Locke, Jeffrey A., J.

INTRODUCTION

Plaintiff White City Shopping Center, LP (“White City”) brought this declaratory judgment action against defendant PR Restaurants, LLC (“PR”) seeking a declaration that it is not in breach of its commercial lease with PR. PR counterclaimed against White City for breach of contract, breach of implied covenant of good faith and fair dealing, and violation of G.L.c. 93A. PR now moves for a preliminary injunction, seeking to enjoin White City, its partners, employees or agents, from taking any action which would violate the exclusive use provision of its commercial lease with White City. Such actions include White City taking any action that would permit Chair 5 Restaurants, (“Chair *5665”), the intervening party, from operating a Qdoba restaurant at the White City Shopping Center (“Shopping Center”). For the following reasons, the defendant’s motion is DENIED.

BACKGROUND

Defendant, PR is a Massachusetts limited liability company that operates 22 Panera Bread (“Panera”) restaurants in the New England area. Panera is a café-style restaurant chain that sells sandwiches, coffee, and soup. Mitchell J. Roberts is the manager of PR PR is a tenant under a commercial lease for approximately 4,469 square feet of retail space in the Shopping Center located on Route 9, in Shrewsbury. White City, a limited partnership, is the landlord of the Shopping Center. Chair 5, the intervening party, is a Delaware limited liability company and franchisee of Qdoba, a Mexican-style restaurant chain that sells burritos, quesadillas, and tacos. Both Panera and Qdoba compete in the same “fast-casual" restaurant market.1

On March 14, 2001, White City entered into a ten-year lease (“the Lease”) with PR for retail space to operate a Panera restaurant in the Shopping Center. Lease negotiations lasted several months partly because of PR’s request to include an exclusivity clause in the Lease. PR authored the clause which underwent three revisions prior to the Lease’s execution. The exclusivity clause that both parties initially agreed to restricted White City from entering into new leases with businesses that primarily sell sandwiches. In its first iteration, Section 4.07 of the Lease states, in relevant part:

Landlord agrees not to enter into a lease, occupancy agreement or license affecting space in the Shopping Center or consent to an amendment to an existing lease permitting use . . . for a bakery or restaurant reasonably expected to have annual sales of sandwiches greater than ten percent (10%) of its total sales or primarily for the sale of high quality coffees or teas, such as, but not limited to, Starbucks, Tea-Luxe, Pete’s Coffee and Tea, and Finagle a Bagle . . . The foregoing shall not apply to (i) the use of the existing, vacant free-standing building in the Shopping Center for a Dunkin Donuts-type business, or for a business serving near-Eastern food and related products, (ii) restaurants primarily for sit-down table service, (iii) a Jewish delicatessen or (iv) a KFC restaurant operating in a new building following the demolition of the existing, freestanding building. No new building shall violate the no-build provision of this Lease.

Lease §4.07 (emphasis supplied).

The Lease contained no definition of “sandwiches” or “near-Eastern” food.2 During lease negotiations, PR and White City did not discuss the definition of “sandwiches” or the type of food products they intended the term to cover. Furthermore, the parties never indicated, specified, or agreed that the term “sandwiches” included tacos, burritos, and quesadillas.

Following the Lease’s execution in March, the parties amended the exclusivity clause to include additional restrictions. On December 30, 2005, Section 4.07 of the Lease was amended, as follows:

The foregoing restriction shall also apply (without limitation) to a Dunkin Donuts location and to a Jewish-style delicatessen within the Shopping Center, but shall not apply to (i) use of the existing, freestanding building in the Shopping Center partially occupied by Strawberries and recently expanded for a business serving near-eastern food and related products, (ii) restaurants for primarily for sit down table service or (iii) a Papa Gino’s restaurant (provided the same continues to operate with substantially the same categories of menu items as now apply to its stores and franchisees generally).

Lease §4.07.

Sometime after the amendment, PR learned that White City had entered into discussions with Chair 5 to lease commercial space. Chair 5 planned to develop and construct a Qdoba restaurant in the same Shopping Center as Panera. After learning of the parties’ plans, PR had its attorney contact White City to express concern and seek an assurance that White City would not enter into a lease with Chair 5. PR believed that White City’s leasing of space to Chair 5 violated Section 4.07 of the Lease. Specifically, PR believed, and later asserted that tacos, burritos, and quesadillas fell within meaning of “sandwiches” and therefore, White City was prohibited from leasing to Chair 5 under the Lease. White City refused to provide the requested assurance when PR’s attorney contacted it about the pending Chair 5 lease. On or around August 22, 2006, White City executed a lease with Chair 5 for 2,100 square feet of retail space in the Shopping Center. On September 28, 2006, White City filed an action against PR, seeking a declaratory judgment that it did not breach its lease with PR.

Since the execution of the Chair 5 lease, Chair 5 has spent over $85,000 in planning costs, and it is further contractually obligated to spend over $300,000 for the construction of a Qdoba restaurant in the Shopping Center. According to Chair 5, it has yet to schedule an opening date for its restaurant.

DISCUSSION

Under the well-established test of Packaging Industries Group v. Cheney, 380 Mass. 609, 617 (1980), a preliminary injunction is warranted only when the moving party establishes both a likelihood of success on the merits of the claim, and a substantial risk of irreparable harm in the absence of an injunction. Once these factors are established, the Court must balance them against the harm that an injunction will inflict on the opposing party, and must also consider the impact on the public interest. See T&D Video, Inc. v. City of Revere, 423 Mass. 577, 580 (1996).

*567A.Likelihood of Success on the Merits

To demonstrate a likelihood of success on the merits, PR must establish as a reasonable interpretation that the Mexican-style food products which Qdoba sells fall within the Lease’s restrictions. Absent an explicit and broad definition of “sandwiches” in the Lease itself, PR has not shown a likelihood of success to establish a right to injunctive relief under relevant contract principles.

The interpretation of a contract is question of law for the court. Sarvis v. Cooper, 40 Mass.App.Ct. 471, 475 (1996). A contract is construed to be given reasonable effect to each of its provisions. Id. “The object of the court is to construe the contract as a whole in a reasonable and practical way, consistent with its language, background and purpose.” USM Corp. v. Arthur D. Little Systems, Inc., 28 Mass.App.Ct. 108, 166 (1989). The starting point must be the actual words chosen by the parties to express their agreement. Id. If the words of the contract are plain and free from ambiguity, they must be construed in accordance with their ordinary and usual sense. See Ober v. National Casualty Co., 318 Mass. 27, 39 (1945).

Given that the term “sandwiches” is not ambiguous and the Lease does not provide a definition of it, this court applies the ordinary meaning of the word.3 The New Webster Third International Dictionary describes a “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them." Merriam-Webster, 2002. Under this definition and as dictated by common sense, this court finds that the term “sandwich” is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans. As such, there is no viable legal basis for barring White City from leasing to Chair 5.4 Further, PR has not proffered any evidence that the parties intended the term “sandwiches” to include burritos, tacos, and quesadillas. As the drafter of the exclusivity clause, PR did not include a definition of “sandwiches” in the lease nor communicate clearly to White City during lease negotiations that it intended to treat burritos, tacos, quesadillas, and sandwiches the same. Another factor weighing against PR’s favor is that it was aware that Mexican-style restaurants near the Shopping Center existed which sold burritos, tacos, and quesadillas prior to the execution of the Lease yet, PR made no attempt to define, discuss, and clarify the parties’ understanding of the term “sandwiches.” Accordingly, based on the record before the court, PR has not shown a likelihood of success on the merits.

B.Irreparable Harm

Irreparable harm occurs when a loss of rights cannot be remedied even though the party seeking an injunction prevails after a full hearing on the merits. Planned Parenthood League of Massachusetts, Inc. v. Operation Rescue, 406 Mass. 701, 710 (1990). Economic loss alone, however, does not usually rise to the level of irreparable harm which a party must establish to obtain a preliminary injunction. See Hull Mun. Lighting Plant v. Mass. Mun. Wholesale Elec., 399 Mass. 640, 643 (1987).

Here, PR has alleged irreparable harm on the basis that money damages will be difficult to quantify. However, this allegation is unsupported by any data showing that the profitability of Panera will disappear once Qdoba opens. Absent a showing by PR that Panera’s survival is dependent upon enjoining the opening of Qdoba and where both parties sell distinct and different food products, preliminary injunctive relief is inappropriate.

C.Balance of the Harms

This court further finds that the potential harm to the plaintiffs is outweighed by the harm to the defendant where plaintiffs have expended considerable time and money to plan and develop a Qdoba restaurant at the Shopping Center, in light of the fact that this court finds that White City did not breach its lease with PR. Even though PR vigorously argues for a broad definition of “sandwiches” under Section 4.07 to include food products sold by Qdoba, this argument does not change the fact that burritos, quesadillas, and tacos are not commonly understood to mean “sandwiches.” Because PR failed to use more specific language or definitions for “sandwiches” in the Lease, it is bound to the language and the common meaning attributable to “sandwiches” that the parties agreed upon when the Lease was drafted.

Having heard the parties and reviewing their filings, this court is not convinced that defendant, PR has carried its burden in showing a likelihood of success on the merits; that it will suffer irreparable harm if the injunctive relief sought is not granted; or that its harm, without the injunction, outweighs any harm to plaintiffs from being enjoined in the operation of its restaurant.

ORDER

For the foregoing reasons stated, it is hereby ORDERED that the Defendant’s motion for preliminary injunction be DENIED.

Hill, J.

The liability of an infant for an alleged battery is presented to this court for the first time. Brian *199Dailey (age five years, nine months) was visiting with Naomi Garratt, an adult and a sister of the plaintiff, Ruth Garratt, likewise an adult, in the backyard of the plaintiff’s home, on July 16, 1951. It is plaintiff’s contention that she came out into the backyard to talk with Naomi and that, as she started to sit down in a wood and canvas lawn chair, Brian deliberately pulled it out from under her. The only one of the three persons present so testifying was Naomi Garratt. (Ruth Garratt, the plaintiff, did not testify as to how or why she fell.) The trial court, unwilling to accept this testimony, adopted instead Brian Dailey’s version of what happened, and made the following findings:

“III. . . . that while Naomi Garratt and Brian Dailey were in the back yard the plaintiff, Ruth Garratt, came out of her house into the back yard. Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered the plaintiff, Ruth Garratt, about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair; that due to the defendant’s small size and lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of her hip, and other injuries and damages as hereinafter set forth.

“IV. That the preponderance of the evidence in this case establishes that when the defendant, Brian Dailey, moved the chair in question he did not have any wilful or unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person or any objects appurtenant thereto; that the circumstances which immediately preceded the fall of the plaintiff established that the defendant, Brian Dailey, did not have purpose, intent or design to perform a prank or to effect an assault and battery upon the person of the plaintiff." (Italics ours, for a purpose hereinafter indicated.)

It is conceded that Ruth Garratt’s fall resulted in a fractured hip and other painful and serious injuries. To ob*200viate the necessity of a retrial in the event this court determines that she was entitled to a judgment against Brian Dailey, the amount of her damage was found to be eleven thousand dollars. Plaintiff appeals from a judgment dismissing the action and asks for the entry of a judgment in that amount or a new trial.

The authorities generally, but with certain notable exceptions (see Bohlen, “Liability in Tort of Infants and Insane Persons,” 23 Mich. L. Rev. 9), state that, when a minor has committed a tort with force, he is liable to be proceeded against as any other person would be. Paul v. Hummel (1868), 43 Mo. 119, 97 Am. Dec. 381; Huchting v. Engel (1863), 17 Wis. 237, 84 Am. Dec. 741; Briese v. Maechtle (1911), 146 Wis. 89, 130 N. W. 893; 1 Cooley on Torts (4th ed.) 194, § 66; Prosser on Torts 1085, § 108; 2 Kent’s Commentaries 241; 27 Am. Jur. 812, Infants, § 90.

In our analysis of the applicable law, we start with the basic premise that Brian, whether five or fifty-five, must have committed some wrongful act before he could be liable for appellant’s injuries.

The trial court’s finding that Brian was a visitor in the Garratt backyard is supported by the evidence and negatives appellant’s assertion that Brian was a trespasser and had no right to touch, move, or sit in any chair in that yard, and that contention will not receive further consideration.

It is urged that Brian’s action in moving the chair constituted a battery. A definition (not all-inclusive but sufficient for our purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. The rule that determines liability for battery is given in 1 Restatement, Torts, 29, § 13, as:

“An act which, directly or indirectly, is the legal cause of a harmful contact with another’s person makes the actor liable to the other, if

“(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and

“(b) the contact is not consented to by the other or the *201other’s consent thereto is procured by fraud or duress, and

“ (c) the contact is not otherwise privileged.”

We have in this case no question of consent or privilege. We therefore proceed to an immediate consideration of intent and its place in the law of battery. In the comment on clause (a), the Restatement says:

“Character of actor’s intention. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced.”

See, also, Prosser on Torts 41, § 8.

We have here the conceded volitional act of Brian, i.e., the moving of a chair. Had the plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of sitting down, Brian’s action would patently have been for the purpose or with the intent of causing the plaintiff’s bodily contact with the ground, and she would be entitled to a judgment against him for the resulting damages. Vosburg v. Putney (1891), 80 Wis. 523, 50 N. W. 403; Briese v. Maechtle, supra.

The plaintiff based her case on that theory, and the trial court held that she failed in her proof and accepted Brian’s version of the facts rather than that given by the eyewitness who testified for the plaintiff. After the trial court determined that the plaintiff had not established her theory of a battery (i.e., that Brian had pulled the chair out from under the plaintiff while she was in the act of sitting down), it then became concerned with whether a battery was established under the facts as it found them to be.

In this connection, we quote another portion of the comment on the “Character of actor’s intention,” relating to clause (a) of the rule from the Restatement heretofore set forth:

“It is not enough that the act itself is intentionally done and this, even though the actor realizes or should realize *202that it contains a very grave risk of bringing about the contact or apprehension. Such realization may make the actor’s conduct negligent or even reckless but unless he realizes that to a substantial certainty, the contact or apprehension will result, the actor has not that intention which is necessary to make him liable under the rule stated in this Section.”

A battery would be established if, in addition to plaintiff’s fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. If Brian had any of the intents which the trial court found, in the italicized portions of the findings of fact quoted above, that he did not have, he would of course have had the knowledge to which we have referred. The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her, or to commit an assault and battery on her would not absolve him from liability if in fact he had such knowledge. Mercer v. Corbin (1889), 117 Ind. 450, 20 N. E. 132, 3 L. R. A. 221. Without such knowledge, there would be nothing wrongful about Brian’s act in moving the chair, and, there being no wrongful act, there would be no liability.

While a finding that Brian had no such knowledge can be inferred from the findings made, we believe that before the plaintiff’s action in such a case should be dismissed there should be no question but that the trial court had passed upon that issue; hence, the case should be remanded for clarification of the findings to specifically cover the question of Brian’s knowledge, because intent could be inferred therefrom. If the court finds that he had such knowledge, the necessary intent will be established and the plaintiff will be entitled to recover, even though there was no purpose to injure or embarrass the plaintiff. Vosburg v. Putney, supra. If Brian did not have such knowledge, there was no wrongful act by him, and the basic premise of liability on the theory of a battery was not established.

It will be noted that the law of battery as we have *203discussed it is the law applicable to adults, and no significance has been attached to the fact that Brian was a child less than six years of age when the alleged battery occurred. The only circumstance where Brian’s age is of any consequence is in determining what he knew, and there his experience, capacity, and understanding are of course material.

From what has been said, it is clear that we find no merit in plaintiff’s contention that we can direct the entry of a judgment for eleven thousand dollars in her favor on the record now before us.

Nor do we find any error in the record that warrants a new trial.

What we have said concerning intent in relation to batteries caused by the physical contact of a plaintiff with the ground or floor as the result of the removal of a chair by a defendant, furnishes the basis for the answer to the contention of the plaintiff that the trial court changed its theory of the applicable law after the trial, and that she was prejudiced thereby.

It is clear to us that there was no change in theory so far as the plaintiff’s case was concerned. The trial court consistently from beginning to end recognized that, if the plaintiff proved what she alleged and her eyewitness testified, namely, that Brian pulled the chair out from under the plaintiff while she was in the act of sitting down and she fell to the ground in consequence thereof, a battery was established. Had she proved that state of facts, then the trial court’s comments about inability to find any intent (from the connotation of motivation) to injure or embarrass the plaintiff, and the italicized portions of his findings as above set forth, could have indicated a change of theory. But what must be recognized is that the trial court was trying in those comments and in the italicized findings to express the law applicable, not to the facts as the plaintiff contended they were, but to the facts as the trial court found them to be. The remand for clarification gives the plaintiff an opportunity to secure a judgment even though the trial court did not accept her version of the facts, if from all the evidence the trial court can find that Brian knew with sub*204stantial certainty that the plaintiff intended to sit down where the chair had been before he moved it, and still without reference to motivation.

The plaintiff-appellant urges as another ground for a new trial that she was refused the right to cross-examine Brian. Some twenty pages of cross-examination indicate that there was no refusal of the right of cross-examination. The only occasion that impressed us as being a restriction on the right of cross-examination occurred when plaintiff was attempting to develop the fact that Brian had had chairs pulled out from under him at kindergarten and had complained about it. Plaintiff’s counsel sought to do this by asking questions concerning statements made at Brian’s home and in a court reporter’s office. When objections were sustained, counsel for plaintiff stated that he was asking about the conversations to refresh the recollection of the child, and made an offer of proof. The fact that plaintiff was seeking to develop came into the record by the very simple method of asking Brian what had happened at kindergarten. Consequently, what plaintiff offered to prove by the cross-examination is in the record, and the restriction imposed by the trial court was not prejudicial.

It is argued that some courts predicate an infant’s liability for tort upon the basis of the existence of an estate in the infant; hence it was error for the trial court to refuse to admit as an exhibit a policy of liability insurance as evidence that there was a source from which a judgment might be satisfied. In our opinion, the liability of an infant for his tort does not depend upon the size of his estate or even upon the existence of one. That is a matter of concern only to the plaintiff who seeks to enforce a judgment against the infant.

The motion for a new trial was also based on newly discovered evidence. The case having been tried to the court, the trial judge was certainly in a position to know whether that evidence would change the result on a new trial. It was not of a character that would make the denial of the motion an abuse of discretion.

*205The plaintiff complains, and with some justice, that she was not permitted to take a pretrial deposition of the defendant, Brian Dailey. While Rule of Pleading, Practice, and Procedure 30 (b), 34A Wn. (2d) 91, gives the trial court the right “for good cause shown” to prevent the taking of a deposition, it seems to us that though it might well have been taken under the supervision of the court to protect the child from leading, misleading, and confusing questions, the deposition should have been allowed, if the child was to be permitted to testify at the trial. If, however, the refusal to allow the taking of the deposition was an abuse of discretion, and that we are not prepared to hold, it has not been established that the refusal constituted prejudicial error. (Parenthetically we would add that the right to a review of the rulings on pretrial procedure or with respect to depositions or discovery or incidental procedural motions preceding the trial seems to be limited to an appeal from a final judgment (2 Barron and Holtzoff, Federal Practice and Procedure (rules ed.), § 803; 3. Id. § 1552) and realistically such a review is illusory for the reasons given by Prof. David W. Louisell. See 36 Minn. L. Rev. 654.)

The cause is remanded for clarification, with instructions to make definite findings on the issue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to sit down where the chair which he moved had been, and to change the judgment if the findings warrant it.

Costs on this appeal will abide the ultimate decision of the superior court. If a judgment is entered for the plaintiff, Ruth Garratt, appellant here, she shall be entitled to her costs on this appeal. If, however, the judgment of dismissal remains unchanged, the respondent will be entitled to recover his costs on this appeal.

Remanded for clarification.

Schwellenbach, Donworth, and Weaver, JJ., concur.

May 3, 1955. Petition for rehearing denied.

Levin, J.

The questions presented are whether the exclusive remedy provision of the Workers’ Disability Compensation Act bars an employee from commencing a civil action against his employer where the employee alleges (1) that the employer committed an intentional tort against the employee, and (2) that the employer breached its contract to provide a safe workplace.

i

Plaintiff Ronald Beauchamp was employed for two years as a research chemist by defendant Dow Chemical Company. He applied for workers’ compensation benefits, alleging impairment of normal bodily functions caused by exposure to tordon, 2, 4-D, and 2, 4, 5-T ("agent orange”).

Ronald Beauchamp and his wife, Karen, thereafter commenced this civil action against Dow. The complaint alleged that Ronald Beauchamp had been physically and mentally affected by exposure to "agent orange” and that Karen Beauchamp had suffered loss of consortium.1 The complaint further alleged that Dow intentionally misrepresented and fraudulently concealed the potential danger, that Dow intentionally assaulted Ronald Beauchamp, *5that Dow intentionally inflicted emotional distress, and that Dow breached its contract to provide safe working conditions. The circuit court granted summary judgment for Dow on all four counts on the basis that the complaint failed to state a claim on which relief could be granted. It does not appear that there had been any discovery.

The decision of the Court of Appeals, reversing in part and affirming in part, was "premised on . . . [its] understanding that an allegation of a 'true’ intentional tort is not within the exclusive remedy provision of the [Workers’ Disability Compensation Act].”2 A "true” intentional tort, as defined by the Court of Appeals, is one in which the injury, as well as the act, was intended. Apparently applying this distinction, the Court of Appeals reversed the judgment of the circuit court and remanded the cause for trial on the intentional infliction of emotional distress count. The Court of Appeals also reversed and remanded for trial on the breach of contract claim, stating that a contract claim was not barred by the exclusive remedy provision of the act. The Court of Appeals affirmed the dismissal by the circuit court of the other two tort counts.

We conclude that the contract claim is barred by the exclusive remedy provision and remand for further proceedings on the intentional tort claims.

ii

In reviewing a dismissal for failure to state a claim, we accept as true all well-pleaded facts3 and determine whether the claim is so clearly unen*6forceable as a matter of law that no factual development can possibly justify a recovery.4

hi

The origin and evolution of the workers’ compensation act indicate that the legislation, including the exclusive remedy provision, was designed to provide an alternative compensation system respecting accidental and not intentional injuries.

A

In 1911, the Legislature created a "commission of inquiry to make the necessary investigation, and to prepare and submit a report . . . setting forth a comprehensive plan and recommending legislative action providing compensation for accidental injuries or death of workmen arising out of and in the course of employment . . . .”5

The commission’s "creation resulted from a wide dissatisfaction with the present system of employers’ liability for negligence as to employes.”6 At the end of the nineteenth century, "the industrial accident rate had reached alarming proportions.”7 As plants grew larger and more dangerous, injuries became more frequent, and proof that injury was due to the fault of the employer without contributory fault of the employee was more diffic*7ult.8 An increasing number of injuries were left uncompensated.9 Dean Prosser wrote that between seventy and ninety-four percent of the injuries were uncompensated.10 A national commission found that workers recovered for fifteen percent of their injuries even though seventy percent were caused by employer negligence or workplace conditions.11

Negligence by the employer was not enough to assure recovery by an employee injured in an accident, because of three defenses: assumption of risk, the fellow-servant doctrine, and contributory negligence. The Michigan commission reported that these "three defences have been the subject of much criticism, and the discussion that has arisen concerning them plays an important part in the agitation for a change in the system of employers liability.”12 These defenses, it is noteworthy, did not apply to intentional torts, only to negligence. The problem addressed in the report was reparations for "accidental”13 injury under the existing system of negligence liability. There is no discussion in the report of intentional torts by employers.

*8B

The workers’ compensation act enacted in 1912 put into effect the proposals made by the commission. The act provided compensation for the "accidental injury to or death of employes.”14 Although workers’ compensation coverage was made elective for those in the private sector, the "so-called right of choice to come or not to come under this statute was something less than real” because whether the employer elected coverage or not the three common-law defenses were abolished for employment injuries.15 If the employer elected coverage, however, he was not subject "to any other liability whatsoever, save as herein provided for the death of or personal injury to any employe for which death or injury compensation is recoverable under this act . . . .”16 The Legislature had essentially rewritten the law governing accidental injuries in employment by addressing the criticisms of the existing system of liability for negligence in employment.

The employer was given two choices on how to handle accidental injuries: choose the workers’ compensation system and provide a certain remedy that did not consider the negligence of either the employer or the employee or reject the workers’ compensation system and risk uncertain remedies determined by whether or not the employer was negligent regardless of negligence of the employee or fellow servants. When the system became compulsory for all employers in 1943,17 both *9employer and employee negligence had ceased to be a consideration. For accidents, an insurance scheme had replaced the former system of employer liability based on negligence. Legislatures in this and other states had come to view industrial accidents as the natural accompaniment of the industrial system.18 The costs of accidental injury were to be borne by industry.19

c

Among the most litigated questions following the passage of the act was the definition of accident. The question was whether an accident included an unexpected injury that occurred without a mishap as well as an unexpected injury caused by a mishap: Would an employee who slipped a disc picking up a barrel recover or just the employee hit by the barrel falling off a shelf? In Adams v Acme White Lead & Color Works, 182 Mich 157; 148 NW 485 (1914), this Court held that an unexpected injury (lead poisoning) that occurred without a mishap was not compensable. The decision concerned an occupational disease, but the holding was extended to "strain” cases.20

In 1937, an occupational disease amendment was adopted. In 1943, the act was again amended, and the words "accident” and "accidental” were removed in approximately fifty places in the act.21 *10The word "accident,” however, still remained in the title, and in a few places in the text. The deletion of the word "accidental” generated confusion in the case law. On one side, it was suggested that the change was merely cosmetic, that is, the removal of the word "accidental” or "accident” was merely to clarify that recovery also could be had for occupational diseases.22 On the other side, it was suggested that the removal of the word "accident” in the 1943 amendments "completely wiped out the requirement of 'accidental’ injury as our Court had theretofore erroneously construed it ”23 Tftg "erroneous” interpretation was that an "accidental” injury did not include the unexpected result — the slipped disc when lifting a barrel — as well as the unexpected cause, the barrel falling off the shelf and hitting the employee. In 1955, this Court in Sheppard v Michigan National Bank, 348 Mich 577; 83 NW2d 614 (1957), resolved the controversy, ruling that the act covered both types of injuries.

Whatever may have been the reason for the removal of the term "accident” from the act, it was not removed because the Legislature intended to expand the scope of the exclusive remedy provision to include intentional torts:

The problem dealt with by these amendments was that posed by industrial injuries resulting from ordinary work performed in an ordinary manner and previously held noncompensable because "non-accidental” under the Court’s previous definition.[24]

Intentional torts were not at issue._

*11IV

There are no decisions of this Court on the question whether the exclusive remedy provision precludes an action by an employee who alleges that his employer committed an intentional tort against him. The Court of Appeals is divided on the question. A number of panels of the Court of Appeals have concluded that the exclusive remedy provision of the act does not bar an. employee’s intentional tort action against the employer. Beauchamp v Dow Chemical Co, 140 Mich App 699; 364 NW2d 286 (1984); Barnes v Double Seal Glass Co, 129 Mich App 66; 341 NW2d 812 (1983); Kissinger v Mannor, 92 Mich App 572; 285 NW2d 214 (1979); Schutt v Lado, 138 Mich App 433; 360 NW2d 214 (1984); McKinley v Holiday Inn, 115 Mich App 160; 320 NW2d 329 (1982); Burgess v Holloway Construction Co, 123 Mich App 505, 508; 332 NW2d 584 (1983). At least one panel has concluded that such an action is barred. Genson v Bofors-Lakeway, Inc, 122 Mich App 470, 478; 332 NW2d 507 (1983), lv den 419 Mich 956 (1984).

We conclude that actions for intentional torts are not barred. Before the workers’ compensation act was enacted, employers were liable for intentional torts they committed against their employees. The workers’ compensation act, as explained above, was a comprehensive restructuring of the mechanism for dealing with accidental injuries. The Legislature did not intend "that the exclusive remedy section of the act be construed to preclude a plaintiff’s recovery for injuries suffered in an intentional tort . . . .” Kissinger v Mannor, supra at 577; McKinley v Holiday Inn, supra.

The statement in Genson that "[a]s no language in the statute suggests a separate exception for intentional torts, we can only create such an ex*12ception through theorization about legislative intent . . .”25 is based on a false assumption. The reason there is "no language [that] suggests a separate exception for intentional torts,” is that the Legislature was addressing accidental, not intentional, injuries. Thus it was the Genson Court that engaged in "theorization about legislative intent” concerning whether or not intentional torts are precluded by the act. Because the Legislature was addressing accidental, not intentional, injuries, an employee’s preexisting remedy for intentional torts by the employer was not affected by the act absent clear expression to the contrary.

The only nonaccidental acts explicitly addressed by the act are an employee’s self-inflicted injuries. The act states that "[i]f the employee is injured by reason of his intentional and wilful misconduct, he shall not receive compensation under the provisions of this act.”26 Dow suggests that because this type of intentional misconduct by employees was excluded from the coverage of the act intentional torts by employers were meant to be included within the coverage of the act and also within the ambit of the exclusivity provision.

We find this to be a misreading of legislative history and intent. The commission did propose excluding from coverage a worker’s self-inflicted injury. According to the commission a workers’ compensation system would provide compensation for "every accident irrespective of fault, unless the fault be wilful on the part of the employe.”27 Nevertheless, the discussion of an employee’s intentional act is framed — as is the entire report — in terms of negligence law. In a passage in the bill it *13proposed to the Legislature, the commission expressed its conclusion about self-inflicted injuries as follows: "[I]t shall not be a defence . . . That the employe was negligent unless and except it shall appear that such negligence was wilful.”28 This passage was adopted word-for-word in the act. The Legislature was concerned with apparent negligence that was in truth an act of attempted fraud. The inherently contradictory phrase, "negligence was wilful,” is unfortunate, but the meaning was clear.

The Legislature was not, in 1912, considering the law governing intentional torts by employers. To avoid confusion, the Legislature made it clear that by removing the employer’s defense in negligence, and easing recovery by employees, it was not making the employer liable for injuries employees wilfully inflicted on themselves.29

The accident requirement assures that neither the employee nor the employer can use the workers’ compensation act as a means of benefiting from their own intentional misconduct. Excluding recovery for self-inflicted injuries because self-inflicted injuries are not accidents is consistent with preventing employers from using the exclusive remedy provision of the act to shield them from civil suits for their intentional torts, because intentional torts are also not accidents. The employee will not be heard to claim his injury was an accident when the employee intentionally injured himself. Employers will not be heard to suggest that the exclusive remedy provision shields them from civil actions for intentional torts they commit *14against their employees, because, as Professor Larson has explained, "If the incident gets into court not as a compensation claim but as a damage suit by the employee against an employer-assailant, it is the employer who must affirmatively plead the exclusiveness of the act as a defense. To do this he must allege that the injury was an accident — and how can he do this, when he himself has deliberately produced it?”30

Dow correctly points out that this Court has found deliberate assaults by coemployees or third persons to be compensable under the act.31 Apparently, the Court found the assaults to be accidents.32 As Professor Larson explained, "[T]he early difficulty presented by the argument that such an injury was the result of intention as distinguished from accident was overcome by the simple expedient of viewing the affair from the point of view of the victim rather than of the assailant, since from the victim’s point of view the assault was an unexpected and untoward mishap.”33 Professor Larson has suggested that in deciding whether an incident was an accident, the incident should always be viewed from the perspective of the person seeking the protection of the act:34 When the employee seeks to recover benefits, the question is whether the injury was an accident from the employee’s perspective; if the employer seeks to impose the accident requirement as a defense, the question is whether the injury was an *15accident from the employer’s perspective. Once it is recognized that the accident requirement is examined from the perspective of the party seeking to benefit from the alleged accident, the apparent conflict raised by Dow is resolved.

Whether or not the injury was an accident from the employer’s point of view would depend on whether the "employer has commanded or expressly authorized the assault . . . .”35 If the employer did, the injury was not an accident, and the employer would be liable in a civil action for the intentional tort committed against the employee. When, however, the "person who intentionally injures the employee is not the employer in person nor a person who is realistically the alter ego of the corporation, . . . both the legal and the moral reasons for permitting a common-law suit against the employer collapse, and a substantial majority of modern cases bar a damage suit against the employer.”36 The employee’s sole remedy against the émployer would be the workers’ compensation claim. The exclusivity provision of the workers’ compensation act would not affect an intentional tort action against the coemployee.

Dow has argued that the workers’ compensation act embodies a quid pro quo, and the employer’s quid is absolute immunity from liability other than that provided for in the workers’ compensation act. Taken out of context, the language of the exclusivity provision lends apparent support to Dow’s position: "The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer.”37 Never*16theless, the legislative history indicates the quid pro quo concerned accidents; intentional torts by employers were never part of the bargain struck.

Turning our focus to theorization about what the Legislature would or might have done had it considered intentional torts when it was addressing the problem of accidents, we doubt that the Legislature would have included intentional torts within the ambit of the exclusivity provision. Including intentional torts within the exclusivity provision would mean the Legislature intended to limit substantially an employee’s recovery for intentional injury inflicted by the employer. It would mean that the Legislature not only intended to limit the employer’s liability, but also intended to allow "an intentional tortfeasor to shift his liability to a fund paid for with premiums collected from innocent employers.”38 Intentional misconduct would seem to be the type of behavior the Legislature would most want to deter and punish.39 Including intentional torts within the exclusivity provision would in that sense be counterproductive.40

Because the Legislature intended to limit and diffuse liability for accidental injury by no means suggests the Legislature intended to limit and diffuse liability for intentional torts. Accidents are an inevitable part of industrial production; intentional torts by employers are not.

In certain instances, there would be no remedy *17at all under the Dow analysis for employees who were the victims of intentional torts. An employer, for example, who intentionally disfigured an employee without affecting the employee’s ability to work would not be subject to liability under the workers’ compensation act41 or, under Dow’s analysis, subject to civil suit.

v

In "most” states the exclusivity provision of the workers’ compensation act does not preclude a civil action by an employee alleging an intentional tort by the employer.42 In some of these states intentional tort actions have been explicitly excluded in the workers’ compensation legislation itself.43 In others, however, and these are most *18relevant for our purposes, the courts have found that intentional tort actions can be brought even though there is an exclusivity provision and there is no statutory language explicitly allowing civil actions for intentional torts.44

The reasoning in many of these opinions is similar to our own. The decisions are based on the recognition that the "Workmen’s Compensation Law deals not with intentional wrongs but only with accidental injuries,”45 and an employer who inflicts an intentional tort on his employee cannot claim it is accidental.46 In these cases the courts have manifested their collective unwillingness to include intentional torts by employers within the exclusivity provision when there is no evidence to support and no "sound reason” to conclude that the legislature intended to limit the liability of an *19intentional tortfeasor when it passed legislation directed at accidental injuries.47

Many of the arguments relied on by Dow to suggest intentional torts should be included within the exclusivity provision were made and rejected in these cases as well. Statutory amendments removing the word "accidental” were not understood to mean that intentional torts were covered. In Pennsylvania, for example, the workers’ compensation act expressly covered only accidents.48 In 1972, the act was amended to cover all injuries occurring in the course of employment.49 The courts interpreting the amended provisions have noted that "[n]othing is said in any of them about deliberate acts or assaults by the employer.”50 Such amendments have been regarded as inelegant draftsmanship, to be construed — as other statutes expressly state — to extend coverage to "an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment . . . .”51

The express exclusion of self-inflicted injuries in these acts has not been understood to suggest that intentional torts by employers are implicitly included.52 The courts have also rejected the argument that because the law of the state allows employees to recover workers’ compensation for physical assaults by fellow employees, an employer *20can claim that intentional assaults are covered by the exclusivity provision.53

VI

Although a number of courts have agreed that the exclusivity provision of a workers’ compensation act does not preclude employees from bringing intentional tort actions against their employers, the courts have not been able to agree on a definition of "intentional” in this context. Some courts have limited the recovery to so-called "true intentional torts,” that is, when the employer truly intended the injury as well as the act. Other courts have relied on the standard in the Restatement of Torts, 2d, stating that when the employer intended the act that caused the injury and knew that the injury was substantially certain to occur from the act, the employer has committed an intentional tort.54 The substantial certainty test has apparently been extended by at least one state to cover substantial likelihood of injury.55

A

The Court of Appeals in the instant case de*21dared, "In order to allege an intentional tort outside the act, the plaintiff must allege that the employer intended the injury itself and not merely the activity leading to the injury.”56 A number of states have adopted a similar intentional tort test requiring an actual intent to injure. The case law in Arkansas is illustrative.

In Heskett v Fisher Laundry & Cleaners Co, 217 Ark 350; 230 SW2d 28 (1950), the Arkansas Supreme Court allowed an employee to bring a civil action for intentional tort against his employer for "a vicious, unprovoked, intentional and violent assault and battery . . . .”57 In a later case, Griffin v George’s, Inc, 267 Ark 91, 93; 589 SW2d 24 (1979), the court declared that "only if an employer acts with an actual, specific, and deliberate intent to injure may an employee sue the employer in common-law tort.” An allegation in Griíñn that the employer "recognized the substantial certainty that [an unguarded grain auger] would result in injury” did not contain the requisite degree of intent necessary to be classified an intentional tort for the purposes of workers’ compensation law.58

B

The "substantial certainty” line of cases defines intentional tort more broadly. An intentional tort "is not . . . limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the *22result.”59 It does not matter whether the employer wishes the injury would not occur or does not care whether it occurs.60 If the injury is substantially certain to occur as a consequence of actions the employer intended, the employer is deemed to have intended the injuries as well. The substantial certainty test tracks the Restatement definition of an intentional tort.61

The distinction between the substantial certainty intentional tort test and the "true” intentional tort test can become important in cases such as Griffin in which the facts were assumed, for the purpose of reviewing a trial court decision granting defendant’s general demurer, to be as follows: An employee was mangled when he fell into an auger. The employer had ordered the protective grate removed. The surface near the auger "sloped toward the opening . . . and, since there was usually grain lying upon this surface, one coming near the opening could easily slip . . . .”62 This violation of safety standards was extremely hazardous and the employer "recognized the substantial certainty that it would result in injury to an employee.”63 Nevertheless, the employer placed Griffin "in direct danger of injury ... in spite of the fact that it was substantially certain that an employee in Griffin’s position would be injured by reason thereof.”64 The court, using the true intentional tort test, concluded that the employer did not "desire to bring about the consequences of the *23act,”65 and, as a result, the tort action was barred by the exclusivity provision of the workers’ compensation statute.

Another case that might be decided differently had the standard been substantial certainty rather than true intent was Serna v Statewide Contractors, 6 Ariz App 12; 429 P2d 504 (1967). Two men were killed when a ditch caved in and buried them alive. In the five months preceding the disaster, inspectors had warned that "the sides of the ditch were not sloped properly, the side was sandy, more shoring was needed, and escape ladders should be placed every 25 feet.” During that time a cave-in had occurred, burying one of the decedents up to his waist. All warnings were ignored. The court disallowed the action, finding that the act was not "done knowingly and purposely, with the direct object of injuring another.” Id. at 15.

c

The recent People v Film Recovery Systems case decided in Illinois adds a new perspective to the different intentional tort standards.66 The facts in the case were as follows: Film Recovery Systems went into the business of recovering silver from film negatives. This was done by placing the negatives into vats of cyanide. Hydrogen cyanide gas would bubble up from the vats and there was inadequate ventilation. The employer knew about the dangers. The labels on the chemicals being used contained adequate warnings; as a result, the employer hired only employees who could not speak or read English. The workers complained *24about the fumes daily. In 1981, an inspector had warned that the operation had outgrown the plant. The employer’s response was to move the executive offices while tripling the size of the operations. Eventually one worker died and several others were seriously injured because of hydrogen cyanide poisoning. The corporate officers were convicted of involuntary manslaughter.

The facts in this case are a good example of the type of employer conduct that would seem to meet the substantial certainty as well as a substantial likelihood of harm standard. It is questionable, however, whether even this outrageous conduct would constitute a "true intentional tort.” The employer did not desire to injure or kill the employees, even though the employer knew with a substantial certainty that his conduct would injure the employees.67

D

Selecting the appropriate intentional tort test is difficult. The problem with the substantial certainty test is that it is difficult to draw the line between substantial certainty and substantial risk.68 In applying the substantial certainty test, some courts have confused intentional, reckless, and even negligent misconduct, and therefore blurred the line between intentional and acciden*25tal injuries. The true intentional tort standard keeps the distinction clear.69

The problem with the true intentional tort test appears to be that it allows employers to injure and even kill employees and suffer only workers’ compensation damages so long as the employer did not specifically intend to hurt the worker. The facts in the Film Recovery Systems case are a good example. Prohibiting a civil action in such a case "would allow a corporation to 'cost-out’ an investment decision to kill workers.”70 Blankenship v Cincinnati Milacron Chemicals, 69 Ohio St 2d 608, 617; 433 NE2d 572 (1982) (Celebrezze, J., concurring).

We adopt the substantial certainty standard. In an effort to avoid the misapplication of that test illustrated by the Ohio line of cases (see n 55), we stress that substantial certainty should not be equated with substantial likelihood. The facts in Serna and Film Recovery Systems are examples of what would constitute substantial certainty.

VII

The last remaining tort issue to be addressed is Karen Beauchamp’s allegation that she had been deprived of a normal marriage relationship and suffered a loss of consortium. Had we found that *26Ronald Beauchamp’s injuries were accidental and thus his civil action in tort was barred by the exclusivity provision, Karen Beauchamp’s claims arising out of the injury to her husband would also be barred.71 At this point, however, the injuries to Ronald Beauchamp might still be found to be the result of an intentional tort by Dow which means Karen Beauchamp still may recover if she has suffered a loss of consortium.72 As we have indicated above, for the purpose of reviewing a trial court’s decision to grant a defendant’s motion for summary judgment, we accept as true all well-pleaded facts in the plaintiff’s complaint. We therefore reverse the trial court’s decision dismissing Karen Beauchamp’s loss of consortium complaint.

VIII

The second issue presented is whether the exclusivity provision of the workers’ compensation act precludes a common-law civil action by an employee who alleges that his employer breached a contractual promise to provide safe working conditions.

A claim that an injury is caused by failure to provide safe working conditions is essentially a recasting in contract form of a claim that the employee was injured by the employer’s negligence. It is not even a recasting in contract form of an intentional tort. The workers’ compensation act provides a quid pro quo for accidental injury. Limited but certain compensation for accidental injuries caused by unsafe working conditions has *27been substituted for the right to sue for accidental injuries caused by unsafe working conditions. Allowing a civil action as well as compensation for an injury caused by failure to provide safe working conditions would alter the balance struck by the legislation.

The trial court granted defendant’s summary judgment motion regarding Beauchamp’s contract claim. The Court of Appeals reversed relying on its decision in Milton v Oakland Co. 73 The Court of Appeals in Milton allowed a civil action for contract claims involving the right to recover for violations of the merit system, not for contract claims involving injuries covered by the workers’ compensation act. The Court of Appeals misinterpreted the holding in Milton. An allegation that an injury resulted from an employer’s failure to provide safe working conditions is exactly what is covered by the workers’ compensation act. It is essentially a claim that the employee was injured by the employer’s negligence. We hold that the "all-inclusive character of the exclusiveness principle results in barring actions for covered injuries even though the plaintiff casts his action in the form of a breach of some kind of contract.”74

Remanded to the circuit court for further proceedings consistent with this opinion. We do not retain jurisdiction._

*28Williams, C.J., and Cavanagh and Archer, JJ., concurred with Levin, J.

Boyle, J.

(concurring in part and dissenting in part). I agree with Justice Levin’s conclusion that injuries intentionally imposed upon employees by employers are outside the immunity of the workers’ compensation exclusive remedy provision, MCL 418.131; MSA 17.237(131).1 I also agree that for an intentional injury to escape the exclusivity bar, the plaintiff need not prove that the employer intended the actual injury which occurred. I write separately to clarify the proper standard of the substantial certainty test adopted by this Court in the instant case.

Most state courts have recognized an exception to the exclusive remedy provisions of workers’ compensation acts in situations involving the intentional injury of an employee by an employer. See, generally, 2A Larson, Workmen’s Compensation Law, § 68, pp 13-1 to 13-106. This exception, however, has generally been limited to circumstances involving an intentional assault by the employer on the employee when the employer acts in person. Id., § 68.11. The most common examples are cases involving assault and battery. See, e.g., Doney v Tambouratgis, 73 Cal App 3d 448; 140 Cal *29Rptr 782 (1977), vacated and aff'd on other grounds 23 Cal 3d 91; 151 Cal Rptr 347; 587 P2d 1160 (1979) (nude bar dancer attacked by employer after she refused to disrobe in employer’s private office); Schutt v Lado, 138 Mich App 433; 360 NW2d 214 (1984) (employee imprisoned by employer in office, assaulted and battered).

As the instant case illustrates, once an exception to the workers’ compensation exclusive remedy provision is acknowledged for intentional torts, the main issue is the type of "intentional” behavior which escapes the statutory bar. Under a rule described in Larson as "almost unanimous,” § 68.13, p 13-8, most courts hold that the employer’s injurious behavior must be genuinely intentional:

[T]he common-law liability of the employer cannot, under the almost unanimous rule, be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury. [Id., pp 13-8 to 13-9. Citations omitted.]

Larson explains some of the allegations which, falling short of actual intent to injure, fail to escape the exclusive remedy bar:

Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, wilfully failing to furnish a safe place to work, or even wilfully and unlawfully violating a safety statute, it still falls short of the kind of actual intention to injure that robs the injury of accidental character. [Id., pp 13-22 to 13-26.]

*30What type of conduct, then, constitutes an "intentional wrong” that is outside the exclusivity provision? Under standard tort analysis, "intent” is more than an actual desire to achieve the injury which occurs:

[I]ntent is broader than a desire or purpose to bring about physical results. It extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does. The actor who fires a bullet into a dense crowd may fervently pray that the bullet will hit no one, but if the actor knows that it is unavoidable that the bullet will hit someone, the actor intends that consequence. [Prosser & Keeton, Torts (5th ed), § 8, p 35. Emphasis added.]

Similarly, § 8A of the Restatement of Torts, 2d, states:

The word "intent” is used throughout the Restatement of this Subject to denote that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to result from it.

Adopting the above definitions of "intent,” I would hold that the exclusive remedy provision of the workers’ compensation act does not bar civil suit where an employee alleges either that the employer intended the injury which occurred or that the employer acted despite the belief that the consequences were substantially certain to follow from what the employer did. As the New Jersey Supreme Court recently observed, the exclusive remedy provision should not be avoided for negli*31gence or gross negligence — "a virtual certainty” of injury must be proved. Millison v E I duPont deNemours & Co, 101 NJ 161, 178-179; 501 A2d 505 (1985). As Prosser & Keeton, supra, p 36, state:

[T]he mere knowledge and appreciation of a risk —something short of substantial certainty — is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong.

