re Miller), 156 F.3d 598, 603_04 (5th Cir. 1998); Baldwin v. Kilpatrick (In re Baldwin), 245 B.R. 131, 136 (9th Cir. B.A.P. 2000); Bowers v. Williams (In re Williams), 233 B.R. 398, 405 (Bankr. N. D. Ohio 1999).
The basis of any tort is that the defendant had a legal duty to the plaintiff, and that duty was breached. In that context, every person has a duty to take care when mentioning another person’s name.
An individual who recognizes that duty is not going to “accidentally” commit an intentional tort of defamation or invasion of privacy.
A person who does not recognize that duty, who is completely ignorant of it, could EASILY breach that duty without intending to harm anyone. I would call this an accident or an unintentional infliction of harm.
A person who was aware of his duty but who really believed he was relaying true facts or who mistakenly relayed true facts but implicated the wrong person, has also unintentionally breached his duty.
When the above-described bumbling fool damages someone’s reputation, the appropriate cause of action for the plaintiff is defamation. Hence, the defendant did not intend to harm the plaintiff...it was an “accident”, unintentional, but the “cure” for the plaintiff will be found via an intentional tort.
Does anyone know of any other claim the plaintiff might have in place of defamation? I'm open to suggestions.
