From Restatement (Second) of Torts § 870 (1977) Liability for Intended Consequences – General Principle One who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances. This liability may be imposed although the actor's conduct does not come within a traditional category of tort liability.
Comment: a. Nature of Section. This Section is intended to supply a generalization for tortious conduct involving harm intentionally inflicted. Generalizations have long existed for negligence liability, involving conduct producing unreasonable risk of harm to others (see §§ 282, 291- 294), and for strict liability, involving the carrying on of an activity that is abnormally dangerous. (See §§ 519- 520). As for conduct intentionally causing harm, however, it has traditionally been assumed that the several established intentional torts developed separately and independently and not in accordance with any unifying principle. This Section purports to supply that unifying principle and to explain the basis for the development of the more recently created intentional torts. More than that, it is intended to serve as a guide for determining when liability should be imposed for harm that was intentionally inflicted, even though the conduct does not come within the requirements of one of the well established and named intentional torts.
The principle set forth in this Section has been recognized in various forms, often incomplete in their expression. It is sometimes called an innominate form of the action of trespass on the case; and in New York particularly, it has been given the appellation of a "prima facie tort" and efforts have been made to set forth its requirements with more rigidity. This Section does not attempt to establish precise and inflexible requirements. Instead, it lays down general guidelines and uses words expressing standards that vary with the circumstances to which they are applied. It is stating a general principle rather than setting forth specific rules.
b. Intentionally causing harm. An intentional tort is one in which the actor intends to produce the harm that ensues; it is not enough that he intends to perform the act. He intends to produce the harm when he desires to bring about that consequence by performing the act. As indicated in § 8A, he also is treated as intending that consequence if he knows or believes that the consequence is certain, or substantially certain, to result from his act. In some cases in which the claim may be entirely novel the court may decide to limit the liability to the situation in which the defendant acted for the purpose of producing the harm involved.
For certain early developing torts, such as assault, battery and false imprisonment, it is held not to be necessary to intend to harm the plaintiff, but intent to commit the tort (or a similar one) on a third person is sufficient. (See §§ 16, 32, 43). This "doctrine of transferred intent" has not been applied to newly developing torts arising out of the action of case and should have no application to this Section. Intent to commit the tort on a third person may, however, make it easier to find that the actor's conduct was substantially certain to cause harm to the plaintiff, as, for example, when the actor tells a falsehood to the plaintiff for him to relay to the third person and the plaintiff himself relies upon it to his detriment.
c. Balancing of interests. Tort law involves a balancing of the conflicting interests of the litigants in the light of the social and economic interests of society in general. In the cases of negligence
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and strict liability, this balancing process takes place in the application of the standard involved (conduct creating an unreasonable risk of harm, or activity that is abnormally dangerous). It is the plaintiff's responsibility to satisfy the appropriate agency that the standard has been breached. For negligence the appropriate agency is normally the jury (see §§ 328B, 328C); for strict liability it is the court. (See § 520, Comment l).
For the established intentional torts, this balancing process has been already worked out and developed in the form of a set of rules. The individual torts have been set up to protect interests of the injured party, with their individual attributes designated by legal rules. The interests of the actor are protected by a set of established privileges, with their individual attributes also established by legal rules. There is thus no need of using the balancing process afresh for each case in which an established tort exists; and the task is merely to apply the legal rules to the facts.
d. Relationship to established torts. Thus the established intentional torts and their established legal privileges amount to crystalizations of the general principle stated in this Section. In determining whether liability should be imposed in a particular case for an established intentional tort, neither court nor jury engages afresh in balancing the conflicting interests of the parties. That has already been done in the creation of the legal rules of liability and privilege and all that is needed is to determine the facts and apply these rules to them.