Similarly, comment f of the Restatement of Torts, 2d, § 500 describes the difference between recklessness and intentional conduct:

Reckless misconduct differs from intentional wrongdoing in a very important particular. While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results. [Emphasis added.]

I would remand this case to the trial court for consideration of whether the above standard is met by the complaint in this case.

J. Brickley and Riley, JJ., concurred with Boyle,

Conger, J.

This was an action brought by appellee against appellants to recover the value of a.dog killed by appellants, and a judgment rendered for $50.

The defense was that appellants were hunting for wolves, that appellee’s dog had a striking resemblance to a wolf, that they in good faith believed it to be one, and killed it as such.

Many points are made, and a lengthy argument filed to show that error in the trial below was committed, but we are inclined to think that no material error occurred to the prejudice of appellants.

The jury held them liable for the value of the dog, and we do not see how they could have done otherwise under the evidence. Appellants are clearly liable for the damages caused by their mistake, notwithstanding they were acting in good faith.

We see no reason for interfering with the conclusion reached by the jury, and the judgment will be affirmed.

Judgment affirmed.

MEMORANDUM OPINION

BLACKWELL N. SHELLEY, Bankruptcy Judge.

This matter comes on upon the filing of a Complaint by Ralph Edward Davis, by counsel, to determine the dischargeability of a debt of the Defendant, Walter Calvin White, Jr., pursuant to 11 U.S.C. § 523(a)(6). After the filing of an answer by the Defendant a trial was held. Upon the foregoing the Court makes the following determination.

STATEMENT OF THE FACTS

On September 10, 1977 Walter Calvin White, Jr. (White) shot Ralph Edward Davis (Davis) in the stomach with a handgun. White was arrested for the shooting and on November 29, 1978 the Circuit Court of the City of Richmond found him guilty of maiming Davis and sentenced him to serve five years in the state penitentiary. On February 26, 1980 Davis obtained a default judgment against White in the amount of *248$50,000.00 in the Circuit Court for the City of Richmond on the ground that White willfully and maliciously wounded Davis. White subsequently filed his petition in bankruptcy and Davis now asks this Court to declare White’s debt on account of that judgment nondischargeable in bankruptcy.

On the day of the shooting Davis and his brother, Marvin W. Davis, were washing cars in front of their mother’s house on Fairmont Avenue in Richmond, Virginia. At the same time White, a neighbor who lives less than one block away on the same street, was having a conversation with William Tipton (Tipton). In that conversation White and Tipton continued an argument which had begun approximately one week earlier. White had obtained a gun in anticipation of seeing Tipton. White was carrying the pistol in a container on his motorcycle and pulled it out of the container during the course of that argument.

When White pulled the gun Tipton mounted his motorcycle and sped away. White shot at Tipton as Tipton passed within twenty-five feet of Davis. He missed Tipton and the bullet hit Davis in the stomach. White fled the scene.

White testified at the trial that he obtained the gun with the intent of scaring Tipton. He said that he drew the gun after Tipton insulted his mother but that he did not intentionally fire the gun. He claimed the gun went off when he tripped over a roclc in the street.

Davis and White did not know each other before the shooting incident. White said he pulled the gun intending to scare Tipton and that it accidently fired. This Court believes that White’s testimony that the gun accidently fired when he tripped over a rock is unworthy of belief. White testified that he obtained the gun earlier that week with another meeting with Tipton in mind. Although Davis was located almost a full block from White, the bullet hit him as Tipton passed within twenty-five feet of him. White clearly intended to shoot Tip-ton; however, he missed and the bullet hit Davis instead.

CONCLUSIONS OF LAW

A debt incurred from an action based upon a willful and malicious injury by the debtor to another person may be nondischargeable in bankruptcy.1 11 U.S.C. § 523(a)(6). The word “willful” means deliberate or intentional.2

It is clear under the Bankruptcy Reform Act of 1978 that “reckless disregard” is no longer sufficient to make a debt nondischargeable pursuant to this section. The debtor’s action in creating this injury must be deliberate or intentional. In re Bryson, 3 B.R. 593, 596 (Bkrtcy.N.D.Ill.1980). Although White did intend to shoot Tipton it is clear he did not intend to shoot Davis. The language of the Act does not necessarily restrict the penalty of nondischargeability being imposed solely in cases in which the debtor injured the person he intended to injure. Collier provides that “[a]n injury to an entity or property may be a malicious injury within this provision if it was wrongful and without just cause or excessive, even in the absence of personal hatred, spite or ill will. The word ‘willful’ means ‘deliberate or intentional’, a deliberate and intentional act which necessarily leads to injury. Therefore, a wrongful act done intentionally, which necessarily produces harm and is without just cause or excuse, may constitute a willful and malicious inju*249ry.” Collier on Bankruptcy, ¶ 523.16[1] (15th ed. 1981) (footnotes omitted).

White committed the wrongful act when he shot at Tipton. The act was intentional and it produced an injury although not to the person White intended to injure. White’s actions cannot be excused solely because he missed his intended victim and instead hit someone else. The injury is not required to be directed against the victim, but includes any entity other than the intended victim.

Under the doctrine of transferred intent one who intends a battery is liable for that battery when he unexpectedly hits a stranger instead of the intended .victim. W. Prosser, The Law of Torts, 33 (4th ed. 1971). If one intentionally commits an assault or battery at another and by mistake strikes a third person, he is guilty of an assault and battery of the third person if “[defendant's intention, in such a case, is to strike an unlawful blow, to injure some person by his act, and it is not essential that the injury be to the one intended.” Morrow v. Flores, 225 S.W.2d 621, 624, Tex.Civ.App. (1949), rehearing denied 1950.

Virginia courts have adopted the doctrine of transferred intent reasoning that “. . . every person is liable for the direct, natural and probable consequence of his acts, and that every one doing an unlawful act is responsible for all of the consequential results of that act.” Bannister v. Mitchell, 127 Va. 578, 104 S.E. 800, 801 (1920). There need be no actual intent to injure the particular person who is injured. Id.

Likewise this shooting was done maliciously even though the assailant intended to wound another person. Smith v. Moran, 43 Ill.App.2d 373, 193 N.E.2d 466, 469 (1963). “. . . [I]t is common knowledge that when one person has a malicious intent against another and in carrying it out injures a third person, he is guilty of malice against the person he has injured; he has general malice . . .. ” Id., citing, Coleridge, C. J., R. V. Latimer, 55 L.J.M.C. 136; 17 G.B.D. 359, 54 L.T. 768.

The evidence here clearly shows that the shooting was a wrongful act intentionally done and that Davis’s injuries resulted from that act. White deliberately, intentionally and maliciously fired the gun and injured Davis and the debt resulting from that act is nondischargeable in bankruptcy.

White argues that the statute of limitations can be raised as a defense in this proceeding. He argues that Davis’s tort action was not brought within the two-year statute of limitations period which is applicable under § 8.01 — 243 of the Code of Virginia. Davis obtained his judgment by default and White never argued the statute of limitations issue.

It is the duty of this Court to determine the dischargeability of a debt evidenced by the judgment of a non-bankruptcy court. In re McKenna, 4 B.R. 160, 162 (Bkrtcy.N.D.Ill.1980). The doctrine of res judicata provides that a judgment, even though obtained by default, is conclusive as to the cause of action upon which the suit was based. Id. The issue of liability in this case was settled by the Virginia court and this Court may deal only with the dischargeability of that debt. The running of the statute of limitations is irrelevant to this proceeding.

An appropriate order will issue.

OPINION

KIRSCH, Judge.

Mable Wallace appeals the jury verdict in favor of Indianapolis Public Schools (IPS) and Harriet Rosen, a teacher for IPS. On appeal, Wallace raises the following issues:

I. Whether the trial court erred in refusing to give her tendered jury instruction regarding battery.

*195II. Whether the trial court erred in instructing the jury regarding the defense of incurred risk. We affirm.

FACTS AND PROCEDURAL HISTORY

In 1994, Rosen was a teacher at Northwest High School in Indianapolis On April 22, 1994, the high school had a fire drill while classes were in session. The drill was not previously announced to the teachers and occurred just one week after a fire was extinguished in a bathroom near Rosen's classroom.

On the day the alarm sounded, Wallace was at the high school delivering homework to her daughter Lalaya. Because Wallace was recovering from foot surgery and Lalaya's class was on the second floor, Lalaya's boyfriend Eric Fuqua accompanied Wallace up the stairs. Wallace and Fuqua were near the top of the staircase when they saw Lalaya and began to speak with her. Jamie Arnold, a student who knew Lalaya and her mother, joined the conversation. The alarm then sounded and students began filing down the stairs while Wallace took a step or two up the stairs to the second floor landing.

In response to the alarm, Rosen escorted her class to the designated stairway and noticed three or four people talking together at the top of the stairway and blocking the students' exit. Rosen did not recognize any of the individuals but approached "telling everybody to move it." Transcript at 35. Wallace, with her back to Rosen, was unable to hear Rosen over the noise of the alarm and Rosen had to touch her on the back to get her attention. Id. at 259. Rosen then told Wallace, "you've got to get moving because this is a fire drill." Id. 259.

At trial, Wallace testified that Rosen pushed her down the stairs. Id. at 128. Rosen denied pushing Wallace and testified that Wallace had not fallen, but rather had made her way down the stairs unassisted and without losing her balance. Id. at 265-66.

At the elose of the trial, Wallace tendered an instruction concerning civil battery. Over Wallace's objection, the court refused to read the instruction to the jury.1 IPS and Rosen tendered an instruction concerning the defense of incurred risk on the basis that Wallace had continued up the stairs after hearing the alarm, had stopped at the landing to talk, and had blocked the students' exit. Over Wallace's objection, the court gave the incurred risk instruction. The jury found in favor of IPS and Rosen, and Wallace now appeals.

DISCUSSION AND DECISION

Wallace claims that the trial court erred both in refusing to give the tendered jury instruction concerning battery and in giving the instruction concerning incurred risk as a defense to a claim of negligence. Instruction of the jury is left to the sound discretion of the trial court. Control Techniques, Inc. v. Johnson, 737 N.E.2d 393, 400 (Ind.Ct.App.2000). Our review of a trial court's decisions is highly deferential, and we will not disturb the court's judgment absent an abuse of that discretion. Id.

A party is normally entitled to have a tendered instruction read to the jury. Marshall v. Clark Equip. Co., 680 N.E.2d 1102, 1104 (Ind.Ct.App.1997), *196trans. denied (1998); Morris v. K-Mart, Inc., 621 N.E.2d 1147, 1148 (Ind.Ct.App.1993), trans. denied (1994). In determining whether the trial court erroneously refused a tendered instruction, we consider: (1) whether the tendered instruction correctly states the law; (2) whether there is evidence in the record to support giving the instruction; and (8) whether the substance of the instruction is covered by other instructions. Smock Materials Handling Co., Inc. v. Kerr, 719 N.E.2d 396, 402 (Ind.Ct.App.1999); Stamper v. Hyundai Motor Co., 699 N.E.2d 678, 688 (Ind.Ct.App.1998), trans. denied. An instruction is properly rejected if it would tend to mislead or confuse the jury. Barnard v. Himes, 719 N.E.2d 862, 868 (Ind.Ct.App.1999), trans. denied. Further, "'lelven if the instruction is a correct statement of the law, is supported by the evidence, and is not covered by the other instructions, we will not reverse unless the failure to give the instruction substantially and adversely affects the rights of the complaining party so as to quite likely have affected the result'" Id. (quoting Miller v. Ryan, 706 N.E.2d 244, 248 (Ind.Ct.App.1999), trans. denied ).

I. Battery Instruction

Wallace first argues that it was error for the trial court to refuse to give the jury the following tendered instruction pertaining to battery:

_ A battery is the knowing or intentional touching of one person by another in a rude, insolent, or angry manner.

Any touching, however slight, may constitute an assault and battery.

Also, a battery may be recklessly committed where one acts in reckless disregard of the consequences, and the fact the person does not intend that the act shall result in an injury is immaterial.

Appellant's Brief at 7.

Wallace argues that the omission of the instruction was error because the instruction was an accurate statement of the law, was supported by the evidence, and was not covered by any other instruction read to the jury. Id. at 6. Appellees respond that the instruction was properly omitted because there was no evidence presented that supported a battery instruction. Id. at 8.

We agree with Appellees. The Indiana Pattern Jury Instruction for the intentional tort of civil battery is as follows: "A battery is the knowing or intentional touching of a person against [his] [her] will in a rude, insolent, or angry manner." 2 Indiana Pattern Jury Instructions (Civil) 31.08 (2d ed. Revised 2001).2 Battery is an intentional tort. Boruff v. Jesseph, 546 N.E.2d 1297, 1300 (Ind.Ct.App.1991). In discussing intent, Professors Prosser and Keeton made the following comments:

In a loose and general sense, the meaning of 'intent' is easy to grasp. As Holmes observed, even a dog knows the difference between being tripped over and being kicked. This is also the key distinction between two major divisions of legal liability-negligence and intentional torts. ...

[Ilt is correct to tell the jury that, relying on cireumstantial evidence, they may infer that the actor's state of mind was the same as a reasonable person's state of mind would have been. Thus, ... the defendant on a bicycle who rides down a *197person in full view on a sidewalk where there is ample room to pass may learn that the factfinder (judge or jury) is unwilling to credit the statement, "I didn't mean to do it."

On the other hand, the mere knowledge and appreciation of a risk-something short of substantial certainty-is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong. In such cases the distinction between intent and negligence obviously is a matter of degree. The line has to be drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a substantial certainty.

The intent with which tort lability is concerned is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law forbids. The defendant may be liable although intending nothing more than a good-natured practical joke, or honestly believing that the act would not injure the plaintiff, or even though seeking the plaintiff's own good.

W. Pace et al., Prosser anp KEE ToN on THE Law or Torts, § 8, at 83, 36-37 (5th ed. 1984) (footnotes omitted).

Wallace, Lalaya, and Fuqua testified that Rosen touched Wallace on the back causing her to fall down the stairs and injure herself. For battery to be an appropriate instruction, the evidence had to support an inference not only that Rosen intentionally touched Wallace, but that she did so in a rude, insolent, or angry manner, ie., that she intended to invade Wallace's interests in a way that the law forbids.

Professors Prosser and Keeton also made the following observations about the intentional tort of battery and the character of the defendant's action:

[IIn a crowded world, a certain amount of personal contact is inevitable and must be accepted. Absent expression to the contrary, consent is assumed to all those ordinary contacts which are customary and reasonably necessary to the common imtercourse of life, such as a tap on the shoulder to attract attention, a friendly grasp of the arm, or a casual jostling to make a passage....

The time and place, and the cireum-stances under which the act is done, will necessarily affect its unpermitted character, and so will the relations between the parties. A stranger is not to be expected to tolerate liberties which would be allowed by an intimate friend. But unless the defendant has special reason to believe that more or less will be permitted by the individual plaintiff, the test is what would be offensive to an ordinary person not unduly sensitive as to personal dignity.

KEEton et al., § 9, at 42 (emphasis added).

During the trial, Wallace gave the following testimony concerning the manner in which Rosen touched her:

Q [Rosen] took both hands and placed them on your shoulder blades?

A Not across my shoulder. She had her finger tips [sic] and my shoulder, and turned me around like, and moving it [sie].

Q Which way did she turn you?

A She turned me-I was going up when she turned me. She turned me towards the stairwells.

*198Q So, you're standing here, hands come on, you're turned. Are you turned this way towards the wall? Or this way towards the open stairs?

A Towards the open stairs.

Q And, in fact, your testimony is that she took her hands, both of them, placed them on your shoulders or approximately here.

A Um-hum. (affirmative response).

Q Turned you 180 degrees around?

A She didn't force turn me. But she put her hands there, and turned me and told me to move it.

Q And she did so 180 degrees?

A Not to 180 degrees, no.

Q Half that?

A Yeah, half that.

Q Okay, about 90. So now you're like this. Now where is Ms. Rosen?

A She's still standing up there.

Q What happened next, Ms. Wallace?

A That's when I slipped. I turned around-when she turned me around, that's when I slipped. Because one of my-my left foot that I had the surgical [sic] on, that's when I slipped.

Transcript at 126-28.

Viewed most favorably to the trial court's decision refusing the tendered instruction, the foregoing evidence indicates that Rosen placed her fingertips on Wallace's shoulder and turned her 90° toward the exit in the midst of a fire drill. The conditions on the stairway of Northwest High School during the fire drill were an example of Professors Prosser and Kee-ton's "crowded world." Individuals standing in the middle of a stairway during the fire drill could expect that a certain amount of personal contact would be inevitable. Rosen had a responsibility to her students to keep them moving in an orderly fashion down the stairs and out the door. Under these cireumstances, Rosen's touching of Wallace's shoulder or back with her fingertips to get her attention over the noise of the alarm cannot be said to be a rude, insolent, or angry touching. Wallace has failed to show that the trial court abused its discretion in refusing the battery instruction.

Furthermore, even if an instruction on battery was appropriate, Wallace's inclusion of language that "a battery may be recklessly committed" created an instruction that was likely to mislead or confuse the jury under the facts of this case. In the comment section of the pattern instruction for battery, the Civil Instruction Committee ("Committee"), citing three cases, agrees that "a battery may be recklessly committed where one acts in reckless disregard of the consequences ..." 2 Indiana Pattern Jury Instructions (Civil) 31.03, comments. However, these three cases represent a type of recklessness that reveals the actor's intent to commit the battery. See Kline v. Kline, 158 Ind. 602, 64 N.E. 9 (1902) (the defendant's intent to assault a woman and her children could be found in the defendant's actions of threatening to shoot them and of pouring kerosene and attempting to light a match in furtherance of the defendant's threat to burn down the house); Mercer v. Corbin, 117 Ind. 450, 20 N.E. 132 (1889) (the supreme court, ignoring the defendant's statement that he didn't mean to hit the plaintiff, found that the defendant committed assault and battery when he rode his bicycle over the plaintiff who was standing on one side of a fourteen-foot-wide sidewalk in broad daylight)3; Reynolds v. *199Pierson, 29 Ind.App. 278, 64 N.E. 484 (1902) ("horse play" in which the defendant jerked and pulled with sufficient force to throw the plaintiff off another's arm and injure him revealed a reckless disregard of the consequences and thus supplied grounds for inferring defendant's constructive intent and the willful act of battery).

The facts in this case can be distinguished from those cited by the Committee. Rosen's actions were clearly not intentional like the facts in Kline, nor can it be said that Rosen's touching arose from a recklessness or wanton disregard of human life and safety found in Mercer. Quite the contrary, the actions that Rosen took were intended to keep the student traffic flowing out of the building and away from any potential danger. Rosen's actions are reasonably interpreted as trying to prevent danger to human life and safety that was created by Wallace's presence at the top of the stairs. Furthermore, from the record before us it is clear that Rosen was not engaging in "horse play" like that found in Reynolds Wallace and Rosen did not know each other before the fire drill. Any touching arose only in response to the fire drill and the attempt to facilitate a safe exit for staff and students from the building. The inclusion of the reckless instruction with the intentional tort of battery under the facts of this case would have allowed the jury to use a lesser standard to convict Rosen and IPS of battery. We find that the inclusion of the "reckless" language in the battery instruction would have been misleading and made the instructions as a whole confusing to the jury.4

Finally, it cannot be said that Wallace's rights were substantially and adversely affected by the court's failure to give the battery instruction. There is a well-established "'duty on the part of school personnel to exercise ordinary and reasonable care for the safety of children under their authority'" Mark v. Moser, 746 N.E.2d 410, 414 (Ind.Ct.App.2001) (quoting Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 554 (Ind.1987)). As a teacher, this duty of care fell on Rosen. A fire had been actually set in the bathroom on Rosen's floor less than a week before the fire alarm sounded. On April 22, 1994, with no prior knowledge whether the alarm signaled a drill or a fire, Rosen exercised ordinary and reasonable care when she tried to get the students to exit as quickly as possible. Finding Wallace and three others creating a bottleneck at the top of the staircase required Rosen to take quick action. It was necessary for Rosen to both raise her voice and touch Wallace's back to get her attention. When Wallace objected to being touched and did not move, it was also reasonable for Rosen to turn Wallace toward the stairs and tell *200her to get moving. Failing to give the battery instruction was not error because, even if given, the facts of this case would not have supported a claim for intentional battery.5

II. Defense of Incurred Risk Instruction

Wallace next argues that the trial court erred in giving a jury instruction concerning the defense of incurred risk. Indiana's Comparative Fault Act does not apply to governmental entities like IPS and its employees, therefore, tort claims against such defendants are subject to the common law principles of negligence. IC 34-51-2-2; Hopper v. Carey, 716 N.E.2d 566, 570 (Ind.Ct.App.1999), trans. denied (2000); Hapner v. State, 699 N.E.2d 1200, 1205 (Ind.Ct.App.1998). As a general rule under the Tort Claims Act, as at common law, both contributory negligence and incurred risk operate to bar a plaintiff's recovery against government actors. Sauders v. County of Steuben, 693 N.E.2d 16, 18 (Ind.1998); Hopper, 716 N.E.2d at 570; Town of Highland v. Zerkel, 659 N.E.2d 1118, 1120 (Ind.Ct.App.1995).

At the close of the evidence, the trial court instructed the jury on the defenses of contributory negligence and incurred risk.6 The relationship between these two theories has been discussed in our courts for years. Some courts have deemed incurred risk to be merely "a 'spe-cles' of contributory negligence while others have demanded that the defenses be kept separate and distinct." Kroger Co. v. Haun, 177 Ind.App. 408, 418, 879 N.E.2d 1004, 10138 (1978). Contributory negligence contemplates an objective standard for the determination of "whether a reasonable man would have so acted under similar circumstances" and is concerned with whether the acceptance of the risk was reasonable and justified in light of the possible benefit versus the risk. Id. at 409, 379 N.E.2d at 1008. Contributory negligence also involves conduct that is "careless" and presupposes a duty and breach thereof, but serves as an affirmative defense to prevent recovery by the plaintiff. Id.

By contrast, incurred risk demands a subjective analysis with inquiry into the particular actor's knowledge, is concerned with the voluntariness of a risk, and is blind as to reasonableness of risk acceptance. Id. Incurred risk also involves a mental state of "venturousness" and has been described as negating a duty and therefore precluding negligence. Id. Generally, the existence of incurred risk and contributory negligence are questions of fact for the jury. Mauller v. City of Columbus, 552 N.E.2d 500, 502 (Ind.Ct.App.1990); Kroger, 177 Ind.App. at 407, 379 N.E.2d at 1007. The definition of incurred risk includes the proposition that knowledge of a risk may be imputed where such a risk would have been "readily dis-cernable by a reasonable and prudent man under like or similar cireumstances." Kro*201ger, 177 Ind.App. at 410, 879 N.E.2d at 1008.

Our court has discussed the differences between the two theories, but has concluded that the "importance of reconciling the two definitions becomes apparent only in those situations where incurred risk serves as a defense while contributory negligence does not." Id. at 418, 379 N.E.2d at 1013 "In a negligence action, both defenses are available to a defendant, and the failure to distinguish between the two is without substantive significance." Id. Because instructions were given concerning both contributory negligence and incurred risk and Wallace did not object to the giving of the contributory negligence instruction, the inclusion of the incurred risk instruction did not affect Wallace's substantive rights.

As previously noted, "Reversal based upon instructional error is warranted only when the trial court's instructions, taken as a whole, misstate the law or mislead the jury." Michigan Mut. Ins. Co. v. Sports, Inc., 698 N.E.2d 834, 839 (Ind.Ct.App.1998), trans. denied (citing Koziol v. Vojvoda, 662 N.E.2d 985, 991 (Ind.Ct.App.1996)). The defenses of contributory negligence and incurred risk are both findings of fact for the jury. A finding by the jury that Wallace was even the slightest bit negligent would have resulted in a verdict for Rosen and IPS. Here, Wallace had a duty to exit the building as soon as possible upon hearing the fire alarm. The evidence revealed that she did not in fact leave but instead proceeded up the stairs to continue her conversation. We need not determine whether it was error to instruct the jury on incurred risk. The verdict would not have differed had the jury been properly instructed. Error, if any, in giving the incurred risk instruction did not prejudice the substantial rights of Wallace and therefore, reversal is not required. Smock Materials, 719 N.E.2d at 403.

III. Attorneys Fees

Finally, pursuant to Ind. Appellate Rule 66(E), IPS and Rosen seek to recover attorneys fees for this appeal, alleging that Wallace's appeal is frivolous. Our court will only assess appellate damages against an appellant who in bad faith maintains a wholly frivolous appeal. Blue Valley Turf Farms, Inc. v. Realestate Mktg. and Dev., Inc., 424 N.E.2d 1088, 1091 (Ind.Ct.App.1981).

The Appellees correctly state that bad faith on appeal may be classified as "substantive" or "procedural." Substantive bad faith " 'implies the conscious doing of a wrong because of dishonest purpose or moral obliquity." Catellier v. Depco, Inc., 696 N.E.2d 75, 79 (Ind.Ct.App.1998) (quoting Watson v. Thibodeau, 559 N.E.2d 1205, 1211 (Ind.Ct.App.1990)). Procedural bad faith " 'is present when a party flagrantly disregards the form and content requirements of the Rules of Appellate Procedure, omits and misstates relevant facts appearing in the record, and files briefs appearing to have been written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court.'" Id. Wallace's appeal possesses sufficient merit and is in sufficient compliance with the Appellate Rules to withstand such an award.

Affirmed.

SULLIVAN, J., concurs with separate opinion.

ROBB, J., concurs in part and concurs in result in part with separate opinion.

SULLIVAN, Judge,

concurring.

I concur in the majority's determination that the trial court did not err in refusing *202Wallace's battery instruction. I do so, however, upon different grounds.

Although, as quoted by the majority, Wallace testified that she slipped when touched by Rosen, during the same eross-examination she also testified as follows:

"Q Now were you pushed?

A And at that time ... [sic]

Q Let me ask you. Did you slip, or were you pushed?

A I was pushed. You can't help but slip when somebody pushes you. It's nothing to grab." Transcript at 127-128.

Additionally, the two other eye-witnesses, Wallace's daughter and the daughter's boy-friend, although perhaps not wholly objective, did testify that Rosen "grabbed" Wallace's arm or shoulder and "turned her around" (Tr. at 41-42, 91), and that when Wallace told Rosen she was a parent not a student, Rosen responded, "I don't care who you are," (Tr. at 91), telling Wallace "to move it," (Tr. at 42).

Although the evidence as to an arguable battery may be minimal at best, I am unwilling to state that as a matter of law, Rosen's touching was not rude, insolent, or angry. Given the fact that Rosen's touching was intentional, and despite the circumstances, it would not be wholly unreasonable for a jury to conclude that the scenario did not equate with the personal contact contemplated in Professors Pros-ser and Keeton's "crowded world."

In my view, and as thoroughly discussed by the majority, the trial court properly rejected the proffered instruction because the last portion, which instructed as to a "recklessly committed" battery, would have been misleading to the jury. The alleged battery here was either an intentional touching in a rude, insolent, or angry manner, or it was no battery at all. In this regard, I respectfully disagree that based upon case authority from a century and more ago,7 a reckless act which results in a touching may constitute an intentional touching. A touching which occurs through recklessness on the part of the actor is simply inconsistent with a touching which is intentional on the part of the actor.

Under Part II, the majority holds that the error, if any, in giving Rosen's incurred risk instruction, was harmless. In doing so, the lead opinion states that "[a] finding by the jury that Wallace was even the slightest bit negligent would have resulted in a verdict for Rosen and IPS." Op. at 200 (emphasis supplied). Judge Robb in her separate opinion states that "[blecause Wallace's cause of action was against a school, comparative negligence does not apply...." Op. at 204 (emphasis supplied). Both opinions in this regard are premised upon the conclusion that the suit falls under the Tort Claims Act. To the extent that the suit was brought against the school as a governmental enti*203ty and against Rosen as an employee of that entity, it is clear that the Tort Claims Act was applicable.

Wallace's complaint alleges that Rosen was in her capacity as a teacher at the time in question and was the agent of the school. It does not, however, specifically, assert that Rosen's alleged assault and battery was committed within the scope of Rosen's employment. In separate counts, the complaint also alleged that IPS was negligent in the employment and continued employment of Rosen, and that the continued employment served to ratify the acts of Rosen. Thus viewing the complaint in the context of Ind.Code § 34-18-3-5 (Burns Code Ed. Supp.2001), proceeding both against Rosen individually and against IPS was not precluded. See Bushong v. Williamson, 760 N.E.2d 1090 (Ind.Ct.App.2001).8

Under the facts as they unfolded at trial, it seems that Rosen was clearly acting within the scope of her employment. See Bushong, supra, (acts of the teacher not clearly shown to be authorized or unauthorized and that therefore, the issue of scope of employment was for the trier of fact). Nevertheless, that scenario merely brings I.C. § §4-13-3-5(c)9 into play. This provision of the statute requires the employer to pay a judgment against the employee when the acts of the latter were within the scope of employment. That burden falls upon the governmental entity whether or not the employee can or cannot be held personally Hable.

Be that as it may, there was not a verdict against either or both of the defendants. For this reason, the various permutations of the Tort Claims Act in situations of this nature are not of determinative consequence.

Subject to the above observations, I otherwise concur.

ROBB, Judge,

concurring in result in part with opinion.

I respectfully concur in the result reached by the majority as to the issue of the incurred risk instruction.

Wallace contends on appeal that the trial court erred in giving an instruction to the jury on the defense of incurred risk. I agree.

The trial court gave the following instruction over Wallace's objection:

A person incurs the risk of injury if she knew of a danger, understood the risk involved, and voluntarily exposed herself to such danger.

In deciding whether the plaintiff incurred the risk, you may consider the experience and understanding of the plaintiff; whether the plaintiff had reasonable opportunity to abandon the course of action; and whether a reasonable person would have abandoned the course of action.

If you decide that plaintiff incurred the risk of some or all the injuries claimed, then the plaintiff's conduct is negligent.

Appendix to Appellant's Brief at 39.

The affirmative defense of incurred risk requires evidence of a plaintiffs actual knowledge and appreciation of the specific risk involved and voluntary acceptance of that risk. Kostidis v. General Cinema *204Corp. of Indiana, 754 N.E.2d 568, 571 (Ind.Ct.App.2001). One of the prongs for determining whether an instruction was erroneously given is whether there is evidence in the record to support giving the instruction. See id. at 570. In this case, I do not believe there was evidence to support giving the instruction.

Wallace testified that there was not a rail on the right side of the stairwell as she went up, only a rail in the middle of the stairs to her left. Tr. 108-04. She moved to the rail to ascend the stairs and when she got near the top, she saw her daughter and moved back to the right and the wall to talk with her. Then a bell (presumably the fire alarm) rang and students started coming down the stairs. Wallace said to her daughter, "Let me move out of the way before I get knocked down," and she moved up a couple of steps to the landing, where she stood against the wall. Tr. 104. I believe this evidence demonstrates that Wallace knew and appreciated the danger of falling or being otherwise injured if she stayed on the steps, away from the railing, with an ailing foot, and with students coming down the stairs. I do not believe this demonstrates any actual knowledge or appreciation on Wallace's part that there was a danger of her being injured by moving to a place where she thought she would be on steady ground and out of the way of the students. I also do not believe this demonstrates any knowledge or appreciation that someone would instruct her to move and physically turn her around and move her toward the steps. For this reason, I do not believe that there was any evidence in the record to support giving an instruction on incurred risk.

However, as the majority has noted, errors in instruction are harmless and do not require reversal where the verdict would have been no different had the jury been properly instructed. Smock Materials Handling Co. v. Kerr, 719 N.E.2d 396, 402 (Ind.Ct.App.1999). Because Wallace's cause of action was against a school, comparative negligence does not apply, and any contributory negligence on Wallace's part would bar her recovery. If, in fact, the jury's verdict was based upon its assessment that Wallace had incurred the risk, the jury also would have undoubtedly found that Wallace's conduct constituted contributory negligence and the verdict would have been the same even if the incurred risk instruction had not been given. Under these circumstances, I agree that the result would not have differed if the erroneous instruction had not been given, and therefore, I concur in the result reached by the majority that reversal is not warranted.

In all other respects, I concur with the majority opinion.

*234 Per Curiam.

The plaintiff-appellant, Ahron Leichtman, appeals from the trial court’s order dismissing his complaint against the defendants-appellees, WLW Jacor Communications (“WLW”), William Cunningham and Andy Furman, for battery, invasion of privacy, and a violation of Cincinnati Bd. of Health Reg. No. 00083. In his single assignment of error, Leichtman contends that his complaint was sufficient to state a claim upon which relief could be granted and, therefore, the trial court was in error when it granted the defendants’ Civ.R. 12(B)(6) motion. We agree in part.

In his complaint, Leichtman claims to be “a nationally known” antismoking advocate. Leichtman alleges that, on the date of the Great American Smokeout, he was invited to appear on the WLW Bill Cunningham radio talk show to discuss the harmful effects of smoking and breathing secondary smoke. He also alleges that, while he was in the studio, Furman, another WLW talk-show host, lit a cigar and repeatedly blew smoke in Leichtman’s face “for the purpose of causing physical discomfort, humiliation and distress.”

Under the rules of notice pleading, Civ.R. 8(A)(1) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” When construing a complaint for failure to state a claim, under Civ.R. 12(B)(6), the court assumes that the factual allegations on the face of the complaint are true. O’Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. For the court to grant a motion to dismiss, “it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.” Id. A court cannot dismiss a complaint under Civ.R. 12(B)(6) merely because it doubts the plaintiff will prevail. Slife v. Kundtz Properties, Inc. (1974), 40 Ohio App.2d 179, 69 O.O.2d 178, 318 N.E.2d 557. Because it is so easy for the pleader to satisfy the standard of Civ.R. 8(A), few complaints are subject to dismissal. Id. at 182, 69 O.O.2d at 180, 318 N.E.2d at 560.

Leichtman contends that Furman’s intentional act constituted a battery. The Restatement of the Law 2d, Torts (1965), states:

“An actor is subject to liability to another for battery if

“(a) he acts intending to cause a harmful or offensive contact with the person of the other, and

“(b) a harmful contact with the person of the other directly or indirectly results[; or]1

*235“[c] an offensive contact with the person of the other directly or indirectly results.”2 (Footnote added.)

In determining if a person is liable for a battery, the Supreme Court has adopted the rule that “[c]ontact which is offensive to a reasonable sense of personal dignity is offensive contact.” Love v. Port Clinton (1988), 37 Ohio St.3d 98, 99, 524 N.E.2d 166, 167. It has defined “offensive” to mean “disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness.” State v. Phipps (1979), 58 Ohio St.2d 271, 274, 12 O.O.3d 273, 275, 389 N.E.2d 1128, 1131. Furthermore, tobacco smoke, as “particulate matter,” has the physical properties capable of making contact. R.C. 3704.01(B) and 5709.20(A); Ohio Adm.Code 3745-17.

As alleged in Leichtman’s complaint, when Furman intentionally blew cigar smoke in Leichtman’s face, under Ohio common law, he committed a battery. No matter how trivial the incident, a battery is actionable, even if damages are only one dollar. Lacey v. Laird (1956), 166 Ohio St. 12, 1 O.O.2d 158, 139 N.E.2d 25, paragraph two of the syllabus. The rationale is explained by Roscoe Pound in his essay “Liability”: “[I]n civilized society men must be able to assume that others will do them no intentional injury — that others will commit no intentioned aggressions upon them.” Pound, An Introduction to the Philosophy of Law (1922) 169.

Other jurisdictions also have concluded that a person can commit a battery by intentionally directing tobacco smoke at another. Richardson v. Hennly (1993), 209 Ga.App. 868, 871, 434 S.E.2d 772, 774-775. We do not, however, adopt or lend credence to the theory of a “smoker’s battery,” which imposes liability if there is substantial certainty that exhaled smoke will predictably contact a nonsmoker. Ezra, Smoker Battery: An Antidote to Second-Hand Smoke (1990), 63 S.Cal.L.Rev. 1061, 1090. Also, whether the “substantial certainty” prong of *236intent from the Restatement of Torts translates to liability for secondary smoke via the intentional tort doctrine in employment cases as defined by the Supreme Court in Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, paragraph one of the syllabus, need not be decided here because Leichtman’s claim for battery is based exclusively on Furman’s commission of a deliberate act. Finally, because Leichtman alleges that Furman deliberately blew smoke into his face, we find it unnecessary to address offensive contact from passive or secondary smoke under the “glass cage” defense of McCracken v. Sloan (1979), 40 N.C.App. 214, 217, 252 S.E.2d 250, 252, relied on by the defendants.

Neither Cunningham nor WLW is entitled to judgment on the battery claim under Civ.R. 12(B)(6). Concerning Cunningham, at common law, one who is present and encourages or incites commission of a battery by words can be equally liable as a principal. Bell v. Miller (1831), 5 Ohio 250; 6 Ohio Jurisprudence 3d (1978) 121-122, Assault, Section 20. Leichtman’s complaint states, “At Defendant Cunningham’s urging, Defendant Furman repeatedly blew cigar smoke in Plaintiffs face.”

With regard to WLW, an employer is not legally responsible for the intentional torts of its employees that do not facilitate or promote its business. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 329-330, 587 N.E.2d 825, 828-829. However, whether an employer is liable under the doctrine of respondeat superior because its employee is acting within the scope of employment is ordinarily a question of fact. Id. at 330, 587 N.E.2d at 825. Accordingly, Leichtman’s claim for battery with the allegations against the three defendants in the second count of the complaint is sufficient to withstand a motion to dismiss under Civ.R. 12(B)(6).

By contrast, the first and third counts of Leichtman’s complaint do not state claims upon which relief can be granted. The trial court correctly granted the Civ.R. 12(B)(6) motion as to both counts. In his first count, Leichtman alleged a tortious invasion of his privacy. See, generally, Restatement, supra, at 376, Section 652B, as adopted by Sustin v. Fee (1982), 69 Ohio St.2d 143, 145, 23 O.O.3d 182, 183-184, 431 N.E.2d 992, 993. A claim for invasion of privacy may involve any one of four distinct torts. Prosser, Privacy (1960), 48 Cal.L.Rev. 383. The tort that is relevant here requires some substantial intrusion into a plaintiffs solitude, seclusion, habitation, or affairs that would be highly offensive to a reasonable person. See, e.g., Restatement, supra, at 378-379, Section 652B, Comments a to d; Killilea v. Sears Roebuck & Co. (1985), 27 Ohio App.3d 163, 166, 27 OBR 196, 198-199, 499 N.E.2d 1291, 1294. Leichtman acknowledges that he willingly entered the WLW radio studio to make a public radio appearance with Cunningham, who is known for his blowtorch rhetoric. Therefore, Leicht*237man’s allegations do not support his assertion that Furman, Cunningham, or WLW intruded into his privacy.

In his third count, Leichtman attempts to create a private right of action for violation of Cincinnati Bd. of Health Reg. No. 00083, which makes it illegal to smoke in designated public places. Even if we are to assume, for argument, that a municipal regulation is tantamount to public policy established by a statute enacted by the General Assembly, the regulation has created rights for nonsmokers that did not exist at common law. Bd. of Health Reg., supra, at Sections 00083-7 and 00083-13. Therefore, because sanctions also are provided to enforce the regulation, there is no implied private remedy for its violation. R.C. 3707.99, 3707.48(C); Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge No. 9 (1991), 59 Ohio St.3d 167, 169, 572 N.E.2d 87, 89-90; Fawcett v. G.C. Murphy & Co. (1976), 46 Ohio St.2d 245, 248-250, 75 O.O.2d 291, 293-294, 348 N.E.2d 144, 147 (superseded by statute on other grounds).

Arguably, trivial cases are responsible for an avalanche of lawsuits in the courts. They delay cases that are important to individuals and corporations and that involve important social issues. The result is justice denied to litigants and their counsel who must wait for their day in court. However, absent circumstances that warrant sanctions for frivolous appeals under App.R. 23, we refuse to limit one’s right to sue. Section 16, Article I, Ohio Constitution states, “All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”

This case emphasizes the need for some form of alternative dispute resolution operating totally outside the court system as a means to provide an attentive ear to the parties and a resolution of disputes in a nominal case. Some need a forum in which they can express corrosive contempt for another without dragging their antagonist through the expense inherent in a lawsuit. Until such an alternative forum is created, Leichtman’s battery claim, previously knocked out by the trial judge in the first round, now survives round two to advance again through the courts into round three.

We affirm the trial court’s judgment as to the first and third counts of the complaint, but we reverse that portion of the trial court’s order that dismissed the battery claim in the second count of the complaint. This cause is remanded for further proceedings consistent with law on that claim only.

Judgment accordingly.

Doan, P.J., Hildebrandt and Gorman, JJ., concur.

James K. Bredar, Chief Judge

Plaintiff Kurt Eichenwald brought this action against Defendant John Rivello over a year ago, on April 24, 2017. (Corrected Compl., ECF No. 2.). Defendant is facing criminal charges related to the same incident underlying this civil case, and therefore this case was stayed on August 28, 2017. (See Paperless Order, ECF No. 20.)

*769On March 6, 2018, the Court partially lifted the stay and ordered Defendant to respond to Plaintiff's complaint by March 21, 2018. (Order to Partially Lift Stay, ECF No. 24.) Defendant responded by answering Counts II and III of Plaintiff's complaint (Ans., ECF No. 25), and moving to dismiss Counts I and IV (Mot. Dismiss, ECF No. 26). Plaintiff has responded to Defendant's motion (ECF No. 27) and Defendant has replied (ECF No. 30). Therefore, Defendant's motion to dismiss is fully briefed and ripe for review. There is no need to hold a hearing to resolve the matter. See Local Rule 105.6 (D. Md. 2016). Defendant's characterization of Texas law regarding civil battery is incorrect, and the Court will not foreclose Plaintiff's attempt to try his fourth count in a different court or at a later time. Accordingly, the Court will grant in part and deny in part Defendant's motion to dismiss, and dismiss Count IV of Plaintiff's complaint without prejudice.

I. Background1

Plaintiff is a journalist and author currently living in Texas. (Corrected Compl. ¶¶ 2-4.) Plaintiff's work is well known. He writes for Newsweek and Vanity Fair. (Id. ¶ 3.) He worked for years at the New York Times, has authored four books, and has won several awards including the George Polk Award (twice). (Id. ¶¶ 3-4.) He is an active Twitter user, having posted over 50,000 tweets. (Id. ¶ 14.)

Plaintiff also has epilepsy. (Corrected Compl. ¶ 5.) He was diagnosed at age 18, and "suffered from frequent seizures as a young adult." (Id. ) Medication has helped reduce the number of seizures, but he continues to experience them. (See id. ¶¶ 5, 8.) Plaintiff has been public about his condition in the past and in 2016 wrote an article, published in Newsweek, titled "Sean Hannity: Apologize to Those with Epilepsy, or Burn in Hell." (Id. ¶¶ 7-8.)

During the 2016 election, Plaintiff was often critical of then-candidate Donald J. Trump, and expressed those views in his writing and on his Twitter account. (Corrected Compl. ¶¶ 15-16.) Plaintiff "received numerous threats and messages over the Internet" as a result of his public criticism, and wrote about the online abuse for Newsweek in October 2016. (Id. ¶ 17; see Kurt Eichenwald, How Donald Trump Supporters Attack Journalists , Newsweek, ECF No. 1-7 (hereinafter "October 2016 Article").) In that article, Plaintiff wrote about one instance of online harassment in particular. Plaintiff "received a tweet from someone with the twitter handle 'Mike's Deplorable AF.' " (October 2016 Article at 2.) In that tweet "Mike made mention of [Plaintiff's] seizures and included a small video.... The video was some sort of strobe light, with flashing circles and images ... flying toward the screen." (Id. ) The video was "epileptogenic," meaning it "triggers seizures." (Id. ) Plaintiff did not suffer a seizure upon opening this video, however, because he quickly dropped the device. (Id. )

Two months later, on December 15, 2016, a Twitter user with the handle @jew_goldstein, replied to one of Plaintiff's tweets. (Corrected Compl. ¶ 33.) When Plaintiff "clicked on the notification button on twitter," the replies to his tweet "immediately loaded," including the reply from @jew_goldstein. (Id. ¶ 43.) The tweet included (and immediately displayed) a Graphic Interchange Format ("GIF") that contained "an animated strobe image flashing at a rapid speed." (Id. ¶ 35.) In addition to the flashing images, the GIF contained the message "YOU DESERVE A SEIZURE FOR YOUR POSTS." (See *770Strobe GIF, Compl. ¶ 41.) Upon seeing the rapidly flashing GIF, "Plaintiff suffered a severe seizure." (Id. ¶ 45.)

For reasons that will become clear, it is necessary to briefly discuss the physical reactions that led to Plaintiff's seizure. Light comes in rays, or waves, comprised in part by photons. (Corrected Compl. ¶ 24.) These waves sometimes reflect off objects and "strike a person's cornea," which "focuses the light wave." (Id. ¶ 25.) The eye focuses the wave onto its retina, which through a process of "visual phototransduction," converts the light wave into electrical impulses. (Id. ¶¶ 27-28.) That is, photons hit the retina and are converted into electrical signals. (Id. ¶¶ 28-29.) These electrical signals are then transmitted by the optic nerve to the visual cortex. (Id. ¶ 30.) Such electrical signals from strobing images "can trigger seizures in certain individuals with epilepsy." (Id. ¶ 20.) So, Defendant intentionally caused photons to hit Plaintiff's retina, causing Plaintiff to suffer a seizure.

Plaintiff's wife witnessed the seizure and, after caring for Plaintiff, called the police. (Id. ¶¶ 50-51.) According to information obtained as a result of the criminal investigation, Defendant, who lives in Maryland, operated the @jew_goldstein account. (Id. ¶ 54.) Defendant discussed with others his intent to harm Plaintiff by causing a seizure. (See id. ¶¶ 57-61.) Defendant was arrested on March 17, 2017, and three days later a grand jury indicted him for the offense of aggravated assault with a deadly weapon. (¶¶ 55, 65; see Indictment, ECF No. 1-15.)

Plaintiff continued to suffer as a result of the December 15 seizure. He experienced another seizure in his sleep, and he had to take increased medication, which left him sedated and disabled during the holidays. (Corrected Compl. ¶¶ 68-70.) He "required assistance from his family to perform routine tasks," and was "embarrassed, humiliated, and deeply upset," as a result of this incident. (Id. ¶¶ 70-71.)

With the criminal case against Defendant still pending, Plaintiff filed a civil case against Defendant in this Court on April 24, 2017. Plaintiff brought four claims: (I) battery, (II) assault, (III) intentional infliction of emotional distress, and (IV) "purposeful infliction of bodily harm/prima facie tort under Texas law." (Corrected Compl. ¶¶ 74-88.) The civil case was stayed pending resolution of the criminal case, but in an earlier order the Court partially lifted that stay and ordered Defendant to respond to Plaintiff's corrected complaint by March 21, 2018. Defendant responded on that date, answering Counts II and III, and moving to dismiss Counts I and IV. Defendant's motion to dismiss is fully briefed and ripe, and the Court will turn now to its disposition.

II. Standard

A complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Facial plausibility exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. An inference of a mere possibility of misconduct is not sufficient to support a plausible claim. Id. at 679, 129 S.Ct. 1937. As the Twombly opinion stated, "Factual allegations must be enough to raise a right to relief above the speculative level." 550 U.S. at 555, 127 S.Ct. 1955. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' ... Nor does a complaint suffice if it *771tenders 'naked assertion[s]' devoid of 'further factual enhancement.' " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 557, 127 S.Ct. 1955 ). Although when considering a motion to dismiss a court must accept as true all factual allegations in the complaint, this principle does not apply to legal conclusions couched as factual allegations. Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

III. Applicable Law

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, because the parties are diverse and the amount in controversy is over $75,000. "In diversity actions, a district court applies the substantive law and choice of law rules of the state in which the court sits." Chartis Prop. Cas. Co. v. Huguely , 243 F.Supp.3d 615, 622 (D. Md. 2017). The Court will therefore apply Maryland choice of law rules. "The rule of lex loci delicti is well established in Maryland," and under that rule, "the substantive tort law of the state where the wrong occurs governs." Hauch v. Connor , 295 Md. 120, 453 A.2d 1207, 1209 (Md. 1983). Plaintiff has alleged that he was harmed in Texas, and therefore the Court will apply the substantive tort law of Texas in analyzing Plaintiff's claims. Defendant concedes that Texas law controls in this case and has presented arguments entirely under Texas law.

IV. Analysis

Defendant has moved to dismiss Counts I and IV of Plaintiff's complaint, and presents three arguments in support of that request. First, Defendant contends that Texas courts do not recognize a claim of civil battery, and instead only recognize a claim for assault. Second, Defendant argues that Plaintiff's claim of battery fails because he has not alleged any physical contact. Third, Defendant asserts that the "wrong" claimed in Count IV has not yet been recognized as a tort in Texas and therefore it must be dismissed with prejudice. The Court will address each argument in turn.

a. Assault and Battery

Defendant requests that the Court dismiss Plaintiff's first count of battery because, he argues, Texas does not recognize the tort of battery. Defendant is incorrect.

Under Texas law, "[t]he definition of assault is the same, whether in a civil or criminal trial." Rogers v. Peeler , 146 S.W.3d 765, 769 (Tex. Ct. App. 2004). "A person commits assault under the Texas Penal Code if the person intentionally, knowingly, or recklessly causes bodily injury to another, intentionally or knowingly threatens another with imminent bodily injury, or intentionally or knowingly causes physical contact when the person knows or should reasonably believe the other will regard such contact as offensive or provocative." Culver v. Culver , 360 S.W.3d 526, 533 (Tex. Ct. App. 2011) (citing Tex. Penal Code Ann. § 22.01 ).

Texas courts' reliance on the Texas penal code in civil cases, and the Texas penal code's combination of common law assault (threatening another with imminent bodily injury) and common law battery (harmful or offensive touching), has resulted in "a number of civil courts mix[ing] them together under the term 'assault.' " Carter v. Diamond URS Huntsville, LLC , 175 F.Supp.3d 711, 741 (S.D. Tex. 2016). Still, "[a]lthough the two torts are related [they are] conceptually distinct.' " Id. (internal quotation marks omitted). Assault is redress for threatened, but non-consummated, harmful touchings; battery is redress for actual harmful, or offensive, touchings. "Texas courts have recognized private causes of action for both assault and battery for well over a century." City of Watauga v. Gordon , 434 S.W.3d 586, 589 (Tex. 2014).

*772So, the law is clear (even if the semantics are not). Whatever the label given to the cause of action, under Texas law a plaintiff can assert a cause of action for common law battery, i.e. for "intentionally, knowingly, or recklessly caus[ing] bodily injury [or] intentionally or knowingly caus[ing] physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative." Tex. Penal Code Ann. § 22.01(a)(1), (3). Insofar as Defendant's argument is that Plaintiff cannot bring a battery claim at all under Texas law, Defendant is incorrect. See Chennault v. Chennault , NO. 12-17-00295-CV, 2018 WL 992115, at *4 (Tex. Ct. App. Feb. 21, 2018) (defining "civil battery" and "civil assault" as separate causes of action).

Another reading of Defendant's argument, however, is that Plaintiff cannot bring both an assault and a battery claim under Texas law. According to this argument, both causes of action are now melded into a single cause of action, "assault," and although a plaintiff can recover for an intentional harmful or offensive touching, he cannot recover for both an intentional harmful or offensive touching and the threat of such a touching. Insofar as this is a proper reading of Defendant's argument, it still fails. As Plaintiff's complaint stands, he alleges that Defendant's intentional tortious conduct a) caused him to suffer physical harm and b) put him in fear of immediate physical harm. Under Texas law, he can recover for both. If it turns out that he can only prove physical harm, or only apprehension of immediate harm, that does not mean it is improper to plead both torts in his complaint. Furthermore, at least at this early stage Plaintiff can plead as many alternative, or even inconsistent, causes of action and legal theories as he pleases. See Fed. R. Civ. P. 8(d). Ultimately, Texas recognizes both assault and battery and Plaintiff may plead both assault and battery. The Court will not dismiss Count I on these grounds.

b. Battery by GIF

Defendant next argues that, whatever the label, Plaintiff's allegations do not amount to a civil battery under Texas law. The Court disagrees.

As an initial matter, the Court notes that however one characterizes Plaintiff's claim, the facts as pled constitute some form of a tort. "The fundamental purposes of our tort system are to deter wrongful conduct, shift losses to responsible parties, and fairly compensate deserving victims." Roberts v. Williamson , 111 S.W.3d 113, 118 (Tex. 2003). "So far as there is one central idea [in tort law], it would seem that it is it that liability must be based upon conduct which is socially unreasonable. The common thread woven into all torts is the idea of unreasonable interference with the interests of others." W. Page Keeton et al., Prosser and Keeton on Torts, § 1 at 6 (5th ed. 1988) (hereinafter "Prosser").2 The civil tort is a mechanism by which courts aid in the maintenance of a civil society, and as such "offensive contacts, or those which are contrary to all good manners, need not be tolerated." Waffle House, Inc. v. Williams , 313 S.W.3d 796, 802-03 (Tex. 2010) (internal quotation marks omitted). Plaintiff has alleged that Defendant sent Plaintiff an image with the intent to cause Plaintiff to have a seizure. Whatever exact name a *773legal scholar may put to it, that is a tort; it is conduct outside the bounds of a civil society, conduct that should be punished so as to deter its repetition, and conduct that causes a compensable harm. See Macmillan v. Redman Homes, Inc. , 818 S.W.2d 87, 95 (Tex. App. 1991) (citing Prosser, § 4 at 25-26) ("One objective of tort litigation is to modify the defendant's behavior-and the behavior of others who want to engage in the same conduct-by deterring conduct considered after the fact to be unreasonable."). And although the exact contours of the tort lack perfect clarity, ultimately it qualifies as a battery. "[T]he essence of the plaintiff's grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person." Restatement (Second) of Torts § 18 cmt. c (Am. Law. Inst. 1965) (discussing battery). It is alleged that Defendant purposely acted to violate the dignity and health of the Plaintiff and did in fact so harm him. The novelty of the mechanism by which the harm was achieved does not make those actions any less a tort.

Although the nation's leading authority on tort law contends there may be "no necessity whatever that a tort have a name," Prosser § 1 at 3, in the first three counts of his complaint, Plaintiff has applied several to the tortious conduct he perceives here: battery, assault, and intentional infliction of emotional distress.3 And, specifically, Defendant has moved to dismiss Plaintiff's "battery" claim. Therefore, it is through the lens of an alleged "battery" that the Court shall assess the validity of Plaintiff's pleading.

As explained above, Texas courts look to the statutory definition of criminal assault for the definition of a civil battery. Thus, in Texas, a battery is the intentional, knowing, or reckless causing of a bodily injury, or intentionally or knowingly causing "physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative." Tex. Pen. Code Ann. § 22.01(a)(1), (3). Or, more simply, a battery is "the least touching of another person willfully and in anger, by the use of any part of the body of the party committing the offense." Marshall v. AT & T , 117 F.3d 1417, 1997 WL 336280, at *2 (5th Cir. June 5, 1997) (unpublished decision) (quoting Price v. Short , 931 S.W.2d 677, 687 (Tex. Ct. App. 1996) ).

A battery undoubtedly requires some physical contact. Lewis v. Continental Airlines, Inc. , 80 F.Supp.2d 686, 695 (S.D. Tex. 1999). "In an assault and battery case, if the defendant establishes the lack of physical contact, then he successfully eliminates an essential element of the cause of action." Preble v. Young , 999 S.W.2d 153, 156 (Tex. Ct. App. 1999). It is similarly well-established that the physical contact need not be with the physical body of the plaintiff, see, e.g. , Fisher v. Carrousel Motor Hotel, Inc. , 424 S.W.2d 627, 629 (Tex. 1967) (grabbing a person's plate in buffet line constituted a battery); Prosser § 9, notes 8-15 and accompanying text) (listing examples), and it need not be direct physical contact, see U.S. v. Villegas-Hernandez , 468 F.3d 874, 879 (5th Cir. 2006) (discussing, in dicta, possible scenarios that would constitute a criminal assault under Texas law); Hutchison v. Brookshire Bros., Ltd. , 284 F.Supp.2d 459, 475 (E.D. Tex. 2003) ("For Defendant to cause Plaintiff to be touched does not require that Defendant himself actually touch Plaintiff."); Prosser § 9 n.16 (citing examples such as "operating car so *774as to throw plaintiff from running board"). So, in order for a battery to occur, there must be some physical contact between something and the plaintiff or something attached to the plaintiff.

If a person intentionally (or knowingly, or recklessly) causes another to come into contact with a harmful physical element, that is a battery under Texas law. See Hutchison , 284 F.Supp.2d at 475 ; Villegas-Hernandez , 468 F.3d at 879. In Hutchinson , for example, the plaintiff alleged that a store owner had asked a police officer to force the plaintiff to siphon gasoline from the plaintiff's car (plaintiff had accidentally over-pumped). 284 F.Supp.2d at 463-64. The Court found that because a reasonable jury could conclude that the store owner knew the officer would force plaintiff to siphon the gas, the plaintiff's battery claim survived summary judgment. Id. at 475. In Villegas-Hernandez , the Fifth Circuit, discussing Texas law, stated that the injury caused in a battery "could result from any number of acts [such as] making available to the victim a poisoned drink while reassuring him the drink is safe, or telling the victim he can safely back his car out while knowing an approaching car ... will hit the victim." 468 F.3d at 879.

Here, Plaintiff generally alleges that Defendant intentionally caused Plaintiff to come into contact with a harmful physical element (i.e. , the strobe GIF), and that is a battery under Texas law. It is alleged that Defendant knew that Plaintiff would see the GIF, knew that its physical properties would cause him a seizure, and knew that a seizure would be physically harmful, or at least "offensive or provocative." Tex. Pen. Code Ann. § 22.01(a)(3). Not only did Defendant know these things, Plaintiff alleges that Defendant intended the exact harmful result that occurred. Plaintiff has stated a claim for battery under Texas law.

Defendant's concern focuses on the medium of the contact, asserting that "there is no allegation in the Corrected Complaint of any physical contact between Plaintiff and Defendant." (Mot. Dismiss Mem. Supp. 3, ECF No. 26-1 (emphasis in original).) But there is. Plaintiff has alleged that light waves emitted from the GIF touched Plaintiff's retina, generated an electric signal, and caused a seizure. Taking, as the Court must, Plaintiff's allegations as true, including his characterization of the science and Plaintiff's physical condition, there was physical contact.

Such contact can often be of an amorphous nature; it is not always accomplished by means of a solid, graspable object. According to the Supreme Court, " 'physical force' is simply 'force exerted by and through concrete bodies,' as opposed to 'intellectual force or emotional force.' " U.S. v. Castleman , 572 U.S. 157, 134 S.Ct. 1405, 1414, 188 L.Ed.2d 426 (2014) (quoting Johnson v. United States , 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ).4 For example, courts around the Country have found that second-hand smoke (i.e. , causing a person to come into contact with harmful smoke) can constitute a battery. See Irene Sharf, Breathe Deeply: The Tort of Smokers' Battery , 32 Hous. L. Rev. 615, 663 n.263 (1995) (citing cases). In *775Leichtman v. WLW Jacor Communications, Inc. , 92 Ohio App.3d 232, 634 N.E.2d 697 (Ohio Ct. App. 1994), the court stated that "tobacco smoke, as particulate matter, has the physical properties capable of making contact." 634 N.E.2d at 699 (internal quotation marks omitted). Even less tangible than smoke is sound. Yet, a court in Georgia found a battery where the tortfeasor made a loud noise over the phone in order to harm the victim. See Hendricks v. S. Bell. Tel. & Tel. Co. , 387 S.E.2d 593, 594-95 (Ga. App. 1989). This Court has stated in a prior case, applying Maryland law, that "it is not unreasonable to infer that causing an electrical shock to someone may be regarded as a battery whether or not [the tortfeasor] ever laid a hand on [the victim]." Carter v. Maryland , Civ. No. JKB-12-1789, 2012 WL 6021370, at *11 (D. Md. Dec. 3, 2012).

Defendant here allegedly chose to use the electronic capabilities of a computer as a weapon-as a means of causing physical harm. Defendant's tweet, activating certain harmful capabilities of the transmitting computer, converted the computer into a weapon to inflict physical injury. The computer and the tweet were no longer merely a mode of communication. Something more, and separate, from mere communication occurred ... an offensive touching. And, conscious interpretation of the "message" was irrelevant to the offensive touching.5 The physical element that Defendant caused to come into contact with Plaintiff was something entirely outside either party's mind. It was not words or pictures that would require conscious interpretation (i.e. an internal process) to cause an impact. The strobe GIF was a physical tool, one that would have the same impact on any person with Plaintiff's condition. It would not have mattered if the GIF had displayed hateful words, words of kindness, certain colors or pictures, or only abstractions. What mattered was the physical nature of the light emitted from the GIF. The light, and not the emotional or intellectual impact of any accompanying message, caused a seizure, and it would not have caused a seizure if viewed by a person without epilepsy, regardless of whether they interpreted the tweet as mean-spirited, frightening, or friendly.6

To be sure, Plaintiff has not presented the Court with a case in which a Texas court found a battery under the circumstances presented here. And the Court has found none. But the Court also has not found any Texas case establishing that the use of a laser-beam, or a sonic weapon, constitutes a battery. Yet if a person used a laser to intentionally blind another, or a sonic weapon to intentionally cause permanent hearing loss, the Court is confident that a Texas court would find a battery, even though the contact at issue was "only" a beam of light or a sound wave. That no Texas case exists where a plaintiff was harmed by an epileptogenic GIF in a tweet is neither troubling nor surprising. The broad sweep of Texas tort precedents provides firm ground on which to find that this unique fact pattern, if proven, qualifies as "battery."

*776Although neither party has presented the Court with a case that is entirely on point, neither party has presented the Court with a Texas case that would prevent relief for the contact Plaintiff has alleged here.7 Texas law does not suggest that knowledge of the specific physical reactions involved in the contact is needed to support the intent necessary for a claim of battery. That a tortfeasor is unaware exactly how a bullet is fired from a gun, or how exactly a poison would cause an illness, does not mean that his shooting or poisoning a victim is not a battery. Defendant here may not have reasoned through the exact physical properties that comprise the harmful touching in this case, but he allegedly knew that the GIF would cause a seizure, and he allegedly intended that the GIF cause a seizure. Ultimately, the Court has found no case law that forecloses the Plaintiff's avenue for relief, and it has found ample case law that supports his legal theory: that Defendant intentionally caused Plaintiff physical harm by means of a device, and that is a battery.8

c. Purposeful Infliction of Bodily Harm

Finally, Defendant has moved to dismiss Count IV on the ground that it is a tort "not yet recognized under Texas law." (Reply 1, ECF No. 30.) Plaintiff concedes that the tort has not been recognized in Texas, and asks the Court to dismiss the claim without prejudice. (See Opp'n 7, ECF No. 27.) Defendant argues that because this tort has not been recognized in Texas, Plaintiff can prove no set of facts upon which relief could be granted, thus Count IV should be dismissed with prejudice. (See Reply at 1-2 (citing, inter alia , Mylan Labs., Inc. v. Matkari , 7 F.3d 1130 (4th Cir. 1993).) Again, the Court disagrees with Defendant.

"The mere fact that a claim is novel does not defeat it." Prosser, § 3 at 18. Defendant *777seems to concede that this is a developing area of the law, and not a foreclosed avenue for relief. He writes that the Texas courts have "not yet recognized" the tort, and presents the Court with no Texas case law that would prevent relief. (Reply at 1 (emphasis added).) So, as this is a developing area of the law, see Restatement (Third) of Torts: Intentional Torts to Persons § 104 (Am. Law. Inst., Tentative Draft No. 1, 2015), the Court will dismiss the count without prejudice. It is not the place of a federal court, particularly one in Maryland, to interfere with a developing body of state tort law in Texas. Therefore, "with an eye alert to ... avoiding disregard of State law," the Court will not prevent Plaintiff from trying his hand in a different court, or at a different time, if he so chooses. Guaranty Trust Co. of N.Y. v. York , 326 U.S. 99, 110, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945).

V. Conclusion

Plaintiff may plead both battery and assault, and Texas courts recognize these claims as two distinct torts. Plaintiff has sufficiently pled physical contact so as to state a claim for battery under Texas law. Accordingly, the Court will deny Defendant's motion to dismiss with respect to Count I, and, as Plaintiff concedes that his fourth count is not yet recognized by Texas courts and asks that the Court dismiss that Count without prejudice, the Court will grant in part Defendant's motion to dismiss, dismissing Count IV, without prejudice.

The opinion of the Court was delivered by

Mr. Justice Hydrick.

*555Defendant appeals from judgment for plaintiff for $2,000 damages for mental anguish and nervous shock alleged to have been caused by abusive and threatening language addressed to plaintiff by defendant over the telephone.

Plaintiff alleges: That on October 27, 1916, she was night operator at the telephone exchange at Barnwell. That defendant called the 'exchange over the telephone and asked for a certain connection, which she promptly tried to get for. him, but, upon her failing to do so, he cursed and threatened her in an outrageous manner, saying to her; “You God damned woman! None of you attend to your business.” That she tried to reason with him, telling him that she had done all that she could to get the connection he wanted, but he continued to abuse and threaten her, saying to her: “You are a God damned liar. If I were there, I would break your God damned neck.” That the language and threat of defendant put her in' great fear that he would come to the exchange and further insult her, and that she was so shocked and unnerved that she was made sick and unfit for duty, and had to take medicine to make her sleep.. That for weeks aftewards, when defendant’s number would call, she would become so nervous that she could not answer the call. And that her nervous system was so shocked and wrecked that she suffered and continues to -suffer in health, mind, and body on account of the abusive and threatening language addressed to her by defendant.

The Court overruled a demurrer to the complaint for insufficiency, and defendant answered by general denial. Plaintiff’s testimony was in accord with the allegations of her complaint, and, at the close thereof, defendant moved for a nonsuit, which was refused.

(1) Although it cannot affect the decision, because the truth of the facts alleged is concluded by the verdict, it is nevertheless clue to the defendant to say that he denied emphatically using the language attributed to him, and his denial was corroborated by the testimony of his wife and a *556lineman of the telephone company. Defendant testified, also, that, on hearing that plaintiff was offended, he went .to her and' told her that he did not intend to say anything to offend her, and did not remember having done so, and asked her what he had said that offended her, and she replied that he- had spoken a little, harshly to her; that he told her he did not remember having done so, but, if she thought so, he was very sorry, 'and she seemed to be satisfied with this apology. This conversation was not denied by plaintiff.

The question is whether.plaintiff stated or proved a cause of action. That question was decided in the negative in Rankin v. Railroad Co., 58 S. C. 532, 36 S. E. 997. In that case, Mrs. Rankin alleged that the railroad company’s agents trespassed upon her premises, and were about to cut down some trees of great value and beauty, and when she approached them and requested them not to do so, the foreman of the gang “cursed her and ordered her to get away from there, or he would put her in the penitentiary, and threatened to strike -her, she being an old woman, and otherwise maltreated and abused, her to her .great damage.” A demurrer to this complaint was sustained. The Court considered the complaint as having attempted to-set "forth two causes of action, one for trespass on .the plaintiff’s property and the other for the abusive and threatening language. After showing that ho cause of action for trespass was stated, the question whether an action would lie for the abusive and threatening language was considered, and it was held that it would not. On appeal, this Court affirmed the judgment upon the reasoning of the Circuit Court, and said:

“No assault upon the plaintiff is alleged, and mere words, under the circumstances stated, would not be civilly actionable.” ' ’

The Circuit Court rested its conclusions in part upon the following quotations from Cooley on Torts:

“An act or omission may be wrong in morals, or it may *557be wrong in law. It is scarcely necessary to say that the two things are not interchangeable. No government has undertaken to give redress whenever an act was found to be wrong, judged by the standard of strict morality; nor' is it likely that any government ever will.” .Cooley on Torts, p. 3.

“A threat to commit an injury is also sometimes made a criminal offense, but it is not actionable private wrong. Many reasons may be assigned for.distinguishing between’ this case and that of an assault, one of them being that the threat only promises a future injury, and usually gives ample opportunity to provide against it, while an assault must be resisted on the instant. But the principal reason, perhaps, is found in the reluctance of the law to give a cause of action for mere words. Words never ■ constitute an assault, is a time-honored.'maxim. Words may be thoughtlessly spoken; they may be misunderstood; they may have indicated to the person threatened nothing but momentary spleen or anger, though when afterwards reported by witnesses they seem to express deliberate malice and purpose to injure. ■ Even when defamation is complained of, the law is very careful to require something more than expressions of anger, reproach, or contempt, before it will interfere; justly considering that it is safer to allow too much liberty than to interpose too much restraint. And comparing assaults and threats, another important difference is to be noted: In the case of threats, as has been stated, preventive remedies are available; but against an' assault there are usually none beyond what the party assaulted has in his own power of physical resistance.” Cooley on Torts, p. 29.

2, 3 The plaintiff .-in this case relies upon the case'of Cave v. Ry., 94 S. C. 282, 77 S. E. 1017, L. R. A. 1915b, 915 Ann. Cas. 1915a, 1065; and Lipman v. R. Co., 108 S. C. 151, 93 S. E. 714, L. R. A. 1918a, 596, in which it was held that a carrier is liable in damages for abusive language addressed to a passenger by the carrier’s serv*558ants. It was pointed out in those cases that the ground of the carrier’s liability for abusive language to a passenger is exceptional, on account of the special and peculiar relations, obligations, and duties existing between carrier and passenger, which differ in kind and degree from almost every other legal or contractual relation, since the carrier is in duty bound to protect his passengers from assault or insult by-his servants, and to afford them courteoús and respectful treatment. When the ground of liability is considered, the want of analogy between those cases and this becomes apparent,' for the defendant in this case was under-legal or contractual obligation of duty to. protect the plaintiff from insult, 'abusive language, or ’assault. Every decision has tacit reference to the 'facts and circumstances of the case decided. Therefore, when it was said in the Rankin case that no action would.lie for mere threats or abusive words spoken, the Court was careful to qualify the- statement by confining it to the. circumstances stated; for, as we have seen, abusive language addressed to a'passenger by a carrier’s servants is actionable. And it is not absolutely true that no action will lie for threats. Blackstone says that injury may be committed “by threats and menaces of bodily hurt, through fear of which a man’s business is interrupted. A menace alone,! without- a consequent inconvenience, makes not the injury, but to complete the wrong there must be both of them together. The remedy for this is in pecuniary damages, * * * this being inchoate, though not an absolute violence.” 3 Black. Com. 120. But the threat which causes the fear must be such as the law will recognize as adequate to produce the result. There must be just and reasonable ground for the fear; hence a vain or idle threat is not sufficient. It must be of such nature and made under such circumstances as to affect the mind of a person of ordinary reason and firmness, so as to influence his conduct; or it must appear that the person against whom it is made was peculiarly susceptible- to fear, and that the person making *559the threat knew and took advantage of the fact that he could not stand as much as an ordinary person. Grimes v. Gates, 47 Vt. 594, 19 Am. Rep. 129.

4-6 If it should be conceded that the language of defendant contained a threat, it was not of such nature or mádé -under such circumstances as.to put a person of ordinary reason and firmness in fear of bodily hurt. And it is not alleged that plaintiff was not a person of ordinary' réason and firmness and that defendant knew it; and, in the absence of such allegation, it will not be presumed. A person of ordinary reason and firmness should have known that the profane and vulgar language alleged to have been used by defendant was the result of a momentary fit of passion, caused by his failure to get the connection he asked for, and that he had no intention of doing or attempting to do plaintiff any bodily hurt. But the words used did not amount to á threat. Defendant said: “If I were there, I would break your * * * neck.” But he was not> there, and plaintiff knew it; and there is nothing in what he said expressive of an intention to go there and injure plaintiff. Webster defines a “threat” as “the expression of an intention to inflict evil or injury on another.” The law dictionaries give practically the same definition. A threat therefore looks to the future. As Judge Cooley says, in the passage-above quoted, “a threat only promises a future injury.” Here there was no expression of an intention to injure in the future, and therefore no threat.

The language attributed to defendant — especially when-used by a man to a woman — merits severest condemnation and subjects the user to the scorn and contempt of his fellow men. But it is not civilly actionable. Diligent search has failed to discover any case or authority to the contrary, but many in support of the conclusion which we have reached.

Judgement reversed.

SAMFORD, Judge.

The action in this case is based upon an alleged assault- on the person of plaintiff’s wife by one Sapp, an agent of defendant in charge of its office in Huntsville, Ala. The assault complained of consisted of an attempt on the part of Sapp to put his hand on the person of plaintiff’s wife coupled with a request that she come behind the counter in defendant’s office, and that, if she would come and allow Sapp to love and pet her, he “would fix her clock.”

The first question that addresses itself to us is, Was there such an assault as will justify an action for damages?

Blackstone’s definition of an assault is: “An attempt or offer to beat another, without touching him; as if one lifts up his cane or his fist in ,a threatening manner; or strikes at him but misses him.” As observed by Gaynor, J., in Prince v. Ridge, 32 Misc. 666, 66 N. Y. S. 454, this is not a complete definition, but is sufficient to serve as an illustration of the nature of an assault which will support an action.

In this state an assault and battery is: “Any touching by one person of the person of another in rudeness or in anger.” Seigel v. Long, 169 Ala. 79, 53 So. 753, 754, 33 L. R. A. (N. S.) 1070; Jacobi v. State, 133 Ala. 17, 32 So. 158.

*542While every battery includes an assault, an assault does not necessarily require a battery to complete it. What it does take 'to constitute an assault is an unlawful attempt to commit a battery, incomplete by reason of some intervening cause; or, to state it differently, to constitute an actionable assault there must be an intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented. 5 Corpus Juris, 615 (1); Prince v. Ridge, 32 Misc. 666, 66 N. Y. S. 454.

Solicitation by a man to á woman for intercourse unaccompanied by an assault is not actionable. Davis v. Richardson, 76 Ark. 348, 89 S. W. 318; Reed v. Maley, 115 Ky. 816, 74 S. W. 1079, 62 L. R. A. 900, 2 Ann. Cas. 453. Insulting words used when not accompanied by an afesault are not the subject of an action for damages. Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L. R. A. 1915F, 516.

What are the facts here? Sapp was the agent of defendant and the manager of its telegraph office in Huntsville. Defendant was under contract with plaintiff to keep in repair and regulated an electric clock in plaintiff’s place of business. When the clock needed attention, that fact was to be reported to Sapp, and he in turn would report to a special man, whose duty it was to do the fixing. At 8:13 o’clock p. m. plaintiff’s wife reported to Sapp over the phone that the clock needed attention, and, no one coming to attend to the clock, plaintiff’s wife went to the office of defendant about 8:30 p. m. There she found Sapp in charge and behind a ■desk or counter, separating the public from the part of the room in which defendant’s operator worked. The counter is four feet and two inches high, and so wide that, Sapp standing on the floor, leaning against the counter and stretching his arm and hand to the full length, the end of his fingers reaches just to the outer edge of the counter. The photographs in evidence show that the counter was as high as Sapp’s armpits. Sapp had had two or three drinks and was “still slightr ly feeling the effects of whisky; I felt all right; I felt good and amiable.” When plaintiff’s wife came into the office, Sapp came from towards the rear of the room and asked what he could do for her. She replied: “I asked him if he understood over the phone that my clock was out of order and when he was going to fix it. He stood there and looked at me a few minutes and said: ‘If you will come back here and let me love and pet you, I will fix your clock.’ This he repeated and reached for me with his hand, he extended his hand toward me, he did not put it on me; I jumped back. I was in his reach as I stood there. He reached for me right along here (indicating her left shoulder and arm).” The foregoing is the evidence offered by plaintiff tending to prove an assault. Per contra, aside from the positive denial by Sapp of any effort to touch Mrs. Hill, the physical surroundings as evidenced by the photographs of the locus tend to rebut any evidence going to prove that Sapp could have touched plaintiff’s wife across that counter even if he had reached his hand in her direction unless she was leaning against the counter or Sapp should have stood upon something so as to elevate him and allow him to reach beyond the counter. However, there is testimony tending to prove that, notwithstanding the width of the counter and the height of Sapp, Sapp could have reached from six to eighteen inches beyond the desk in an effort to place his hand on Mrs. Hill. The evidence as a whole presents a question for the jury. This was the view taken by the trial judge, and in the several rulings bearing on this question there is no error.

The next question is, Was the act of Sapp towards Mrs. Hill, plaintiff’s wife, such as to render this defendant liable under the ■doctrine of respondeat superior? It is admitted that at the time of the alleged assault Sapp was the manager of defendant’s office in Huntsville; that he was in and about his master’s business incident to that office; that a part of the business of defendant was the regulation and keeping in repair an electric clock in the store of plaintiff; that it was a part of Sapp’s duties to receive notice of any necessary repairs and to report them to .the proper servant or agent for attention; that it was not a part of Sapp’s duty to repair the clock, though he sometimes had set the hands at the proper time; that Mrs. Hill had telephoned Sapp reporting the clock for attention; that, no one responding to fix the clock, she went to defendant’s office and there found Sapp, who, being under the influence of liquor, made a proposal to plaintiff’s wife that, if she would come behind the counter and let him pet and love her, he would fix her clock, coupled with evidence justifying . the finding that the foregoing facts were accompanied by a technical assault.

' The defendant is a public service corporation, maintaining open offices for the transaction of its business with the public. In these offices are placed managers, who, within the line and scope of their-authority, are ■ the alter ego of the corporation. People entering these offices are entitled to courteous treatment, and if, while transacting the business of the' corporation with the agent, an assault is made growing out of, or being related to, the business there in hand, the corporation would be liable. Gassenheimer v. Western Ry., 175 Ala. 319, 57 So. 718, 40 L. R. A. (N. S.) 998. But the assault in this ease, if *543committed, was clearly from a motive or purpose solely and alone to satisfy the sensuous desires of Sapp, and not in furtherance of the business of defendant. In such case the liability rests with the agent and not the master. Such is the effect of the holding in Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L. R. A. 1915F, 516; Wells v. Henderson, etc., Co., 200 Ala. 262, 76 So. 28, L. R. A. 1918A, 115. To our minds, the evidence is conclusive to the effect that, while Sapp was the agent of defendant, in the proposal and technical assault made by him on plaintiff’s wife he stepped aside wholly from his master’s business to pursue a matter entirely personal. Where this is so, the doctrine of respondeat superior does not apply. Cooley on Torts, 533 et seq.; Hardeman v. Williams, 150 Ala. 415, 43 So. 726, 10 L. R. A. (N. S.) 653. The rules of law governing cases of this nature are perfectly clear and well defined. The confusion arises now and then from a failure to keep in mind the distinction between the act done by the servant within the scope of, and the act done during, his employment. The act charged in this case is clearly personal to Sapp and not referable to his employer. Hardeman v. Williams, supra.

The rulings of the trial court with reference to this question were erroneous.' The defendant was entitled to the general charge, and for the error in refusing this charge as. requested the judgment is reversed and the cause is remanded.

Reversed and remanded.

MR. JUSTICE GULBRANDSON

delivered the opinion of the Court.

Plaintiff, Debra Jo Hardy, brought this action against defendants for false imprisonment. The District Court of the Thirteenth Judicial District, Yellowstone County, issued judgment after a jury verdict in favor of defendants and plaintiff appeals.

Defendant, LaBelle’s Distributing Company (LaBelle’s), hired Hardy as a temporary employee on December 1, 1978. She was assigned duty as a sales clerk in the jewelry department.

On December 9, 1978, another employee for LaBelle’s, Jackie Renner, thought she saw Hardy steal one of the watches that LaBelle’s had in stock. Jackie Renner reported her belief to LaBelle’s showroom manager that evening.

On the morning of December 10, Hardy was approached by the assistant manager of LaBelle’s jewelry department and told that all new employees were given a tour of the store. He showed her into the showroom manager’s office and then left, closing the door behind him.

There is conflicting testimony concerning who was present in the showroom manager’s office when Hardy arrived. Hardy testified that David Kotke, the showroom manager, Steve Newsom, the store’s loss prevention manager, and a uniformed policeman were present. Newsom and one of the *265policemen in the room testified that another policeman, instead of Kotke, was present.

Hardy was told that she had been accused of stealing a watch. Hardy denied taking the watch and agreed to take a lie detector test. According to conflicting testimony, the meeting lasted approximately from twenty to forty-five minutes.

Hardy took the lie detector test which supported her statement that she had not taken the watch. The showroom manager apologized to Hardy the next morning and told her that she was still welcome to work at LaBelle’s. The employee who reported seeing Hardy take the watch also apologized. The two employees then argued briefly, and Hardy left the store.

Hardy brought this action claiming that defendants had wrongfully detained her against her will when she was questioned about the watch.

On appeal Hardy raises basically two issues:

1. Whether the evidence is sufficient to support the verdict and judgment and

2. Whether the District Court erred in the issuance of its instructions.

The two key elements of false imprisonment are the restraint of an individual against his will and the unlawfulness of such restraint. 32 Am.Jur.2d, False Imprisonment, § 5. The individual may be restrained by acts or merely by words which he fears to disregard. Panisko v. Dreibelbis (1942), 113 Mont. 310, 124 P.2d 997; Koreger v. Passmore (1908), 36 Mont. 504, 93 P. 805.

Here, there is ample evidence to support the jury’s finding that Hardy was not unlawfully restrained against her will. While Hardy stated that she felt compelled to remain in the showroom manager’s office, she also admitted that she wanted to stay and clarify the situation. She did not ask to leave. She was not told she could not leave. No threat of force or otherwise was made to compel her to stay. Although she followed the assistant manager into the office *266under pretense of a tour, she testified at trial that she would have followed him voluntarily if she had known the true purpose of the meeting and that two policemen were in the room. Under these circumstances, the jury could easily find that Hardy was not detained against her will. See also, Meinecke v. Skaggs (1949), 123 Mont. 308, 213 P.2d 237, and Roberts v. Coleman (1961), 228 Or. 286, 365 P.2d 79.

Hardy also claims the District Court erred by issuing court’s instructions 10, 12, 13, and 14, and by refusing her proposed instructions 7, 11, 17, 19, and 30. Hardy argues that the court’s instructions failed to comply with the facts and law, which were more accurately represented in her proposed instructions.

Where jury instructions, taken as a whole, state the law applicable to the case, a party cannot claim reversible error as to the giving of certain instructions. Goodnough v. State (1982), 199 Mont. 9, 647 P.2d 364, 39 St.Rep. 1170.

Here, the court’s instructions adequately stated the law on false imprisonment. Appellant’s proposed instructions 7, 11, 17, 19, and 30 either reiterated the court’s instructions or were inappropriate, and therefore were properly refused by the District Court.

Instruction 10 given by the District Court provided that there was no false imprisonment if the plaintiff voluntarily complied with the request to remain in the showroom manager’s office. This is one of the key elements of false imprisonment and was properly given. 32 Am.Jur.2d, False Imprisonment, § 10; Griffin v. Clark (1935), 55 Idaho 364, 42 P.2d 297.

Court’s instruction 12 provided that an employer upon reasonable cause may request a police investigation. Instruction 13 provided that a store employee may temporarily detain another person to investigate a theft only upon probable cause. These instructions paraphrase the standard rule requiring probable cause before a person may be detained. Duran v. Buttrey Food, Inc. (1980), Mont., 616 P.2d 327, 38 St.Rep. 1545.

*267Appellant failed to object to instruction 14, and finding no plain error, we need not review the instruction. State Highway Commission v. Beldon (1975), 166 Mont. 246, 531 P.2d 1324.

Finding substantial evidence to support the judgment and no error in the issuance of the instructions, the District Court’s judgment is affirmed.

MR. CHIEF JUSTICE HASWELL and JUSTICES SHEA, WEBER and MORRISON concur.

BEAM, Circuit Judge.

Carl Shen is a former employee of Leo A. Daly Company’s (Daly) Republic of China (Taiwan) office. Daly refused to pay taxes assessed by the Taiwanese government. As a result, Taiwan restricted Shen’s travel, forbidding him from leaving the country. Shen then sued Daly on multiple theories of liability for damages and injunctive relief. Shen prevailed in part in the district court. Both he and Daly appeal the judgment. We affirm in part and reverse in part.

I. BACKGROUND

Shen is a United States citizen who retains dual Taiwanese citizenship. In 1989, Shen moved to Taiwan to become managing director of Daly’s operation there.

To conduct business in Taiwan, Daly was required to designate a “responsible person,” or legal representative in the country, and Shen was so designated. In November 1992, Daly decided to withdraw from Taiwan because of business setbacks. As a result, Shen was terminated but chose to remain in Taiwan. Daly, however, failed to remove Shen as its responsible person.

In December 1993, Shen received a notice from the Taiwan Tax Authority that it wanted to audit Daly’s 1992 Taiwan tax returns. Shen, in turn, notified Daly’s accounting firm in Taiwan and informed them he was concerned he could be held responsible for any deficiency because his “chop,” the Taiwanese equivalent of a signature, was affixed to the returns. Daly *476responded that it was “inconceivable” any tax could be owed because Daly had suffered large losses in Taiwan. In January 1994, Shen asked Daly to indemnify him should the Taiwan Tax Authority impose the tax liability on him directly.

Following this request and until mid-October 1995, Shen, through a series of letters to Daly personnel and to Mr. Leo A. Daly III himself, implored Daly to resolve the tax dispute and remove him as the responsible person. In May 1994, the Taiwan Tax Authority assessed a tax liability of approximately $80,000 against Daly for 1991 and 1992. Daly did not appeal the assessment, and it became final in June 1995. In October 1995, the Taiwan Ministry of Finance and the Bureau of Entry and Exit informed Shen he was forbidden from leaving the country until resolution of the Daly tax issue.

Daly’s attempt to extricate Shen through diplomatic channels failed. Shen then brought suit for a declaratory judgment in Taiwan to remove himself as Daly’s responsible person. Although the court recognized Shen was no longer an employee of Daly, it denied relief because Daly had not replaced him as the responsible person. The Ministry of Finance also denied an appeal by Shen.

In 1997, Shen sued Daly in the United States District Court for the District of, Nebraska. He requested a preliminary injunction to force Daly to pay the taxes. The district court entered such an injunction on December 31, 1997. We assume Daly then paid the taxes because Taiwan lifted the travel restriction. The district court held a bench trial in February 1999 on the issue of a permanent injunction and damages. The district court found a violation of the implied covenant of good faith and fair dealing and granted a permanent injunction. Shen was also awarded attorney’s fees and $4760 in damages on his contractual claims. Shen, however, did not prevail on his claims for false imprisonment or intentional infliction of emotional distress. Both sides now appeal and we affirm in part and reverse in part.

II. DISCUSSION

This suit was brought under the court’s diversity jurisdiction and therefore Nebraska law controls on all the issues presented in this appeal.

A. Res Judicata

Daly contends Shen’s suit for a declaratory judgment in Taiwan should have preclusive effect in this suit and thus should bar all of Shen’s claims for relief. To give the judgment of a foreign country preclusive effect, it must be recognized as a legitimate judgment. See Hilton v. Guyot, 159 U.S. 113, 163, 16 S.Ct. 139, 40 L.Ed. 95 (1895). Nebraska, however, has very little case law on this issue. After reviewing the relevant case law from other jurisdictions, we are persuaded Nebraska would follow the principles laid out by the Supreme Court in Hilton.

A judgment should be enforced and not retried if the foreign forum: (1) provided a full and fair trial of the issues in a court of competent jurisdiction; (2) ensured the impartial administration of justice; and (3) ensured the trial was without prejudice or fraud. See id. The foreign court must also have proper jurisdiction over the parties and the judgment must not violate public policy. See id.; Weber v. Weber, 200 Neb. 659, 265 N.W.2d 436, 440 (1978). The burden of proof in establishing that the foreign judgment should be recognized and given preclusive effect is on the party asserting it should be recognized. See Bridgeway Corp. v. Citibank, 45 F.Supp.2d 276, 286 (S.D.N.Y.1999).

Thus, Daly, the party arguing that the Taiwan judgment should be given preclusive effect, must establish each of these factors. Daly has merely asserted the Taiwanese judgment should be given effect, it has not provided the district court or this court with any authority that guides to*477ward the recognition of foreign judgments. Additionally, Daly did not produce any evidence to support its res judicata defense. Accordingly, it did not provide enough information for us to determine if the Taiwan tribunals are impartial or if Taiwan procedures are compatible with due process. Therefore, we find Daly did not meet its burden of proof, and the Taiwanese court’s judgment will not be accorded preclusive effect.

B. Injunctive Relief

Daly next asserts the district court erred in granting preliminary and permanent injunctive relief. We review the district court’s decision to grant injunctive relief for an abuse of discretion and we will affirm unless the district court “clearly erred in its characterization of the facts, made a mistake of law, or abused its discretion in considering the equities.” Brotherhood of Maintenance of Way Employees, Lodge 16 v. Burlington N.R.R. Co., 802 F.2d 1016, 1020 (8th Cir.1986); see also United States v. Grand Lab., Inc., 174 F.3d 960, 965 (8th Cir.1999).

The district court held that Daly breached the implied covenant of good faith and fair dealing based on the agency relationship between Daly and Shen. We agree. Under Nebraska law, whether a person is an agent is a question of fact. See McCurry v. School Dist. of Valley, 242 Neb. 504, 496 N.W.2d 433, 439 (1993). The existence of an agency relationship does not depend on the terminology the parties use to characterize their relationship, but depends on the facts underlying the relationship. See Franksen v. Crossroads Joint Venture, 245 Neb. 863, 515 N.W.2d 794, 801 (1994); McCurry, 496 N.W.2d at 439. An agency relationship can be implied from words, conduct or circumstances that evidence an intent to create one. See McCurry, 496 N.W.2d at 439. For example, under agency principles, an agent can be given apparent or ostensible authority to act if the “alleged principal affirmatively, intentionally, or by lack of ordinary care causes third persons to act upon the apparent authority.” See Franksen, 515 N.W.2d at 801. That is what happened in this case.

After Daly terminated Shen in December 1992, Daly did not remove Shen as its responsible person. When Shen entreated Daly to remove him as its responsible person in January 1994, Daly still did not act. In June 1994, Daly tried to have one of the employees of its accounting firm in Taiwan replace Shen and informed Shen that the employee had become Daly’s new responsible person. The employee, however, decided not to take the appointment, and Daly failed to inform Shen of this fact for seven months. By the time Shen learned there was no replacement for him, the threat of a travel restriction was looming, and Daly was unable to find anyone willing to take the appointment. The result of Daly’s initial inaction and subsequent inability to replace Shen as responsible person was that Shen remained Daly’s agent regarding actions taken by Taiwan. Therefore, we find no error in the district court’s factual finding of an agency relationship.

A principal and an agent are in a fiduciary relationship. See Andrews v. Schram, 252 Neb. 298, 562 N.W.2d 50, 54 (1997). Because of the fiduciary relationship, the principal owes the agent a duty of good faith and fair dealing in the incidents of their relationship. See Lawrence Warehouse Co. v. Twohig, 224 F.2d 493, 497 (8th Cir.1955). Moreover, “ ‘[cjorrelative with the duties of the agent to serve loyally and obediently are the principal’s duties of compensation, indemnity, and protection.’ ” See Western Smelting & Ref. Co. v. First Nat’l Bank of Omaha, 150 Neb. 477, 35 N.W.2d 116, 121 (1948) (quoting Restatement of Agency Intro, note, vol. 2, p. 999). Daly breached its duty as a fiduciary in the following ways: (1) Daly did not pay the tax when it was assessed; (2) it chose not to appeal the assessment through proper channels; and (3) Daly did not find *478a replacement for Shen as responsible person.

We recognize Daly believes the taxes were unfairly assessed and amounted to little more than extortion. However, its dispute with Taiwan over the “ ‘principle of the thing’ took place over the body of its innocent former employee and agent” and, thus, the district court did not abuse its discretion in granting the injunction based on Daly’s breach of fiduciary duty. Shen v. Leo A. Daly Co., No. 8:97CV441, Slip Op. at 14 (D.Neb. May 28, 1999).

C. False Imprisonment

Shen contends the district court erred when it granted Daly’s motion for judgment as a matter of law on the false imprisonment claim. We review the decision to grant judgment as a matter of law de novo, viewing the evidence in the light most favorable to Shen. See DiCarlo v. Keller Ladders, Inc., 211 F.3d 465, 467 (8th Cir.2000). False imprisonment is “the unlawful restraint against his will of an individual’s personal liberty.” See Herbrick v. Samardick & Co., 169 Neb. 833, 101 N.W.2d 488, 491 (1960). Shen’s liberty was restrained in this case — he was not allowed to leave Taiwan. And, as Shen correctly points out, the term false imprisonment is broader than just confinement within a jail or prison. Shen’s confinement, however, was to a whole country. He was free to move about Taiwan, and was not restrained in any way in his daily activities. Although it is difficult to define exactly how close the level of restraint must be, in this case the country of Taiwan is clearly too great an area within, which to be falsely imprisoned. Therefore, the district court correctly granted judgment as a matter of law.