In many situations in which liability has been imposed under the principle stated in this Section, newly recognized categories of intentional tort have been developed or are still in the process of development. A prime example of a tort presently not fully developed is intentional infliction of emotional distress; its contours are not yet fully clear. (See §§ 46- 48). Other categories of fairly recent development include injurious falsehood, interference with contractual relations and interference with prospective economic advantage. The more mature the stage of development the more definite the contours of the tort and of the privileges that may be defenses to it.
e. Basis for liability. Obviously, it is not every intentionally-caused harm that deserves a remedy in tort. The determination of which ones should be the subject of tort liability is made by resorting to the balancing process described above and analyzed in more detail below. For negligence and strict liability it is a one-step process, and a single phrase is used to describe the test. For intentional torts, it is a two-step process. The requirements are worked out both for a prima facie tort and for a privilege amounting to an excuse or justification. This makes it appropriate to use more than one phrase in expressing the test for intentional torts in balancing the conflicting interests.
The blackletter statement for this Section uses three expressions that are descriptive of the balancing process. It speaks of (1) an injury to another, (2) the culpable character of the actor's conduct and (3) the unjustifiable character of his conduct under the circumstances.
As indicated in § 7, the words "injury" and "harm" are used with different meanings in this Restatement. Harm denotes "the existence of loss or detriment in fact of any kind"; injury denotes "the invasion of any legally protected interests of another." The use of the term, injury, in this Section means that the harm must be to a legally protected interest of the plaintiff. Recovery is thus limited to those cases in which the plaintiff's harm is of such a nature and seriousness that legal redress is appropriate.
The requirement that the actor's conduct be both culpable (in general) and unjustifiable (under the circumstances) emphasizes the dual nature of the determination. The conduct must first be
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improper or wrongful; it must be blameworthy, not in accord with community standards of right conduct. It may involve use of physical violence or falsehood or otherwise be of a type that is suitable for the existence of prima facie liability in tort.
The conduct must also be not excusable or justifiable; a privilege should not be applicable. The two terms are together descriptive of the evaluative process that the court must follow.
This evaluative process therefore involves utilization of all three of the blackletter terms. When analyzed, it breaks down into a set of four factors. These include: (1) the nature and seriousness of the harm to the injured party, (2) the nature and significance of the interests promoted by the actor's conduct, (3) the character of the means used by the actor and (4) the actor's motive. The first factor is of primary concern in applying the blackletter term, injury, and the second factor is of primary concern in applying the blackletter term, not justifiable; the first, third and fourth factors are of substantially equal significance in applying the blackletter term, culpable. The balancing process, however, necessarily involves one single determination, and it cannot be neatly divided into several separate, mutually exclusive determinations.
For one intentional tort—nuisance, when it involves intentional invasion of another's interest in the use and enjoyment of land—the single word "unreasonable" is used to describe the balancing process. (See §§ 826- 829A). For the tort of interference with contractual relations, the word "improper" is used. (See § 767). A single term, like "wrongful," might have been used here. But the traditional dichotomy in intentional torts of prima facie tort and privilege suggests the desirability of using more than one term.
f. Nature and seriousness of the harm to the injured party. There are many harms that individuals must bear as the price of living in a society composed of many individuals. The law cannot undertake to protect people from the hurt feelings incident to the give and take of daily life. Thus, if one person "snubs" another on the street by refusing to speak to him or invites all of the neighbors except one to a reception, there is no cause of action for either slight, even though it was intended to produce harm.
On the other hand, other types of harm are just as clearly entitled to the protection of the law. Physical harm to the person has been recognized as the basis for an intentional tort from the earliest days of the common law. It weighs heavily in the process of balancing the interests, but other contravening factors may under certain circumstances outweigh it, as in the instance of self-defense. Physical harm to property also weighs heavily. Harm to existing advantageous relations weighs less heavily than physical harm, and harm to prospective pecuniary interests, less heavily still.
The significance of emotional harm varies considerably depending largely upon its severity. Indeed, in all cases, the severity of the harm is an important consideration, and a serious harm to an interest less deserving of protection may be a more important factor in finding liability than a slighter harm to a more significant interest.
g. The interests promoted by the actor's conduct. These interests are the ones that have become the basis for established privileges. Thus protection of oneself becomes self-defense and protection of property becomes the privilege of defense of possession or recapture. The importance of these interests to the owner and to society is a significant factor in the balancing process. Thus seeking of business through competition has significance and may make the defendant's interference with the plaintiff's prospective economic advantage justified (i.e., privileged), but it does not justify an interference with an existing contractual relationship.