D. Intentional Infliction of Emotional Distress

Shen also asserts the district court improperly dismissed his claim for intentional infliction of emotional distress. We review legal conclusions de novo, and factual findings for clear error. See Simmons v. Cook, 154 F.3d 805, 807 (8th Cir.1998). To establish a claim for intentional infliction of emotional distress, Shen must prove:

(1) that there has been intentional or reckless conduct, (2) that the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community, and (3) that the conduct caused emotional distress so severe that no reasonable person should be expected to endure it.

Iwanski v. Gomes, 259 Neb. 632, 611 N.W.2d 607, 611 (2000).

The harms Shen suffered because of Daly’s refusal to pay the tax included “missed family occasions, estrangement from his wife, lost business opportunities, shame, depression, insomnia, anxiety, and a variety of health problems for which, he testified, he sought medical attention.” Shen, Slip-op. at 15. Although Shen undoubtedly did suffer stress and anxiety in this situation, his suffering does not rise to the level required by Nebraska law. Additionally, Daly’s conduct, though unquestionably unfair, did not exceed “all possible bounds of decency.” Therefore, we find no error in the district court’s dismissal of this claim.

E.Set-off

Daly contends it is entitled to set-off $6700 that Shen owes it against the $4670 Shen recovered on contract claims. The district court denied the set-off because it had not been pled and it was not included in the pre-trial order. We review the district court’s decision for an abuse of discretion. See Corsica Livestock Sales, Inc. v. Sumitomo Bank, 726 F.2d 374, 377 (8th Cir.1983).

The pleading rules in the federal courts are very liberal and Federal Rule of Civil Procedure 15 contemplates *479that courts should allow pleadings to be amended if it is necessary to further justice and will not prejudice the parties. See id. Furthermore, Rule 15(b) provides that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Consent may be implied if evidence to support the claim was introduced at trial without objection. See St. Joe Minerals Corp. v. Occupational Safety and Health Review Comm’n, 647 F.2d 840, 844 (8th Cir.1981).

Although Shen did not expressly consent to try the set-off issue, the issue was tried by implied consent in this case. On cross-examination, Shen, without objection, testified he received the refund from withholding taxes from the Taiwanese government. He testified that it was Daly’s money and amounted to $6700. Additionally, Shen acknowledged he owes Daly the money. The fact that the money is owed is not disputed. Therefore, we find the court abused its discretion and Daly is entitled to the set-off.

F. Attorney’s Fees

Daly asserts the district court erred in awarding Shen attorney’s fees for the action in Taiwan and for this action. Under Nebraska law, attorney’s fees are only proper if they are permitted by statute or by uniform practice. See Quinn v. Godfather’s Inv., Inc., 217 Neb. 441, 348 N.W.2d 893, 894 (1984). Furthermore, “[a]s a general rule of practice in [Nebraska], attorneys’ fees are allowed to the successful party in litigation only where such allowance is provided by statute.” Id. at 895. There is no Nebraska statute authorizing attorney’s fees for a breach of fiduciary duty. Therefore, the district erred in awarding attorney’s fees for this action.

However, the bar on attorney’s fees only applies in the very case being litigated. See Zimmerman v. FirsTier Bank, N.A., 255 Neb. 410, 585 N.W.2d 445, 454 (1998). It would not apply to the award of attorney’s fees for the action in Taiwan because that award, in essence, is compensatory. Nebraska courts have held that attorney’s fees are recoverable as compensatory damages when a person, damaged by a tort, was required to bring a suit against a third person to protect his interests. See Tetherow v. Wolfe, 223 Neb. 631, 392 N.W.2d 374, 379 (1986). A person who commits a breach of fiduciary duty is guilty of tortious conduct. See Restatement (Second) of Torts § 874 cmt. b (1979). Daly’s breach of the covenant of good faith and fair dealing is a breach of fiduciary duty. And, although Shen sued Daly in the action in Taiwan, he was required to bring his suit to protect his interest and have the travel restriction lifted. Therefore, the attorney’s fees awarded for the suit in Taiwan were proper as an element of damages for breach of fiduciary duty.

G. Damages

Shen contends the district court should have awarded him compensatory damages for the breach of the covenant of good faith and fair dealing. We review the district court’s damage award for an abuse of discretion. See Johnson v. Cowell Steel Structures, Inc., 991 F.2d 474, 476 (8th Cir.1993). Under Nebraska law, “[t]he amount of damages to be awarded is a determination solely for the fact finder, and its action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of the damages proved.” Seeber v. Howlette, 255 Neb. 561, 586 N.W.2d 445, 449 (1998). We find the record supports the district court’s award of attorney’s fees for the action in Taiwan as damages for the breach of the covenant of good faith. Thus, we find no abuse of discretion by the district court.

III. CONCLUSION

Accordingly, we affirm the judgment of the district court with respect to injunctive *480relief and damages. We reverse the judgment of the district court on the issue of set-off and reverse in part on the issue of attorney’s fees. This action is remanded to the District Court for an entry of judgment in accordance with this opinion.

DREW, Justice.

This appeal is from an order dismissing a complaint for failure to state a cause of action. Simply stated, the plaintiff sought money damages for mental suffering or emotional distress, and an ensuing heart attack and aggravation of pre-existing heart disease, allegedly caused by insulting language of the defendant’s employee directed toward her while she was a customer in its store. Specifically, in reply to her inquiry as to the price of an item he was marking, he replied: “If you want to know the price, you’ll have to find out the best *397way you can * * * you stink to me.” She asserts, in the alternative, that the language was used in a malicious or grossly reckless manner, “or with intent to inflict great mental and emotional disturbance to said plaintiff.”

No great difficulty is involved in the preliminary point raised as to the sufficiency of damages alleged, the only direct injury being mental or emotional with physical symptoms merely derivative therefrom. Kirksey v. Jernigan, Fla., 45 So.2d 188, 17 A.L.R.2d 766. While that decision would apparently allow recovery for mental suffering, even absent physical consequences, inflicted in the course' of other intentional or malicious torts, it does not resolve the central problem in this case, i. e. whether the conduct here claimed to have caused the injury, the use of insulting language under the circumstances described, constituted an actionable invasion of a legally protected right. Query: does such an assertion of a deliberate disturbance of emotional equanimity state an independent cause of action in tort ?

Appellant’s fundamental argument is addressed to that proposition. The case is one of first impression in this jurisdiction, and she contends that this Court should recognize the existence of a new tort, an independent cause of action for intentional infliction of emotional distress.

A study of the numerous references on the subject indicates a strong current of opinion in support of such recognition, in lieu of the strained reasoning so often apparent when liability for such injury is predicated upon one or another of several traditional tort theories. See annotation 15 A.L.R.2d 108; Wade, Tort Liability for Abusive Language, 4 Vanderbilt L.Rev., p. 63; Prosser, Intentional Infliction of Mental Suffering: a New Tort, 37 Mich.L.Rev. •874; Magruder, Mental and Emotional Disturbance and the Law of Torts, 49 Harv. L.Rev. 1033. Cf. Cason v. Baskin, 155 Fla. 198, 20 So.2d 243, 168 A.L.R. 430, quoting Sec. 4, Declaration of Rights, Fla.Const. F.S.A.

Appellee urges that we are foreclosed by the case of Mann v. Roosevelt Shop, Inc., Fla., 41 So.2d 894, 895, wherein the Court stated: “The case at bar presents a case of gross insult; however the law affords no redress for insult alone. See MacIntyre v. Fruchter, Sup., 148 N.Y.S. 786.” But that language was obviously confined to those cases where an attempt is made to state an action in defamation for injury to reputation as opposed to peace of mind, and we find no other opinion of this Court which bears directly on the present issue.

A most cogent statement of the doctrine covering tort liability for insult has been incorporated in the Restatement of the Law of Torts, 1948 supplement, sec. 46, entitled “Conduct intended to cause emotional distress only.” It makes a blanket provision for liability on the part of “one, who, without a privilege to do so, intentionally causes severe emotional distress to another,” indicating that the requisite intention exists “when the act is done for the purpose of causing the distress or with knowledge * * * that severe emotional distress is substantially certain to be produced by [such] conduct.” Comment (a), Sec. 46, supra. Abusive language is, of course, only one of the many means by which, the tort could be committed.

However, even if we assume, without deciding, the legal propriety of that doctrine, a study of its factual applications shows that a line of demarcation should be drawn between conduct likely to cause mere “emotional distress” and that causing “severe emotional distress,” so as to exclude the situation at bar. Illus. 5, sec. 46, supra. “So far as it is possible to generalize from the cases, the rule which seems to be emerging is that there is liability only for conduct exceeding all bounds which could be tolerated by society, of a nature especially calculated to cause mental damage of a very serious kind.” Prosser, Mental Suffering, 37 Mich.L.R. 889. And the most practicable view is that the functions of court and jury are no different than in oth*398er tort actions where there is at the outset a question as to whether the conduct alleged is so legally innocuous as to present no issue for a jury. Wade, p. 91, supra. See also 7 Miss.L.J. 390.

This tendency to hinge the cause of action upon the degree of the insult has led some courts to reject the doctrine in toto. Wallace v. Shoreham Hotel Corp., D.C.Mun.App., 49 A.2d 81. Whether or not this Is desirable, it is uniformly agreed that the determination of whether words or conduct are actionable in character is to< be made on an objective rather than subjective standard, from common acceptation. The unwarranted intrusion must be calculated to cause “severe emotional distress” to a person of ordinary sensibilities, in the absence of special knowledge or notice. There is no inclination to include all instances of mere vulgarities, obviously intended as meaningless abusive expressions. While the manner in which language is used may no doubt determine its actionable character, appellant’s assertion that the statement involved in this case was made to her with gross recklessness, etc., cannot take the place of allegations showing that the words were intended to have real meaning or serious effect.

A broader rule has been developed in a particular class of cases, usually treated as a distinct and separate area of liability originally applied to common carriers. Rest.Torts, per.ed., sec. 48. The courts have from an early date granted relief for offense reasonably suffered by a patron from insult by a servant or employee of a carrier, hotel, theater, and most recently, a telegraph office. The existence of a special relationship, arising either from contract or from the inherent nature of a non-competitive public utility, supports a right and correlative duty of courtesy beyond that legally required in general mercantile or personal relationships. Cases collected, section 14, annotation 15 A.L.R.2d 108, 136. Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L.R.A.1915F, 516; Wallace v. Shoreham Hotel, supra.

In view of the concurrent development of the cause of action first above described, there is no impelling reason to extend the rule of the latter cases. Their rationale does not of necessity cover the area of business invitees generally, where the theory of respondeat superior underlying most liabilities of the employer would dictate some degree of conformity to standards of individual liability. This factor, together with the stringent standards of care imposed in a number of the carrier cases (Haile v. New Orleans R. Co., 135 La. 229, 65 So. 225, 51 L.R.A.,N.S., 1171), may have influenced the treatment of the subject by editors of the Restatement, where the statement of the carrier doctrine is quite limited in scope and classified separately from the section covering the more general area of liability under consideration. But whether or not these rules are ultimately adopted in this jurisdiction, the facts of the present case cannot be brought within their reasonable intendment.

Affirmed.

TERRELL, C. J., and THOMAS, HOB-SON and ROBERTS, JJ., concur.

CARROLL, Judge.

This appeal is from an order dismissing an amended complaint in an action brought by a six year old girl through her guardian and next friend. It was alleged in the amended complaint that at a certain time and place the defendant “Willfully and maliciously approached the said plaintiff * * * and made the following statement to her: ‘Do you know that your mother took a man away from his wife? Do you know God is going to punish them? Do you know that a man is sleeping in your mother’s room?’ She then again repeated, ‘God will punish them.’ ” It was alleged the statements were knowingly false, “made maliciously, willfully and with utter disregard to the feelings of the six-year-old Plaintiff,” and it was further alleged that the statements were made “for the purpose of causing the plaintiff-child undue emotional stress, mental pain and anguish.” Resultant injuries were alleged, and damages were sought.

In our opinion the trial judge was in error in holding that a cause of action was not stated, and we reverse on the authority of Kirksey v. Jernigan, Fla.1950, 45 So.2d 188, 17 A.L.R.2d 766, and Slocum v. Food Fair Stores of Florida, Fla.1958, 100 So.2d 396.

The law in this state with reference to the cause of action declared on is dealt with in the cited cases. Thus, in Kirksey v. Jernigan, supra (45 So.2d at 189), the Supreme Court said:

“This court is committed to the rule, and we re-affirm it herein, that there can be no recovery for mental pain and anguish unconnected with physical injury in an action arising out of the negligent breach of a contract whereby simple negligence is involved. Dunahoo v. Bess, 146 Fla. 182, 200 So. 541, following International Ocean Telegraph Company v. Saunders, 32 Fla. 434, 14 So. 148, 21 L.R.A. 810.

“But we do not feel constrained to extend this rule to cases founded purely in tort, where the wrongful act is such as to reasonably imply malice, or where, from the entire want of care of attention to duty, or great indifference to the persons, property, or rights of others, such malice will be imputed as would justify the assessment of exei®^ plary dr punitive damages. See 15 Am.Jur., Damages, Sec. 179, page 596; Restatement of Torts, Section 47(b). * -1: * !>

Later, in Slocum v. Food Fair Stores of Florida, supra (100 So.2d at 397-398) it was said:

“A most cogent statement of the doctrine covering tort liability for insult has been incorporated in the Restatement of the Law of Torts, 1948 supplement, sec. 46, entitled ‘Conduct intended to cause emotional distress only.’ It makes a blanket provision for liability on the part of ‘one, who, without a privilege to do so, intentionally causes severe emotional distress to another,’ indicating that the requisite intention exists ‘when the act is done for the purpose of causing the distress or with knowledge * * * that severe emotional distress is substantially certain to be produced by [such] conduct.’ Comment (a), Sec. 46, supra. Abusive language is, of course, only one of the many means by which the tort could be committed.

*553“However, even if we assume, without deciding, the legal propriety of that doctrine, a study of its factual applications shows that a line of demarcation should be drawn between conduct likely to cause mere ‘emotional distress’ and that causing ‘severe emotional distress,’ so as to exclude the situation at bar. Ulus. 5, sec. 46, supra. ‘So far as it is possible to generalize from the cases, the rule which seems to be emerging is that there is liability only for conduct exceeding all bounds which could be tolerated by society, of a nature especially calculated to cause mental damage of a very serious kind.’ Prosser, Mental Suffering, 37 Mich. L.R. 889. And the most practicable view is that the functions of court and jury are no different than in other tort actions where there is at the outset a question as to whether the conduct alleged is so legally innocuous as to present no issue for a jury. Wade, p. 91, supra. See also 7 Miss.L.J. 390.

“This tendency to hinge the cause of action upon the degree of the insult has led some courts to reject the doctrine in toto. Wallace v. Shorham Hotel Corp., D.C.Mun.App., 49 A.2d 81. Whether or not this is desirable, it is uniformly agreed that the determination of whether words or conduct are actionable in character is to be made on an objective rather than subjective standard, from common acceptation. The unwarranted intrusion must be calculated to cause ‘severe emotional distress’ to a person of ordinary sensibilities, in the absence of special knowledge or notice. * * * ”

The complaint in the instant case met the requirements for validity as outlined in Kirksey v. Jernigan, supra, as quoted above. This is so because the claim presented here for damages “for mental pain and anguish unconnected with physical injury” did not arise “out of the negligent breach of a contract whereby simple negligence is involved” but from action “founded purely in tort, where the wrongful act is such as to reasonably imply malice,” or “great indifference” to the rights of others. The alleged tortious injury did not occur incident to violation of a contract obligation, but in the course of a tortious act, which, if the facts so established, was a slander of the plaintiff’s mother.

In the later Slocum case, the Supreme Court showed readiness to apply the rule discussed and quoted there from the Restatement and Prosser, to allow recovery for words or conduct which are intended or calculated to cause “severe emotional distress.”1 However, in the Slocum case it was held the words used were not of such consequence.

Therefore, the determinative question here is whether what was said to the child was intended or reasonably calculated to cause the child “severe emotional distress.” The alleged statements and the manner and circumstances under which they were communicated to the child leave little room to doubt they were made with a purpose and intent to shame her, and to shock the sensibilities of this child of tender years. Relating, as they did, to the child’s mother, the content and import of the statements were such that it can not be said as a matter of law that this alleged deliberately harmful act was not one "calculated to cause ‘severe emotional distress’ to a person [child] of ordinary ¡sensibilities.” See Slocum v. Food Fair Stores of Florida, supra.

Accordingly, the order dismissing the amended complaint is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

SWANN, Judge

(dissenting).

I dissent on the authority of Slocum v. Food Fair Stores of Florida, Inc., Fla.1958, 100 So.2d 396, and Mann v. Roosevelt Shop, Inc., Fla.1949, 41 So.2d 894.

O’DONNELL, J. pro tem.*

The complaint in this action contains three counts. We are concerned here, however, only with the allegations of the first two counts. In the first count, plaintiff Clifford Gerlaeh alleges that on December 25, 1956, defendants struck and beat him causing him bodily injury for which he seeks damages. In the second count, plaintiff and appellant Gail E. Taylor incorporates by reference the charging allegations of the first count and proceeds to allege that she is the daughter of plaintiff Clifford Gerlaeh, .that she was present at and witnessed the beating inflicted upon her father by defendants, and that as a result thereof, she suffered severe fright and emotional distress. She seeks damages for the distress so suffered. It is not alleged that any physical disability or injury resulted from the mental distress. A general demurrer to the second count of the complaint was interposed by defendants. The demurrer was sustained and appellant was granted 10 days leave to amend. Appellant failed to amend and judgment of dismissal of the second count was entered. The appeal is from the judgment of dismissal.

The California eases have for some time past allowed recovery of damages where physical injury resulted from intentionally subjecting the plaintiff to serious mental distress. (See cases cited in State Rubbish etc. Assn. v. Siliznoff, 38 Cal.2d 330, 337 [240 P.2d 282].) In the Siliznoff ease the Supreme Court extended the right of recovery to situations where no physical injury follows the suffering of mental distress, saying that “a cause of action is established when it is shown that one, in the absence of any privilege, intentionally subjects another to the mental suffering incident to serious threats to his physical well-being, whether or not the threats are made under such circumstances as to constitute a technical assault.” (P. 336.) In arriving at this result the court re*109lied in substantial part upon the development of the law in this field of torts as traced by the American Law Institute, and it quotes with approval (p. 337) section 46, as amended, of the Restatement of Torts, (Rest, of the Law, 1948 Supplement, Torts, §46) which reads: “One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it.” In explanation of the meaning of the term “intentionally” as it is employed in said section 46, the reporter says in subdivision (a) of that section: “An intention to cause severe emotional distress exists when the act is done for the purpose of causing the distress or with knowledge on the part of the actor that severe, emotional distress is substantially certain to be produced by his conduct: See Illustration 3.” Illustration 3 referred to reads as follows: “A is sitting on her front porch watching her husband B, who is standing on the sidewalk. C, who hates B and is friendly to A, whose presence is known to him, stabs B, killing him. C is liable to A for the mental anguish, grief and horror he causes.” (Emphasis added.)

The failure of the second count of the complaint in the case at bar to meet the requirements of section 46 of the Restatement of Torts is at once apparent. There is no allegation that defendants knew that appellant was present and witnessed the beating that was administered to her father; nor is there any allegation that the beating was administered for the purpose of causing her to suffer emotional distress, or, in the alternative, that defendants knew that severe emotional distress was substantially certain to be produced by their conduct.

Appellant cites the following cases in support of her contention that the second count of the complaint states facts sufficient to constitute a cause of action: Lindley v. Knowlton, 179 Cal. 298 [176 P. 440] ; Webb v. Francis J. Lewald Coal Co., 214 Cal. 182 [4 P.2d 532] ; Medeiros v. Coca-Cola Bottling Co., 57 Cal.App.2d 707 [135 P.2d 676] ; Jeppsen v. Jensen, 47 Utah 536 [155 P. 429, L.R.A. 1916D 614] ; Lambert v. Brewster, 97 W.Va. 124 [125 S.E. 244] and Rogers v. Williard, 144 Ark. 587 [223 S.W. 15, 11 A.L.R. 1115], Each of those cases met all of the requirements of one or the other of the rules discussed above, that is, either physical injury followed the emotional distress or, the actor knew that severe emotional distress was substantially certain to be produced by *110his conduct. They are all, therefore, distinguishable from the instant case on their facts.

Appellant argues that the intent to cause her severe emotional distress or knowledge that such distress was substantially certain to be produced might be proved upon the trial. Her complaint failed to allege such facts and since she was granted leave to amend and failed to do so, we are limited on appeal to a determination of whether the complaint states a cause of action, not whether it might be amended to do so. (Levinson v. Bank of America, 126 Cal.App.2d 122, 125 [271 P.2d 632].)

Judgment affirmed.

Dooling, Acting P. J., and Draper, J., concurred.

MR. CHIEF JUSTICE CALLAWAY

delivered the opinion of the court.

1. First cause of action. At the outset it is conceded that the Missouri River is a navigable stream; also that the plaintiff does not own any land 'beyond low-water mark. Nevertheless he claims that as he exercises complete dominion to the low-water mark on both sides of the stream, as an incident to that right he may control the use of the channel of the stream for all purposes except navigation. This right, he says, is based upon the common law of England; that law “so far as it is not repugnant to or inconsistent with the Constitution of the United States or the Constitution or laws of this state, or of the Codes, is the rule of decision in all the [1] courts of this state.” (Sec. 5672, Revised Codes 1921.) The common law of England means that body of jurisprudence as applied and modified by the courts of this country up to the time it became a rule of decision in this commonwealth; that time began with our first territorial legislature. (Aetna Accident & Liability Co. v. Miller, 54 Mont. 377, L. R. A. 1918C, 954, 170 Pac. 760; Gas Products Co. v. Rankin, 63 Mont. 372, 24 A. L. R. 294, 207 Pac. 993; State ex rel. Ford v. Young, 54 Mont. 401, 170 Pac. 947.)

At an early date in England title to the land beneath the sea and tidal rivers was conceived to be in the king, whereas title to the land under inland waters where the tide did not ebb and flow was in the private riparian proprietors. Originally the right to fish in the sea and tidal rivers was held to be the exclusive prerogative of the king as lord of the soil (Royal Fishery of the Banne, Davies Rep. 149; Hale, De Juris Maris, 18), but by a process of legal evolution this right came to be regarded as held in trust for the public; and the general rule now is that in tidal waters all have an equal right to fish. In nontidal streams the exclusive right of fishery is in the *595riparian proprietors of the soil. (See 27 Harvard Law Review, 750; 2 Farnham on Waters, sec. 368; note to Willow River Club v. Wade, 42 L. R. A. 305.) The real distinction between the two classes of streams, tidal and nontidal, seems to rest upon the ownership of the bed or channel of the stream. In all salt-water streams, subject to the action of the tides, the king' not only owned the bed or channel of the stream but had exclusive title in and jurisdiction over them for all purposes not inconsistent with navigation, while in fresh-water streams the riparian owner had certain special privileges of which the king could not deprive him. (1 Wood on Nuisances, 3d ed., see. 452; Griffith v. Holman, 23 Wash. 347, 83 Am. St. Rep. 821, 54 L. R. A. 178, 63 Pac. 239.)

Broadly speaking, the rule in this country has been that the right of fishing in all waters, the title to which is in the public, belongs to all the people in common. (Farnham on Waters, see. 368a; Legoe v. Chicago Fishing Co., 24 Wash. 175, 64 Pac. 141; Coolidge v. Williams, 4 Mass. 140; Lincoln v. Davis, 53 Mich. 375, 51 Am. Rep. 116, 19 N. W. 103.)

The state of Montana is the owner of all land below the water of a navigable stream. (See. 6674, Rev. Codes 1921; Port of Seattle v. Oregon, W. R. R. Co., 255 U. S. 57, 65 L. Ed. 500, 41 Sup. Ct. Rep. 237; Shiveley v. Bowlby, 152 U. S. 1, 38 L. Ed. 331, 14 Sup. Ct. Rep. 548; Hume v. Rogue River Packing Co., 51 Or. 237, 131 Am. St. Rep. 732, 92 Pac. 1065.) The words “all land” in section 6674 evidently refer to that below the low-water mark, for in section 6771 it is provided that “except where the grant under which the land is held indicates a different intent, the owner of the land, when it borders upon a navigable lake or stream, takes to the edge of the lake or stream at low-water mark; when it borders upon any other water, the owner takes to the middle of the lake or stream.” (And see Gibson v. Kelly, 15 Mont. [2] 417, 39 Pac. 517.) Perforce, then, the waters above the bed or channel of a navigable stream at low-water mark are public waters and in this the public have a right to fish, ex*596cept as restrained by tbe general law. (Tiffany on Real Property, sec. 309.) In rowing Ms boat upon the river and fishing therein the defendant was well within Ms rights. He also had the right to shoot wild ducks upon the surface of the stream or flying thereover, if he did not trespass upon the plaintiff’s adjacent property.

“While plaintiff’s position that he may control the use of the [3] channel for any purposes is untenable, still he may maintain his first cause of action, for the defendant went upon the land of plaintiff “above the ordinary low-water mark and in and above the ordinary high-water mark and between said water marks,” and tramped upon and destroyed native and planted grasses upon said land. In going upon plaintiff’s land in the fashion described, the defendant was a trespasser. (Bickel v. Polk, 5 Harr. (Del.) 325; Gould v. Hudson River R. R. Co., 6 N. T. 522.)

The court, in Albright v. Cortright, 64 N. J. L. 330, 81 Am. St. Rep. 504, 48 L. R. A. 616, 45 Atl. 634, observed: “In country life a multitude of acts are habitually committed that are technically trespasses. Persons walk, catch fish, pick berries and gather nuts in alieno solo [on another’s land], without strict right. Good-natured owners tolerate these practices until they become annoying or injurious, and then put a stop to them.”

2. The defendant trespassed also when he waded up^ and [4] down Fall Creek fishing. The channel of the creek belonged to the plaintiff (1 Tiffany on Real Property, sec. 302), and while the plaintiff did not own the fish, ferae naturae, he had the exclusive right to fish for them while they were in the waters of Fall Creek within his land. (26 C. J. 598.). It would seem clear that a man has no right to fish where he has no right to be. So it is held uniformly that the public have no right to fish in a non-navigable body of water, the bed of which is owned privately. (16 Mich. Law Review, 37; Baylor v. Decker, 133 Pa. 168, 19 Atl. 351; State v. Theriault, 70 Vt. 617, 67 Am. St. Rep. 695, 48 L, R. A. 290, 41 Atl. *5971030.) That defendant entered Fall Creek from the navigable Missouri of course is of no importance. (Knudson v. Hull, 46 Utah, 114, 148 Pac. 1070.)

Likewise the plaintiff trespassed when he tramped upon and destroyed the hay and broke and cut the willows growing upon the banks of the stream.

3. It must be held that when the defendant, although stand-[5] ing upon the land of another, fired a shotgun over plaintiff’s premises, dwelling and cattle, he interfered with “the quiet, undisturbed, peaceful enjoyment” of the plaintiff, and thus committed a technical trespass at least. The plaintiff was the owner of the land. Land, says Blackstone, in its legal signification has an indefinite extent, upwards as well as downwards:'whoever owns the land possesses all the space upwards to an indefinite extent; such is the maxim of the law. (Cooley’s Blackstone, Book II, 18; vol. 1, 445; Kent’s Commentaries, 401.)

The court of appeals of New York, in Butler v. Frontier Telephone Co., 186 N. Y. 486, 116 Am. St. Rep. 563, 9 Ann. Cas. 858, 11 L. R. A. (n. s.) 920, 79 N. E. 716, had before it an ejectment case in which wire, unsupported by any structure resting upon plaintiff’s land, was strung over the surface of the ground at a height of from twenty to thirty feet across the entire width of plaintiff’s premises. In speaking of the extent of the operation of the ancient maxim quoted above the court said: “The surface of the ground is a guide, but not the full measure, for within reasonable limitations land includes not only the surface but also the space above and the part beneath. (Co. Litt. 4a; 2 Blackstone’s Com. 18; 3 Kent’s Com., 14th ed., *401.) ‘Usque ad coelum’ is the upper boundary, and while this may not be taken too literally, there is no limitation within the bounds of any structure yet erected by man. So far as the case before us is concerned, the plaintiff as the owner of the soil owned upward to an indefinite extent.”

Sir Frederick Pollock, in the tenth edition of his valuable work on Torts, page 363, observes that it has been doubted *598whether it is a trespass to pass over land without touching the soil, as one may in a balloon, or to cause a material object, as a shot fired from a gun, to pass over it. “Lord EUensborough thought it was not in itself a trespass to ‘interfere with the column of air superincumbent upon the close,’ and that the remedy would be by action on the case for any actual damage: though he had no difficulty in holding that a man is a trespasser who fires a gun on his own land so that the shot fall on his neighbor’s land” — citing Pickering v. Rudd, 4 Camp. 219-221, 16 R. R. 777.

Fifty years later, says Pollock (page 364), “Lord Blackburn inclined to think differently (Kenyon v. Hart, 6 B. & S. 249, 252, 34 L. J. M. C87, 11 Law Times, 733), and his opinion seems the better.” Continuing he observes: “As regards shooting it would be strange if we could object to shots being fired point blank across our land only in the event of actual injury being caused, and the passage of the foreign object in the air above our soil being thus a mere incident and a distinct trespass to person or property.” But he concludes that when one takes into account the extreme flight of projectiles fired from modern artillery which may pass thousands of feet above the land, the subject is not without difficulty. That shortly it will become one of considerable importance is indicated by the rapid approach of the airplane as an instrumentality of commerce, as is suggested in a valuable note found in 32 Harvard Law Review, 569. However, it seems to be the consensus of the holdings of the courts in this country that the air space, at least near the ground, is almost as inviolable as the soil itself. (Id.; Harrington v. McCarthy, 169 Mass. 492, 61 Am. St. Rep. 298, 48 N. E. 278.) It is a matter of common knowledge that the shotgun is a firearm of short range. To be subjected to the danger incident to and reasonably to be anticipated from the firing of this weapon at water fowl in flight over one’s dwelling-house and cattle would seem to be far from inconsequential, and, while plaintiff’s allegations are very general in *599character, it cannot be said that a cause of action is not stated for nominal damages at least.

4. The fourth and fifth causes of action may be considered [6, 7] together, as they involve practically the same state of facts, except that in the latter the fence which the defendant is alleged to have tom down had posted upon it signs warning persons against hunting or trespassing on the premises.

Beyond question, whenever land is inclosed, a person who hunts or fishes thereon without the consent of the person entitled to the possession thereof is a trespasser. The exclusive right of hunting or fishing on land owned by a private individual is in the owner of the land, or in those who have a right to be there by his permission, as his guests, or by his grant. (27 C. J. 943; Shulte v. Warren, 218 Ill. 108, 13 L. R. A. (n. s.) 745, 75 N. E. 783.) The fact that all have the right to hunt and take such game as is allowed by statute upon the public domain does not warrant one in entering upon privately inclosed. lands for that purpose. Said Mr. Justice Champlin in Sterling v. Jackson, 69 Mich. 488, 13 Am. St. Rep. 405, 37 N. W. 845: “Since every person has the right of exclusive dominion as do the lawful use of the soil owned by him, no man can hunt or sport upon another’s land but by consent of the owner. It will be conceded that the owner of lands in this state has the exclusive right of hunting and sporting upon his own soil. "Whatever may be the view entertained when the land belongs to the United States or to the state, there can be no question when the land passes to the hands of private owners.”

It follows that the owner has a right to recover damages from those who trespass. And under the provisions of section 11482, Revised Codes of 1921, when the owner posts his land warning persons that they may not hunt or trespass thereon, and they do hunt or trespass within the prohibitions of that section, they are subject to criminal prosecution. So much of that section as is pertinent here provides that any person *600who shall hunt upon any inclosed land or premises where there is posted in a conspicuous place a sign or warning reading, “No hunting allowed on these premises,” or a sign or warning reading, “No trespassing allowed on these premises,” without the consent of the owner, shall be guilty of a misdemeanor, etc.

5. The sixth cause of action may be sustained by the alley[8] gation that defendant broke the fence surrounding and entered upon the Sentinel Rock ranch. That the defendant had the right to hunt upon the public domain lying easterly of the Sentinel Rock ranch must be conceded. If it be conceded also that by reason of the fact that he had no way of reaching the public land except by going across plaintiff’s ranch and therefore the law provided for him a way by necessity under the doctrine laid down in Herrin v. Sieben, 46 Mont. 226, 127 Pac. 323, the defendant has not shown that he availed himself of his remedy. If he were entitled to the privilege he should first have asked the plaintiff to designate the track or way to be pursued across the land, and then if the plaintiff failed or refused to designate the track or way the defendant might have made his own selection, with the restriction that he could not lawfully encroach upon the land of the plaintiff further than circumstances rendered necessary. (Herrin v. Sieben, supra,.)

6. Much that is said with respect to the second cause of [9] action is applicable to the seventh. In this cause of action it appears that the defendant entered upon the land of the plaintiff which entirely surrounded a small pond and a small stream flowing therein and a small stream flowing from said pond; these being frequented and inhabited by native mountain trout and other game fish, fed and protected by the plaintiff. The defendant did not have any right to enter upon the plaintiff’s lands or to take fish from the pond or streams, for the right to fish for them belonged exclusively to the owner of the soil or those in privity with him. (26 C. J. 597; Lembeck *601v. Nye, 47 Ohio St. 336, 21 Am. St. Rep. 828, 8 L. R. A. 578, 24 N. E. 686.) We need go no further.

7. Eighth cause of action. The wild game in this state be-[10] longs to the people in their sovereign capacity and it is not subject to private dominion to any greater extent than the people through the legislature have seen fit to prescribe. (Ex parte Maier, 103 Cal. 476, 42 Am. St. Rep. 129, 37 Pac. 402; Geer v. Connecticut, 161 U. S. 519, 40 L. Ed. 793, 16 Sup. Ct. Rep. 600.)

Section 6665, Revised Codes of 1921, declares: “Animals [11] wild by nature are the subjects of ownership, while living, only when on the land of the person claiming them, or when tamed, or taken or held in the possession, or disabled and immediately pursued.” Considering an identical statute with reference to the right of a person entitled to the possession of land upon and from which trespassers had killed and taken away wild ducks, the supreme court of California, speaking through Mr. Justice Yan Fleet, said under this statute an individual is as much to be protected in the enjoyment of his rights in this species of property as in any other under the law. “While these wild birds, therefore, are within the plaintiff’s inclosure, he has under this statute such right in them as entitle him to protect them from invasion by those not authorized to be there, and any person violating such rights is as much a trespasser as though entering unbidden the plaintiff’s dwelling.” (Kellogg v. King, 114 Cal. 378, 55 Am. St. Rep. 74, 46 Pac. 166.)

In State v. Mallory, 73 Ark. 236, 3 Ann. Cas. 852, 67 L. R. A. 773, 83 S. W. 955, it is held that when wild game or fowl are upon the private grounds of an individual, a qualified right of property in the individual attaches to it, with the exclusive right to hunt, kill and capture it. (And see Shulte v. Warren, supra.)

Whether or not the plaintiff under his pleading may assert a qualified ownership in the wild ducks in question, it is clear *602that the defendant, a trespasser, had no right to kill or capture them upon the plaintiff’s land.

The judgment is affirmed.

'Affirmed.

Associate Justices Galen, Stark and Matthews concur.

MR. JUSTICE' HOLLOWAY: It is so apparent that the facts stated in each cause of action disclose a technical trespass upon plaintiff’s property that, in my judgment, the appeal does not merit serious consideration, but should be disposed of summarily under Rule XVIII of the rules of this court.

Reid, J.

Plaintiff instituted this suit to recover damages because of the death of her husband, Theodore Rogers, which plaintiff claims was caused by the trespass and. negligence of the defendant, board of county road commissioners. Defendant filed a motion to dismiss, based on the pleadings and on the ground of governmental immunity. The lower court granted defendant’s motion and dismissed the cause. Plaintiff appeals from the judgment of dismissal of her cause.

Plaintiff claims that for two winter seasons previous to the date of the fatal injury to her-husband *664the defendant board of road commissioners had obtained a license to place a snow fence in decedent’s •field parallel to the roadway past decedent’s farm. Plaintiff claims in her declaration that the placing of the snow fence there was with the distinct understanding and agreement between the defendant and decedent that all of the fence together with the anchor posts, should be removed by defendant at the end of each winter season, when the necessity for snow fences for that season no longer existed. Plaintiff claims that such was the arrangement for the winter season of 1943-1944, that the arrangement was renewed for the winter season of 1944-1945, and.that in the spring of 1945 the defendant’s agents and employees removed the snow fence but did not remove a steel anchor post which protruded from 6 to 8 inches above the ground. Plaintiff further claims that the place where the post was located wa§ a meadow where the grass grew to a considerable height, so that the anchor post was entirely hidden, and that on July 23, 1945, after decedent’s husband had mowed several swaths around the field where the snow fence had been, with his mowing machine attached to his neighbor’s tractor, and without any negligence or want of proper method of operation on his part, the mowing bar struck the steel stake and as a result of the impact decedent was forcibly thrown from the seat of the mowing machine to and upon the wheels of the mowing machine and upon the ground. By reason of the accident decedent received severe injuries which caused his death on October 25,1945.

Plaintiff bases her suit upon trespass and negligence of defendant, claiming that the accident was the result of the trespass and negligence by the defendant in leaving the stake after the license to have *665the snow fence in place had expired, and the rest of the snow fence had been removed.-

Plaintiff claims that the suit is in reality defended by the Michigan Mutual Liability. Company, which company provided insurance coverage for the. defendant for. 1945. Plaintiff claims that the policy of insurance required the defendant to permit the liability company to defend a suit in the name of defendant, and that the suit is in fact being so defended by the liability company and further, that one of the provisions of the insurance contract is that the insurer will refrain from interposing the defense that the insured was engaged in the performance of a governmental function at the time of the accident, unless the insured shall promptly request the company in writing to make use of such defense. Plaintiff claims, that by reason of the third-party beneficiary statute, Act No. 296, Pub. Acts 1937 (Comp. Laws Supp. 1940, §§14063-1—14063-5, Stat. Ann. 1946 Cum. Supp. §§ 26.1231—26.1235), plaintiff is entitled to avail herself of the benefits of the undertaking on the part of the insurance company not to assert the defense of governmental immunity. Plaintiff moved the court to strike from the file defendant’s motion to dismiss plaintiff’s suit, and for an order requiring defendant to answer without asserting governmental immunity, which motion of the plaintiff was denied. We do not consider that the third-party beneficiary statute is of assistance to plaintiff under the circumstances of this case. The road commissioners had the right to permit inter-position of the defense of governmental immunity, appeared and have seen fit to interpose that defense. There is no showing that the surety company is actually conducting the defense.

The court dismissed plaintiff’s cause of action, ruling that the action was plainly an action based *666upon negligence, that there was no basis for any finding of trespass and that the defense of governmental immunity applied to the facts set forth-in plaintiff’s declaration.

Failure to remove the anchor stake upon expiration of the license to have it on defendant’s land was a continuing trespass and is alleged by plaintiff to have been a proximate cause of the damage which she. seeks to recover.

“Sec. 160. Failure to remove a thing placed on the land pursuant to a license or other privilege. '

“A trespass, actionable under the rule stated in section 158, may be committed by the continued presence on the land of a structure, chattel or other thing which the actor or his predecessor in legal interest therein has placed thereon

“(a) with the consent of the person then in possession of the land, if the actor fails to remove it after the consent has been effectively terminated, or

“ (b) pursuant to a privilege conferred on the actor irrespective of the possessor’s consent, if the actor fails to remove it after the privilege has been terminated, by the accomplishment of its purpose or otherwise.” 1 Restatement, Torts, p. 368.

Defendant argues that the county, as an involuntary political subdivision of the State, has a different status as to governmental immunity from that of townships, cities and villages, whose governmental immunity has been limited by statute, as for example, 1 Comp. Laws 1929, § 4229 (Staf. Ann. § 9.597) and 2 Comp. Laws 1929, § 4230 (Stat. Ann. § 9.598), concerning defective condition of highways, streets, et cetera. See, also, Act No. 264, Pub. Acts 1887 (1 Comp. Laws 1897, §3441), and citations thereunder. In Ashley v. City of Port Huron, 35 Mich. 296, 301 (24 Am. Rep. 552), decided in 1877, Justice CooijEY nowhere discusses the effect of any statute *667limiting the immunity of villages and cities, as any part of the ground for the opinion of the Court rendered by him. It will be noted that in Robinson v. Township of Wyoming, 312 Mich. 14, the cause ,of action was not concerning any defective highway, street, bridge or culvert.

For the distinction in the liability of cities, villages and townships on the one hand and that of counties on the other, on grounds of governmental immunity, defendant cites Maffei v. Berrien County, 293 Mich. 92, and other cases. However, at the time of the accident to decedent in this case, July 23,1945, there was still in effect Act No. 135, § 24, Pub. Acts 1939, as amended by Act No. 237, Pub. Acts 1943 (Comp. Laws Supp. 1943, § 13862-26, Stat. Ann. 1943 Cum. Supp. § 27.3548 [24]) (though repealed as of later effect by Act No. 87, Pub. Acts 1945 [Comp. Laws Supp. 1945, § 13862-26, Stat. Ann. 1946 Cum. Supp. §27.3548 (41) et seg.]). We should not overlook our decision in Benson v. State Hospital Commission, 316 Mich. 66, 82. The distinction favorable to the theory of nmiliability of counties, as being involuntary subdivisions of' the State and carrying on the functions of the State as- to local affairs, based on the proposition that the State itself would be immune under like circumstances, has no applicability to the instant case, where the cause of action arose while the act of 1943 was in effect, which act waived the State’s immunity in certain cases.

In view of our decisions in Ashley v. City of Port Huron, supra; Ferris v. Board of Education of Detroit, 122 Mich. 315, 318; Robinson v. Township of Wyoming, supra; Benson v. State Hospital Commission, supra, we consider plaintiff to have a cause of action under her declaration.

The judgment of the court dismissing the cause of action is reversed and the cause remanded for *668such, further proceedings as shall be found necessary. Costs to plaintiff.

Carr, C. J., and Btjtzel, Btjshnell, Sharpe, Boyles, and North, JJ., concurred with Reid, J. Dethmers, J., concurred in the result.

On Rehearing.

Btjshnell, J.

(concurring). After an opinion was filed in this' cause á- rehéaring was granted on the question of defendant’s governmental immunity from liability, for acts of trespass and negligence by its agents and’employees. Although an attempt is made in the briefs to secure reconsideration of other phases of the case, the order granting rehearing limits the scope of our present inquiry.

The facts are sufficiently stated in the original -opinion. It is, also pointed out therein that section 24 of Act No. 135, Pub. Acts 1939, as amended by Act No. 237, Pub. Acts 1943 (Comp. Laws Supp. 1943, §13862-26,' Stat. Ann. 1943 Cum. Supp. § 27.3548 [24]) was not repealed until 90 days after-the. adjournment of the regular session of the legislature on June 7, 1945. See Act No. 87, Pub. Acts 1945. Therefore, at the time of the accident in question (July 23, 1945) the 1943 act which waived governmental immunity was in effect. That act was silent as to waiver of the governmental immunity of counties and only provided for the hearing and determination of claims in the court of claims. ' -

In Maffei v. Berrien County, 293 Mich. 92, this Court quoted with approval the following from 14 Am. Jur. p. 216, § 49:

“ ‘The principal ground .upon which it .is held that counties are not liable for damages in action for their neglect of public duty is that- they are involun*669tary political divisions of the State, created for public purposes connected with the administration of local government. They are involuntary corporations, because created by the State, without the solicitation or even the consent of the people within their boundaries, and made depositaries of limited political and governmental functions, to be exercised for the public good, in behalf of the State, and not for themselves. They are in fact no less than public agencies of the State, invested by it with their particular powers, but with no power to decline the functions devolved upon them, and hence, are clothed with the same immunity from liability as the State itself.. In other words, the rule of nonliability for torts is dictated by public policy. Since a, suit against the county is in effect a suit against the' State, an action will not lie without the consent of the legislature.’ ”

Was such consent granted by the waiver of immunity clause in the 1943 act, supral

Unless during the period covered by the life of section 24 of this act, the legislature intended to preserve greater immunity in a case involving a county than that involving the State, it must be held that the waiver of governmental immunity extended to claims against counties. Buj; it is argued that the only forum provided for the hearing of such claims was a court of claims. This argument ignores that portion of section 24 which expresses the consent of the' State to have its liability for torts “determined in accordance with the same rules of law as apply to an action in the circuit court against an individual or a corporation.”

If any waiver of immunity as to counties existed, such waiver must be. found within the language of the 1943 act, and it also, .must be determined that .actions against counties could, under its language, be brought in the circuit court.

*670Was there any intention on the part of the legisla-' tnre to deprive the State of the defense of governmental immunity and leave this same defense available to its political subdivisions ? Such was the question resolved in Bernardine v. City of New York, 294 N. Y. 361 (62 N. E. [2d] 604, 161 A. L. R. 364, decided July 19, 1945). That court said:

“Section 8 of the court of claims act says: ‘The State hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court, against individuals or corporations.’ The gist of this waiver and consent of the State has been operative since 1929, and is limited only by the incidental procedure prescribed in article 2 of the same act. None of the civil divisions of the State— its counties, cities, towns and villages—has any independent sovereignty. See N. Y. Const, art.'9, § 9; City of Chicago v. Sturges, 222 U. S. 313, 323 (32 Sup. Ct. 92, 56 L. Ed. 215, Ann. Cas. 1913B, 1349; Keifer & Keifer v. Reconstruction Finance Corporation, U. S. 381 (59 Sup. Ct. 516, 83 L. Ed. 784). Cf. Gaglio v. City of Neiv York (C. C. A.), 143 Fed. [2d] 904. The legal irresponsibility heretofore enjoyed by these governmental units was nothing more than an extension of'the exemption from liability - which’the State possessed. Murtha v. New York Homeopathic Medical College & Flower Hospital, 228 N. Y. 183, 185 (126 N. E. 722). On the waiver by the State of its own sovereign dispensation, that extension naturally was at an end and thus we were brought all the way round to a point where the civil divisions of the State are answerable equally with individuals and private corporations for wrongs of officers and employees,—even if no separate statute sanctions that enlarged liability in a given instance. Holmes v. County of Erie, 291 N. Y. 798 (53 N. E. [2d] 369). Of course, the plaintiff in such a case must *671satisfy all applicable general statutory or charter requirements in the way of presentation of claims, notice of injury, notice of intent to sue and the like.

“The plea which was most often made for the immunity of the civil divisions of the State was an assertion that officers and employees thereof—when engaged in the discharge of so-called governmental functions—acted as delegates of the State and not in behalf of any municipal master. Murtha v. New York Homeopathic Medical College & Flower Hospital, 228 N. Y. 183, 185 (126 N. E. 722). On this former basis, it is possible to suggest that the State has now laid itself open to suit for wrongs of officers or employees of its civil divisions. But any view point of that kind would be vain, since the argumentation that had been contrived as a front for the doctrine of governmental immunity did not survive the renouncement of that doctrine. Cf. Miller v. City of New York, 292 N. Y. 571 (54 N. E. [2d] 690).”

■ See other authorities annotated in 161 A. L. R. p. 367 et seg.

In the original- opinion, this Court held that the judgment of the circuit court dismissing the cause of action should be reversed and the cause remanded for such further proceedings as shall be found necessary. On re-examination we adhere to our former conclusion.

Reid, J., concurred with Bushnell, C. J.

Boyles, J.

I agree with Mr. Justice Bushnell in affirming our previous opinion for reversal, but the case should be submitted to the jury on the ground that governmental immunity is not a defense which a county may interpose against liability for a continuing trespass. See Ashley v. City of Port Huron, 35 Mich. 296 (24,Am. .Rep. 552); Ferris v. Board of Education of Detroit, 122 Mich. 315; Robinson v. Toivnship of Wyoming, 312 Mich. 14.

*672But I do not agree that Act No. 135, Pub. Acts 1939, the court of claims act, and Act No. 237, Pub. Acts 1943, waiving immunity for the State by amending section 24 to said court of claims act, apply to suits against counties under the jurisdiction of the circuit court. I think that said acts apply only to claims against the State which come within the jurisdiction of the court of claims.

The ground on which the constitutionality of the 1943 amendment to section 24 of the court of claims act was upheld in Benson v. State Hospital Commission, 316 Mich. 66, as against the assertion that said section 24 was not within the title of the court of claims act, was as follows:

‘ ‘ The title of the court of claims act broadly refers to the jurisdiction of the court over all claims that may be asserted against the State, and, in a general way, to the powers and duties of the court. Immunity of the State from liability, for torts alleged to have been committed by its officers and employees, on the ground that the alleged tortfeasors were engaged in a governmental function, is a matter of defense which the State, in the absence of any statute to the contrary, may interpose in any suit brought against the State in the court of claims. It is a matter of defense which, if and when interposed by the State, must be considered and passed upon by the presiding judge in the court of claims. This is,an essential part of the powers and duties granted to or imposed upon the court, to consider, and determine, whether the defense is a bar to the suit. # * #

“The question as to whether the State might interpose the defense of governmental immunity from liability as a bar to recovery in a suit against the State in the court of claims, is essential to the jurisdiction of that court, and the powers and duties of the presiding judge. In the court of claims act as *673originally enacted in 1939, section 24 was inserted by tbe legislature for tbe obvious purpose of guiding tbe court in those cases in which the State might seek to defeat the claim by interposing the defense of governmental immunity.”

The same reasoning would not apply to suits against counties in the circuit court. Section 24, as amended by Act No. 237, Pub. Acts 1943, would not be within the title of the court of claims act if construed to apply to governmental immunity by counties, in cases under the jurisdiction of the circuit court. The scope of the court of claims act is plainly set forth in its title, as follows:

“An act to create a court of claims; and to prescribe its jurisdiction, powers and duties, the practice and procedure therein, and the time within which actions against the State and any departmént, commission, board, institution, arm or agency thereof may be brought. ”

For the above reason, I do not agree that section 24 of the court of claims act as amended in 1943 in itself expressly waived the defense of governmental immunity of counties from liability for the negligence of its officers, agents and employees. But in the instant case the plaintiff’s declaration is planted both on trespass and negligence. It is stated in the earlier opinion written by Mr. Justice Reid :

“The court dismissed plaintiff’s cause of action, ruling that the action was plainly an action based upon negligence, that there was no basis for any finding of trespass and that the defense of governmental immunity applied to the facts set forth in plaintiff’s declaration.”

I agree that the trial court erred in -that respect, and that if the-proofs adduced by the plaintiff should warrant, the plaintiff should have the' right to go to *674the jury on the ground that the defendant might be held liable in damages for a continuing trespass. On that ground alone, I concur in setting aside the order of the trial court and to the granting of a new-trial, with costs to appellant.

Sharpe, North, Dethmers, Butzel, and Carr, JJ., concurred with Boyles, J.

Branch, C. J.

The statute under which these actions were brought reads as follows: “23. Liability of Owner. Any person to whom or to whose property damage may be occasioned by a dog not owned or *320kept by him shall be entitled to recover such damage of the person who owns or keeps the dog, or has it in possession, unless the damage was occasioned to him while he was in the commission of a trespass or other tort.”

It is the contention of the defendants that the plaintiff Elaine was engaged in the commission of a trespass at the time of her injury and is, therefore, barred from recovery under the statute. The law in regard to a trespass to chattels is thus summarized in the Restatement of the Law of Torts, s. 218: “One who without consensual or other privilege to do so, uses or otherwise intentionally intermeddles with a chattel which is in the possession of another is liable for a trespass to such person if, but only if, (a) the chattel is impaired as to its condition, quality or value, or (b) the possessor is deprived of the use of the chattel for a substantial time, or (c) bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest.” In comment (f) to clauses (a) and (b), it is pointed out that “the interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. . . . Sufficient legal protection of the possessor’s interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference.”

No claim was advanced at the trial that the dog Toby was in any way injured by the conduct of the plaintiff Elaine. Consequently she could not be held liable for a trespass to the dog. Consequently her conduct did not constitute a trespass which will prevent her recovery under the statute here invoked.

The finding that “Tobey was in possession of the defendant, Louis, within the meaning of the statute” must be set aside. The evidence was uncontradicted that the dog belonged to the defendant Jane, who testified as follows: “Q. Did your father object to having Toby in the house? A. Yes, he did. Q. Could he have thrown Toby out of the house? ... A. I suppose so. Q. Did he do it? A. No, he didn’t. Q. So he allowed Toby to live there? A. He told me I would be fully responsible for the dog, take care of him.” The evidence was also uncontradicted that Jane took care of the dog when she left for work in the morning and that thereafter he was in the care of her mother and that the defendant Louis had nothing whatever to do with the care of the dog. Under these circumstances it must be held that the defendant Louis was not the possessor of the dog Toby and therefore *321as to him the motion for judgment at the close of the evidence should have been granted. “Possession” as used in the statute implies the exercise of care, custody or control of the dog by one who though not the owner assumes to act in his stead. Here the actual care, custody and control of the dog was in the owner Jane Szybiak, who was of adult age, and she alone was responsible for the conduct of the animal. The statute furnishes no justification for imposing liability on the defendant Louis.

Judgment on the verdict against the defendant Jane.

Judgment for the defendant Louis.

In the judgment against the defendant Jane, all concurred. In the judgment for the defendant Louis, Duncan, J., concurred in the result: the others concurred.

MEMORANDUM OPINION AND ORDER

GRAHAM, District Judge.

This case presents novel issues regarding the commercial use of the Internet, specifically the right of an online computer service to prevent a commercial enterprise from sending unsolicited electronic mail advertising to its subscribers.

Plaintiff CompuServe Incorporated (“CompuServe”) is one of the major national commercial online computer services. It operates a computer communication service through a proprietary nationwide computer network. In addition to allowing access to the extensive content available within its own proprietary network, CompuServe also provides its subscribers with a link to the much larger resources of the Internet. This allows its subscribers to send and receive electronic messages, known as “e-mail,” by the Internet. Defendants Cyber Promotions, Inc. and its president Sanford Wallace are in the business of sending unsolicited e-mail advertisements on behalf of themselves and their clients to hundreds of thousands of Internet users, many of whom are CompuServe subscribers. CompuServe has notified defendants that they are pi’ohibited from using its computer equipment to process and store the unsolicited e-mail and has requested that they terminate the practice. Instead, defendants have sent an increasing volume of email solicitations to CompuServe subscribers. CompuServe has attempted to employ technological means to block the flow of defendants’ e-mail transmissions to its computer equipment, but to no avail.

This matter is before the Court on the application of CompuServe for a preliminary injunction which would extend the duration of the temporary restraining order issued by this Court on October 24, 1996 and which would in addition prevent defendants from sending unsolicited advertisements to CompuServe subscribers.

For the reasons which follow, this Court holds that where defendants engaged in a course of conduct of transmitting a substantial volume of electronic data in the form of unsolicited e-mail to plaintiffs proprietary computer equipment, where defendants continued such practice after repeated demands to cease and desist, and where defendants deliberately evaded plaintiffs affirmative efforts to protect its computer equipment from such use, plaintiff has a viable claim for trespass to personal property and is entitled to injunctive relief to protect its property.

I.

The Court will begin its analysis of the issues by acknowledging, for the purpose of providing a background, certain findings of *1018fact recently made by another district court in a case involving the Internet:

1. The Internet is not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks. It is thus a network of networks----

2. Some networks are “closed” networks, not linked to other computers or networks. Many networks, however, are connected to other networks, which are in turn connected to other networks in a manner which permits each computer in any network to communicate with computers on any other network in the system. This global Web of linked networks and computers is referred to as the Internet.

3. The nature of the Internet is such that it is very difficult, if not impossible, to determine its size at a given moment. It is indisputable, however, that the Internet has experienced extraordinary growth in recent years . . . . In all, reasonable estimates are that as many as 40 million people around the world can and do access the enormously flexible communication Internet medium. That figure is expected to grow to 200 million Internet users by the year 1999.

4. Some of the computers and computer networks that make up the network are owned by governmental and public institutions, some are owned by non-profit organizations, and some are privately owned. The resulting whole is a decentralized, global medium of communications — or “cyberspace” — that links people, institutions, corporations, and governments around the world....

11. No single entity — academic, corporate, governmental, or non-profit — administers the Internet. It exists and functions as a result of the fact that hundreds of thousands of separate operators of computers and computer networks independently decided to use common data transfer protocols to exchange communications and information with other computers (which in turn exchange communications and information with still other computers). There is no centralized storage location, control point, or communications channel for the Internet, and it would not be technically feasible for a single entity to control all of the information conveyed on the Internet.

American Civil Liberties Union v. Reno, 929 F.Supp. 824, 830-832 (E.D.Pa.1996). In 1994, one commentator noted that “advertisements on the current Internet computer network are not common because of that network’s not-for-profit origins.” Trotter Hardy, The Proper Legal Regime for “Cyberspace”, 55 U.Pitt.L.Rev. 993, 1027 (1994). In 1997, that statement is no longer true.

Internet users often pay a fee for Internet access. However, there is no per-message charge to send electronic messages over the Internet and such messages usually reach their destination within minutes. Thus electronic mail provides an opportunity to reach a wide audience quickly and at almost no cost to the sender. It is not surprising therefore that some companies, like defendant Cyber Promotions, Inc., have begun using the Internet to distribute advertisements by sending the same unsolicited commercial message to hundreds of thousands of Internet users at once. Defendants refer to this as “bulk email,” while plaintiff refers to it as “junk email.” In the vernacular of the Internet, unsolicited e-mail advertising is sometimes referred to pejoratively as “spam.”1

CompuServe subscribers use CompuServe’s domain name “CompuServe.com” together with their own unique alpha-numezic identifier to form a distinctive e-mail mailing address. That address may be used by the subscriber to exchange electronic mail with any one of tens of millions of other Internet users who have electronic mail capability. E-mail sent to CompuServe subscribers is processed and stored on CompuServe’s proprietary computer equipment. Thereafter, it becomes accessible to CompuServe's subscribers, who can access CompuServe’s equipment and electronically retrieve those messages.

*1019Over the past several months, CompuServe has received many complaints from subscribers threatening to discontinue their subscription unless CompuServe prohibits electronic mass mailers from using its equipment to send unsolicited advertisements. CompuServe asserts that the volume of messages generated by such mass mailings places a significant burden on its equipment which has finite processing and storage capacity. CompuServe receives no payment from the mass mailers for processing their unsolicited advertising. However, CompuServe’s subscribers pay for their access to CompuServe’s services in increments of time and thus the process of accessing, reviewing and discarding unsolicited e-mail costs them money, which is one of the reasons for then-complaints. CompuServe has notified defendants that they are prohibited from using its proprietary computer equipment to process and store unsolicited e-mail and has requested them to cease and desist from sending unsolicited e-mail to its subscribers. Nonetheless, defendants have sent an increasing-volume of e-mail solicitations to CompuServe subscribers.

In an effort to shield its equipment from defendants’ bulk e-mail, CompuServe has implemented software programs designed to screen out the messages and block their receipt. In response, defendants have modified their equipment and the messages they send in such a fashion as to circumvent CompuServe’s screening software. Allegedly, defendants have been able to conceal the true origin of their messages by falsifying the point-of-origin information contained in the header of the electronic messages. Defendants have removed the “sender” information in the header of their messages and replaced it with another address. Also, defendants have developed the capability of configuring their computer servers to conceal their true domain name and appear on the Internet as another computer, further concealing the true origin of the messages. By manipulating this data, defendants have been able to continue sending messages to CompuServe’s equipment in spite of CompuServe’s protests and protective efforts.

Defendants assert that they possess the right to continue to send these communications to CompuServe subscribers. CompuServe contends that, in doing so, the defendants are trespassing upon its personal property.

II.

The grant or denial of a motion for preliminary injunction rests within the discretion of the trial court. Deckert v. Independence Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940). In determining whether a motion for preliminary injunction should be granted, a court must consider and balance four factors: (1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is advanced by the issuance of the injunction. Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir.1994); International Longshoremen’s Assoc. v. Norfolk S. Coip., 927 F.2d 900, 903 (6th Cir.1991). None of these individual factors constitute prerequisites that must be met for the issuance of a preliminary injunction, they are instead factors that are to be balanced. In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985). A preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a full trial on the merits. Indeed, “[a] party ... is not required to prove his case in full at a preliminary injunction hearing.” University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981).

III.

This Court shall first address plaintiff’s motion as it relates to perpetuating the temporary restraining order filed on October 24, 1996. That order enjoins defendants from:

(i) Using CompuServe accounts or CompuServe’s equipment or support services to send or receive electronic mail or messages *1020or in connection with the sending or receiving of electronic mail or messages;

(ii) Inserting any false reference to a CompuServe account or CompuServe equipment in any electronic message sent by Defendants; and

(iii) Falsely representing or causing their electronic mail or messages to bear the representation that any electronic mail or message sent by Defendants was sent by or originated from CompuServe or a CompuServe account.

(Temporary Restraining Order at 4).

As a general matter, the findings of this Court enunciated in its temporary restraining order are applicable to the request for preliminary injunction now at issue. The behavior described in subsections (ii) and (iii) of the temporary restraining order would be actionable as false representations or descriptions under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Also, the same behavior is actionable under the Ohio Deceptive Trade Practices Act, Ohio Rev.Code § 4165(B) and (D).

Defendants argue that the restrictions in the temporary restraining order are no longer necessary because defendants no longer have a CompuServe account. That being the case, a preliminary injunction perpetuating the proscribed activity articulated in subsection (i) of the temporary restraining order will present no hardship at all to defendants. Next, it does not appear that defendants would need to have a CompuServe account to perpetrate the proscribed acts articulated in subsections (ii) and (iii) of the temporary restraining order. Therefore, the fact that defendants no longer have an account with plaintiff does not vitiate the need which CompuServe has demonstrated for an injunction proscribing the acts set forth in those subsections.

For the foregoing reasons and the reasons articulated in the temporary restraining order issued by this Court, defendants Cyber Promotions, Inc. and its president Sanford Wallace are hereby enjoined from performing any of the acts therein described during the pendency of this litigation.

IV.

This Court will now address the second aspect of plaintiffs motion in which it seeks to enjoin defendants Cyber Promotions, Inc. and its president Sanford Wallace from sending any unsolicited advertisements to any electronic mail address maintained by CompuServe.

CompuServe predicates this aspect of its motion for a preliminary injunction on the common law theory of trespass to personal property or to chattels, asserting that defendants’ continued transmission of electronic messages to its computer equipment constitutes an actionable tort.

Trespass to chattels has evolved from its original common law application, concerning primarily the asportation of another’s tangible property, to include the unauthorized use of personal property:

Its chief importance now, is that there may be recovery ... for interferences with the possession of chattels which are not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered. Trespass to chattels survives today, in other words, largely as a little brother of conversion.

Prosser & Keeton, Prosser and Keeton on Torts, § 14, 85-86 (1984).

The scope of an action for conversion recognized in Ohio may embrace the facts in the instant case. The Supreme Court of Ohio established the definition of conversion under Ohio law in Baltimore & O.R. Co. v. O’Donnell, 49 Ohio St. 489, 32 N.E. 476, 478 (1892) by stating that:

[I]n order to constitute a conversion, it was not necessary that there should have been an actual appropriation of the property by the defendant to its own use and benefit. It might arise from the exercise of a dominion over it in exclusion of the rights of the owner, or withholding it from his possession under a claim inconsistent with his rights. If one take the property of another, for a temporary purpose only, in disregard of the owner’s right, it is a conversion. Either a wrongful taking, an assumption of ownership, an illegal use or *1021misuse, or a wrongful detention of chattels will constitute a conversion.

Id. at 497-98, 32 N.E. 476; see also Miller v. Uhl, 37 Ohio App. 276, 174 N.E. 591 (1929); Great American Mut. Indem. Co. v. Meyer, 18 Ohio App. 97 (1924); 18 O. Jur.3d, Conversion § 17. While authority under Ohio law respecting an action for trespass to chattels is extremely meager, it appears to be an actionable tort. See State of Ohio v. Herbert, 49 Ohio St.2d 88, 119, 358 N.E.2d 1090, 1106 (1976) (dissenting opinion) (“any workable cause of action would appear to be trespass to chattels”); see also Greenwald v. Kearns, 104 Ohio App. 473, 145 N.E.2d 462 (1957) (trespass on the rights of plaintiff in personal property is a precursor to an act in conversion); Simmons v. Dimitrouleas Wallcovering, Inc., No. 14804, 1995 WL 19136, at *2 (Ohio App. Jan.18,1995) (the court of appeals acknowledged that trespass to chattel claims were barred because those claims were dependent upon claimant’s ownership of the subject personal property); Klinebriel v. Smith, No. 94CA1641, 1996 WL 57947, at *2 (Ohio App. Feb.6, 1996) (where the court of appeals let stand a jury award on a “trespass against personal property” claim); Springfield Bank v. Caserta, 10 B.R. 57 (Bankr.S.D.Ohio 1981) (common law principles of trespass to chattels in Am.Jur.2d applied as controlling under Ohio law).

Both plaintiff and defendants cite the Restatement (Second) of Torts to support their respective positions. In determining a question unanswered by state law, it is appropriate for this Court to consider such sources as the restatement of the law and decisions of other jurisdictions. Bailey v. V & O Press Co., Inc., 770 F.2d 601, 604-606 (6th Cir.1985) (where court considered positions expressed in the Restatement (Second) of Torts in interpreting Ohio’s principles of comparative negligence) Garrison v. Jervis B. Webb Co., 583 F.2d 258, 262 n. 6 (1978); see also Wright, Miller & Cooper, Federal Practice and Procedure, § 4507 (West 1996).

The Restatement § 217(b) states that a trespass to chattel may be committed by intentionally using or intermeddling with the chattel in possession of another. Restatement § 217, Comment e defines physical “intermeddling” as follows:

... intentionally bringing about a physical contact with the chattel. The actor may commit a trespass by an act which brings him into an intended physical contact with a chattel in the possession of another[.]

Electronic signals generated and sent by computer have been held to be sufficiently physically tangible to support a trespass cause of action. Thrifty-Tel, Inc., v. Bezenek, 46 Cal.App.4th 1559, 1567, 54 Cal.Rptr.2d 468 (1996); State v. McGraw, 480 N.E.2d 552, 554 (Ind.1985) (Indiana Supreme Court recognizing in dicta that a hacker’s unauthorized access to a computer was more in the nature of trespass than criminal conversion); and State v. Riley, 121 Wash.2d 22, 846 P.2d 1365 (1993) (computer hacking as the criminal offense of “computer trespass” under Washington law). It is undisputed that plaintiff has a possessory interest in its computer systems. Further, defendants’ contact with plaintiffs computers is clearly intentional. Although electronic messages may travel through the Internet over various routes, the messages are affirmatively directed to their destination.

Defendants, citing Restatement (Second) of Torts § 221, which defines “dispossession”, assert that not every interference with the personal property of another is actionable and that physical dispossession or substantial interference with the chattel is required. Defendants then argue that they did not, in this case, physically dispossess plaintiff of its equipment or substantially interfere with it. However, the Restatement (Second) of Torts § 218 defines the circumstances under which a trespass to chattels may be actionable:

One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,

(a) he dispossesses the other of the chattel, or

(b) the chattel is impaired as to its condition, quality, or value, or

(c) the possessor is deprived of the use of the chattel for a substantial time, or

(d) bodily harm is caused to the possessor, or harm is caused to some person or thing *1022in which the possessor has a legally protected interest.

Therefore, an interference resulting in physical dispossession is just one circumstance under which a defendant can be found liable. Defendants suggest that “[u]nless an alleged trespasser actually takes physical custody of the property or physically damages it, courts will not find the ‘substantial interference’ required to maintain a trespass to chattel claim.” (Defendant’s Memorandum at 13). To support this rather broad proposition, defendants cite only two cases which make any reference to the Restatement. In Glidden v. Szybiak, 95 N.H. 318, 63 A.2d 233 (1949), the court simply indicated that an action for trespass to chattels could not be maintained in the absence of some form of damage. The court held that where plaintiff did not contend that defendant’s pulling on her pet dog’s ears caused any injury, an action in tort could not be maintained. Id. 63 A.2d at 235. In contrast, plaintiff in the present action has alleged that it has suffered several types if injury as a result of defendants’ conduct. In Koepnick v. Sears Roebuck & Co., 158 Ariz. 322, 762 P.2d 609 (1988) the court held that a two-minute search of an individual’s truck did not amount to a “dispossession” of the truck as defined in Restatement § 221 or a deprivation of the use of the truck for a substantial time. It is clear from a reading of Restatement § 218 that an interference or intermed-dling that does not fit the § 221 definition of “dispossession” can nonetheless result in defendants’ liability for trespass. The Koepnick court did not discuss any of the other grounds for liability under Restatement § 218.

A plaintiff can sustain an action for trespass to chattels, as opposed to an action for conversion, without showing a substantial interference with its right to possession of that chattel. Thrifty-Tel, Inc., 46 Cal.App.4th at 1567, 54 Cal.Rptr.2d 468 (quoting Zaslow v. Kroenert, 29 Cal.2d 541, 176 P.2d 1 (Cal.1946)). Harm to the personal property or diminution of its quality, condition, or value as a result of defendants’ use can also be the predicate for liability. Restatement § 218(b).

An unprivileged use or other intermeddling with a chattel which results in actual impairment of its physical condition, quality or value to the possessor makes the actor liable for the loss thus caused. In the great majority of cases, the actor’s intermeddling with the chattel impairs the value of it to the possessor, as distinguished from the mere affront to his dignity as possessor, only by some impairment of the physical condition of the chattel. There may, however, be situations in which the value to the owner of a particular type of chattel may be impaired by dealing with it in a manner that does not affect its physical condition.... In such a case, the intermeddling is actionable even though the physical condition of the chattel is not impaired.

The Restatement (Second) of Torts § 218, comment h. In the present case, any value CompuServe realizes from its computer equipment is wholly derived from the extent to which that equipment can serve its subscriber base. Michael Mangino, a software developer for CompuServe who monitors its mail processing computer equipment, states by affidavit that handling the enormous volume of mass mailings that CompuServe receives places a tremendous burden on its equipment. (Mangino Supp. Dec. at ¶ 12). Defendants’ more recent practice of evading CompuServe’s filters by disguising the origin of their messages commandeers even more computer resources because CompuServe’s computers are forced to store undeliverable e-mail messages and labor in vain to return the messages to an address that does not exist. (Mangino Supp. Dec. at ¶¶ 7-8). To the extent that defendants’ multitudinous electronic mailings demand the disk space and drain the processing power of plaintiffs computer equipment, those resources are not available to serve CompuServe subscribers. Therefore, the value of that equipment to CompuServe is diminished even though it is not physically damaged by defendants’ conduct.

Next, plaintiff asserts that it has suffered injury aside from the physical impact of defendants’ messages on its equipment. Restatement § 218(d) also indicates that recovery may be had for a trespass that causes *1023harm to something in which the possessor has a legally protected interest. Plaintiff asserts that defendants’ messages are largely unwanted by its subscribers, who pay incrementally to access their e-mail, read it, and discard it. Also, the receipt of a bundle of unsolicited messages at once can require the subscriber to sift through, at his expense, all of the messages in order to find the ones he wanted or expected to receive. These inconveniences decrease the utility of CompuServe’s e-mail service and are the foremost subject in recent complaints from CompuServe subscribers. Patrick Hole, a customer service manager for plaintiff, states by affidavit that in November 1996 CompuSeive received approximately 9,970 e-mail complaints from subscribers about junk e-mail, a figure up from approximately two hundred complaints the previous year. (Hole 2d Supp. Dec. at ¶ 4). Approximately fifty such complaints per day specifically reference defendants. (Hole Supp. Dec. at ¶ 3). Defendants contend that CompuServe subscribers are provided with a simple procedure to remove themselves from the mailing list. However, the removal procedure must be performed by the e-mail recipient at his expense, and some CompuServe subscribers complain that the procedure is inadequate and ineffectual. (See, e.g., Hole Supp. Dec. at ¶ 8).

Many subscribers have terminated their accounts specifically because of the unwanted receipt of bulk e-mail messages. (Hole Supp. Dec. at ¶ 9, Hole 2d Supp. Dec. at ¶ 6). Defendants’ intrusions into CompuServe’s computer systems, insofar as they harm plaintiffs business reputation and goodwill with its customers, are actionable under Restatement § 218(d).

The reason that the tort of trespass to chattels requires some actual damage as a prima facie element, whereas damage is assumed where there is a trespass to real property, can be explained as follows:

The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. In order that an actor who interferes with another’s chattel may be liable, his conduct must affect some other and more important interest of the possessor. Therefore, one who intentionally intermeddles with another’s chattel is subject to liability only if his intermeddling is harmful to the possessor’s materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected as stated in Clause (c). Sufficient legal protection of the possessor’s interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference.

Restatement (Second) of Torts § 218, Comment e (emphasis added). Plaintiff CompuServe has attempted to exercise this privilege to protect its computer systems. However, defendants’ persistent affirmative efforts to evade plaintiffs security measures have circumvented any protection those self-help measures might have provided. In this case CompuServe has alleged and supported by affidavit that it has suffered several types of injury as a result of defendants’ conduct. The foregoing discussion simply underscores that the damage sustained by plaintiff is sufficient to sustain an action for trespass to chattels. However, this Court also notes that the implementation of technological means of self-help, to the extent that reasonable measures are effective, is particularly appropriate in this type of situation and should be exhausted before legal action is proper.

Under Restatement § 252, the owner of personal property can create a privilege in the would-be trespasser by granting consent to use the property. A great portion of the utility of CompuServe’s e-mail service is that it allows subscribers to receive messages from individuals and entities located anywhere on the Internet. Certainly, then, there is at least a tacit invitation for anyone on the Internet to utilize plaintiffs computer *1024equipment to send e-mail to its subscribers.2 Buchanan Marine, Inc. v. McCormack Sand Co., 743 F.Supp. 139 (E.D.N.Y.1990) (whether there is consent to community use is a material issue of fact in an action for trespass to chattels). However, in or around October 1995, CompuServe employee Jon Schmidt specifically told Mr. Wallace that he was “prohibited from using CompuServe’s equipment to send his junk e-mail messages.” (Schmidt Dec. at ¶ 5). There is apparently some factual dispute as to this point, but it is clear from the record that Mr. Wallace became aware at about this time that plaintiff did not want to receive messages from Cyber Promotions and that plaintiff was taking-steps to block receipt of those messages. (Transcript of December 15, 1996 Hearing at 81-86).

Defendants argue that plaintiff made the business decision to connect to the Internet and that therefore it cannot now successfully maintain an action for trespass to chattels. Them argument is analogous to the argument that because an establishment invites the public to enter its property for business purposes, it cannot later restrict or revoke access to that property, a proposition which is erroneous under Ohio law. See, e.g., State v. Carriker, 5 Ohio App.2d 255, 214 N.E.2d 809 (1964) (the law in Ohio is that a business invitee’s privilege to remain on the premises of another may be revoked upon the reasonable notification to leave by the owner or his agents); Allstate Ins. Co. v. U.S. Associates Realty, Inc., 11 Ohio App.3d 242, 464 N.E.2d 169 (1983) (notice of express restriction or limitation on invitation turns business invitee into trespasser). On or around October 1995, CompuServe notified defendants that it no longer consented to the use of its proprietary computer equipment. Defendants’ continued use thereafter was a trespass; Restatement (Second) of Torts §§ 252 and 892A(5); see also Restatement (Second) of Torts § 217, Comment f (“The actor may commit a new trespass by continuing an intermeddling which he has already begun, with or without the consent of the person in possession. Such intermeddling may persist after the other’s consent, originally given, has been terminated.”); Restatement (Second) of Torts § 217, Comment g.

Further, CompuServe expressly limits the consent it grants to Internet users to send e-mail to its proprietary computer systems by denying unauthorized parties the use of CompuServe equipment to send unsolicited electronic mail messages. (Koleh-mainen Dec. at ¶ 2). This policy statement, posted by CompuServe online, states as follows:

CompuServe is a private online and communications services company. CompuServe does not permit its facilities to be used by unauthorized parties to process and store unsolicited e-mail. If an unauthorized party attempts to send unsolicited messages to e-mail addresses on a CompuServe service, CompuServe will take appropriate action to attempt to prevent those messages from being processed by CompuServe. Violations of CompuServe’s policy prohibiting unsolicited e-mail should be reported to....

Id. at ¶¶ 2 and 3. Defendants Cyber Promotions, Inc. and its president Sanford Wallace have used plaintiffs equipment in a fashion that exceeds that consent. The use of personal property exceeding consent is a trespass. City of Amsterdam v. Daniel Goldreyer, Ltd., 882 F.Supp. 1273 (E.D.N.Y.1995); Restatement (Second) of Torts § 256. It is arguable that CompuServe’s policy statement, insofar as it may serve as a limitation upon the scope of its consent to the use of its computer equipment, may be insufficiently communicated to potential third-party users when it is merely posted at some location on the network. However, in the present case the record indicates that defendants were actually notified that they were using CompuServe’s equipment in an unacceptable manner. To prove that a would-be trespasser acted with the intent required to support liability in tort it is crucial that defendant be placed on notice that he is trespassing.

*1025As a general matter, the public possesses a privilege to reasonably use the facilities of a public utility, Restatement (Second) of Torts § 259, but Internet service providers have been held not to be common carriers. Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F.Supp. 1361 (N.D.Cal.1995). The definition of public utility status under Ohio law was recently articulated in A & B Refuse Disposers, Inc. v. Bd. Of Ravenna Township Trustees, 64 Ohio St.3d 385, 596 N.E.2d 423 (1992). The Ohio Supreme Court held that the determination of whether an entity is a “public utility” requires consideration of several factors relating to the “public service” and “public concern” characteristics of a public utility. Id. 596 N.E.2d at 426. The public service characteristic contemplates an entity which devotes an essential good or service to the general public which the public in turn has a legal right to demand or receive. Id. at 425. CompuServe’s network, Internet access and electronic mail services are simply not essential to society. There are many alternative forms of communication which are customarily used for the same purposes. Further, only a minority of society at large has the equipment to send and receive e-mail messages via the Internet, and even fewer actually do. The second characteristic of a public utility contemplates an entity which conducts its operations in such manner as to be a matter of public concern, that is, a public utility normally occupies a monopolistic or ogopolistic position in the relevant marketplace. Id. at 425-426. Defendants estimate that plaintiff serves some five million Internet users worldwide. However, there are a number of major Internet service providers that have very large subscriber bases, and with a relatively minor capital investment, anyone can acquire the computer equipment necessary to provide Internet access services on a smaller scale. Furthermore, Internet users are not a “captive audience” to any single service provider, but can transfer from one service to another until they find one that best suits their needs. Finally, the Ohio Supreme Court made clear that a party asserting public utility status is required to support that assertion with evidence going to the relevant aforementioned factors. Id. 596 N.E.2d at 427. Defendants have not argued that CompuServe is a public utility, much less produced evidence tending to support such a conclusion. Therefore, CompuServe is not a public utility as that status is defined under Ohio law and defendants can not be said to enjoy a special privilege to use CompuServe’s proprietary computer systems.

In response to the trespass claim, defendants argue that they have the right to continue to send unsolicited commercial e-mail to plaintiffs computer systems under the First Amendment to the United States Constitution. The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.” The United States Supreme Court has recognized that “the constitutional guarantee of free speech is a guarantee only against abridgement by government, federal or state.” Hudgens v. NLRB, 424 U.S. 507, 513, 96 S.Ct. 1029, 1033, 47 L.Ed.2d 196 (1976). Indeed, the protection of the First Amendment is not a shield against “merely private conduct.” Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557, -, 115 S.Ct. 2338, 2344, 132 L.Ed.2d 487 (1995) (citation omitted).

Very recently, in an action filed by Cyber Promotions, Inc. against America Online, Inc. (“AOL”) the United States District Court for the Eastern District of Pennsylvania held that AOL, a company selling services that are similar to those of CompuServe, is private actor. Cyber Promotions, Inc. v. American Online, Inc., 948 F.Supp. 436, 443-44 (E.D.Pa.1996). That case involved the question of whether Cyber Promotions had the First Amendment right to send unobstructed e-mail to AOL subscribers. The court held that Cyber Promotions had no such right and that, inter alia, AOL was not exercising powers that are traditionally the exclusive prerogative of the state, such as where a private company exercises municipal powers by running a company town. Id. at 442-43; Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534 (1982); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). *1026This Court agrees with the conclusions reached by the United States District Court for the Eastern District of Pennsylvania.

In the present action, CompuServe is a private company. Moreover, the mere judicial enforcement of neutral trespass laws by the private owner of property does not alone render it a state actor. Rotunda & Nowak, Treatise on Constitutional Law § 16.3, 546 (West 1992). Defendants do not argue that CompuServe is anything other than a private actor. Instead, defendants urge that because CompuServe is so intimately involved in this new medium it might be subject to some special form of regulation. Defendants cite Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945), and Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994), which stand for the prop osition that when a private actor has a certain quantum of control over a central avenue of communication, then the First Amendment might not prevent the government from enacting legislation requiring public access to private property. No such legislation yet exists that is applicable to CompuServe. Further, defendants’ discussion concerning the extent to which the Internet may be regulated (or should be regulated) is irrelevant because no government entity has undertaken to regulate the Internet in a manner that is applicable to this action. Indeed, if there were some applicable statutory scheme in place this Court would not be required to apply paradigms of common law to the case at hand.

In Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), protestors of the Vietnam War sought to pass out written materials in a private shopping center. Even though the customers of the shopping center were the intended recipients of the communication, the Supreme Court held that allowing the First Amendment to trump private property rights is unwarranted where there are adequate alternative avenues of communication. Id. at 567, 92 S.Ct. at 2228. The Supreme Court stated that:

Although ... the courts properly have shown a special solicitude for the guarantees of the First Amendment, this Court has never held that a trespasser or an uninvited, guest may exercise general rights of free speech on property pnvately owned and used nondiscriminatorily for private purposes only.

Id. at 567-68, 92 S.Ct. at 2228 (emphasis added). Defendants in the present action have adequate alternative means of communication available to them. Not only are they free to send e-mail advertisements to those on the Internet who do not use CompuServe accounts, but they can communicate to CompuServe subscribers as well through online bulletin boards, web page advertisements, or facsimile transmissions, as well as through more conventional means such as the U.S. mail or telemarketing. Defendants’ contention, referring to the low cost of the electronic mail medium, that there are no adequate alternative means of communication is unpersuasive. There is no constitutional requirement that the incremental cost of sending massive quantities of unsolicited advertisements must be borne by the recipients. The legal concept in Lloyd that private citizens are entitled to enforce laws of trespass against would-be communicators is applicable to this case.

Defendants assert that CompuServe has assumed the role of a postmaster, to whom all of the strictures of the First Amendment apply, and that to allow it to enjoy a legally protected interest in its computer equipment in this context is to license a form of censorship which violates the First Amendment. However, such an assertion must be accompanied by a showing that CompuServe is a state actor. As earlier mentioned, defendants have neither specifically argued this point nor provided any evidence to support it. CompuServe is entitled to restrict access to its private property.

“The First and Fourteenth Amendments have never been treated as absolutes. Freedom of speech or press does not mean that one can talk or distribute where, when and how one chooses.” Breard v. City of Alexandria, 341 U.S. 622, 642, 71 S.Ct. 920, 932, 95 L.Ed. 1233 (1951) (upholding local ordinances banning commercial solicitations over First Amendment objections) (footnote omitted). In Rowan v. U.S. Post Office Dept., 397 U.S. *1027728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970) the United States Supreme Court held that the First Amendment did not forbid federal legislation that allowed addressees to remove themselves from mailing lists and stop all future mailings. The Court stated that the “mailer’s right to communicate must stop at the mailbox of an unreceptive addressee — [t]o hold less would be to license a form of trespass[.]” Id. at 736-37, 90 S.Ct. at 1490.

In Tillman v. Distribution Sys. Of America, Inc., 224 A.D.2d 79, 648 N.Y.S.2d 630 (1996) the plaintiff complained that the defendant continued to throw newspapers on his property after being warned not to do so. The court held that the defendant newspaper distributor had no First Amendment right to continue to throw newspapers onto the property of the plaintiff. After discussing the Supreme Court cases of Rowan and Breard, supra, the court pointed out that:

The most critical and fundamental distinction between the cases cited above, on the one hand, and the present case, on the other, is based on the fact that here we are not dealing with a government agency which seeks to preempt in some way the ability of a publisher to contact a potential reader; rather, we are dealing with a reader who is familiar with a publisher’s product, and who is attempting to prevent the unwanted dumping of this product on his property. None of the cases cited by the defendants stands for the proposition that the Free Speech Clause prohibits such a landowner from resorting to his common-law remedies in order to prevent such unwanted dumping. There is, in our view, nothing in either the Federal or State Constitutions which requires a landowner to tolerate a trespass whenever the trespasser is a speaker, or the distributor of written speech, who is unsatisfied with the fora which may be available on public property, and who thus attempts to carry his message to private property against the will of the owner.

Id. 648 N.Y.S.2d at 635. The court concluded, relying on Lloyd, supra, that the property rights of the private owner could not be overwhelmed by the First Amendment. Id. 648 N.Y.S.2d at 636.

In the present case, plaintiff is physically the recipient of the defendants’ messages and is the owner of the property upon which the transgression is occurring. As has been discussed, plaintiff is not a government agency or state actor which seeks to preempt defendants’ ability to communicate but is instead a private actor trying to tailor the nuances of its service to provide the maximum utility to its customers.

Defendants’ intentional use of plaintiffs proprietary computer equipment exceeds plaintiffs consent and, indeed, continued after repeated demands that defendants cease. Such use is an actionable trespass to plaintiffs chattel. The First Amendment to the United States Constitution provides no defense for such conduct.

Plaintiff has demonstrated a likelihood of success on the merits which is sufficient to warrant the issuance of the preliminary injunction it has requested.

As already discussed at some length, plaintiff has submitted affidavits supporting its contention that it will suffer irreparable harm without the grant of the preliminary injunction. As an initial matter, it is important to point out that the Court may accept affidavits as evidence of irreparable harm. Wounded Knee Legal Defense/Offense Committee v. Federal Bureau of Investigation, 507 F.2d 1281, 1287 (8th Cir.1974); see generally Wright, Miller & Kane, Federal Practice and Procedure § 2949, at 218-220 (West 1995). Defendants suggest that there are other reasons why CompuServe subscribers terminate their accounts, but do not offer any evidence which contradicts plaintiffs affidavits.

Normally, a preliminary injunction is not appropriate where an ultimate award of monetary damages will suffice. Montgomery v. Carr, 848 F.Supp. 770 (S.D.Ohio 1993). However, money damages are only adequate if they can be reasonably computed and collected. Plaintiff has demonstrated that defendants’ intrusions into their computer systems harm plaintiffs business reputation and goodwill. This is the sort of injury that warrants the issuance of a preliminary injunction because the actual loss *1028is impossible to compute. Basicomputer Corp. v. Scott, 973 F.2d 507 (6th Cir.1992); Economou v. Physicians Weight Loss Centers of America, 756 F.Supp. 1024 (N.D.Ohio 1991).

Plaintiff has shown that it will suffer irreparable harm without the grant of the preliminary injunction.

It is improbable that granting the injunction will cause substantial harm to defendant. Even with the grant of this injunction, defendants are free to disseminate their advertisements in other ways not constituting trespass to plaintiffs computer equipment. Further, defendants may continue to send electronic mail messages to the tens of millions of Internet users who are not connected through CompuServe’s computer systems.

Finally, the public interest is advanced by the Court’s protection of the common law rights of individuals and entities to their personal property. Defendants raise First Amendment concerns and argue that an injunction will adversely impact the public interest. High volumes of junk e-mail devour computer processing and storage capacity, slow down data transfer between computers over the Internet by congesting the electronic paths through which the messages travel, and cause recipients to spend time and money wading through messages that they do not want. It is ironic that if defendants were to prevail on their First Amendment arguments, the viability of electronic mail as an effective means of communication for the rest of society would be put at risk. In light of the foregoing discussion, those arguments are without merit. Further, those subscribing to CompuServe are not injured by the issuance of this injunction. Plaintiff has made a business decision to forbid Cyber Promotions and Mr. Wallace from using its computers to transmit messages to CompuServe subscribers. If CompuServe subscribers are unhappy with that decision, then they may make that known, perhaps by terminating their accounts and transferring to an Internet service provider which accepts unsolicited e-mail advertisements. That is a business risk which plaintiff has assumed.

Having considered the relevant factors, this Court concludes that the preliminary injunction that plaintiff requests is appropriate.

V.

Based on the foregoing, plaintiffs motion for a preliminary injunction is GRANTED. The temporary restraining order filed on October 24, 1996 by this Court is hereby extended in duration until final judgment is entered in this case. Further, defendants Cyber Promotions, Inc. and its president Sanford Wallace are enjoined from sending any unsolicited advertisements to any electronic mail address maintained by plaintiff CompuServe during the pendency of this action.

It is so ORDERED.

NEUBAUER, EJ.

¶ 1. This case is about the conversion of a helicopter when it was allowed to be used beyond the scope authorized by its owner. A managerial employee of Midwestern Helicopters, LLC (Midwestern), allowed a pilot to take a helicopter on a skydiving job after the owner of Midwestern had established a policy that commercial events required his written permission. The pilot ended up hitting a power line and crashing the helicopter. Midwestern sued both the employee and the pilot for conversion and negligence. The theory of the case was that the employee and the pilot took the helicopter without permission from Midwestern and property damage resulted. The case was tried to the court, and the trial court ruled that the employee's unauthorized permission to the pilot to take the helicopter out for the skydiving event, along with the resulting damage, constituted conversion. We agree and affirm.

FACTS

¶ 2. Midwestern is a small company that bought, sold and repaired helicopters, provided helicopter flight instruction, provided charter helicopter transportation, and arranged with contract pilots to sell helicopter rides at community events. John Farrish is the sole member of Midwestern. At some time during 2008, he decided he wanted to get out of the helicopter business. Among *215other preparations for sale, Parrish decided to stop doing "commercial event work," because this aspect of the business was losing money. Commercial event work was when an event entity, for example an airshow or a snowmobile festival, would arrange with Midwestern to have a helicopter at its event. The public would be able to purchase helicopter rides at the event. Midwestern would get paid per ticket, depending on how many people it flew.

¶ 3. To communicate his decision regarding commercial events to all those involved with scheduling and/or flying the helicopters, Parrish put a notice on Midwestern's online scheduling program, where pilots would schedule use of helicopters, that said, "No commercial events without written permission from Midwestern Helicopter." Parrish also communicated this new policy to the defendant William Coolbaugh at a June 5, 2008 meeting. Coolbaugh managed the maintenance, flight instruction, and commercial work at Midwestern.

¶ 4. The accident happened on July 4, 2008, when Jon Orlos, a contract pilot for Midwestern, crashed after hitting power lines. Coolbaugh had given Orlos permission to take a Midwestern helicopter to Skydive Chicago, an event at which Orlos would take up skydivers for jumps. Orlos apparently took some passengers on a side sightseeing trip when he flew low enough to hit power lines and crash, severely damaging the helicopter.

¶ 5. Midwestern sued Coolbaugh and Orlos for the loss of the helicopter, alleging conversion and negligence.1 Orlos did not answer the complaint, and a default judgment was entered against him. The case *216between Midwestern and Coolbaugh was tried to the court. The court found that Coolbaugh controlled the helicopter, that he gave Orlos permission to take the helicopter without the owner's consent, and that there resulted serious interference with the rights of the owner to possess the helicopter due to the resulting crash and $384,819 in damages. The trial court concluded that Midwestern had proven its case for conversion but that it had not met its burden of proof regarding negligence. Judgment was entered in favor of Midwestern, and Coolbaugh appeals.

DISCUSSION

Coolbaugh's Appeal and Standard of Review

¶ 6. Coolbaugh raises several issues on appeal. First, Coolbaugh argues that "the trial court erred when it found Coolbaugh guilty of conspiracy to convert the helicopter" and that Midwestern failed to meet its burden of proof for conspiracy. Second, Coolbaugh argues that the trial court "erred when it found that the conversion caused the crash." Finally, Coolbaugh argues that he is not liable because of the superseding cause defense and because public policy precludes liability.

¶ 7. We uphold the trial court's findings of fact unless they are clearly erroneous. Wis. Stat. § 805.17(2) (2011-12).2 The trial court's findings will be affirmed unless the great weight and clear preponderance of the evidence supports a contrary finding. Noll v. Dimiceli's, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575 (Ct. App. 1983). The trial court's decision that the facts amounted *217to conversion is a question of law which we review de novo. Kersten v. H.C. Prange Co., 186 Wis. 2d 49, 56, 520 N.W.2d 99 (Ct. App. 1994) (whether facts fulfill legal standard is question of law).