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The defendant may not have been acting with a specific purpose in mind or with the intention of promoting a particular interest, and yet the interest that he is in fact promoting may still be of importance. Thus, in a quarrel between him and the plaintiff, he may lose his temper and call the plaintiff some bad names. This may inflict a certain amount of emotional distress upon the plaintiff. But if the conduct is not outrageous and plaintiff is not known to be peculiarly sensitive or vulnerable, an action of tort will probably not lie. The harm to the plaintiff is not serious and there is some social interest in not putting undue restrictions on the mere thoughtless use of language and in allowing an angry person to purge himself of the pent-up spleen. On the other hand, if defendant was using the abusive language deliberately and for a preconceived purpose, as if he is a bill collector, then he may be held subject to liability. This is the way in which the balancing process works.
h. Character of the means used by the actor. The actor's conduct is the means by which he imposes the harm upon the injured party. The reference is to the moral and legal character of that conduct. If the means is illegal or unfair or immoral according to the common understanding of society this constitutes a factor favoring liability. Thus, if a defendant seeks to promote his own interests by telling a known falsehood to or about the plaintiff or his product, the fact that he has deliberately lied is a factor militating toward liability. Assume a case in which a father is preparing to execute a will disinheriting his daughter and leaving his property to his nephew. If the daughter's husband persuades the father not to execute the will, he is not liable to the nephew. If he kills the father to prevent the execution of the will, the means used is both illegal and immoral and he is subject to liability to the nephew. A similar result is reached if he persuades the father to destroy the will by telling him defamatory falsehoods about the nephew.
Of course, acts that are in violation of civil or criminal statutes or that are tortious with respect to third parties may be strongly indicative of liability.
i. Actor's motive. If the only motive of the actor is a desire to harm the plaintiff, this fact becomes a very important factor. A motive of this sort is sometimes called disinterested malevolence, to indicate that the defendant has no interests of his own to promote by his conduct, other than venting his ill will. It is sometimes said that an evil motive cannot make tortious an act that is otherwise rightful. The nature of the motive, however, may be a factor that tips the scale in determining whether the liability should be imposed or not.
The actor's purpose may also be significant. For some torts it may be held not to be sufficient that the actor knew that his conduct was substantially certain to produce the injury, and it may be necessary that he desired to bring it about.
j. Form of the innominate tort. If a balancing of the conflicting interests, with consideration of the factors listed above, produces the conclusion that tort liability is appropriate for the type of situation that is presently before the court, the question still remains as to what form the new tort should take. The form will be similar to that of other, well-established, intentional torts, rather than that of negligence, where the decision depends upon the single determination of whether the defendant's conduct produced an unreasonable risk or not. That is, the requirements will be laid down for the existence of the prima facie tort but there will be appropriate privileges that may constitute a defense to the action.
The new tort may be closely related to an established tort and thus allow tort recovery when a restrictive rule of the traditional tort would not permit it. For example, the tort of assault has
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traditionally required the creation of apprehension of an imminent battery. Some cases have permitted recovery when the threat is not imminent but still is a very real one of a serious battery, to take place in the near future. Again, the tort of false imprisonment requires the setting of boundaries confining the plaintiff. It has been held that an innominate action of case may permit recovery for restraining a person from going into a place where he has a right to go. In determining whether a new tort can appropriately eliminate a restrictive feature of a traditional tort it is important to give careful consideration to the nature of the restriction. If it came about as a historical accident or for reasons that no longer have real significance, the new tort without it may serve a useful purpose. If the restriction expresses an important policy of the law against liability, however, the significance of that policy should continue regardless of the name of the tort involved or the date of its origin.
On the other hand the new tort may be an entirely novel one. This was true, for example, of the first cases holding that a tort action would lie for invasion of the right of privacy (see Chapter 28A) or holding that a person might recover for the telling of an injurious falsehood about him even though it was not defamatory. (See Chapter 28).
Recognized privileges for the established torts that are most analogous to the newly-created tort will usually be held applicable to the new tort, but a deliberate decision must be made as to this issue.