Conspiracy

¶ 8. Regarding Coolbaugh's arguments on conspiracy, Midwestern did not plead conspiracy, and the trial court did not address conspiracy, much less find that there was a conspiracy to convert the helicopter. We need not address this argument further. See Rock Lake Estates Unit Owners Ass'n v. Township of Lake Mills, 195 Wis. 2d 348, 419-20 & n.5, 536 N.W.2d 415 (Ct. App. 1995) (we need not address arguments unsupported by references to the record).

Conversion

¶ 9. Conversion is the intentional, unauthorized control of another's chattel so as to interfere with the owner's possessory rights. A person is liable for conversion when he or she (1) intentionally controls or takes property belonging to another, (2) without the owner's consent, (3) resulting in serious interference with the owner's rights to possess the property. H.A. Friend & Co. v. Professional Stationery, Inc., 2006 WI App 141, ¶ 11, 294 Wis. 2d 754, 720 N.W.2d 96; see also Wis JI—Civil 2200. The general rule regarding damages for conversion is that "the plaintiff may recover the value of the property at the time of the conversion plus interest to the date of the trial." Metropolitan Sav. & Loan Ass'n v. Zuelke's, Inc., 46 Wis. 2d 568, 577, 175 N.W.2d 634 (1970) (citation omitted).

*218¶ 10. The evidence supports the trial court's findings that all three elements of conversion were present. First, the trial court found that Coolbaugh controlled the helicopter. Coolbaugh managed the flight school and maintenance work and oversaw the commercial work. Coolbaugh decided when a pilot could fly a helicopter on his or her own. Coolbaugh had authority to give pilots access to the hangar and the key locker. Coolbaugh himself testified that he gave Orlos permission to take the helicopter to the July 4th event. It is reasonable to infer that Coolbaugh had control of the helicopter if he gave someone else permission to use it.

¶ 11. Second, the trial court found that Coolbaugh did not have authority to give permission to take the helicopter to the skydiving event without the owner's consent. There was conflicting testimony about whether Parrish's ban on commercial events prohibited all events at which a pilot would take up individuals or only those that were "on speculation," in other words, where individuals would pay per ride and no income was guaranteed. There was also conflicting testimony about whether Skydive Chicago was a guaranteed-money event or per participant pay. The trial court found that "Mr. Parrish had made it clear to Mr. Coolbaugh that no helicopter should be used for an event... [where] the amount of money being paid was dependent on the unknown number of people that. . . would determine how much money might be paid for the helicopter." The trial court noted that the director of Skydive Chicago testified that he never made any agreement with Midwestern to pay an hourly rate and that there was no guarantee. The trial court found that Coolbaugh "had the helicopter under control and ... in *219his actions in granting Mr. Orlos the right to take it on the Skydive Chicago, he did it without the owner's consent." "[W]hen the trial judge acts as the finder of fact, and where there is conflicting testimony, the trial judge is the ultimate arbiter of the credibility of the witnesses." Noll, 115 Wis. 2d at 644 (citation omitted). The trial court found that Coolbaugh allowed Orlos to take the helicopter without the owner's consent. Implicit in this finding is the conclusion that Coolbaugh understood the scope of the "no commercial events" policy and deliberately violated it. Given the conflicting testimony, we cannot say that this conclusion is clearly erroneous.

¶ 12. Finally, the trial court found that there was serious interference with the rights of the owner based on the $384,819 in damage to the helicopter. It is reasonable to infer that this magnitude of damage seriously interfered with the owner's rights to possession. The amount was not disputed at trial. Because the trial court findings of fact were not clearly erroneous, we uphold them on appeal. Wis. Stat. § 805.17(2).

¶ 13. After finding these facts, the trial court made the conclusion of law that the facts constituted conversion under the elements stated above and Restatement (Second) of Torts, § 228 (1965), Exceeding Authorized Use (hereinafter Section 228), which states: "One who is authorized to make a particular use of a chattel, and uses it in a manner exceeding the authorization, is subject to liability for conversion to another whose right to control the use of the chattel is thereby seriously violated." This section "arises most frequently in cases of bailments under contract for a particular use, but it is equally applicable to a servant, an independent contractor, a gratuitous user, or any *220other person permitted to use the chattel." Section 228 cmt. a (emphasis added). Furthermore, it is not necessary that an individual convert the chattel for his own use; if a person takes control in defiance of the owner's rights, it is a conversion, for his or her own sake or the sake of another. See Mitzner v. Hyman, 333 S.E.2d 182, 183 (Ga. Ct. App. 1985); see also State ex rel. Kropf v. Gilbert, 213 Wis. 196, 211, 251 N.W. 478 (1933).

¶ 14. The trial court's conclusion that the facts of the case constituted conversion is supported by the illustrations to Section 228.

4. A rents an automobile to B to drive to X City and return. In violation of the agreement, B drives to Y City, ten miles beyond X City. This is not a conversion.

6. The same facts .. ., except that while the automobile is in Y City it is seriously damaged in a collision, with or without negligence on the part of B. This is a conversion.

Section 228 at 446. These examples illustrate that whether an unauthorized exercise of dominion constitutes conversion depends on the severity of interference with the owner's right to control. Restatement (Second) Torts § 222A cmt. d. at 433 (1965) ("The question is nearly always one of degree, and no fixed line can be drawn.") Here, Coolbaugh knew that Orlos was taking the helicopter to an event that was prohibited by Parrish's policy barring commercial events. Yet Coolbaugh gave Orlos permission to take the helicopter. When Orlos went to the prohibited event and crashed the helicopter, it was a conversion, whether or not Coolbaugh or Orlos was negligent with regard to the accident.

*221 Causation

¶ 15. Coolbaugh argues that the trial court "erred when it found that the conversion caused the crash" and that we review this as a mixed question of fact and law. First, there is no causation element in conversion; the conversion must result in interference with the owner's rights to possess the property. See H.A. Friend & Co., 294 Wis. 2d 754, ¶ 11; see also Wis JI—Civil 2200. Second, the trial court did not find that the conversion caused the crash. The trial court found that "there was a result of serious interference with the rights of the owner to possess the property."

Negligence

¶ 16. The trial court concluded that Midwestern had not met its burden of proof on negligence. Coolbaugh, understandably, does not challenge this conclusion. Instead, Coolbaugh argues that two defenses applicable in negligence cases—public policy and superseding cause—should preclude liability in this conversion case. Coolbaugh cites no authority applying either rationale in a conversion case. Coolbaugh does not even argue why these doctrines should apply to conversion as they do to negligence, simply stating: "The same analysis for conversion applies here to Coolbaugh." We decline to import these negligence defenses into this conversion case, in which the trial court rejected the negligence claim. See Fritz v. McGrath, 146 Wis. 2d 681, 686, 431 N.W.2d 751 (Ct. App. 1988) (we need not consider arguments broadly stated but not specifically argued).

*222CONCLUSION

¶ 17. The trial court's findings of facts are supported by the evidence, and its conclusion that the facts fulfilled the legal standard for conversion is not an error of law. We therefore affirm the judgment.

By the Court.—Judgment affirmed.

OPINION

Justice SUTTELL, for the Court.

The illegal diversion of electricity powers this appeal. An underground aluminum bypass conductor leading from the front yard of the defendants’ home to an “unmetered” electrical panel in the garage allowed the defendants to receive a substantial amount of electrical service for which they were not billed. The defendants, Bernard J. and Marsha Carbone, appeal from a judgment of the Superior Court in favor of the plaintiff, Narragansett Electric Company, on its claims for conversion and unjust enrichment. This case came before the Supreme Court for oral argument pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be decided summarily. After considering the written and oral submissions of the parties and examining the record, we are of the opinion that the issues raised in this appeal may be resolved without further briefing or argument. For the reasons set forth herein, we affirm the judgment of the Superior Court.

*91I

Facts and Procedural History

The defendants built their house at 90 Ann Drive in East Greenwich, Rhode Island, and began living there in December 1986. According to plaintiff, it supplied electricity to the home since December 18, 1986. In early 1998, plaintiff reviewed electrical consumption records for the premises and suspected low-usage patterns with respect to the known equipment on the premises. The review also revealed that the consumption pattern was “flat, without seasonal variations.”

For a period of approximately eighteen months, Narragansett Electric monitored the amount of electricity that flowed into defendants’ house by installing three check meters on the “pad-mounted transformer” 1 that was on the street in front of 90 Ann Drive. The plaintiff also replaced the billing meter at defendants’ residence to ensure that it was reading accurately. The monthly readings on the check meters were compared with monthly readings taken on the billing meter located on the premises. From this investigation, plaintiff discovered that a large amount of electricity was flowing into defendants’ home that was not being read by defendants’ billing meter and for which defendants were not being billed.

On September 7, 2000, personnel from Narragansett Electric and the State Police entered 90 Ann Drive to execute a search warrant. During the search, Mr. Carbone disclosed the location of an underground bypass conductor that had been diverting electricity away from the home’s billing meter to the unmetered panel in the garage. Narragansett Electric workers dug up the two ends of the bypass, conducted amperage tests on the wires emanating from both the metered and unmetered panels, and took an inventory of all items and appliances that consumed electricity on the premises. Thereafter, plaintiff presented defendants with a bill for the amounts of electricity that it believed defendants had consumed through the illegal bypass since 1986.

Subsequently, on December 20, 2000, plaintiff filed a civil action against defendants seeking damages for book account (count 1), conversion (count 2), unjust enrichment (count 3), and for a doubling of damages, pursuant to G.L.1956 § 9-1-2, that plaintiff otherwise would be entitled to if defendants should also be found criminally hable for larceny (count 4).2 Before trial, on December 10, 2001, defendant Mrs. Carbone filed a motion for summary judgment on all four counts of the complaint. Two orders were entered on January 23, 2002, granting Mrs. Carbone’s summary judgment motion on counts 1 and 4, but denying it on counts 2 and 3.

A bench trial was held before a trial justice of the Superior Court in August *922003. Before trial, defendants filed a motion in limine to preclude plaintiff from admitting any expert testimony on the grounds that plaintiff failed to disclose any expert witnesses who were expected to testify at trial in its answers to interrogatories. The trial justice denied the motion, noting that it was his understanding that plaintiff was not planning to call any “outside” expert witnesses. He said that any employee of plaintiff who had been disclosed as a lay witness during discovery was competent to testify in the form of facts or opinions about his or her given area of work for the company. The trial justice also granted defense counsel leave to renew his objection during the course of the trial depending on the scope of the proposed witnesses’ testimony. Similarly, the trial justice held in abeyance defendants’ pretrial motion requesting a Dau-bert hearing with respect to any expert witness.

At trial, plaintiff presented the testimony of five of its employees and introduced numerous exhibits to explain its investigation and calculations of lost revenue for unbilled electricity provided to defendants’ home. Mrs. Carbone did not testify at trial, but plaintiff offered her pretrial deposition testimony as a full exhibit. Mrs. Carbone testified that she had lived at 90 Ann Drive since 1986, but did not know who did the original electrical work on the house. She said that the home was always gas-heated and had central air-conditioning since 1986. She was unsure when the heated in-ground pool was built, but believed that it was around 1998. Mrs. Car-bone testified that she did not know whether the unmetered panel was in the house since it was built, and she had no idea about which appliances each of the two panels serviced. She said that she was unaware of the illegal bypass until after the search, when she heard of the accusations against her and her husband on a television news report.

At the close of plaintiffs evidence, both plaintiff and defendants made motions for judgment as a matter of law. The trial justice reserved on the motions. Mr. Car-bone then testified that the bypass was not installed when the house was built in 1986, but rather in 1997 or 1998, when one Pat Saggerson did electrical work in connection with the regrading of the yard and installation of the pool, pool house, shrubs, air-conditioning, and exterior lights.3 Mr. Carbone said that he did not have a bill from Mr. Saggerson’s work because the two had a friendly relationship in which each would sometimes do work in return for work done by the other. Unlike Mrs. Carbone, who testified that they had central air-conditioning since 1986, he said that the electrical air-conditioning units were not in the home since it was built. He averred that his wife was mistaken about the time when the air-conditioning and the heated pool were installed. He also said that he did not use the electrical heaters in the garage because they did not work properly. Mr. Carbone said that he did not label the unmetered panel with the appliances shown on it except for one label for a “bug light,” and did not know who did because it was a “used panel.”

James D. Paliotta, an electrical contractor, also testified for defendants that he installed the air-conditioning units in the Carbones’ house in 1997. At the close of all the evidence, defendants renewed their motions for judgment as a matter of law. The trial justice once again decided to -reserve on the motions until he delivered his decision in the case.

On February 18, 2004, the trial justice issued his bench decision. He rejected *93Mr. Carbone’s contention that the bypass was installed in 1997, finding instead that it was installed in 1986, when the house was built. He found that “Mr. Carbone’s testimony as it relates to the bypass having been installed in 1997 rather than 1986[was] not credible” in light of the inventory of usage that existed on the premises up to 1997. He said that it was “unlikely that the residence did not have an unmetered panel” since 1986 based on that inventory, and found that Mr. Car-bone had knowledge of the presence of the bypass since 1986. The trial justice further found that the pool was not installed until 1997 and that the pool house and pool heater were not installed until 1998.

The trial justice also noted that plaintiff “presented detailed evidence” comparing the billed electricity usage to what it contended was the actual usage. Accordingly, he concluded that plaintiff sustained $147,832 in damages for loss of revenue as a result of the bypass, which figure factored in adjustments for the pool not being in use until 1997. He said that this significant figure must be understood in light of the multitude of electrical appliances inventoried at the premises, which he listed in some detail.4 He also noted that defendants did not challenge plaintiffs revenue loss calculations “in any serious manner other than to baldly assert that it is speculation,” and “offered no alternative calculation.” Based on this, the trial justice found that plaintiff had clearly met its burden of proof on damages.

On the first claim for book account, the trial justice found Mr. Carbone not liable after noting that summary judgment already had been granted in favor of Mrs. Carbone on that count before trial. On the claim for conversion, Mr. Carbone was found individually liable for $147,832, “the value of the electricity converted,” plus $1,861, the “uncontroverted sum that plaintiff reasonably expended to detect and ascertain the illegal usage.” Mrs. Carbone was found not liable for conversion because she did not have the requisite knowledge of the bypass. On plaintiffs claim for unjust enrichment, the trial justice found Mr. and Mrs. Carbone jointly and severally hable for $147,832, or “the value of the electricity that was received as a result of the bypass.” Finally, after noting that count 4 (larceny) against Mrs. Car-bone previously was dismissed, the trial justice found that Mr. Carbone also was not hable on count 4 because plaintiff offered no argument to support such a cause of action.

An order implementing the trial justice’s decision was entered on February 24, 2004. A purported final judgment was filed on the same day; however, that judgment *94was not signed by either the trial justice or the court clerk. The defendants filed a notice of appeal on March 8, 2004. In a November 16, 2005 order assigning the case to this Court’s show-cause calendar, the case was remanded to the Superior Court to obtain a signed judgment. On February 2, 2006, a signed judgment was entered.5 On appeal, defendants allege five assignments of error that warrant reversal of the judgment.

II

Expert Testimony

The defendants’ first argument on appeal is that the trial justice erred in allowing plaintiff to introduce expert testimony. They contend that the trial justice should have barred such expert testimony because plaintiff never supplemented its answers to interrogatories to disclose its expert witnesses. The defendants had propounded interrogatories to plaintiff that included a multipart question asking plaintiff to disclose information relating to any expert witness plaintiff expected to call to testify during trial. The plaintiff responded that no determination had been made at that time about whether any expert witnesses would be called and that it would supplement the answer in accordance with the Superior Court Rules of Civil Procedure, if necessary. The plaintiff did not supplement its answers. Although plaintiff never sought during the trial to qualify any of its witnesses as experts, on appeal defendants argue that the trial justice erred in admitting expert testimony.

The defendants assert that “Narragansett evidenced five witnesses, some of whom gave expert testimony and conclusions!;]” yet they identify only one such witness, Leo Dalbec, the administrator of revenue protection at Narragansett Electric at the time of its investigation on defendants. We previously have indicated that specific references to the record are necessary to allow this Court to conduct a meaningful review. See, e.g., Waters v. Magee, 877 A.2d 658, 666 (R.I.2005); Falvey v. Women and Infants Hospital, 584 A.2d 417, 419-20 (R.I.1991). Here, defendants have failed to direct our attention to any portion of the record in which any of the four unnamed witnesses may have provided “expert” testimony. We limit our review in this regard, therefore, to the testimony of Leo Dalbec.

The defendants challenge the trial justice’s admission of Mr. Dalbec’s testimony concerning his calculations of the amounts of unmetered electricity that the Carbones received since 1986. The defendants’ argument that expert testimony was inadmissible, because plaintiff failed to identify expert witnesses during discovery is essentially an argument that plaintiff violated Rule 33(c) of the Superior Court Rules of Civil Procedure, which requires that “[i]f the party furnishing answers to interrogatories subsequently shall obtain information which renders such answers incomplete or incorrect, amended answers shall be served within a reasonable time thereafter but not later than 10 days prior to the day fixed for trial.” For a violation *95of this rule, Rule 37(d) of the Superior Court Rules of Civil Procedure provides the court with the discretion to “on motion * * * make such orders in regard to the failure as are just.” We thus must decide whether the trial justice erred by not precluding plaintiff from introducing Mr. Dal-bec’s testimony.

“[T]he question of whether a witness is qualified to express an expert opinion is a matter that is committed to the sound discretion of the trial justice, and the exercise of such discretion will not be disturbed on appeal absent a showing of abuse.” Mangasarian v. Gould, 537 A.2d 403, 405 (R.I.1988). As already noted, plaintiff did not attempt to qualify any of its witnesses as experts. This Court has recognized, however, that even when no motion is made before the lower court to qualify a witness as an expert, a trial justice nonetheless may have treated that witness as an expert, justifying our analysis under the deferential standard normally applied to the admission of expert testimony. See New England Telephone and Telegraph Co. v. Clark, 624 A.2d 298, 303 (R.I.1993); see also Rossilli v. Iacovelli, 88 R.I. 456, 459, 149 A.2d 709, 711 (1959) (stating that the abuse of discretion standard “is applicable in any case in which the qualification of a witness to testify to matters within his knowledge is questioned”). We have characterized expert testimony as that “of a mechanical, scientific, professional or like nature, none of which is within the understanding of laymen of ordinary intelligence, and where the witness seeking to testify possesses special knowledge, skill or information about the subject matter acquired by study, observation, practice or experience.” Morgan v. Washington Trust Co., 105 R.I. 13, 17-18, 249 A.2d 48, 51 (1969). Even if we agreed with defendants that some of Mr. Dalbec’s testimony may be characterized as expert testimony, we are satisfied that the trial justice did not err in admitting such evidence.

Forbidding a party to call a witness after a Rule 33(c) violation “is a drastic sanction that should be imposed only if it is apparent that the violation has or will result in prejudice to the party asserting the violation.” Gormley v. Vartian, 121 R.I. 770, 775, 403 A.2d 256, 259 (1979). We have made clear that such prejudice results when the party alleging a violation is surprised by the witness’s testimony because the purpose of Rule 33(c) is “to prevent trial by ambush” and “to enable litigants to prepare for trial free from the elements of surprise and concealment so that judgments can rest upon the merits of the case rather than the skill and maneuvering of counsel.” Neri v. Nationwide Mutual Fire Insurance Co., 719 A.2d 1150, 1152 (R.I.1998) (quoting Gormley, 121 R.I. at 775, 403 A.2d at 259).

We are satisfied that Mr. Dalbec’s testimony concerning plaintiff’s calculations of unbilled electrical service did not come as a surprise to defendants and therefore did not result in prejudice. In Neri, we held that a Rule 33(c) violation was prejudicial to the defendant because the plaintiff did not disclose that he would testify as his own expert and thus the defendant did not have the opportunity to depose the plaintiff in that specific capacity as an expert on causation. Neri, 719 A.2d at 1152-53. In contrast, in the present case, defendants were on notice of the dollar amounts claimed for unmetered electricity from the bills that plaintiff submitted to defendants long before the trial. In addition, when defendants deposed Mr. Dalbec before trial, they had notice of the loss calculations and how they were computed from the complaint and from Mr. Dalbec’s affidavit, which was attached and referred to therein. Moreover, plaintiffs answers to defen*96dants’ interrogatories revealed the amounts claimed to be owed as well. Because of this prior notice, we are satisfied that defendants did not suffer a “trial by ambush” when Mr. Dalbec testified about the timing of the bypass installation and the loss calculations. See id. at 1152.

Moreover, Mr. Dalbec was an experienced employee of Narragansett Electric, testifying about matters within his areas of responsibility for plaintiff before a trial justice sitting without a jury. We are well satisfied that under these circumstances the trial justice was acting within his discretion in admitting the challenged testimony. As the trial justice noted, neither Mr. Dalbec nor any of the other witnesses was an “outside expert, so-called, who has been engaged outside of the employment of the utility to proffer specific opinion for compensation.” We also observe that a trial justice in a jury-waived trial may be afforded great latitude to determine what testimony may be properly characterized as expert testimony. Here, the trial justice did not err in allowing Mr. Dalbec to testify.

Likewise, we reject, defendants’ contention that they were entitled to a Daubert hearing to determine the scientific validity of Mr. Dalbec’s loss revenue calculations.6 A party makes a proper motion for such an evidentiary hearing only when he or she sufficiently alerts the trial justice of the scientific issue at stake by presenting an affidavit or offer of proof to substantiate his or her claim that the opposing party’s proposed expert testimony is scientifically invalid. Roe v. Gelineau, 794 A.2d 476, 488 (R.I.2002); DiPetrillo v. Dow Chemical Co., 729 A.2d 677, 688 (R.I.1999). The defendants in the present case offered virtually no explanation of why a Daubert hearing was necessary. We therefore are satisfied that the trial justice did not err in failing to hold a DaubeH hearing concerning Mr. Dalbec’s testimony.

Ill

Conversion

Next, defendants argue that the trial justice erred in finding Mr. Carbone liable for conversion because electricity is an intangible item that may not be converted and plaintiff failed to prove that Mr. Carbone “possessed” or “utilized” the electricity.7 We consider the question of whether Mr. Carbone converted electricity to be a mixed question of law and fact. The rule of law on conversion is undisputed; the issue is whether the facts in this case satisfy the elements of conversion. *97 See Johnston v. Poulin, 844 A.2d 707, 714 (R.I.2004); see also Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982).

“The findings of a trial justice sitting -without a jury are entitled to great weight, and the ‘resolution of mixed questions of law and fact, as well as the inferences and conclusions drawn from the testimony and evidence, are entitled to the same deference.’ ” Hawkins v. Town of Foster, 708 A.2d 178, 182 (R.I.1998) (quoting Wickes Asset Management, Inc. v. Dupuis, 679 A.2d 314, 317 (R.I.1996)). In the present case, the trial justice found that Mrs. Carbone could not be held liable for conversion because she lacked the requisite knowledge of the bypass in her home. Mr. Carbone, on the other hand, was found liable for conversion of unbilled electricity because the trial justice found that the elements of conversion had been proven sufficiently against him and there was no persuasive authority that electricity may not be the subject of a conversion action.

“To maintain an action for conversion, [a] plaintiff must establish that [it] was in possession of the personalty, or entitled to possession of the personalty, at the time of conversion.” Montecalvo v. Mandarelli, 682 A.2d 918, 928 (R.I.1996). Then, “the gravamen of an action for conversion lies in the defendant’s taking the plaintiffs personalty without consent and exercising dominion over it inconsistent with the plaintiffs right to possession.” Fuscellaro v. Industrial National Corp., 117 R.I. 558, 560, 368 A.2d 1227, 1230 (1977). This intentional exercise of control over the plaintiffs chattel must “so seriously interfere! ] with the right of another to control it that the [defendant] may justly be required to pay the other the full value of the chattel.” Montecalvo, 682 A.2d at 928 (quoting Restatement (Second) Torts § 222(A)(1) at 431 (1965)).

“At common law any tangible chattel that could be lost and found could be the subject of conversion.” Montecalvo, 682 A.2d at 928. However, “the tort of conversion at common law excluded intangible personal property because intangibles, like land, could not be lost or found.” Id. Consequently, this Court has held that “a conversion action will not lie for a partnership interest or other intangible property right that is not manifested by a tangible instrument, such as a written agreement, a bankbook, or a promissory note, that may, in turn, be converted.” Id. at 929; see also Iavazzo v. Rhode Island Hospital Trust Co., 51 R.I. 459, 462-63, 155 A. 407, 408 (1931).

This Court has not had occasion to decide whether electricity is the type of tangible personal property that may be converted. Other courts, however, have suggested that electricity has the characteristics of tangible personal property. See, e.g., Curry v. Alabama Power Co., 243 Ala. 53, 8 So.2d 521, 526 (1942) (concluding that electricity is tangible personal property because it is made up of electrons that have mass or weight, may be detected- by the senses of taste, smell, and touch, and moves through the circuit in the same way as a flow of water would move); Davis v. Gulf Power Corp., 799 So.2d 298, 299-300 (Fla.Dist.Ct.App.2001) (holding that electricity has the characteristics of tangible personal property for purposes of a Florida tax statute); Texas Eastern Transmission Corp. v. Benson, 480 S.W.2d 905, 909 (Tenn.1972) (characterizing electricity “as a taxable item of tangible personal property”); see also G.E. Lothrop Theatres Co. v. Edison Electric Illuminating Co. of Boston, 290 Mass. 189, 195 N.E. 305, 307 (1935) (declining to decide whether electricity can be converted, but suggesting that assuming arguendo that it may be, the defendant would not be liable because *98he did not intend to take title to the electricity).

Moreover, some courts have held outright that electricity may be the subject of a conversion cause of action. See DeLong v. Osage Valley Electric Cooperative Association, 716 S.W.2d 820, 323-24 (Mo.Ct. App.1986) (holding that a jury could reasonably infer a conversion of electricity by the plaintiffs’ tampering with an electrical meter for the purpose of depriving the defendant of payment for electricity used); Good Sports of New York, Inc. v. Llorente, 280 A.D.2d 261, 720 N.Y.S.2d 119, 119-20 (2001) (holding that the defendant-landlords had converted electrical services when the evidence showed that their building was charged $0 for electricity in its common areas during three years when its wires were improperly hooked up to the plaintiff-tenants’ meter). In addition, although it was not addressing whether electricity may be the subject of a conversion action, the United States Supreme Court has said that, “[hjowever lacking it may be in body or substance, electrical energy, nevertheless, possesses many of the ordinary tokens of materiality. It is subject to known laws; manifests definite and predictable characteristics; [and] may be transmitted from the place of production to the point of use * * Utah Power and Light Co. v. Pfost, 286 U.S. 165, 180, 52 S.Ct. 548, 76 L.Ed. 1038 (1932).

We agree with these courts that electricity possesses many of the characteristics of tangible property, even if its current may not be “lost and found” in the traditional sense. See Montecalvo, 682 A.2d at 928. Moreover, in our state, it is a misdemeanor to bypass an electrical meter to receive unbilled electrical service. See G.L.1956 § 11-35-9. We see no persuasive rationale for holding that electrical current may be fraudulently consumed or diverted, but that those whose electricity was wrongly appropriated may not recover the loss of the value of that electricity in a civil action for conversion.

We also are satisfied that plaintiff sufficiently proved conversion of electricity in the present case. First, it was undisputed that plaintiff originally possessed or was entitled to possess the unbilled electricity that ended up in the Carbone home. Second, Mr. Carbone, through his use of the underground bypass, then diverted the electrical current from plaintiffs transformer pad into his home without plaintiffs consent. Finally, the evidence showed that Mr. Carbone exercised dominion or control over that electricity by using it in his home to power a portion of his impressive inventory of electrical appliances.

The defendants’ argument that there was no evidence that they actually “utilized” the unmetered electrical currents is without merit. As the trial justice noted, there was a multitude of electrical appliances inventoried in the house, and the evidence was uncontradicted that at least some of these appliances were not receiving electricity through the main billing meter on the house. Moreover, there was evidence that the unmetered panel’s switches were labeled specifically for certain of those appliances. As the trial justice said, defendants offered no credible evidence that they did not use the electrical current running through the underground bypass to the unmetered panel and into the Carbone home; nor did defendants challenge or refute the accuracy of the check meter readings or the resulting calculation of unbilled electricity.

Notably, at no time did Mr. Carbone dispute that an illegal bypass was installed on his premises; yet, he asks this Court to conclude that although electricity got through the bypass to his home, plaintiff did not prove that the Carbones “utilized” *99the electrical current. Affording the proper deference to the trial justice’s inferences, factual findings, and conclusions concerning this mixed question of law and fact, we cannot say that the trial justice clearly was wrong in holding Mr. Carbone hable for conversion.

IV

Unjust Enrichment

The defendants also challenge the trial justice’s ruling that Mr. and Mrs. Carbone are jointly and severally liable for unjust enrichment. They argue that plaintiff did not prove that a measurable benefit was conferred on defendants because it failed to trace the unmetered electricity from the illegal bypass into the specific appliances allegedly powered by the unbilled electricity in the home. In addition, defendants contend that Mrs. Carbone did not “appreciate” the benefit of the illegal bypass because she had no knowledge of its existence.

Recovery for unjust enrichment is predicated upon the equitable principle that one shall not be permitted to enrich himself at the expense of another by receiving property or benefits without making compensation for them. R & B Electric Co. v. Amco Construction Co., 471 A.2d 1351, 1355 (R.I.1984). To recover under a claim for unjust enrichment,

“a plaintiff is required to prove three elements: (1) a benefit must be conferred upon the defendant by the plaintiff, (2) there must be appreciation by the defendant of such benefit, and (3) there must be an acceptance of such benefit in such circumstances that it would be inequitable for a defendant to retain the benefit without paying the value thereof.” Bouchard v. Price, 694 A.2d 670, 673 (R.I.1997) (quoting Anthony Corrado, Inc. v. Menard & Co. Building Contractors, 589 A.2d 1201, 1201-02 (R.I.1991)).

We are satisfied that the trial justice did not err in finding that these three elements were met in the present case against both defendants. First, a benefit was conferred on defendants. This Court has held that a benefit is conferred when improvements are made to property, materials are furnished, or services are rendered without payment. See, e.g., Dellagrotta v. Dellagrotta, 873 A.2d 101, 113-14 (R.I.2005) (home improvements); Landmark Medical Center v. Gauthier, 635 A.2d 1145, 1148-49 (R.I.1994) (medical services); Newport Oil Corp. v. Viti Bros., Inc., 454 A.2d 706, 706-08 (R.I.1983) (gasoline deliveries made to the defendant service station for resale); Providence Steel & Iron Co. v. Flammand, 413 A.2d 487, 487-88 (R.I.1980) (steel building components); Best v. McAuslan, 27 R.I. 107, 108-10, 60 A. 774, 774-75 (1905) (medical services). Here, the electricity that flowed from the transformer pad, through the underground bypass, and into the unmetered panel in the Carbones’ garage, is analogous to other services for which this Court has upheld awards of payment to plaintiffs under an unjust enrichment theory. Accordingly, we think that the evidence warranted the trial justice’s inference that the unpaid electricity benefited defendants in that they were able to power at least a portion of their large home for free.

The defendants, however, contend that no measurable benefit ever was conferred on them because there was no proof at trial that the electricity that went out of the transformer actually went into the Carbone home. This argument lacks merit. As in most civil cases, plaintiff bears the burden to prove each element by a preponderance of the evidence, meaning that the trier of fact “must believe that the facts asserted by the proponent are more *100probably true than false.” Parker v. Parker, 103 R.I. 435, 442, 238 A.2d 57, 61 (1968). This Court has indicated that even when there is no direct evidence on a particular issue, a fair preponderance of the evidence may be supported by circumstantial evidence. See Harriss v. Orr, 65 R.I. 369, 379-80, 14 A.2d 674, 679 (1940). Moreover, other courts have determined that circumstantial evidence of investigations done by electric companies, comparing the ratio of metered electricity to total energy usage during specified time frames to ascertain the amount of unbilled usage, was enough to support the inference that the unbilled electricity reached a consumer’s property and that such consumer therefore should pay for that unbilled service. See, e.g., Illinois Power Co. v. Champaign Asphalt Co., 19 Ill.App.3d 74, 310 N.E.2d 463, 469-70 (1974); New Orleans Public Service, Inc. v. Delaney, 379 So.2d 842, 842-43 (La.Ct.App.1980); Northern States Power Co. v. Lyon Food Products, Inc., 304 Minn. 196, 229 N.W.2d 521, 525-26 (1975).

We believe that in this case, plaintiff presented enough circumstantial evidence for the trial justice to determine that a benefit was conferred on defendants by a fair preponderance of the evidence. The plaintiff presented extensive testimony concerning the electrical current that registered on the check meters, but did not register on the billing meter assigned to the Carbones’ home. The evidence further revealed that the unmetered panel connecting to the illegal bypass was labeled with certain appliances, and that there were electrical devices inventoried in the Carbone home that did not connect to the metered panel for which electricity the Carbones were billed. Based on this circumstantial evidence, the trial justice properly could infer that a benefit was conferred on defendants through their use of the illegal bypass to divert electricity.

The defendants also argue with respect to the second element of unjust enrichment that there was no evidence that Mrs. Carbone “appreciated” the benefit of the electricity because she was unaware of the bypass’s existence. We disagree. On the contrary, we are satisfied ■ that the trial justice was warranted in finding Mrs. Car-bone jointly and severally liable for unjust enrichment because she was a homemaker who paid some of the electric bills during the relevant time, and from that fact an inference properly could be made that she used the home’s many appliances, some of which were powered by the unbilled electricity.

Even more importantly, addressing the third element of unjust enrichment, we conclude that it would be inherently unjust to allow defendants to have bypassed the billing meter and then deny the electric company compensation for the services so purloined. This Court has said that “ ‘[t]he most significant requirement * * * is that the enrichment to the defendant be unjust.’ ” R & B Electric Co., 471 A.2d at 1356. If the plaintiff can prove the reasonable- value of services rendered without payment, the defendant justly may be compelled to pay for those services. See Best, 27 R.I. at 111, 60 A. at 775; see also Sullivan v. District of Columbia Paper Mills, Inc., 67 R.I. 330, 334-35, 23 A.2d 765, 767-68 (1941). As the trial justice noted, the evidence plaintiff presented of the loss calculations for amounts defendants owed went uncontradicted at trial. Based on the circumstantial evidence that unbilled electricity flowed through the illegal bypass into the Carbone home and plaintiffs ability to show the reasonable value of that stolen electrical ■ service, it would be inequitable to deny plaintiff the opportunity to be paid for the unbilled service.

*101V

Statute of Limitations

The defendants also argue that plaintiffs action was time-barred because the trial justice found that the illegal bypass was installed in 1986, and plaintiff did not file its action until 2000, more than ten years after the cause of action accrued. The plaintiff responds that the statute of limitations issue was not preserved for appellate review because it never was raised at trial, and that, regardless, the trial justice properly applied the discovery rule in finding the action timely.

The trial justice stated that defendants raised the statute of limitations issue for the first time in their post-trial brief. In fact, however, defendants averred a statute of limitations defense in their answer to plaintiffs complaint. Under Rule 8(c) of the Superior Court Rules of Civil Procedure, the defense of the statute of limitations must be affirmatively raised. The failure to plead this affirmative defense results in its waiver. LaBounty v. LaBounty, 497 A.2d 302, 305 (R.I.1985). Because defendants both pled the statute of limitations defense in their answer, and argued it before the trial justice, we are satisfied that the issue was not waived and is properly preserved for our review. See State v. Lambrechts, 585 A.2d 645, 646 (R.I.1991); see also Hanley v. State, 837 A.2d 707, 711 (R.I.2003).

The statute of limitations argument presented to the trial justice in defendants’ post-trial memorandum was that, if the court found that the bypass was installed in 1986, the entire action would be time-barred. The trial justice was correct to reject this reasoning. The causes of action for conversion and unjust enrichment encompassed an ongoing and continuous theft of electricity from 1986 to 2000. The accrual of such actions, therefore, was not fixed in time as of the date the illegal bypass was installed.

On appeal, however, defendants raise an additional argument, asserting that “[e]ven if the Court were to consider the bypass a continuing theft of electricity, then the damages would only extend ten (10) years, not fourteen (14).” We deem this aspect of defendants’ appellate argument waived. See Roe, 794 A.2d at 482 (“[U]nder the raise-or-waive rule, this Court refrains from reviewing issues not raised in the trial court.”). Moreover, defendants fail to cite to any part of the record that suggests that the trial justice overlooked or misconceived evidence, or was otherwise clearly wrong, when he found that “[t]here is nothing in the record * * * to suggest that plaintiff could reasonably have discovered the bypass before when it in fact did discover it.” See Article I, Rule 16(a) of the Supreme Court Rules of Appellate Procedure.

VI

The Trial Justice Did Not Overlook Material Evidence

Finally, defendants argue that the trial justice overlooked evidence by choosing not to believe Mr. Carbone’s testimony that the bypass was installed in 1998, rather than in 1986, when the home was built. They contend that he also overlooked a 1997 photograph of the garage showing that the unmetered panel was not yet installed and evidence that plaintiff mistakenly believed that the house had electric heat rather than gas heat.

“[T]his Court will not disturb determinations of credibility in a non jury trial unless the findings are clearly wrong or the [trial justice] misconceived or overlooked material evidence.” Bogosian v. Bederman, 823 A.2d 1117, 1120 (R.I.2003) *102(quoting Andreozzi v. Andreozzi, 813 A.2d 78, 82 (R.I.2003)). Affording the trial justice’s findings in the present case the deference they are due, we cannot say that he was clearly wrong in finding that the bypass was installed in 1986 and that defendants’ evidence to the contrary was incredible. We agree with the trial justice that “the inventory of usage that existed on the premises up to 1997” makes it “unlikely that the residence did not have an unme-tered panel from the time it was built in 1986” and that it was thus “inherently probable that the illegal bypass was installed when the home was constructed.”

Furthermore, the photographs that the defendants point to as evidence of the timing of the bypass installation did not have dates on them. The only indication of when the photographs were taken came from the testimony of Mr. Carbone. Accordingly, the trial justice was free to discredit such testimony as lacking in credibility as well, and he did not need to categorically accept or reject each piece of evidence in his decision for this Court to uphold it because implicit in the trial justice’s decision are sufficient findings of fact to support his rulings. See Mattera v. Mattera, 669 A.2d 538, 541 (R.I.1996). In addition, the trial justice’s decision does not appear to be predicated upon any determination of whether the Carbone house had gas or electric heat. We therefore hold that the trial justice did not overlook material evidence.

Conclusion

For the reasons set forth herein, we affirm the judgment of the Superior Court, to which court the record in this case shall be remanded.

MOORE, Chief Justice.

The primary issue presented here is whether an owner may protect personal property in an unoccupied boarded-up farm house against trespassers and thieves by a spring gun capable of inflicting death or serious injury.

We are not here concerned with a man’s right to protect his home and members of his family. Defendants’ home was several miles from the scene of the incident to which we refer infra.

*658Plaintiffs action is for damages resulting from serious injury caused by a shot from a 20-gauge spring shotgun set by defendants in a bedroom of an old farm house which had been uninhabited for several years. Plaintiff and his companion, Marvin McDonough, had broken and entered the house to find and steal old bottles and dated fruit jars which they considered antiques.

At defendants’ request plaintiff’s action was tried to a jury consisting of residents of the community where defendants’ property was located. The jury returned a verdict for plaintiff and against defendants for $20,000 actual and $10,000 punitive damages.

After careful consideration of defendants’ motions for judgment notwithstanding the verdict and for new trial, the experienced and capable trial judge overruled them and entered judgment on the verdict. Thus we have this appeal by defendants.

I. In this action our review of the record as made by the parties in the lower court is for the correction of errors at law. We do not review actions at law de novo. Rule 334, Rules of Civil Procedure. Findings of fact by the jury are binding upon this court if supported by substantial evidence. Rule 344(f), par. 1, R.C.P.

II. Most of the facts are not disputed. In 1957 defendant Bertha L. Briney inherited her parents’ farm land in Mahaska and Monroe Counties. Included was an 80-acre tract in southwest Mahaska County where her grandparents and parents had lived. No one occupied the house thereafter. Her husband, Edward, attempted to care for the land. He kept no farm machinery thereon. The outbuildings became dilapidated.

For about 10 years, 1957 to 1967, there occurred a series of trespassing and housebreaking events with loss of some household items, the breaking of windows and “messing up of the property in general”. The latest occurred June 8, 1967, prior to the event on July 16, 1967 herein involved.

Defendants through the years boarded up the windows and doors in an attempt to stop the intrusions. They had posted “no trespass” signs on the land several years before 1967. The nearest one was 35 feet from the house. On June 11, 1967 defendants set “a shotgun trap” in the north bedroom. After Mr. Briney cleaned and oiled his 20-gauge shotgun, the power of which he was well aware, defendants took it to the old house where they secured it to an iron bed with the barrel pointed at the bedroom door. It was rigged with wire from the doorknob to the gun’s trigger so it would fire when the door was opened. Briney first pointed the gun so an intruder would be hit in the stomach but at Mrs Briney’s suggestion it was lowered to hit the legs. He admitted he did so “because I was mad and tired of being tormented” but “he did not intend to injure anyone”. He gave no explanation of why he used a loaded shell and set it to hit a person already in the house. Tin was nailed over the bedroom window. The spring gun could not be seen from the outside. No warning of its presence was posted.

Plaintiff lived with his wife and worked regularly as a gasoline station attendant in Eddyville, seven miles from the old house. He had observed it for several years while hunting in the area and considered it as being abandoned. He knew it had long been uninhabited. In 1967 the area around the house was covered with high weeds. Prior to July 16, 1967 plaintiff and McDonough had been to the premises and found several old bottles and fruit jars which they took and added to their collection of antiques. On the latter date about 9:30 p. m. they made a second trip to the Briney property. They entered the old house by removing a board from a porch window which was without glass. While McDonough was looking around the kitchen area plaintiff went to another part of the house. As he started to open the north bedroom door the shotgun went off striking him in the right leg above the ankle bone. Much of his leg, including part of the tibia, was blown away. Only by Mc*659Donough’s assistance was plaintiff able to get out of the house and after crawling some distance was put in his vehicle and rushed to a doctor and then to a hospital. He remained in the hospital 40 days.

Plaintiff’s doctor testified he seriously considered amputation but eventually the healing process was successful. Some weeks after his release from the hospital plaintiff returned to work on crutches. He was required to keep the injured leg in a cast for approximately a year and wear a special brace for another year. He continued to suffer pain during this period.

There was undenied medical testimony plaintiff had a permanent deformity, a loss of tissue, and a shortening of the leg.

The record discloses plaintiff to trial time had incurred $710 medical expense, $2056.85 for hospital service, $61.80 for orthopedic service and $750 as loss of earnings. In addition thereto the trial court submitted to the jury the question of damages for pain and suffering and for future disability.

III. Plaintiff testified he knew he had no right to break and enter the house with intent to steal bottles and fruit jars therefrom. He further testified he had entered a plea of guilty to larceny in the nighttime of property of less than $20 value from a private building. He stated he had been fined $50 and costs and paroled during good behavior from a 60-day jail sentence. Other than minor traffic charges this was plaintiff’s first brush with the law. On this civil case appeal it is not our prerogative to review the disposition made of the criminal charge against him.

IV. The main thrust of defendants’ defense in the trial court and on this appeal is that “the law permits use of a spring gun in a dwelling or warehouse for the purpose of preventing the unlawful entry of a burglar or thief”. They repeated this contention in their exceptions to the trial court’s instructions 2, 5 and 6. They took no exception to the trial court’s statement of the issues or to other instructions.

In the statement of issues the trial court stated plaintiff and his companion committed a felony when they broke and entered defendants’ house. In instruction 2 the court referred to the early case history of the use of spring guns and stated under the law their use was prohibited except to prevent the commission of felonies of violence and where human life is in danger. The instruction included a statement breaking and entering is not a felony of violence.

Instruction 5 stated: “You are hereby instructed that one may use reasonable force in the protection of his property, but such right is subject to the qualification that one may not use such means of force as will take human life or inflict great bodily injury. Such is the rule even though the injured party is a trespasser and is in violation of the law himself.”

Instruction 6 stated: “An owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury; and therefore a person owning a premise is prohibited from setting out ‘spring guns’ and like dangerous devices which will likely take life or inflict great bodily injury, for the purpose of harming trespassers. The fact that the trespasser may be acting in violation of the law does not change the rule. The only time when such conduct of setting a ‘spring gun’ or a like dangerous device is justified would be when the trespasser was committing a felony of violence or a felony punishable by death, or where the trespasser was endangering human life by his act.”

Instruction 7, to which defendants made no objection or exception, stated: “To entitle the plaintiff to recover for compensatory damages, the burden of proof is upon him to establish by a preponderance of the evidence each and all of the following propositions:

“1. That defendants erected a shotgun trap in a vacant house on land owned by de*660fendant, Bertha L. Briney, on or about June 11, 1967, which fact was known only by them, to protect household goods from trespassers and thieves.

“2. That the force used by defendants was in excess of that force reasonably necessary and which persons are entitled to use in the protection of their property.

“3. That plaintiff was injured and damaged and the amount thereof.

“4. That plaintiff’s injuries and damages resulted directly from the discharge of the shotgun trap which was set and used by defendants.”

The overwhelming weight of authority, both textbook and case law, supports the trial court’s statement of the applicable principles of law.

Prosser on Torts, Third Edition, pages 116-118, states:

“...the law has always placed a higher value upon human safety than upon mere rights in property, it is the accepted rule that there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendant’s personal safety as to justify a self-defense...spring guns and other man-killing devices are not justifiable against a mere trespasser, or even a petty thief. They are privileged only against those upon whom the landowner, if he were present in person would be free to inflict injury of the same kind.”

Restatement of Torts, section 85, page 180, states: “The value of human life and limb, not only to the individual concerned but also to society, so outweighs the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has, as is stated in § 79, no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. A posessor of land cannot do indirectly and by a mechanical device that which, were he present, he could not do immediately and in person. Therefore, he cannot gain a privilege to install, for the purpose of protecting his land from intrusions harmless to the lives and limbs of the occupiers or users of it, a mechanical device whose only purpose is to inflict death or serious harm upon such as may intrude, by giving notice of his intention to inflict, by mechanical means and indirectly, harm which he could not, even after request, inflict directly were he present.”

In Volume 2, Harper and James, The Law of Torts, section 27.3, pages 1440, 1441, this is found: “The possessor of land may not arrange his premises intentionally so as to cause death or serious bodily harm to a trespasser. The possessor may of course take some steps to repel a trespass. If he is present he may use force to do so, but only that amount which is reasonably necessary to effect the repulse. Moreover if the trespass threatens harm to property only — even a theft of property — the possessor would not be privileged to use deadly force, he may not arrange his premises so that such force will be inflicted by mechanical means. If he does, he will be liable even to a thief who is injured by such device.”