So long as the form of the new tort follows the customary format for intentional torts of requirements for existence of a prima facie tort subject to being met by appropriate privileges, the usual rules for the burden of proof will apply. The plaintiff may be expected to have the burden of pleading and proving the elements of the prima facie case and the defendant to have the burden of pleading and proving the existence of any privilege that may be applicable.
k. Functions of judge and jury. It is the function of the judge to engage in the process of applying the factors listed above in balancing the interests to determine whether tort liability will exist for the type of injury that the defendant has imposed on the plaintiff and what privileges will apply. It is the province of the jury to apply the rules and standards laid down by the judge to the facts that it finds to exist.
In the established tort of battery, for example, the judge tells the jury that the cause of action exists for an intentional harmful or offensive touching and that a person may use a reasonable amount of force to prevent the touching. The jury determines whether the touching was harmful or offensive and whether the force used in self-defense was reasonable. An analogous allocation of functions exists with a newly created tort. A similar analogy applies in regard to the burden of proof. (See § 10).
l. Causation. For liability to exist, the defendant's conduct must have been the cause in fact of the harm to the plaintiff. The rules on cause in fact for negligent conduct are applicable here in the case of intentional conduct. (See §§ 431- 434). On legal cause for intentional harm, see §§ 435A, 435B.
m. Damages. With the exception of established torts deriving from the action of trespass, proof of actual harm is required. (See § 907). This would certainly be true of any new tort arising under this Section. The harm need not be pecuniary in nature. On damages in general, see Chapter 47. On punitive damages, see §§ 908 and 909.
n. Defenses. Privileges as defenses are treated above. Consent is a defense if freely given by a
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person of full capacity and not against public policy. (See § 892). Contributory negligence is not a defense to an intentional tort (see § 481), nor are the damages diminished by the negligent failure of the injured person to avoid an intended consequence. (See § 918).
The appropriate statute of limitations is a matter of statutory language and interpretation. A court will not ordinarily allow a plaintiff who would have an action for an established tort with a short statute of limitations to seek to recover under a general, and longer, statute of limitations, by contending that he can recover for an innominate tort existing under this Section.
o. Cross references. For the meanings of harm and of injury, see § 7. As indicated in § 5, the words "subject to liability" mean that the actor's conduct makes him liable for an injury provided it is the legal cause of the injury and the actor has no defense to the claim.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ From Porter v. Crawford & Co., 611 S.W.2d 265, 266, 268, 268-72 (Mo.App. 1980) The principal issue to be resolved is whether or not the law of Missouri will permit a recovery in tort for a lawful act performed maliciously and with the intent of causing harm to a plaintiff. * * * To facilitate the discussion, a statement of the elements of this theory of [prima facie] tort liability will be stated in summary form as gleaned from the sources to be later discussed. The elements so summarized are:
- Intentional lawful act by the defendant.
- An intent to cause injury to the plaintiff.
- Injury to the plaintiff.
- An absence of any justification or an insufficient justification for the defendant's act.