Similar statements are found in 38 Am. Jur., Negligence, section 114, pages 776, 777, and 65 C.J.S. Negligence § 62(23), pages 678, 679; Anno. 44 A.L.R.2d 383, entitled “Trap to protect property”.

In Hooker v. Miller, 37 Iowa 613, we held defendant vineyard owner liable for damages resulting from a spring gun shot although plaintiff was a trespasser and there to steal grapes. At pages 614, 615, this statement is made: “This court has held that a mere trespass against property other than a dwelling is not a sufficient justification to authorize the use of a dead*661ly weapon by the owner in its defense; and that if death results in such a case it will be murder, though the killing be actually necessary to prevent the trespass. The State v. Vance, 17 Iowa 138.” At page 617 this court said: “[T]respassers and other inconsiderable violators of the law are not to be visited by barbarous punishments or prevented by inhuman inflictions of bodily injuries.”

The facts in Allison v. Fiscus, 156 Ohio 120, 100 N.E.2d 237, 44 A.L.R.2d 369, decided in 1951, are very similar to the case at bar. There plaintiff’s right to damages was recognized for injuries received when he feloniously broke a door latch and started to enter defendant’s warehouse with intent to steal. As he entered a trap of two sticks of dynamite buried under the doorway by defendant owner was set off and plaintiff seriously injured. The court held the question whether a particular trap was justified as a use of reasonable and necessary force against a trespasser engaged in the commission of a felony should have been submitted to the jury. The Ohio Supreme Court recognized plaintiff’s right to recover punitive or exemplary damages in addition to compensatory damages.

In Starkey v. Dameron, 96 Colo. 459, 45 P.2d 172, plaintiff was allowed to recover compensatory and punitive damages for injuries received from a spring gun which defendant filling station operator had concealed in an automatic gasoline pump as protection against thieves.

In Wilder v. Gardner, 39 Ga.App. 608, 147 S.E. 911, judgment for plaintiff for injuries received from a spring gun which defendant had set, the court said: “A person in control of premises may be responsible even to a trespasser for injuries caused by pitfalls, mantraps, or other like contrivances so dangerous in character as to imply a disregard of consequences or a willingness to inflict injury.”

In Phelps v. Hamlett, Tex.Civ.App., 207 S.W. 425, defendant rigged a bomb inside his outdoor theater so that if anyone came through the door the bomb would explode. The court reversed plaintiff’s recovery because of an incorrect instruction but at page 426 said: “While the law authorizes an owner to protect his property by such reasonable means as he may find to be necessary, yet considerations of humanity preclude him from setting out, even on his own property, traps and devices dangerous to the life and limb of those whose appearance and presence may be reasonably anticipated, even though they may be trespassers.”

In United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 275, 42 S.Ct. 299, 66 L.Ed. 615, 617, the court states: “The liability for spring guns and mantraps arises from the fact that the defendant has * * * expected the trespasser and prepared an injury that is no more justified than if he had held the gun and fired it.”

In addition to civil liability many jurisdictions hold a land owner criminally liable for serious injuries or homicide caused by spring guns or other set devices. See State v. Childers, 133 Ohio 508, 14 N.E.2d 767 (melon thief shot by spring gun); Pierce v. Commonwealth, 135 Va. 635, 115 S.E. 686 (policeman killed by spring gun when he opened unlocked front door of defendant’s shoe repair shop); State v. Marfaudille, 48 Wash. 117, 92 P. 939 (murder conviction for death from spring gun set in a trunk); State v. Beckham, 306 Mo. 566, 267 S.W. 817 (boy killed by spring gun attached to window of defendant’s chili stand); State v. Green, 118 S.C. 279, 110 S.E. 145, 19 A.L.R. 1431 (intruder shot by spring gun when he broke and entered vacant house. Manslaughter conviction of owner-affirmed); State v. Barr, 11 Wash. 481, 39 P. 1080 (murder conviction affirmed for death of an intruder into a boarded up cabin in which owner had set a spring gun).

In Wisconsin, Oregon and England the use of spring guns and similar devices is specifically made unlawful by statute. 44 A.L.R., section 3, pages 386, 388.

*662The legal principles stated by the trial court in instructions 2, 5 and 6 are well established and supported by the authorities cited and quoted supra. There is no merit in defendants’ objections and exceptions thereto. Defendants’ various motions based on the same reasons stated in exceptions to instructions were properly overruled.

V. Plaintiff’s claim and the jury’s allowance of punitive damages, under the trial court’s instructions relating thereto, were not at any time or in any manner challenged by defendants in the trial court as not allowable. We therefore are not presented with the problem of whether the $10,000 award should be allowed to stand.

We express no opinion as to whether punitive damages are allowable in this type of case. If defendants’ attorneys wanted that issue decided it was their duty to raise it in the trial court.

The rule is well established that we will not consider a contention not raised in the trial court. In other words we are a court of review and will not consider a contention raised for the first time in this court. Ke-Wash Company v. Stauffer Chemical Company, Iowa, 177 N.W.2d 5, 9; In re Adoption of Moriarty, 260 Iowa 1279, 1288, 152 N.W.2d 218, 223; Verschoor v. Miller, 259 Iowa 170, 176, 143 N.W.2d 385, 389; Mundy v. Olds, 254 Iowa 1095, 1100, 120 N.W.2d 469, 472; Bryan v. Iowa State Highway Commission, 251 Iowa 1093, 1096, 104 N.W.2d 562, 563, and citations.

In our most recent reference to the rule we say in Cole v. City of Osceola, Iowa, 179 N.W.2d 524, 527: “Of course, questions not presented to and not passed upon by the trial court cannot be raised or reviewed on appeal.”

Under our law punitive damages are not allowed as a matter of right. Sebastian v. Wood, 246 Iowa 94, 100, 101, 66 N.W.2d 841, 844. When malice is shown or when a defendant acted with wanton and reckless disregard of the rights of others, punitive damages may be allowed as punishment to the defendant and as a deterrent to others. Although not meant to compensate a plaintiff, the result is to increase his recovery. He is the fortuitous beneficiary of such an award simply because there is no one else to receive it.

The jury’s findings of fact including a finding defendants acted with malice and with wanton and reckless disregard, as required for an allowance of punitive or exemplary damages, are supported by substantial evidence. We are bound thereby.

This opinion is not to be taken or construed as authority that the allowance of punitive damages is or is not proper under circumstances such as exist here. We hold only that question of law not having been properly raised cannot in this case be resolved.

Study and careful consideration of defendants’ contentions on appeal reveal no reversible error.

Affirmed.

All Justices concur except LARSON, J., who dissents.

LARSON, Justice.

I respectfully dissent, first, because the majority wrongfully assumes that by installing a spring gun in the bedroom of their unoccupied house the defendants intended to shoot any intruder who attempted to enter the room. Under the record presented here, that was a fact question. Unless it is held that these property owners are liable for any injury to a intruder from such a device regardless of the intent with which it is installed, liability under these pleadings must rest upon two definite issues of fact, i. e., did the defendants intend to shoot the invader, and if so, did they employ unnecessary and unreasonable force against him?

It is my feeling that the majority oversimplifies the impact of this case on the law, not only in this but other jurisdictions, *663and that it has not thought through all the ramifications of this holding.

There being no statutory provisions governing the right of an owner to defend his property by the use of a spring gun or other like device, or of a criminal invader to recover punitive damages when injured by such an instrumentality while breaking into the building of another, our interest and attention are directed to what should be the court determination of public policy in these matters. On both issues we are faced with a case of first impression. We should accept the task and clearly establish the law in this jurisdiction hereafter. I would hold there is no absolute liability for injury to a criminal intruder by setting up such a device on his property, and unless done with an intent to kill or seriously injure the intruder, I would absolve the owner from liability other than for negligence. I would also hold the court had no jurisdiction to allow punitive damages when the intruder was engaged in a serious criminal offense such as breaking and entering with intent to steal.

It appears to me that the learned trial court was and the majority is now confused as to the basis of liability under the circumstances revealed. Certainly, the trial court’s instructions did nothing to clarify the law in this jurisdiction for the jury. Timely objections to Instructions Nos. 2, S and 6 were made by the defendants, and thereafter the court should have been aware of the questions of liability left unresolved, i. e., whether in this jurisdiction we by judicial declaration bar the use in an unoccupied building of spring guns or other devices capable of inflicting serious injury or death on an intruder regardless of the intent with which they are installed, or whether such an intent is a vital element which must be proven in order to establish liability for an injury inflicted upon a criminal invader.

Although the court told the jury the plaintiff had the burden to prove “That the force used by defendants was in excess of that force reasonably necessary and which persons are entitled to use in the protection of their property”, it utterly failed to tell the jury it could find the installation was not made with the intent or purpose of striking or injuring the plaintiff. There was considerable evidence to that effect. As I shall point out, both defendants stated the installation was made for the purpose of scaring or frightening away any intruder, not to seriously injure him. It may be that the evidence would support a finding of an intent to injure the intruder, but obviously that important issue was never adequately or clearly submitted to the jury.

Unless, then, we hold for the first time that liability for death or injury in such cases is absolute, the matter should be remanded for a jury determination of defendant’s intent in installing the device under instructions usually given to a jury on the issue of intent.

I personally have no objection to this court’s determination of the public policy of this state in such a case to ban the use of such devices in all instances where there is no intruder threat to human life or safety, but I do say we have never done so except in the case of a mere trespasser in a vineyard. Hooker v. Miller, 37 Iowa 613 (1873). To that extent, then, this is a case of first impression, and in any opinion we should make the law in this jurisdiction crystal clear. Although the legislature could pronounce this policy, as it has in some states, since we have entered this area of the law by the Hooker decision, I believe it proper for us to declare the applicable law in cases such as this for the guidance of the bench and bar hereafter. The majority opinion utterly fails in this regard. It fails to recognize the problem where such a device is installed in a building housing valuable property to ward off criminal intruders, and to clearly place the burden necessary to establish liability.

My second reason for this dissent is the allowance of an award of punitive damages herein. Plaintiff claimed a remedy which *664our law does not allow, and the trial court should not have submitted that issue to the jury. Like the law establishing liability for installing a spring gun or other similar device, the law recognizing and allowing punitive or exemplary damages is court-made law, not statutory law. As to the property owner’s liability for exemplary damages where one is engaged in a serious criminal offense at the time of his injury, we also have a case of first impression. We have never extended this right to such a claimant, and I would not do so now. Unless we do, or there is a compelling reason or authority for such a right, which I fail to find, the trial court erred in submitting that issue to the jury. Like the case where a judgment is entered without jurisdiction of the subject matter, I would hold the award of $10,000 to plaintiff is void.

I do not wish to criticize, but believe the factual statement of the majority fails to give a true perspective of the relative facts and issues to be considered.

Plaintiff’s petition at law asking damages alleged willful and malicious setting of a trap or device for the purpose of killing or inflicting great bodily harm upon any trespasser on defendants’ property. We are, therefore, factually concerned with how such force may be properly applied by the property owner and whether his intent is relevant to liability. Negligent installation of a dangerous device to frighten and ward off an intruder or thief is not alleged, so unless the proof submitted was sufficient to establish a willful setting of the trap with a purpose of killing or seriously injuring the intruder, no recovery could be had. If the evidence submitted was such that a jury could find defendants had willfully set the spring gun with a purpose to seriously injure the plaintiff intruder, unless they were privileged under the law to set the gun under these circumstances, liability for the injury would follow.

From the record we learn that plaintiff and a companion made a second trip to a furnished but uninhabited house on defendants’ farmland in Mahaska County on the night of July 16, 1967. They tore a plank from a porch window, entered the house with an intent to steal articles therein, and in search of desired articles plaintiff came to a closed bedroom door where he removed a chair braced under the door knob and pulled the door toward him. This action triggered a single shot 20-gauge shotgun which defendants had wired to the bottom of a bed. The blast went through the door and struck plaintiff two or three inches above the right ankle.

The Mahaska County Grand Jury issued a true bill charging plaintiff with breaking and entering in the nighttime, but the county attorney accepted a plea of guilty to the lesser offense of larceny in the nighttime of property of a value of less than $20 and did not press the greater charge.

At the trial of this case Mr. Briney, one of the defendants, testified that the house where plaintiff was injured had been the home of Mrs. Briney’s parents. He said the furniture and other possessions left there were of considerable value and they had tried to preserve them and enjoy them for frequent visits by Mrs. Briney. It appeared this unoccupied house had been broken into repeatedly during the past ten years and, as a result, Mr. Briney said “things were pretty well torn up, a lot of things taken.” To prevent these intrusions the Brineys nailed the doors and some windows shut and boarded up others. Prior to this time Mr. Briney testified he had locked the doors, posted seven no trespassing signs on the premises, and complained to the sheriffs of two counties on numerous occasions. Mr. Briney further testified that when all these efforts were futile and the vandalism continued, he placed a 20-guage shotgun in a bedroom and wired it so that it would shoot downward and toward the door if anyone opened it. He said he first aimed it straight at the door but later, at his wife’s suggestion, reconsidered the aim and pointed the gun down in a way he thought would only scare *665someone if it were discharged. On cross-examination he admitted that he did not want anyone to know it was there in order to preserve the element of surprise.

Plaintiff testified he knew the house was unoccupied and admitted breaking into it in the nighttime without lawful reason or excuse. He claimed he and his companion were seeking old bottles and dated fruit jars. He also admitted breaking in on one prior occasion and stated the reason for the return visit was that “we decided we would go out to this place again and see if there was something we missed while we was out there the first time.” An old organ fascinated plaintiff. Arriving this second time, they found that the window by which they had entered before was now a “solid mass of boards” and walked around the house until they found the porch window which offered less resistance. Plaintiff said they crawled through this window. While searching the house he came to the bedroom door and pulled it open, thus triggering the gun that delivered a charge which struck him in the leg.

Plaintiff’s doctor testified that he treated the shotgun wound on the night it was sustained and for some period thereafter. The healing process was successful and plaintiff was released after 40 days in the hospital. There was medical testimony that plaintiff had a permanent deformity, a loss of tissue, and a shortening of the leg.

That plaintiff suffered a grievous wound is not denied, and that it constituted a serious bodily injury cannot be contradicted.

As previously indicated, this appeal presents two vital questions which are as novel as they are difficult. They are, (1) is the owner of a building in which are kept household furniture, appliances, and valuables, but not occupied by a person or persons, liable in damages to an intruder who in the nighttime broke into and entered the building with the intent to steal and was shot and seriously injured by a spring gun allegedly set by the owner to frighten in-traders from his property, and (2) if he is liable for compensatory damages, is this a proper case for the allowance of exemplary or punitive damages?

The trial court overruled all objections to the instructions and denied defendants’ motion for a new trial. Thus, the first question to be resolved is the status of the law in this jurisdiction as to the means of force a property owner is privileged to use to repel (1) a mere trespasser, (2) a criminal invader, thief or burglar, where he presents no threat to human life or safety, and (3) an intruder or criminal breaking and entering a dwelling which poses a threat to human life and safety. Overlooked by the majority is the vital problem relating to the relevancy and importance of the owner’s intent in placing the device.

I have been unable to find a case exactly like the case at bar, although there have been many cases which consider liability to a mere trespasser for injuries incurred by a spring gun or other dangerous instruments set to protect against intrusion and theft. True, some of these cases seem to turn on the negligence of the party setting the trap and an absence of adequate warning thereof, but most of them involve an alleged intentional tort. It is also true some hold as a matter of public policy there is liability for any injury following the setting of a device which is intended to kill or inflict great bodily injury on one coming on the owner’s property without permission, unless the invader poses a threat to human life, and this is so even though there is no statutory prohibition against the setting of spring guns in the jurisdiction.

Since our decision in Hooker v. Miller, supra, we have recognized in this state the doctrine that the owner of a premise is liable in damages to a mere trespasser coming upon his property for any injury occasioned by the unsafe condition of the property which the owner has intentionally permitted to exist, such as installed spring guns, unless adequate warning is given thereof. In *666Hooker, which involved stealing grapes from a vineyard, we held a property owner had no right to resist such a trespass by means which may kill or inflict great bodily injury to the trespasser. But it does appear therein that we recognized some distinction between a mere trespass against property and a trespass involving a serious crime or involving a dwelling. Except when the trespass involves a serious crime, a crime posing a threat to human life, it may be argued that the law in this jurisdiction should limit the right of one to protect his property, that he does not have a privilege to resist a mere trespass by using a spring gun or other device which poses a threat to life.

However, left unsettled by this and other court pronouncements is the means which may be used to repel, prevent, or apprehend a trespasser engaged in a more serious criminal offense. True, there is a line of cases which seem to apply the same rule to all criminal trespasses except those involving arson, rape, assault, or other acts of violence against persons residing on the property invaded. State v. Vance, 17 Iowa 138 (1864); State v. Plumlee, 177 La. 687, 149 So. 425 (1933); Pierce v. Commonwealth, 135 Va. 635, 115 S.E. 686 (Virginia, 1923); Simpson v. State, 59 Ala. 1, 31 Am.Rep. 1 (1877); State v. Barr, 11 Wash. 481, 39 P. 1080 (1895) ; Starkey v. Dameron, 96 Colo. 459, 21 P.2d 1112 (1933); State v. Beckham, 306 Mo. 566, 267 S.W. 817 (1924); Bird v. Holbrook, 4 Bingham’s Reports 628 (England, 1828). Also see annotation, 44 A.L.R.2d 391, § 5, and citations. There are others which at least infer that any serious law violation by the trespasser might permit the reasonable use of dangerous instrumentalities to repel the intruder and prevent loss or damage to one’s valuable property. Scheuermann v. Scharfenberg, 163 Ala. 337, 50 So. 335; Marquis v. Benfer, Tex.Civ.App., 298 S.W.2d 601 (Texas 1956); Grant v. Hass, 31 Tex.Civ.App. 688, 75 S.W. 342 (1903); Gray v. Combs, 7 J.J. Marshall 478 (Ky., 1832), 23 Am.Dec. 431; Ilott v. Wilkes, 3 B. & A. 304 (1820 K.B.).

Also see the following articles on this subject: 68 Yale Law Journal 633, Duties to Trespassers: A Comparative Survey and Revaluation; 35 Yale Law Journal 525, The Privilege to Protect Property by Dangerous Barriers and Mechanical Devices; annotation, 44 A.L.R.2d 383, Use of Set Gun, Trap, or Similar Device on Defendant’s Own Property.

Most of these discussions center around what should be public policy regarding a property owner’s right to use a dangerous weapon or instrumentality to protect his premises from intruders or trespassers, and his duty to protect the trespasser from serious injury while upon his premises.

Some states, including Wisconsin, have statutes which announce the jurisdiction’s public policy. Often they prohibit the use of spring guns or such devices to protect real and personal property, and of course in those instances a property owner, regardless of his intent or purpose, has no right to make use of them and is liable to anyone injured thereby. Since there has been no such statutory prohibition or direct judicial pronouncement to that effect prior to this time in this state, it could not be said as a matter of law that the mere placing of a spring gun in a building on one’s premises is unlawful. Much depends upon its placement and purpose. Whether an owner exceeds his privilege to reasonably defend his property by such an installation, and whether liability is incurred in a given case, should therefore depend upon the circumstances revealed, the intent of the property owner, and his care in setting the device. In any event, I question whether it should be determined solely by the results of his act or its effect upon the intruder.

It appears there are cases and some authority which would relieve one setting a spring gun on his premises of any liability if adequate warning had been given an intruder and he ignores the warning. In all of these cases there is a question as to *667the intent of the property owner in setting the device. Intent, of course, may be determined from both direct and indirect evidence, and it is true the physical facts may be and often are sufficient to present a jury issue. I think they were here, but no clear instruction was given in this regard.

If, after proper instructions, the finder of fact determines that the gun was set with an intent and purpose to kill or inflict great bodily injury on an intruder, then and only then may it be said liability is established unless the property so protected is shown to be an occupied dwelling house. Of course, under this concept, if the finder of fact determines the gun set in an unoccupied house was intended to do no more than to frighten the intruder or sting him a bit, no liability would be incurred under such pleadings as are now presented. If such a concept of the law were adopted in Iowa, we would have here a question for the fact-finder or jury as to whether the gun was willfully and intentionally set so as to seriously injure the thief or merely scare him away.

I feel the better rule is that an owner of buildings housing valuable property may employ the use of spring guns or other devices intended to repel but not seriously injure an intruder who enters his secured premises with or without a criminal intent, but I do not advocate its general use, for there may also be liability for negligent installation of such a device. What I mean to say is that under such circumstances as we have here the issue as to whether the set was with an intent to seriously injure or kill an intruder is a question of fact that should be left to the jury under proper instructions, and that the mere setting of such a device with a resultant serious injury should not as a matter of law establish liability.

In the case of a mere trespass able authorities have reasoned that absolute liability may rightfully be fixed on the landowner for injuries to the trespasser because very little damage could be inflicted upon the property owner and the danger is great that a child or other innocent trespasser might be seriously injured by the device. In such matters they say no privilege to set up the device should be recognized by the courts regardless of the owner’s intent. I agree.

On the other hand, where the intruder may pose a danger to the inhabitants of a dwelling, the privilege of using such a device to repel has been recognized by most authorities, and the mere setting thereof in the dwelling has not been held to create liability for an injury as a matter of law. In such cases intent and the reasonableness of the force would seem relevant to liability.

Although I am aware of the often-repeated statement that personal rights are more important than property rights, where the owner has stored his valuables representing his life’s accumulations, his livelihood business, his tools and implements, and his treasured antiques as appears in the case at bar, and where the evidence is sufficient to sustain a finding that the installation was intended only as a warning to ward off thieves and criminals, I can see no compelling reason why the use of such a device alone would create liability as a matter of law.

For cases considering the devices a property owner is or is not privileged to use to repel a mere trespasser, see Hooker v. Miller, supra, 37 Iowa 613 (trap gun set in orchard to repel); State v. Vance, supra, 17 Iowa 138 (1864); Phelps v. Hamlett, Tex.Civ.App., 207 S.W. 425 (1918) (bomb set in open air theater); State v. Plumlee, supra, 177 La. 687, 149 So. 425 (1933) (trap gun set in open barn) ; Starkey v. Dameron, supra, 96 Colo. 459, 21 P.2d 1112 (1933) (spring gun in outdoor automatic gas pump); State v. Childers, 133 Ohio St. 508, 14 N.E.2d 767 (1938) (trap gun in melon patch); Weis v. Allen, 147 Or. 670, 35 P.2d 478 (1934) (trap gun in junkyard); Johnson v. Patterson, 14 Conn. 1 (1840) *668(straying poultry poisoned); Bird v. Holbrook, supra, 4 Bingham’s Reports 628 (England, 1828) (spring gun in garden enclosed by wall of undisclosed height).

For cases apparently holding dangerous devices may be used to ward off and prevent a trespasser from breaking and entering into an inhabited dwelling, see State v. Vance, supra; Grant v. Hass, supra; Scheuermann v. Scharfenberg, supra; Simpson v. State, supra; United States v. Gilliam, 1 Hayw. & H. 109, 25 Fed.Cas. 1319, p. 1320, No. 15,205 a (D.C. 1882); State v. Childers, supra; Gramlich v. Wurst, 86 Pa. 74, 80 (1878).

Also, for cases considering the devices a property owner is privileged to use to repel an invader where there is no threat to human life or safety, see Allison v. Fiscus, 156 Ohio St. 120, 100 N.E.2d 237, 44 A.L.R.2d 369; State v. Barr, 11 Wash. 481, 39 P. 1080 (1895); State v. Childers, supra; Weis v. Allen, supra; Pierce v. Commonwealth, supra; Johnson v. Patterson, supra; Marquis v. Benfer, supra.

In Allison v. Fiscus, supra, at page 241 of 100 N.E.2d, it is said: “Assuredly, * * * the court had no right to hold as a matter of law that defendant was liable to plaintiff, as the defendant’s good faith in using the force which he did to protect his building and the good faith of his belief as to the nature of the force he was using were questions for the jury to determine under proper instructions.” (Emphasis supplied.)

In State v. Barr, supra, at page 1081 of 39 P., the court said: “ * * * whether or not what was done in a particular case was justified under the law must be a question of fact, or mixed law and fact, and not a pure question of law.”

In State v. Childers, supra, it is said at page 768 of 14 N.E.2d: “Of course the act in question must be done maliciously * * * and that fact must be proved and found by the jury to exist." (Emphasis supplied.)

Also see State v. Metcalfe, 203 Iowa 155, 212 N.W. 382, where this court discussed the force that a property owner may use to oppose an unlawful effort to carry away his goods, and held the essential issue in such matters which must be explained to the jury is not the nature of the weapon employed but whether the defendant employed only that degree of force to accomplish such purpose which a reasonable person would deem reasonably necessary under the circumstances as they appeared in good faith to the defendant.

Like the Ohio Supreme Court in Allison v. Fiscus, supra, I believe that the basis of liability, if any, in such a case should be either the intentional, reckless, or grossly negligent conduct of the owner in setting the device.

If this is not a desirable expression of policy in this jurisdiction, I suggest the body selected and best fitted to establish a different public policy would be the State Legislature.

The next question presented is, which view of the law set out above did the trial court take, the view that the mere setting of a spring gun or like device in defendants’ building created liability for the resulting injury, or the view that there must be a setting of the device with an intent to shoot, kill, or seriously injure one engaged in breaking and entering this house ? Appellants argue this was not made clear in the court’s instructions to the jury and, being material, is error. I agree.

They contend Instructions Nos. 2, 5 and 6, to which proper and timely exceptions were taken, are improper, that they were so inadequate and confusing as to constitute reversible error and required the trial court to grant their motion for a new trial.

Instruction No. 5 provides:

“You are hereby instructed that one may use reasonable force in the protection of his property, but such right is subject to the qualification that one may not use such means of force as will take human life *669or inflict great bodily injury. Such is the rule even though the injured party is a trespasser and is in violation of the law himself.” (Emphasis supplied.)

Instruction No. 6 provides:

“An owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury; and therefore a person owning a premise is prohibited from setting out ‘spring guns’ and like dangerous devices which will likely take life or inflict ¡great bodily injury, for the purpose of harming trespassers. The fact that the trespasser may be acting in violation of the law does not change the rule. The only time when such conduct of setting a ‘spring gun’ or a like dangerous device is justified would be when the trespasser was committing a felony of violence or a felony punishable by death, or where the trespasser was endangering human life by his act.” (Emphasis supplied.)

Specific objections were made to Instruction No. 2, inter alia, to the statement that in this jurisdiction the use of force which may take life or inflict serious bodily injury might be used was restricted to occupied dwellings or where specific statutes permitted its use; to the reference to an Iowa case wherein the subject related to a simple trespass in a vineyard where no breaking and entry of a building was involved, without pointing out the difference as to permissible force permitted to repel one entering the owner’s buildings with intent to ravish and steal valuable personal property; and to the error resulting when the court wrongfully directed the jury to find defendants’ acts were illegal by stating “that in so doing he violated the law and became liable for injuries sustained by the plaintiff.”

In other words, defendants contended that this instruction failed to tell the jury the extent of defendants’ rights to defend against burglary in buildings other than their dwelling, inferring they have no right to employ a device which is dangerous to life and limb, regardless of its intended purpose only to ward off or scare the intruder.

Defendants also specifically objected to Instruction No. 5 because it also limited the right or privilege of one to use dangerous devices in any way to protect his property, and made it applicable to cases where the invader was in violation of the law, without classifying his offense.

Instruction No. 6 was specifically objected to as not being a proper statement of the law, as being inadequate, confusing, and misleading to the jury in regard to the vital issues in this case, because it would not be possible for a jury to understand the court when it told the jurors an owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury, and then told them a person owning premises is prohibited from setting out spring guns and like dangerous devices which will “likely” take life or inflict great bodily injury, for the purpose of harming trespassers.

Appellants argue from these instructions the jury could conclude it must find any setting of a spring gun or such other device to protect his property from a burglar or other criminal invader made the owner absolutely liable for injuries suffered by the intruder, unless the building being so protected was a dwelling, regardless of the owner’s intent and purpose in setting the device in his building. On the other hand, in Instruction No. 6 the court refers to such a setting with the intent and purpose of killing or seriously injuring the intruder in order to make the owner liable for damages.

I too find these instructions are confusing. If the court was telling the jury, as appellants contend, that an owner of a premise may not set a spring gun to protect his property unless the trespasser’s act amounts to a felony of violence and *670endangers human life, the phrase used, “for the purpose of harming trespassers”, introduces the element of intent and would tend to confuse the jury as to the law on that issue. If the issue here was that such an intent was necessary to establish liability, the instruction was erroneous and confusing; otherwise the error was without prejudice.

I would, therefore, conclude there is merit in appellants’ contention that the law was not made clear to the jury as to whether the act of placing a spring gun on this premise was prohibited by law, or whether the act of placing such a device requires a finding of intention to shoot the intruder or cause him great bodily injury to establish liability. I cannot tell whether the jury found liability on the mere act of placing the gun as Mr. Briney did in this house or on the fact that he did so with the intent to seriously harm a trespasser.

In the case at bar, as I have pointed out, there is a sharp conflict in the evidence. The physical facts and certain admissions as to how the gun was aimed would tend to support a finding of intent to injure, while the direct testimony of both defendants was that the gun was placed so it would “hit the floor eventually” and that it was set “low so it couldn’t kill anybody.” Mr. Briney testified, “My purpose in setting up the gun was not to injure somebody. I thought more or less that the gun would be at a distance of where anyone would grab the door, it would scare them”, and in setting the angle of the gun to hit the lower part of the door, he said, “I didn’t think it would go through quite that hard.”

If the law in this jurisdiction permits, which I think it does, an explanation of the setting of a spring gun to repel invaders of certain private property, then the intent with which the set is made is a vital element in the liability issue.

In view of the failure to distinguish and clearly give the jury the basis upon which it should determine that liability issue, I would reverse and remand the entire case for a new trial.

As indicated, under these circumstances the trial court should not have submitted the punitive damage issue to the jury in this case. By Instruction No. 14 the learned trial judge wrongfully instructed the jury that the law of Iowa allows a jury in such a case to award exemplary damages if it' is found that the act complained of is wanton and reckless or where the defendants are guilty of malice. True, this instruction was in accordance with certain past pronouncements of this court and no objection was taken to the substance of the instruction, but defendants have always contended under these circumstances the court should not have submitted the question of exemplary damages to the jury. We have never extended the exemplary damage law to cover such cases and I maintain we should not do so now, directly or indirectly. Without such a pronouncement to that extent, or some legislation extending that right to a person engaged in a serious criminal offense at the time of his injury, I believe the trial court possessed no jurisdiction to permit the jury to pass on such a claim, even though no objections thereto were made by the defendants.

Although this subject has been considered and discussed in several Iowa cases, including Sebastian v. Wood, 246 Iowa 94, 66 N.W.2d 841, and citations, granting exemplary damages for injury due to alleged reckless driving, and Amos v. Prom, 115 F.Supp. 127, relating to alleged mental suffering and humiliation when denied admission to a public dance hall, none seem to consider whether punitive damages are permitted where the injured party was, as here, engaged in a criminal act such as breaking and entering, burglary, or other serious offense. Also see Morgan v. Muench, 181 Iowa 719, 156 N.W. 819, and Stricklen v. Pearson Construction Co., 185 Iowa 95, 169 N.W. 628, and citations in each.

*671Although I have found no authority to assist me in my view, I am convinced it is correct in principle and should be adopted in this jurisdiction. In so doing, I adhere to the rule recognized in Amos v. Prom, supra, at 137, et seq., where it is stated: “ * * * the principle that intentional wrongful action in disregard for the rights of others amounts to conduct to which the law will attach a penalty and deterrent by way of exemplary damages.” However, I would not extend this privilege to a case where the injured party’s conduct itself was criminal and extremely violative of good public behavior.

From a general review of the subject of exemplary or punitive damages beginning with Wilkes v. Wood (1763), Lofft 1, 98 English Rep. 489, 498, which stated such “Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, * * * ”, I find that both in England and the United States the purpose of this law was to restrain arbitrary and outrageous vise of power. See 70 Harvard L.Rev. 517, 519 (1957), Exemplary Damages in the Law of Torts.

In Hawk v. Ridgway, 33 Ill. 473, 475 (1864), the Illinois court said, “Where the wrong is wanton, or it is willful, the jury are authorized to give an amount of damages beyond the actual injury sustained, as a punishment, and to preserve the public tranquillity.”

Some courts rationalize punitive damages on the basis that they provide an outlet for the injured party’s desire for revenge and thereby help keep the peace. Some others rationalize it as a punishment to defendant and to deter him and others from further antisocial conduct. It has also been said punitive damages are ordinarily a means of increasing the severity of the admonition inherent in the compensatory award. See 44 Harvard L.Rev. 1173 (1931).

A further study of this law indicates punitive damages have a direct relation to the criminal law. Historically, it was undoubtedly one of the functions of tort law to deter wrongful behavior. However, in modern times its priority has become that of compensating the victim of the injury. The business of punishing wrongdoers has increasingly become the exclusive purview of the criminal law. See Pollock and Maitland, History of English Law, Vol. II, 2d Ed. (1898), § 1, pp. 449-462.

The award of punitive damages in modern tort law gives rise to considerable anomalies. Such damages, of course, go to the private purse of the individual plaintiff and may be classified a windfall as to him in excess of his actual losses due entirely to a social judgment about defendant’s conduct.

In properly applying this law Professor McCormick, in his treatise on damages found on pages 276 and 277 in McCormick on Damages (1935), said, “Perhaps the principal advantage is that it does tend to bring to punishment a type, of cases of oppressive conduct, such as slanders, assaults, minor oppressions, and cruelties, which are theoretically criminally punishable, but which in actual practice go unnoticed by prosecutors occupied with more serious crimes. * * * The self-interest of the plaintiff leads to the actual prosecution of the claim for punitive damages, where the same motive would often lead him to refrain from the trouble incident to appearing against the wrongdoer in criminal proceedings.”

So understood, punitive damages are an adjunct to the criminal law, yet one over which the criminal law has no control, and in the United Kingdom, the land of its birth, punitive damages are close to extinct. In Rookes v. Barnard, Appeal Cases (House of Lords, 1964) 1129, at 1221 et seq., the English court of last resort confined the award of punitive damages to a very narrow range of situations. It ruled in an intentional tort case that exemplary *672damages could be awarded only in cases (1) for oppressive arbitrary, or unconstitutional acts by government servants, (2) for defendant’s conduct which had been calculated by him to make a profit for himself which might well exceed the compensation payable to the injured party, and (3) where expressly authorized by statute.

In the case at bar the plaintiff was guilty of serious criminal conduct, which event gave rise to his claim against defendants. Even so, he may be eligible for an award of compensatory damages which so far as the law is concerned redresses him and places him in the position he was prior to sustaining the injury. The windfall he would receive in the form of punitive damages is bothersome to the principle of damages, because it is a response to the conduct of the defendants rather than any reaction to the loss suffered by plaintiff or any measurement of his worthiness for the award.

When such a windfall comes to a criminal as a result of his indulgence in serious criminal conduct, the result is intolerable and indeed shocks the conscience. If we find the law upholds such a result, the criminal would be permitted by operation of law to profit from his own crime.

Furthermore, if our civil courts are to sustain such a result, it would in principle interfere with the purposes and policies of the criminal law. This would certainly be ironic since punitive damages have been thought to assist and promote those purposes, at least so far as the conduct of the defendant is concerned.

We cannot in good conscience ignore the conduct of the plaintiff. He does not come into court with clean hands, and attempts to make a claim to punitive damages in part on his own criminal conduct. In such circumstances, to enrich him would be unjust, and compensatory damages in such a case itself would be a sufficient deterrent to the defendant or others who might intend to set such a device.

The criminal law can take whatever action is appropriate in such cases, but the civil law should not compound the breach of proper social conduct by rewarding the plaintiff for his crime. I conclude one engaged in a criminal activity is an unworthy object of largesse bestowed by punitive damages and hold the law does not support such a claim to enrichment in this case.

The admonitory function of the tort law is adequately served where the compensatory damages claimed are high and the granted award itself may act as a severe punishment and a deterrence. In such a case as we have here there is no need to hold out the prospect of punitive damages as an incentive to sue and rectify a minor physical damage such as a redress for lost dignity. Certainly this is not a case where defendants might profit in excess of the amount of reparation they may have to pay.

In a case of this kind there is no overwhelming social purpose to be achieved by punishing defendants beyond the compensatory sum claimed for damages.

Being convinced that there was reversible error in the court’s instructions, that the issue of intent in placing the spring gun was not clearly presented to the jury, and that the issue as to punitive damages should not have been presented to the jury, I would reverse and remand the matter for a new trial.

The majority seem to ignore the evident issue of punitive policy involved herein and uphold the punitive damage award on a mere technical rule of civil procedure.

Morton, J.

It was undisputed that, on the day of the alleged assault, ‘the plaintiff and the defendant were each in a small boat, called a dory, engaged in hauling lobster pots off Eastern Point in Gloucester. There had been a previous misunderstanding between them. The plaintiff made an insulting gesture to the defendant, to which the defendant responded in like manner. The plaintiff then held up his fists in a threatening manner and rowed down towards the defendant, and, when near him, threw an oar at him in harpoon fashion and followed it up by throwing two or three others. The defendant stood ready with an oar to defend himself, but only used it to ward off those thrown at him by the plaintiff. The plaintiff’s dory in the meantime drew alongside the defendant’s dory, but the defendant, instead of rowing away as he could easily have done after the plaintiff had thrown his oars at him, tried to pull the plaintiff on board his own boat with a gaff, and, failing in that, jumped aboard the plaintiff’s boat, when they clinched, and the defendant threw the plaintiff so that he fell face down, as the defendant meant he should, over one of the thwarts, and the defendant held him in that position by the hair of the head and “ punched ” him eight or nine times as hard as he could. The defendant further said on cross-examination that “ the man had been imposing upon him; that he was going to punish him a little mite; that the man was aggravating him and he would not stand all that; that he meant business when the plaintiff offered to fight; that he shifted hands while striking him.” He also testified on cross-examination, “ that he was sorry afterwards, when he saw the plaintiff’s face and realized when he turned around that he was pretty badly hurt.” It is plain, we think, that the assault was unjustifiable, and in no proper sense in his own defence. At the time when *89it took place there was nothing whatever to prevent the defendant from rowing away and leaving the plaintiff. He not only did not try to do that, but tried first to pull the plaintiff into his own boat, and, failing in that, jumped into the plaintiff’s boat, and when he had him at his mercy, proceeded to punish him because he had aggravated him. The fact that he supposed that the plaintiff had a knife because all lobster fishermen have one to cut bait with did not justify him. It was not shown that the plaintiff had a knife, or that, if he had, he made any movement or threat to use it. Neither did the fact that the plaintiff was willing to fight and provoked the assault and assaulted the defendant first justify him in continuing the assault when it was evident that it was no longer necessary to do so for the purposes of self defence. Ordinarily the question how far a party may properly go in self defence is a question for the jury, not to be judged of very nicely, but with due regard to the infirmity of human impulses and passions. But where, as here, taking the case most favorably for the defendant, it is plain that he exceeded the limits justified by the occasion, it was the duty of the judge so to rule and instruct the jury.

The attending physician was called as a witness by the plaintiff and was asked how seriously the plaintiff was injured and answered “ quite seriously.” The presiding judge requested the witness to answer the question in a little different way so as to get at what he considered as serious, and the witness answered that he was afraid a clot or something of that nature might form upon the brain. This was objected and excepted to by the defendant. The answer was properly admitted, we think, as tending to throw light upon what, in the opinion of the witness, was the extent of the plaintiff’s injuries.

The result is that the exceptions must be overruled.

So ordered.

Murray, Chief Justice,

delivered the opinion of the Court. Heydenebldt, Justice, concurred.1

This was an action, commenced in the court below, to recover damages for blowing up and destroying the plaintiffs’ house and property, diming the fire of the 24th of December, 1849.

Geary, at that time Alcalde of San Francisco, justified, on the ground that he haebauthoritv. fr? virtue-of-h-is-effice. to destroy said building, and also that it had been blown up hv him to stop the progress of the conflagration then raging.

It was in proof, that the fire passed over and burned beyond the building of the plaintiffs’, and that at the time said building was destroyed, they were engaged in removing their prope'rty, and could, had they not been prevented, have succeeded in re'-, moving more, if not all of their goods.

The cause was tried by the court sitting as a jury, and a verdict rendered for the plaintiffs, from which the defendant prosecutes this appeal under the Practice Act of 1850.

The only question for our consideration is, whether the person who tears down or destroys the house of another, in good faith, and under apparent necessity, during the time of'a, conflagration, for the purpose of saving the buildings adjacent, and stopping its progress, can be held^ personalia liable in an action by the owner of the property destroyed.

*73This point has been so well settled in the courts of New York and New Jersey, that a reference to those authorities is all that is necessary to determine the present case.

The right to destroy property, to prevent the spread of a conflagration, has been traced to the highest law of -necessity, and the naturaVrights of man, independent of society or civil government. “ It is referred by moralists and jurists to the same great principle which justifies the exclusive appropriation of a plank in a shipwreck, though the life of another be sacrificed; with the throwing overboard goods in a tempest, for the safety of a vessel; with the trespassing upon the lands of another, to escape death by an enemy. It rests upon the maxim, Necessitas inducit privilegium quod jura privata.”

The common law adopts the principles of the natural law, and places the justification of an act otherwise tortious precisely pn the same ground of necessity. (See 1st Zabriskie, American Print Works v. Lawrence, and the cases there cited.)

This principle has been familiarly recognized by the bookál from the time of the saltpetre case, and the instances of tearing down houses to prevent a conflagration, or to raise bulwarks for the defence of a city, are made use of as illustrations, rather than as abstract cases, in which its exercise is permitted. At such times, the individual rights of property give way to the higher laws of impending necessity.

A house on fire, or those in its immediate vicinity, which serve to communicate the flames, becomes a nuisance, which it is lawful to abate, and the private rights of the individual yield to the considerations of general convenience, and the interests of society. Wore it otherwise, one stubborn person might involve a whole city in ruin, by refusing to allow the destruction of a building which would cut off the flames and check the progress of the fire, and that, too, when it was perfectly evident that his building must be consumed.

The respondent has invoked the aid of the constitutional provision which prohibits the taking of private property for public use, without just compensation being made therefor. This is not “ a taking of private property for public use,” within the meaning of the Constitution.

The right of taking individual property for public purposes *74belongs to the State, by virtue of her right of eminent domain, and is said to be justified on the ground of state necessity; but this is not a taking or a destruction for a public purpose, but a destruction for the benefit of the individual or the city, but not properly of the State.

The counsel for the respondent has asked, who is to judge of the necessity of the destruction of property ?

This must, in some instances, be a difficult matter to determine. The necessity of bloxving up a house may not exist, or be as apparent to the oxvner, xvhose judgment is clouded by interest, and the hope of saving his- property, as to others. In all such cases the conduct of the individual must be regulated by

Ibis oxv-n judgment as to the exigencies of the case. If a building should be torn doxvn xyithout apparent or actual necessity, the parties concerned would undoubtedly be liable in an action of trespass. Rut in every case the necessity must be clearly shown. It is true, many cases of hardship may grow out of this rule, and property may often in such cases be destroyed, without necessity, by irresponsible persons, but this difficulty xvould not be obviated by making the parties responsible in every case, whether the necessity existed or not.

The legislature of the State possess the power to regulate this subject by providing the manner in which buildings may be destroyed, and the mode in which compensation shall bo made ; and it is to be hoped that something will be done to obviate the difficulty, and prevent the happening of such events as those supposed by the respondent’s counsel.

In the absence of any legislation on the subject, we are compelled to fall back upon the rules of the common law.

The evidence in this case clearly establishes the fact, that the blowing up of the house was necessary, as it would have been consumed had it been left standing. The plaintiffs cannot recover for the value of the goods which they might haxre saved; they were as much subject to the necessities of the occasion as the house in which they were situate; and if in such cases a party was held liable, it would too frequently happen, that the delay caused by the removal of the goods would render the destruction of the house useless.

*75The court below clearly erred as to the law applicable to the facts of this case. The testimony will not warrant a verdict against the defendant.

Judgment reversed.

O’BRIEN, J.

The steamship Reynolds, owned by the defendant, was for the purpose of discharging her cargo on November 27, 1905, moored to plaintiffs’ dock in Duluth. While the unloading of the boat was taking place a storm from the northeast developed, which at about ten o’clock p. m., when the unloading was completed, had so grown in violence that the wind was then moving at fifty miles per hour and continued to increase during the night. There is some evidence that one, and perhaps two, boats were able to enter the harbor that night, but it is plain that navigation was practically suspended from the hour mentioned until the morning of the twenty ninth, when the storm abated, and during that time no master would have been justified in attempting to navigate his vessel, if he could avoid doing so. After the discharge of the cargo the Peynolds signaled for a tug to tow her from the dock, but none could be obtained because of the severity of the storm. If the lines holding the ship to the dock had been cast off, she would doubtless have drifted away; but, instead, the lines were kept fast, and as soon as one parted or chafed it was replaced, sometimes with a larger one. The vessel lay upon the outside of the dock, her bow to the east, the wind and waves striking her starboard quarter with such force that she was con*458stantly being lifted and thrown against the dock, resulting in its damage, as found by the jury, to the amount of $500.

We are satisfied that the character of the storm was such that it would have been highly imprudent for the master of the Reynolds to have attempted to leave the dock or to leave permitted his vessel to drift away from it. One witness testified upon the trial that the vessel could have been warped into a slip, and that, if the attempt to bring the ship into the slip had failed, the worst that could have happened would be that the vessel would have been blown ashore upon a soft and muddy bank. The witness was not present in Duluth at the time of the storm, and, while he may have been right in his conclusions, those in charge of the dock and the vessel at the time of the storm were not required to use the highest human intelligence, nor were they required to resort to every possible experiment which could be suggested for the preservation of their property. Nothing more was demanded of them than ordinary prudence and care, and the record in this case fully sustains the contention of the appellant that, in holding the vessel fast to the dock, those in charge of her exercised good judgment and prudent seamanship.

It is claimed by the respondent that it was negligence to moor the boat at an exposed part of the wharf, and to continue in that position after it became apparent that the storm was to be more than usually severe. We do not agree with this position. The part of the wharf where the vessel was moored appears to have been commonly used for that purpose. It was situated within the harbor at Duluth, and must, we think, be considered a proper and safe place, and would undoubtedly have been such during what would be considered a very severe storm. The storm which made it unsafe was one which surpassed in violence any which might have reasonably been anticipated.