* * * The question is thus squarely presented as to whether or not Missouri will undertake to recognize a recovery upon the basis of an intentional tort under the principles of the case law in other jurisdictions developing what has been styled, "the prima facie tort doctrine." Prima facie tort doctrine is a result of a controversy that has been waged for generations among the legal scholars with respect to the fundamental concept of tort liability. The dispute and citation to its protagonists are set forth in Forkosch, An Analysis of the "Prima Facie Tort" Cause of Action, 42 Cornell L.Q. 465 (Summer 1957). The article traces the analysis by the scholars. In the early development of tort law, it was assumed that the only tort liability which could be recognized was tort liability arising within the framework of one of the specific trespass writs. Maitland, The Forms of Action at Common Law, pp. 4-5 (1941); Forkosch, supra, n.2, p. 465. Scholarly research has indicated that this was a misconception and that the early common law
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recognized the flexibility of trespass on the case to deal with other forms of tort action not specifically included in the traditional trespass writs. Maitland, supra at 66. There is no need to detail the long and convoluted history of the dispute over the nature and function of the tort law. It is clear that modern scholarship considers that there exists a residue of tort liability which has not been explicated in specific forms of tort action and which is available for the courts to develop as common law tort actions as the needs of society require such development. Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle, 54 Northwestern L.R. 563, 573 (1959-1960). The emerging products liability recovery theories and the relatively recent development of theories in the recovery of damages for intentional infliction of emotional distress are demonstrative of the willingness of the courts to draw upon traditional concepts of tort liability and impose liability in new forms and under new factual situations. The Restatement (Second) of Torts, in § 870, has stated a guide for the development of new forms of intentional tort, expressed a rationale for imposing such liability and provided guidelines for the imposition of such liability. The Restatement, however, stops short of defining a specific tort of general application. The origin of the prima facie tort doctrine in the United States is found in Aikens v. Wisconsin, 195 U.S. 194, 25 S.Ct. 3, 49 L.Ed. 154 (1904). In that case, Justice Holmes conceptualized the tort in the following language: "Prima facie, the intentional infliction of temporal damages is a cause of action which as a matter of substantive law, whatever may be the form of the pleading, requires a justification if the defendant is to escape." Other language in that case gave rise to the notion of "disinterested malevolence" as characterizing the motivation for conduct justifying the imposition of tort liability. By that phrase, Justice Holmes looked to the ordinarily lawful conduct and indicated that if conduct otherwise lawful was not done to achieve a beneficial end for the actor but was done solely with a malevolent intent to injure the plaintiff, the conduct became actionable. The case law development clearly has tempered the requirement that an act be totally malevolent before it became actionable. This is based in part upon criticism that disinterested malevolence and justification represent a contradiction. The argument is that a wholly malevolent act can never be justified and that a purpose other than malevolent desire to injure the plaintiff is, in itself, a justification for the act. Forkosch, supra at 474. G. Alexander, Commercial Torts, Chapter 6 (1973). Thus, the modern authority seems to agree that what is involved in the two concepts of malevolence and justification is that the plaintiff's cause of action must include proof of an actual intent to injure and if another purpose appears in the actor's conduct which amounts to a justification, then the wrongful act and the justification will be weighed to determine whether the justification in terms of societal value outweighs the wrongful motive of the defendant in attempting injury to the plaintiff. 1
Justice Holmes' opinion in Aikens, supra, is often cited as the seminal case in the field of intentional tort in the performance of a lawful act. Aikens, however, but reflects the earlier opinions of Justice Holmes when he was sitting as a member of the Massachusetts court. Justice Holmes developed the doctrine in a very early line of Massachusetts cases. Moran v. Dunphy, 177 Mass. 485, 59 N.E. 125 (1901); Plant v. Woods, 176 Mass. 492, 504, 57 N.E. 1011, 1015 (1900) (dissenting opinion); Vegelahn v. Guntner, 167 Mass. 92, 104, 44 N.E. 1077, 1079 (1896) (dissenting opinion). Holmes, in Privilege, Malice, and Intent, 8 Harv.L.Rev. 1 (1894), provides
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the theoretical underpinning for the Massachusetts decisions and ultimately for Aikens, supra. Even those early Massachusetts cases had a sound basis in the English authority for the development of the doctrine. The most frequently cited English case is Mogul Steamship Co. v. McGregor Gow & Co., 23 Q.B.D. 598 (1889), affirmed A.C. 25 (1892); but it, too, rests upon earlier cases developing the doctrine from a theoretical basis to applications in the case law. The English cases, no doubt, were strongly influenced by the Statute of Westminster, the Second: "let a writ be made by those learned in the law so that for the future it shall not befall that the court fail in doing justice to complaints." 13 Edw. I, c. 24 (1285) (Plucknett trans.). The general sense of the great English statute referred to exists in our own organic law in Mo.Const. Art. I, § 14, "certain remedy for every injury to person, property or character." A case resting the theory of recovery in tort for alienation of affections resulting in loss of support by plaintiff children upon the broad ground of a similar provision of the Illinois Constitution, Art. 2, § 19, is Daily v. Parker, 152 F.2d 174 (7 Cir. 1945). The theory of liability does not rest alone upon the theoretical basis and ancient authority thus far discussed. The cases prior to 1965 are collected in Annot., 16 A.L.R.3d 1191 (1967). Some discussion of the modern authority will serve to focus the issue in the present case. Despite the early development of the Massachusetts law, the leading modern authorities arise in New York. Other states have, in part, adopted similar theories but in no state other than New York has the doctrine been developed with such care. Many of the nominative tort theories, such as trespass, now rigidly defined, were evolved on a case-by-case basis. The development process tends to produce some confusion and uncertainty as to the courts' struggle with new and different fact settings and as the circumstances and ingenuity of counsel raise new issues for resolution. The history of the development of the prima facie tort doctrine is a classic example of that developmental process. The early adoption of the prima facie tort theory in New York and the willingness of the New York courts to recognize and confront the issues presents an unusual opportunity to vicariously assess the whole ambit of issues involved in the development and application of the theory. The early cases in New York adopted the doctrine along the lines of Aikens and the Massachusetts cases. Ruza v. Ruza, 286 App.Div. 767, 1 A.D.2d 669, 146 N.Y.S.2d 808 (1955); Al Raschid v. News Syndicate Co., 265 N.Y. 1, 191 N.E. 713 (1934); Beardsley v. Kilmer, 236 N.Y. 80, 140 N.E. 203 (1923). Apparently fearful of expansion of tort liability beyond reasonable bounds, the New York courts devised limitations upon the doctrine. Sheppard v. Coopers', Incorporated, Sup., 156 N.Y.S.2d 391 (1956), affmd. App.Div., 157 N.Y.S.2d 898 (1956). Those limitations, upon further analysis and consideration, have been largely eliminated, or at least made less restrictive than the early statements of them would suppose. An early limitation that the doctrine would not support a cause of action if the facts would also support a nominative tort has been largely dispelled by the analysis which suggests that under modern pleading, alternative and even contradictory theories may be pleaded. Board of Education, etc. v. Farmingdale Classroom Tchrs., 38 N.Y.2d 397, 343 N.E.2d 278, 380 N.Y.S.2d 635 (1975). New York case law at one point also restricted the doctrine to cases where malice was the sole motivation for the acts complained of by the plaintiff. Reinforce, Inc. v. Birney, 308 N.Y. 164, 124 N.E.2d 104 (1954), but in Farmingdale Classroom Tchrs., supra, the New York Court of Appeals found the pleading sufficient and left to the proof in the case the balancing of the defendant's motivation in performing the act causing the injury (the evidence of bad motive)
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against the claim of justification of the act. The notion of the need to prove maliciousness as a sole motivation is subject to the same criticism as Justice Holmes' "disinterested malevolence not otherwise justified;" an act wholly malicious cannot be justified. The Restatement (Second) of Torts (1977) has resolved the issue on the basis of a balancing of interests. The plaintiff must allege and prove bad motive on the part of the defendant. The defendant may plead and prove any justification. The court first must weigh and consider the balance of social values to determine if the defendant's acts are tortious. This balancing reflects the traditional role of the court in the direction of a verdict. Ultimately, the jury must balance the bad motivation of the defendant against the claimed justification for the act. Restatement (Second) of Torts § 870, Comment E, pp. 281-283, Comment K, p. 286 (1977). That position is consistent with the general principle underlying the statement of the doctrine. "Tort law involves a balancing of the conflicting interests of the litigants in the light of the social and economic interests of society in general." Restatement (Second) of Torts § 870, Comment C, p. 280 (1977). A great many cases in New York have turned on the issue of the necessity for pleading "special damages." The cases are collected in Annot., 16 A.L.R.3d 1175 at p. 1215 (1967). The general rule is that "general damages" are those that flow as a natural and necessary result of the act complained of and that "special damages" are damages which actually result from the act by reason of the special circumstances of the case and not as a necessary result of the act. Special damages may be pecuniary, but not inevitably so. 22 Am.Jur.2d Damages § 15, p. 31; Travelers Indemnity Company v. Chumbley, 394 S.W.2d 418 (Mo.App.1965). As Chumbley notes, "Damages both general and special constitute but a single element, albeit a necessary one, of a tort." The courts in New York have not always followed the generally accepted distinction between general damages and special damages. Instead confusion has arisen because special damages have been equated with pecuniary loss and the New York cases cannot be reconciled with the general rule. Because the requirement of the pleading of special damages has been so troublesome in New York, some further discussion is needed on that issue. The requirement that special damages be pleaded with particularity is no stranger to the law of torts. Libel and slander per se require no pleading of special damages, but where the words uttered or written require some additional factual matrix to demonstrate damage, it must be pleaded and proven. The requirement of some New York cases in the form that pecuniary damages must be pled and proven is erroneous as a misapplication of the general rule. The rule vis-a-vis the general as opposed to special damages was intended to require more specific pleading when the claimed damage does not necessarily flow from the act complained of and not as a requirement of proof of pecuniary loss. The limitation of some New York cases of a requirement of proof of pecuniary loss was unquestionably imposed out of a concern that the lack of such a restraint might open the floodgate of litigation to meritless claim. That stricture has been criticised. 54 Northwestern L.R., supra at 570. The author of that article compares the stricture of the special damage rule in the field of prima facie tort liability to the use of the same restraint in defamation cases noting that its application in that field has been haphazard and discriminatory, 54 Northwestern L.R. at 571. The Restatement (Second) of Torts has resolved the issue in § 870 by resorting to the definitions of "harm," "injury," and "damages," concepts established for all forms of recovery in tort. "Harm" is defined in Restatement (Second) § 7, p. 12 as "the existence of loss or detriment in
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fact of any kind." The word "injury" is defined by the same section as "the invasion of any legally protected interest of another." Comment A to § 7 Restatement (Second) of Torts makes it clear that "injury" may occur without "harm" and "harm" may occur with injury. "Harm" as so defined gives rise to a cause of action only when it results from the invasion of a legally protected interest, i. e., "injury." Section 870 thus focuses upon "injury" as necessary before any cause of action arises under the prima facie tort doctrine. The earlier drafts of the Restatement contained language suggesting harm. The debate preceding the adoption of the present language of § 870, Restatement (Second) of Torts, makes it clear that the omission of harm and the inclusion of injury was intended to restrict the section's application to the invasion of a legally protected interest. 53 ALI Proceedings 64 (1976). Upon the basis of this analysis, the rule as to pleading special or general damages can take its proper place. An "injury" as an invasion of a legally protected right may cause either general or special damages. If the former, no special pleading is required. If the latter, the pleading must set forth the factual matters that give reasonable notice of the nature and extent of the claim. What has been said thus far should suffice to show that the notion of a tort action based on common law precepts is accurately described in Restatement (Second) of Torts § 870 (1977). It should also appear from the analysis that the stricture upon the doctrine of the New York case law requiring pleading and proof of pecuniary loss is not analytically sound. The only remaining question is a policy question concerning the propriety of the adoption of such a theory of tort liability in Missouri. There seems to be no sound reason based upon either precedent or policy why Missouri should not adopt the New York view. None of the principles relied upon in the evolution of the doctrine are foreign to our law. The concept is consistent with the mandate of our organic law that there should be a remedy for every injury. Mo.Const. Art. I, § 14. Missouri has not been reluctant to adopt new forms of action in tort based on Restatement principles. In Annbar Associates v. American Express Co., 565 S.W.2d 701 (Mo.App.1978), the tort of injurious falsehood, a cause of action based upon § 623A Restatement (Second) of Torts, was recognized. Corcoran v. Southwestern Bell Tel. Co., 572 S.W.2d 212 (Mo.App.1978), in analyzing a claim for invasion of privacy, relied upon Restatement (Second) of Torts § 652A. Our products liability cases have relied heavily on Restatement (Second) of Torts § 402A. Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo.1969); Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo.banc 1977); Brawner v. Liberty Industries, Inc., 573 S.W.2d 376 (Mo.App.1978). Nor does such a tort require a name; Annbar Associates, supra. The doctrine has been well developed in several states and Restatement (Second) of Torts § 870 has refined the principles of the case law into a workable guide for application of the doctrine. It must be concluded that, like New York and Massachusetts, as well as other states which have found support for the doctrine in common law principles, Missouri should adopt the Restatement view imposing such liability.