The appellant contends by ample assignments of error that, because its conduct during the storm was rendered necessary by prudence and good seamanship under conditions over which it had no control, it cannot be held liable for any injury resulting to the property of others, and claims that the jury should have been so instructed. An analysis of the charge given by the trial court is not necessary, as in our opinion the only question for the jury was the amount of damages *459which the plaintiffs were entitled to recover, and no complaint is made upon that score.

The situation was one in which the ordinary rules regulating property rights were suspended by forces beyond human control, and if, without the direct intervention of some act by the one sought to be held liable, the property of another was injured, such injury must be attributed to the act of God, and not to the wrongful act of the person sought to be charged. If during the storm the Reynolds had entered the harbor, and while there had become disabled and been thrown against the plaintiffs’ dock, the plaintiffs could not have recovered. Again, if while attempting to hold fast to the dock the lines had parted, without any negligence, and the vessel carried against some other boat or dock in the harbor, there would be no liability upon her owner. But here those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted, and, having thus preserved the ship at the expense of the dock, it seems to us that her owners are responsible to the dock owners to the extent of the injury indicted.

In Depue v. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485, this court held that where the plaintiff, while lawfully in the defendants’ house, became so ill that he was incapable of traveling with safety, the defendants were responsible to him in damages for compelling him to leave the premises. If, however, the owner of the premises had furnished the traveler with proper accommodations and medical attendance, would he have been able to defeat an action brought against him for their reasonable worth?

In Ploof v. Putnam (Vt.) 71 Atl. 188, 20 L. R. A. (N. S.) 152, the supreme court of Vermont held that where, under stress of weather, a vessel was without permission moored to a private dock at an island in Lake Champlain owned by the defendant, the plaintiff was not guilty of trespass, and that the defendant was responsible in damages because his representative upon the island unmoored the vessel, permitting it to drift upon the shore, with resultant injuries to it. If, in that case, the vessel had been permitted to remain, and the dock had suffered an injury, we believe the shipowner would have been held liable for the injury done.

*460Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so. And so public necessity, in times of war or peace, may require the tailing of private property for public purposes; but under our system of jurisprudence compensation must be made.

Let us imagine in this case that for the better mooring of the vessel those in charge of her had appropriated a valuable cable lying upon the dock. No matter how justifiable such appropriation might have been, it would not be claimed that, because of the overwhelming necessity of the situation, the owner of the cable could not recover its value.

This is not a case where life or property was menaced by any object or thing belonging to the plaintiffs, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where, because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control of the defendant, but is one where the defendant prudently and advisedly availed itself of the plaintiffs’ property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation for the injury done.

Order affirmed.

LEWIS, J.

(dissenting).

I dissent. It was assumed on the trial before the lower court that appellant’s liability depended on whether the master of the ship might, in the exercise of reasonable care, have sought a place of safety before the storm made it impossible to leave the dock. The majority opinion assumes that the evidence is conclusive that appellant moored its boat at respondents’ dock pursuant to contract, and that the vessel was lawfully in position at the time the additional cables were fastened to the dock, and the reasoning of the opinion is that, because appellant made use of the stronger cables to hold the boat in position, it became liable under the rule that it had voluntarily made use of the property of another for the purpose of saving its own.

*461In my judgment, if the boat was lawfully in position at the time the storm broke, and the master could not, in the exercise of due care, have left that position without subjecting his vessel to the hazards of the storm, then the damage to the dock, caused by the pounding of the boat, was the result of an inevitable accident. If the master was in the exercise of due care, he was not at fault. The reasoning of the opinion admits that if the ropes, or cables, first attached to the dock had not parted, or if, in the first instance, the master had used the stronger cables, there would be no liability. If the master could not, in the exercise of reasonable care, have anticipated the severity of the storm and sought a place of safety before it became impossible, why should he be required to anticipate the severity of the storm, and, in the first instance, use the stronger cables?

I am of the opinion that one who constructs a dock to the navigable line of waters, and enters into contractual relations with the owner of a vessel to moor the same, takes the risk of damage to his dock by a boat caught there by a storm, which event could not have been avoided in the exercise of due care, and further, that the legal status of the parties in such a case is not changed by renewal of cables to keep the boat from being cast adrift at the mercy of the tempest.

JAGGARD, J.

I concur with lewis, J.

OPINION

PER CURIAM.

This case involves the proper scope of authority of law in a false imprisonment case. The court of appeals affirmed the trial court’s judgment against Wal-Mart Stores, Inc. (“Wal-Mart”) on a jury finding of false imprisonment. — S.W.2d -. We hold that, on the facts in this case, Wal-Mart established as a matter of law that it detained Lucia Resendez for a reasonable period of time, in a reasonable manner, and upon a reasonable belief that she had stolen store merchandise. Accordingly, we reverse the *540court of appeals’ judgment and render judgment for Wal-Mart.

On January 20,1986, Resendez went shopping at Wal-Mart during her lunch break. While browsing through the store, she began to eat from a bag of peanuts marked with a Wal-Mart price sticker. Raul Salinas, a security guard for Wal-Mart, followed Resen-dez and observed her place the empty bag under a rose bush. He then watched her purchase some items and leave the store. After determining that Resendez had not paid for a bag of peanuts, Salinas followed her into the parking lot. He accused her of taking the bag of peanuts without paying and asked her to accompany him back into the store. Resendez objected that she bought the peanuts the day before at another Wal-Mart store and could provide the receipt to prove it. She then accompanied Salinas to the back of the store. Within about ten to fifteen minutes a police officer arrived and arrested Resendez. Resendez posted bail and was released about one hour later.

A jury convicted Resendez of misdemeanor theft. Later, the court of appeals overturned her conviction because of a defect in the charging instrument.1 She then sued Wal-Mart for malicious prosecution, false imprisonment, intentional infliction of emotional distress and negligence. The jury awarded Resendez $100,000 for the false imprisonment claim and $25,000 for the negligence claim. The court of appeals modified the judgment, eliminating the $25,000 recovery because it was a double recovery, and affirmed the judgment as modified.

In a false imprisonment case, if the alleged detention was performed with the authority of law, then no false imprisonment occurred. See Sears, Roebuck & Co. v. Castillo, 693 S.W.2d 374, 375 (Tex.1985) (listing the elements of false imprisonment as a willful detention performed without consent and without the authority of law). The “shopkeeper’s privilege” expressly grants an employee the authority of law to detain a customer to investigate the ownership of property in a reasonable manner and for a reasonable period of time if the employee has a reasonable belief that the customer has stolen or is attempting to steal store merchandise. Tex Civ. PRAC. & Rem. Code Ann. § 124.001.

There was no evidence to support the contention that the detention occurred for an unreasonable period of time. Without deciding the outer parameters of a permissible period of time under section 124.001, the ten to fifteen minute detention in this ease was not unreasonable as a matter of law. See Dominguez v. Globe Discount City, Inc., 470 S.W.2d 919, 920 (Tex.Civ.App.—El Paso 1971, no writ) (finding a five to six minute detention reasonable even where the plaintiff was ultimately released by the security guard who detained her); Meadows v. F.W. Woolworth Co., 254 P.Supp. 907, 909 (N.D.Fla.1966) (finding a ten minute detention reasonable under a similar statute). Also, no evidence exists that the detention occurred in an unreasonable manner. The only question is whether it was reasonable for Salinas to believe that Resendez had stolen the peanuts. It was.

Once the facts are established, the existence of probable cause is a question of law for the court. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 518 (Tex.1997). Based upon the undisputed facts — Resendez looked for peanuts immediately upon entering the Wal-Mart store,2 she was later seen eating from a bag of peanuts marked with a Wal-Mart price sticker, and she did not pay for the peanuts on leaving the store — probable cause existed to believe that the peanuts were stolen property. In fact, in response to the question on Resendez’s malicious prosecution claim, the jury found that Salinas had probable cause to commence criminal proceedings against Resendez. If Salinas had probable cause to initiate criminal proceedings, his belief that Resendez stole the peanuts was necessarily reasonable. See Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, *541520 (Tex.App.—San Antonio 1996, writ denied) (finding that reasonable belief for an investigative detention is something less than that required to establish probable cause); Berly v. D & L Security Servs. & Investigations, Inc., 876 S.W.2d 179, 183 (Tex.App.—Dallas 1994, writ denied) (noting that the “shopkeeper’s privilege” under section 124.001 embodies the law of probable cause for the purpose of detaining a suspected shoplifter); Montgomery Ward & Co. v. Garza, 660 S.W.2d 619, 621 (Tex.App.—Corpus Christi 1983, no writ) (equating authority of law with the existence of probable cause). As a matter of law, the undisputed facts of this case establish that Salmas had the authority of law to detain Resendez and therefore she was not falsely imprisoned.

The court of appeals’ discussion of the proper scope of the authority of law to detain fails to recognize the full extent of the privilege granted to persons who suspect shoplifting. First, the court of appeals reasoned that the jury implicitly found that Wal-Mart exceeded the scope of its privilege to detain Resendez. To support this theory, the court of appeals cited one of its own opinions for the principle that compliance with a store’s internal policies is informative in the jury’s determination of whether there was a detention without authority of law. — S.W.2d at -(citing Montgomery Ward, 660 S.W.2d at 621). We disagree that the internal policies of a private business define the permissible scope of a detention authorized under the law.

Second, the court of appeals erred in its interpretation of the shopkeeper’s privilege. The privilege does not require the detainer to confirm or refute the detainee’s claims, nor does it prevent the detainer from holding the suspected shoplifter for a reasonable time in order to deliver her to the police. See Tex. Civ. PRAc. & Rem.Code Ann. § 124.001; see also Tex.CRIM. PROC.Code Ann. Art. 18.16 (granting to any person the privilege to seize and detain a person suspected of theft and deliver them to a peace officer).

Therefore, pursuant to Texas Rule of Appellate Procedure 59.1, the court grants Wal-Mart’s application for writ of error and, without hearing oral argument, reverses the court of appeals’ judgment and renders judgment for Wal-Mart.3

Knowlton, J.

This case presents two questions: first, whether there was any evidence to warrant the jury in finding that the defendant, by any of its servants or agents, committed an assault on the plaintiff; secondly, whether there was evidence on which the jury could have found that the defendant was guilty of negligence towards the plaintiff. To sustain the first count, which was for an alleged assault, the plaintiff relied on the fact that the surgeon who was employed by the defendant vaccinated her on shipboard, while she was on her passage from Queenstown to Boston. On this branch of the case the question is whether there was any evidence that the surgeon used force upon the plaintiff against her will. In determining whether the act was lawful or unlawful, the surgeon’s conduct must be considered in connection with the circumstances. If the plaintiff’s behavior was such as to indicate consent on her part, he was justified in his act, whatever her unexpressed feelings may have been. In determining whether she consented, he could be guided only by her overt acts and the manifestations of her feelings. Ford v. Ford, 143 Mass. 577, 578. McCarthy v. Boston & Lowell Railroad, 148 Mass. 550, 552. It is undisputed that at Boston there are strict quarantine regulations in regard to the examination of immigrants, to see that they are protected from small-pox by vaccination, and that only those *274persons who hold a certificate from the medical officer of the steamship, stating that they are so protected, are permitted to land without detention in quarantine or vaccination by the port physician. It appears that the defendant is accustomed to have its surgeons vaccinate all immigrants who desire it, and who are not protected by previous vaccination, and give them a certificate which is accepted at quarantine as evidence of their protection. Notices of the regulations at quarantine, and of the willingness of the ship’s medical officer to vaccinate such as needed vaccination, were posted about the ship, in various languages, and on the day when the operation was performed the surgeon had a right to presume that she and the other women who were vaccinated understood the importance and purpose of vaccination for those who bore no marks to show that they were protected. By the plaintiff’s testimony, which in this particular is undisputed, it appears that about two hundred women passengers were assembled below, and she understood from conversation with them that they were to be vaccinated; that she stood about fifteen feet from the surgeon, and saw them form in a line and pass in turn before him; that he “examined their arms, and, passing some of them by, proceeded to vaccinate those that had no mark”; that she did not hear him say anything to any of them; that upon being passed by they each received a card and went on deck; that when her turn came she showed him her arm, and he looked at it and said there was no mark, and that she should be vaccinated; that she told him she had been vaccinated before and it left no mark; “that he then said nothing, that he should vaccinate her again”; that she held up her arm to be vaccinated; that no one touched her; that she did not tell him that she did not want to be vaccinated; and that she took the ticket which he gave her certifying that he had vaccinated her, and used it at quarantine. She was one of a large number of women who were vaccinated on that occasion, without, so far as appears, a word of objection from any of them. They all indicated by their conduct that they desired to avail themselves of the provisions made for their benefit. There was nothing in the conduct of the plaintiff to indicate to the surgeon that she did not wish to obtain a card which would save her from detention at quarantine, and to be vaccinated, if necessary, for that *275purpose. Viewing his conduct in the light of the circumstances, it was lawful; and there was no evidence tending to show that it was not. The ruling of the court on this part of the case was correct.

The plaintiff contends that, if it was lawful for the surgeon to vaccinate her, the vaccination, as alleged in the second count, was negligently performed. “There was no evidence of want of care or precaution by the defendant in the selection of the surgeon, or in the procuring of the virus or vaccine matter.” Unless there was evidence that the surgeon was negligent in performing the operation, and unless the defendant is liable for this negligence, the plaintiff must fail on the second count.

Whether there was any evidence of negligence of the surgeon, we need not inquire, for we are of opinion that the defendant is not liable for his want of care in performing surgical operations. The only ground on which it is argued that the defendant is liable for his negligence is, that he is a servant engaged in the defendant’s business, and subject to its control. We think this argument is founded on a mistaken construction of the duty imposed on the defendant by law. By the act of Congress of August 2, 1882, § 5, it is provided that “every steamship or other vessel carrying or bringing emigrant passengers, or passengers other than cabin passengers, exceeding fifty in number, shall carry a duly qualified and competent surgeon or medical practitioner, who shall be rated as such in the ship’s articles, and who shall be provided with surgical instruments, medical comforts, and medicines proper and necessary for diseases and accidents incident to sea voyages, and for the proper medical treatment of such passengers during the voyage, and with such articles of food and nourishment as may be proper and necessary for preserving the health of infants and young children; and the services of such surgeon or medical practitioner shall be promptly given, in any case of sickness or disease, to any of the passengers, or to any infant or young child of any such passengers, who may need his services. For a violation of either of the provisions of this section the master of the vessel shall be liable to a penalty not exceeding two hundred and fifty dollars.”

Under this statute it is the duty of ship-owners to provide a competent surgeon, whom the passengers may employ if they *276choose, in the business of healing their wounds and curing their diseases. The law does not put the business of treating sick passengers into the charge of common carriers, and make them responsible for the proper management of it. The work which the physician or surgeon does in such cases is under the control of the passengers themselves. It is their business, not the business of the carrier. They may employ the ship’s surgeon, or some other physician or surgeon who happens to be on board, or they may treat themselves, if they are sick, or may go without treatment if they prefer; and if they employ the surgeon, they may determine how far they will submit themselves to his directions, and what of his medicines they will take and what reject, and whether they will submit to a surgical operation or take the risk of going without it. The master or owners of the ship cannot interfere in the treatment of the medical officer when he attends a passenger. He is not their servant, engaged in their business and subject to their control as to his mode of treatment. They do their whole duty if they employ a duly qualified and competent surgeon and medical practitioner, and supply him with all necessary and proper instruments, medicines, and medical comforts, and have him in readiness for such passengers as choose to employ him. This is the whole requirement of the statute of the United States applicable to such cases, and if, by the nature of their undertaking to transport passengers by sea, they are under a liability at the common law to make provision for their passengers in this respect, that liability is no greater. It is quite reasonable that the owners of a steamship used in the transportation of passengers should be required by law to provide a competent person to whom sick passengers can apply for medical treatment, and when they have supplied such a person, it would be unreasonable to hold them responsible for all the particulars of his treatment, when he is engaged in the business of other persons in regard to which they are powerless to interfere.

The reasons on which it is held, in the courts of the United States and of Massachusetts, that the owners are liable for the negligence of a pilot in navigating the ship, even though he is appointed by public agencies, and the master has no voice in the selection of him, do not apply to this case. The China, 7 Wall. 53, 67. Yates v. Brown, 8 Pick. 23. The pilot is en*277gaged in the navigation of the ship, for which, on grounds of public policy, the owners should be held responsible. The business is theirs, and they have certain rights of control in regard to it. They may determine when and how it shall be undertaken, and the master may displace the pilot for certain causes. But in England it has been held that even in such cases the owners are not liable. Carruthers v. Sydebotham, 4 M. & S. 98. The Protector, 1 W. Robinson, 45. The Maria, 1 W. Robinson, 95.

The view which we have taken of this branch of the case is fully sustained by a unanimous judgment of the Court of Appeals of New York, in Laubheim v. De Koninglyke Stoomboot Co. 107 N. Y. 228. See also Secord v. St. Paul, Minneapolis, & Manitoba Railway, 18 Fed. Rep. 221; McDonald v. Massachusetts General Hospital, 120 Mass. 432. We are of opinion that on both parts of the case the rulings at the trial were correct.

The evidence which was excepted to, consisting of the printed quarantine regulations above referred to, and of testimony that only the steerage passengers holding a surgeon’s certificate were allowed to land, all others being vaccinated by the port physician or detained at quarantine, was rightly admitted.

Exceptions overruled.

WILLIAM E. DOYLE, Circuit Judge.

The question in this case is whether in a regular season professional football game an injury which is inflicted by one professional football player on an opposing player can give rise to liability in tort where the injury was inflicted by the intentional striking of a blow during the game.

The injury occurred in the course of a game between the Denver Broncos and the Cincinnati Bengals, which game was being played in Denver in 1973. The Broncos’ defensive back, Dale Hackbart, was the recipient of the injury and the Bengals’ offensive back, Charles “Booby” Clark, inflicted the blow which produced it.

By agreement the liability question was determined by the United States District Court for the District of Colorado without a jury. The judge resolved the liability issue in favor of the Cincinnati team and Charles Clark. Consistent with this result, final judgment was entered for Cincinnati and the appeal challenges this judgment. In essence the trial court’s reasons for rejecting plaintiff’s claim were that professional football is a species of warfare and that so much physical force is tolerated and the magnitude of the force exerted is so great that it renders injuries not actionable in *519court; that even intentional batteries are beyond the scope of the judicial process.

Clark was an offensive back and just before the injury he had run a pass pattern to the right side of the Denver Broncos’ end zone. The injury flowed indirectly from this play. The pass was intercepted by Billy Thompson, a Denver free safety, who returned it to mid-field. The subject injury occurred as an aftermath of the pass play.

As a consequence of the interception, the roles of Hackbart and Clark suddenly changed. Hackbart, who had been defending, instantaneously became an offensive player. Clark, on the other hand, became a defensive player. Acting as an offensive player, Hackbart attempted to block Clark by throwing his body in front of him. He thereafter remained on the ground. He turned, and with one knee on the ground, watched the play following the interception.

The trial court’s finding was that Charles Clark, “acting out of anger and frustration, but without a specific intent to injure stepped forward and struck a blow with his right forearm to the back of the kneeling plaintiff’s head and neck with sufficient force to cause both players to fall forward to the ground.”' Both players, without complaining to the officials or to one another, returned to their respective sidelines since the ball had changed hands and the offensive and defensive teams of each had been substituted. Clark testified at trial that his frustration was brought about by the fact that his team was losing the game.

Due to the failure of the officials to view the incident, a foul was not called. However, the game film showed very clearly what had occurred. Plaintiff did not at the time report the happening to his coaches or to anyone else during the game. However, because of the pain which he experienced he was unable to play golf the next day. He did not seek medical attention, but the continued pain caused him to report this fact and the incident to the Bronco trainer who gave him treatment. Apparently he played on the specialty teams for two successive Sundays, but after that the Broncos released him on waivers. (He was in his thirteenth year as a player.) He sought medical help and it was then that it was discovered by the physician that he had a serious neck fracture injury.

Despite the fact that the defendant Charles Clark admitted that the blow which had been struck was not accidental, that it was intentionally administered, the trial court ruled as a matter of law that the game of professional football is basically a business which is violent in nature, and that the available sanctions are imposition of penalties and expulsion from the game. Notice was taken of the fact that many fouls are overlooked; that the game is played in an emotional and noisy environment; and that incidents such as that here complained of are not unusual.

The trial court spoke as well of the unreasonableness of applying the laws and rules which are a part of injury law to the game of professional football, noting the unreasonableness of holding that one player has a duty of care for the safety of others. He also talked about the concept of assumption of risk and contributory fault as applying and concluded that Hackbart had to recognize that he accepted the risk that he would be injured by such an act.

I.

THE ISSUES AND CONTENTIONS

1. Whether the trial court erred in ruling that as a matter of policy the principles of law governing the infliction of injuries should be entirely refused where the injury took place in the course of the game.

2. Did the trial court err in concluding that the employee was not vicariously liable for an activity for which he had not received express authorization?

3. Whether it was error to receive in evidence numerous episodes of violence which were unrelated to the case at bar, that is, incidents of intentional infliction of injury which occurred in other games.

4. Whether it was error for the trial court to receive in evidence unrelated acts on the part of the plaintiff.

*5205. The final issue is whether the evidence justifies consideration by the court of the issue of reckless conduct as it is defined in A.L.I. Restatement of the Law of Torts Second, § 500, because (admittedly) the assault and battery theory is not available because that tort is governed by a one-year statute of limitations.

II.

WHETHER THE EVIDENCE SUPPORTED THE JUDGMENT

The evidence at the trial uniformly supported the proposition that the intentional striking of a player in the head from the rear is not an accepted part of either the playing rules or the general customs of the game of professional football. The trial court, however, believed that the unusual nature of the case called for the consideration of underlying policy which it defined as common law principles which have evolved as a result of the case to case process and which necessarily affect behavior in various contexts. From these considerations the belief was expressed that even intentional injuries incurred in football games should be outside the framework of the law. The court recognized that the potential threat of legal liability has a significant deterrent effect, and further said that private civil actions constitute an important mechanism for societal control of human conduct. Due to the increase in severity of human conflicts, a need existed to expand the body of governing law more rapidly and with more certainty, but that this had to be accomplished by legislation and administrative regulation. The judge compared football to coal mining and railroading insofar as all are inherently hazardous. Judge Matsch said that in the case of football it was questionable whether social values would be improved by limiting the violence.

Thus the district court’s assumption was that Clark had inflicted an intentional blow which would ordinarily generate civil liability and which might bring about a criminal sanction as well, but that since it had occurred in the course of a football game, it should not be subject to the restraints of the law; that if it were it would place unreasonable impediments and restraints on the activity. The judge also pointed out that courts are ill-suited to decide the different social questions and to administer conflicts on what is much like a battlefield where the restraints of civilization have been left on the sidelines.

We are forced to conclude that the result reached is not supported by evidence.

III.

WHETHER INTENTIONAL INJURY IS ALLOWED BY EITHER WRITTEN RULE OR CUSTOM

Plaintiff, of course, maintains that tort law applicable to the injury in this case applies on the football field as well as in other places. On the other hand, plaintiff does not rely on the theory of negligence being applicable. This is in recognition of the fact that subjecting another to unreasonable risk of harm, the essence of negligence, is inherent in the game of football, for admittedly it is violent. Plaintiff maintains that in the area of contributory fault, a vacuum exists in relationship to intentional infliction of injury. Since negligence does not apply, contributory negligence is inapplicable. Intentional or reckless contributory fault could theoretically at least apply to infliction of injuries in reckless disregard of the rights of others. This has some similarity to contributory negligence and undoubtedly it would apply if the evidence would justify it. But it is highly questionable whether a professional football player consents or submits to injuries caused by conduct not within the rules, and there is no evidence which we have seen which shows this. However, the trial court did not consider this question and we are not deciding it.

Contrary to the position of the court then, there are no principles of law which allow a court to rule out certain tortious conduct by reason of general roughness of the game or difficulty of administering it.

*521Indeed, the evidence shows that there are rules of the game which prohibit the intentional striking of blows. Thus, Article 1, Item 1, Subsection C, provides that:

All players are prohibited from striking on the head, face or neck with the heel, back or side of the hand, wrist, forearm, elbow or clasped hands.

Thus the very conduct which was present here is expressly prohibited by the rule which is quoted above.

The general customs of football do not approve the intentional punching or striking of others. That this is prohibited was supported by the testimony of all of the witnesses. They testified that the intentional striking of a player in the face or from the rear is prohibited by the playing rules as well as the general customs of the game. Punching or hitting with the arms is prohibited. Undoubtedly these restraints are intended to establish reasonable boundaries so that one football player cannot intentionally inflict a serious injury on another. Therefore, the notion is not correct that all reason has been abandoned, whereby the only possible remedy for the person who has been the victim of an unlawful blow is retaliation.

IV.

WAS IT LEGALLY JUSTIFIABLE FOR THE TRIAL COURT TO HOLD, AS A MATTER OF POLICY, THAT JURISDICTION SHOULD NOT BE ASSUMED OVER THE CASE IN VIEW OF THE FACT THAT IT AROSE OUT OF A PROFESSIONAL FOOTBALL GAME?

A. Whether the theory of judicial restraint applies.

It is a well-settled principle of federal jurisdiction that where a federal court does not have a discretion to accept or reject jurisdiction, if it does not have jurisdiction, it will not take it; but it is ruled, on the other hand, that if it has jurisdiction it must take it. This principle has been expressed many times with perhaps one of the best expressions being found in an early opinion, that of Mr. Chief Justice Marshall in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821):

It is most true, that this court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction, if it should. The judiciary cannot, as the legislature may, avoid a measure, because it approaches the confines of the constitution. We cannot pass it by, because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur, which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.

Much more recently the Supreme Court in the case of Willcox v. Consolidated Gas Co., 212 U.S. 19, 40, 29 S.Ct. 192, 195, 53 L.Ed. 382 (1909), speaking through Mr. Justice Peckham, stated that where a federal court is appealed to in the case over which it has by law jurisdiction, it is its duty to take such jurisdiction.

They assume to criticise that court [United States District Court for the Southern District of New York] for taking jurisdiction of this case, as precipitate, as if it were a question of discretion or comity, whether or not that court should have heard the ease. On the contrary, there was no discretion or comity about it. When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction (Cohens v. Virginia, [19 U.S. 264,] 6 Wheat., 264, 404, 5 L.Ed. 257), and, in taking it, that court cannot be truthfully spoken of as precipitate in its con*522duct. That the case may be one of local interest only is entirely immaterial, so long as the parties are citizens of different States or a question is involved which by law brings the case within the jurisdiction of a Federal court. The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.

Mr. Justice Peckham expressed the view that the rule is based on the right of a party plaintiff to choose a federal court where there is a choice.

There are some recognized limitations on federal courts assuming jurisdiction, but none of these permit a court to exercise its own discretion on the subject. One example of limitation is the political question. Another is the doctrine of abstention, which is exercised where a state court is involved and deference is exercised in favor of the state court. See, for example, Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). These, however, are the exceptions and not the rule as was pointed out in the cited case. Abstention itself is limited. It does not contemplate that federal courts abdicate their jurisdiction. See American Trial Lawyers Association v. New Jersey Supreme Court, 409 U.S. 467, 93 S.Ct. 627, 34 L.Ed.2d 651 (1973).

The Supreme Court has been known to refuse to exercise its original jurisdiction. Ohio v. Wyandotte Chemicals Corporation, 401 U.S. 493, 91 S.Ct. 1005, 28 L.Ed.2d 256 (1971). At the same time, it reiterated the traditional rule that where a federal court has jurisdiction it must exercise it. It is not at liberty to refuse to do so unless it is in accordance with one of the principles mentioned above. Original jurisdiction in the Supreme Court allows much more leeway to refusing acceptance of jurisdiction than does an inferior federal court.

It is clear that none of the grounds for refusing access to the courts are present in the instant case. One writer, Professor Keeton, has said that courts properly participate in the evolution and development of common law. We submit that this approach is at odds with refusing to accept the case. See Keeton, Creative Continuity of Tort Law, 75 Harv.L.Rev. 463 (1962). See also Widener, Some Random Thoughts on Judicial Restraint, 31 Wash, and Lee L.Rev. 505 (1974).1

The spirit and the letter of the decisions are that if jurisdiction to hear or determine cases exists, as it does in the case at bar, the cause is to be tried on its merits.

The position which was adopted by the trial court in this case was then directly contrary to all of the law dealing with the exercise of jurisdiction by federal courts.

B. Whether diversity jurisdiction provides any discretion.

It is of high importance to note the fact that in a diversity of citizenship case the federal district court sits as a state trial court and applies the law of the forum state. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In this highly important decision the Supreme Court, through the late Justice Brandeis, overruled the early case of Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10 L.Ed. 865 (1842), which had allowed federal trial courts to apply their own common law. The rule was established in Erie that the law of the state in which the court sat had to be applied to the diversity case. In rejecting the principle that the federal court could apply its own common law rule, the Court rejected the idea that a transcendental body of law existed for federal courts. It was said that there was no backup federal authority in the federal government to provide this power for federal courts; that the authoritative governing force was in the state courts.

*523Justice Holmes was quoted by Justice Brandeis (the author of Erie) for the proposition that the authority in this diversity area must come from the state. A second basis for disapproval of federal authority or ability to innovate in diversity cases also originated with Justice Holmes, who said that the Swift v. Tyson rule was an unconstitutional assumption of power by the courts of the United States. The Supreme Court in Erie thus declared that in applying the theory of Swift v. Tyson, the Supreme Court and lower federal courts had invaded rights protected by the Constitution of the United States and the several states.

So, applying the Erie doctrine, the conclusion is that there does not exist an independent basis which allows a federal court to, in effect, outlaw a particular activity absent legal evidence that either state policy or state law dictates or allows such action. Absent any such evidence, the trial court cannot turn to public policy in order to support a conclusion that the courts cannot entertain a particular case.

Second, it is also fundamental that for every injury wrongfully inflicted, some redress under the state common law must be afforded since it is essential that citizens be able to look to their government for redress. As was said in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803), “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the law, whenever he received an injury. One of the first duties of government is to afford that protection.”

The right of citizens to get relief in federal courts is similar to the same right in state court, bearing in mind that the federal courts in diversity cases are applying state law. We must also be cognizant that federal courts are limited to deciding cases or controversies. This was pointed out in Flast v. Cohen, 392 U.S. 83, 94-95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The Court there said:

those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government.

392 U.S. at 95, 88 S.Ct. at 1950.

The Court in Flast was recognizing the right of a federal taxpayer to enjoin the spending of federal funds for the buying of books for use in religious schools. 392 U.S. at 105-06, 88 S.Ct. 1942.

The concurrence of Justice Douglas is worth noting, for he spoke on the right of access to the courts as follows:

The judiciary is an indispensable part of the operation of our federal system. With the growing complexities of government it is often the one and only place where effective relief can be obtained. If the judiciary were to become a super-legislative group sitting in judgment on the affairs of people, the situation would be intolerable. But where wrongs to individuals are done by violation of specific guarantees, it is abdication for the courts to close their doors.

392 U.S. at 111, 88 S.Ct. at 1958.

C. Does Colorado law provide or allow any restraint?

The next question is whether there are applicable restrictions in the Colorado law. On the contrary, the Colorado Constitution, Art. II, § 6, provides: “Court of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.” The district courts are said to be courts of unlimited jurisdiction unlike the federal courts. However, in a diversity case the federal court inherits the jurisdictional scope that is enjoyed by the state court within the district. Art. VI, § 9, subsection (1), provides:

The district courts shall be trial courts of record with general jurisdiction, and shall have original jurisdiction in all civil, *524probate, and criminal cases, except as otherwise provided herein, and shall have such appellate jurisdiction as may be prescribed by law.

The Colorado courts have liberally construed these provisions. See Patterson v. People, 23 Colo.App. 479, 130 P. 618 (1913); People ex rel. Cruz v. Morley, 77 Colo. 25, 234 P. 178 (1924). In the Morley case it was said: “[t]he constitutional jurisdiction of the district court is unlimited. It should not be limited without circumspection and no statute should be held to limit it unless it says so plainly * * *.” 234 P. at 179.

The Colorado Supreme Court has held that under Art. II, § 6 of the Colorado Constitution, where there exists a right under the law, the courts of the state will assure the protection of that right. O'Quinn v. Walt Disney Productions, Inc., 177 Colo. 190, 493 P.2d 344 (1972).

The common law, of course, obtains in Colorado. The legislature may modify it, but in the absence of evidence that the common law has been modified by legislation, the courts, that is, the district court and the federal district court in a diversity case, must apply it.

We are constrained to hold that the trial court’s ruling that this case had to be dismissed because the injury was inflicted during a professional football game was error.

V.

IS THE STANDARD OF RECKLESS DISREGARD OF THE RIGHTS OF OTHERS APPLICABLE TO THE PRESENT SITUATION?

The Restatement of Torts Second, § 500, distinguishes between reckless and negligent misconduct. Reckless misconduct differs from negligence, according to the authors, in that negligence consists of mere inadvertence, lack of skillfulness or failure to take precautions; reckless misconduct, on the other hand, involves a choice or adoption of a course of action either with knowledge of the danger or with knowledge of facts which would disclose this danger to a reasonable man. Recklessness also differs in that it consists of intentionally doing an act with knowledge not only that it contains a risk of harm to others as does negligence, but that it actually involves a risk substantially greater in magnitude than is necessary in the case of negligence. The authors explain the difference, therefore, in the degree of risk by saying that the difference is so significant as to amount to a difference in kind.

Subsection (f) also distinguishes between reckless misconduct and intentional wrongdoing. To be reckless the act must have been intended by the actor. At the same time, the actor does not intend to cause the harm which results from it. It is enough that he realized, or from the facts should have realized, that there was a strong probability that harm would result even though he may hope or expect that this conduct will prove harmless. Nevertheless, existence of probability is different from substantial certainty which is an ingredient of intent to cause the harm which results from the act.

Therefore, recklessness exists where a person knows that the act is harmful but fails to realize that it will produce the extreme harm which it did produce. It is in this respect that recklessness and intentional conduct differ in degree.

In the case at bar the defendant Clark admittedly acted impulsively and in the heat of anger, and even though it could be said from the admitted facts that he intended the act, it could also be said that he did not intend to inflict serious injury which resulted from the blow which he struck.

In ruling that recklessness is the appropriate standard and that assault and battery is not the exclusive one, we are saying that these two liability concepts are not necessarily opposed one to the other. Rather, recklessness under § 500 of the Restatement might be regarded, for the purpose of analysis at least, a lesser included act.

*525Assault and battery, having originated in a common law writ, is narrower than recklessness in its scope. In essence, two definitions enter into it. The assault is an attempt coupled with the present ability to commit a violent harm against another. Battery is the unprivileged or unlawful touching of another. Assault and battery then call for an intent, as does recklessness. But in recklessness the intent is to do the act, but without an intent to cause the particular harm. It is enough if the actor knows that there is a strong probability that harm will result. Thus, the definition fits perfectly the fact situation here. Surely, then, no reason exists to compel appellant to employ the assault and battery standard which does not comfortably apply fully in preference to the standard which meets this fact situation.

VI.

WHICH OF THE STATUTES OF LIMITATIONS APPLIES?

The appellees contend that Clark was guilty of an assault and battery, if he was guilty of anything; that this is barred by the applicable statute of limitations for a one-year period. Appellant, however, contends that the injury was the result of reckless disregard of the rights of the plaintiff and that the six-year statute provided in Colo.Rev.Stat.Ann. § 13 — 80—110, is applicable.

Our court in the recent decision in Zuniga v. Amfac Foods, Inc., 580 F.2d 380 (10th Cir. 1978), adopted the position that actions in tort are governed by the six-year provision in the cited statute. It is also to be noted that Colorado fully recognizes the action of reckless disregard for the rights of others. See Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038 (1954); Fanstiel v. Wright, 122 Colo. 451, 222 P.2d 1001 (1950); Shoemaker v. Mountain States Tel. & Tel. Co., 559 P.2d 721 (Colo.App.1976). The definitions contained in § 500 are fully applicable here, and the Colorado Supreme Court in Fanstiel v. Wright, supra, has adopted the definition contained in § 500. A Comment to the section discusses the distinctions which we have previously mentioned.

We conclude that if the evidence establishes that the injuries were the result of acts of Clark which were in reckless disregard of Hackbart’s safety, it can be said that he established a claim which is subject to the six-year statute. The cause has not been tried on its merits, but there is substantial evidence before us that supports the notion that Clark did act in accordance with the tests and standards which are set forth in § 500, supra. We are not prejudging this issue of fact, but are merely saying that considered in a light favorable to the plaintiff, at this stage of the proceedings the hypothesis exists that Clark’s conduct would constitute a violation of § 500 and the appellant should be given an opportunity to offer his proofs in court on this subject.

VII.

DID THE COURT ERR IN RECEIVING IN EVIDENCE FILMS OF VIOLENCE THAT TOOK PLACE IN OTHER FOOTBALL GAMES REGARDLESS OF THE IDENTITY OF THE PLAYERS AND TEAMS?

There was a film of the actual injury suffered by plaintiff. It showed the sequence of events and also depicted the manner of infliction. Obviously we need not consider the relevancy of this.

There were incidents that were designed to show that the plaintiff Hackbart was a dirty player.

Finally, films were shown which depicted acts of violence between other players and other teams.

The Federal Rules of Evidence, Rule 401, define relevant evidence as follows:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

*526Rule 404 deals with character evidence and other crimes. That which deals with character states as follows:

(a) Character evidence generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;

(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

Subsection (b) of Rule 404 deals with other wrongs or acts and states the traditional rule that:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Unless the game of football is on trial, and it appeared to be in the case at bar, the acts of violence which occurred in other games and between other teams and players were without relevance. The view we take is that the game of football is not on trial, but, rather, the trial involves a particular act in one game.

Although we recognize that the trial court has a broad discretion in receiving or rejecting evidence along this line, we fail to see the relevancy of other acts which are unconnected with the incident being tried.

The other aspect, namely the proof of the character of the plaintiff by production of prior acts, would be admissible only if his character was an issue in the case. Unless the plaintiff was shown to have been an unlawful aggressor in the immediate incident, his prior acts could not be relevant. The indications from the picture of the action here are that he threw a body block and after the lapse of some time, a short period of time, the blow was struck while Hackbart was down on his knee watching the action. Therefore, this evidence would appear to be questionable if not irrelevant.

On retrial the admissibility of prior unrelated acts should be very carefully considered and should not be received merely for the purpose of showing that the defendant himself had violated rules in times past since this is not per se relevant. Indeed it would be necessary for an issue to exist as to whether Hackbart was the aggressor in order for such evidence to be relevant.

* * * * * *

In sum, having concluded that the trial court did not limit the case to a trial of the evidence bearing on defendant’s liability but rather determined that as a matter of social policy the game was so violent and unlawful that valid lines could not be drawn, we take the view that this was not a proper issue for determination and that plaintiff was entitled to have the case tried on an assessment of his rights and whether they had been violated.

The trial court has heard the evidence and has made findings. The findings of fact based on the evidence presented are not an issue on this appeal. Thus, it would not seem that the court would have to repeat the areas of evidence that have already been fully considered. The need is for a reconsideration of that evidence in the light of that which is taken up by this court in its opinion. We are not to be understood as limiting the trial court’s consideration of supplemental evidence if it deems it necessary.

*527The cause is reversed and remanded for a new trial in accordance with the foregoing views.

JUSTICE LACY

delivered the opinion of the Court.

In this case we consider whether the trial court properly dismissed the plaintiffs’ second amended motion for judgment for failure to state causes of action for gross negligence, assault, and battery.

Because this case was decided on demurrer, we take as true all material facts properly pleaded in the motion for judgment and all inferences properly drawn from those facts. Burns v. Board of Supvrs., 218 Va. 625, 627, 238 S.E.2d 823, 824-25 (1977).

In the fall of 2000, Andrew W. Koffman, a 13-year old middle school student at a public school in Botetourt County, began participating on the school’s football team. It was Andy’s first season playing organized football, and he was positioned as a third-string defensive player. James Garnett was employed by the Botetourt County School Board as an assistant coach for the football team and was responsible for the supervision, training, and instruction of the team’s defensive players.

The team lost its first game of the season. Garnett was upset by the defensive players’ inadequate tackling in that game and became further displeased by what he perceived as inadequate tackling during the first practice following the loss.

Garnett ordered Andy to hold a football and “stand upright and motionless” so that Garnett could explain the proper tackling technique to the defensive players. Then Garnett, without further warning, thrust his arms around Andy’s body, lifted him “off his feet by two feet or more,” and “slamm[ed]” him to the ground. Andy weighed 144 pounds, while Garnett weighed approximately 260 pounds. The force of the tackle broke the humerus bone in Andy’s left arm. During prior practices, no coach had used physical force to instruct players on rules or techniques of playing football.

In his second amended motion for judgment, Andy, by his father and next friend, Richard Koffman, and Andy’s parents, Richard and Rebecca Koffman, individually, (collectively “the Koffmans”) alleged that Andy was injured as a result of Garnett’s simple and gross negligence and intentional acts of assault and battery. Garnett filed a demurrer and plea of sovereign immunity, asserting that the *15second amended motion for judgment did not allege sufficient facts to support a lack of consent to the tackling demonstration and, therefore, did not plead causes of action for either gross negligence, assault, or battery. The trial court dismissed the action, finding that Garnett, as a school board employee, was entitled to sovereign immunity for acts of simple negligence and that the facts alleged were insufficient to state causes of action for gross negligence, assault, or battery because the instruction and playing of football are “inherently dangerous and always potentially violent.”

In this appeal, the Koffmans do not challenge the trial court’s ruling on Garnett’s plea of sovereign immunity but do assert that they pled sufficient facts in their second amended motion for judgment to sustain their claims of gross negligence, assault, and battery.

I.

In Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971), this Court defined gross negligence as “that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of [another]. It must be such a degree of negligence as would shock fair minded [people] although something less than willful recklessness.” Whether certain actions constitute gross negligence is generally a factual matter for resolution by the jury and becomes a question of law only when reasonable people cannot differ. Griffin v. Shively, 227 Va. 317, 320, 315 S.E.2d 210, 212 (1984).

The disparity in size between Garnett and Andy was obvious to Garnett. Because of his authority as a coach, Garnett must have anticipated that Andy would comply with his instructions to stand in a non-defensive, upright, and motionless position. Under these circumstances, Garnett proceeded to aggressively tackle the much smaller, inexperienced student football player, by lifting him more than two feet from the ground and slamming him into the turf. According to the Koffmans’ allegations, no coach had tackled any player previously so there was no reason for Andy to expect to be tackled by Garnett, nor was Andy warned of the impending tackle or of the force Garnett would use.

As the trial court observed, receiving an injury while participating in a tackling demonstration may be part of the sport. The facts alleged in this case, however, go beyond the circumstances of simply being tackled in the course of participating in organized football. Here Garnett’s knowledge of his greater size and experience, his *16instruction implying that Andy was not to take any action to defend himself from the force of a tackle, the force he used during the tackle, and Garnett’s previous practice of not personally using force to demonstrate or teach football technique could lead a reasonable person to conclude that, in this instance, Garnett’s actions were imprudent and were taken in utter disregard for the safety of the player involved. Because reasonable persons could disagree on this issue, a jury issue was presented, and the trial court erred in holding that, as a matter of law, the second amended motion for judgment was inadequate to state a claim for gross negligence.

II.

The trial court held that the second amended motion for judgment was insufficient as a matter of law to establish causes of action for the torts of assault and battery. We begin by identifying the elements of these two independent torts. See Charles E. Friend, Personal Injury Law in Virginia § 6.2.1 (2d ed. 1998). The tort of assault consists of an act intended to cause either harmful or offensive contact with another person or apprehension of such contact, and that creates in that other person’s mind a reasonable apprehension of an imminent battery. Restatement (Second) of Torts § 21 (1965); Friend § 6.3.1 at 226; Fowler V. Harper, et al., The Law of Torts § 3.5 at 3:18-: 19 (3d ed. Cum. Supp. 2003).

The tort of battery is an unwanted touching which is neither consented to, excused, nor justified. See Washburn v. Klara, 263 Va. 586, 561 S.E.2d 682 (2002); Woodbury v. Courtney, 239 Va. 651, 391 S.E.2d 293 (1990). Although these two torts “go together like ham and eggs,” the difference between them is “that between physical contact and the mere apprehension of it. One may exist without the other.” W. Page Keeton, Prosser and Keeton on Torts § 10 at 46; see also Friend § 6.3.

The Koffmans’ second amended motion for judgment does not include an allegation that Andy had any apprehension of an immediate battery. This allegation cannot be supplied by inference because any inference of Andy’s apprehension is discredited by the affirmative allegations that Andy had no warning of an imminent forceful tackle by Garnett. The Koffmans argue that a reasonable inference of apprehension can be found “in the very short period of time that it took the coach to lift Andy into the air and throw him violently to the ground.” At this point, however, the battery alleged by the Koffmans was in progress. Accordingly, we find that the *17pleadings were insufficient as a matter of law to establish a cause of action for civil assault.

The second amended motion for judgment is sufficient, however, to establish a cause of action for the tort of battery. The Koffmans pled that Andy consented to physical contact with players “of like age and experience” and that neither Andy nor his parents expected or consented to his “participation in aggressive contact tackling by the adult coaches.” Further, the Koffmans pled that, in the past, coaches had not tackled players as a method of instruction. Garnett asserts that, by consenting to play football, Andy consented to be tackled, by either other football players or by the coaches.

Whether Andy consented to be tackled by Garnett in the manner alleged was a matter of fact. Based on the allegations in the Koffmans’ second amended motion for judgment, reasonable persons could disagree on whether Andy gave such consent. Thus, we find that the trial court erred in holding that the Koffmans’ second amended motion for judgment was insufficient as a matter of law to establish a claim for battery.

For the above reasons, we will reverse the trial court’s judgment that the Koffmans’ second amended motion for judgment was insufficient as a matter of law to establish the causes of actions for gross negligence and battery and remand the case for further proceedings consistent with this opinion.*

Reversed and remanded.

JUSTICE KINSER,

concurring in part and dissenting in part.

I agree with the majority opinion except with regard to the issue of consent as it pertains to the intentional tort of battery. In my view, the second amended motion for judgment filed by the plaintiffs, Andrew W. Koffman, by his father and next friend, and Richard Koffman and Rebecca Koffman, individually, was insufficient as a matter of law to state a claim for battery.**

Absent fraud, consent is generally a defense to an alleged battery. See Banovitch v. Commonwealth, 196 Va. 210, 219, 83 S.E.2d 369, *18375 (1954); Perkins v. Commonwealth, 31 Va. App. 326, 330, 523 S.E.2d 512, 513 (2000); People ex rel. Arvada v. Nissen, 650 P.2d 547, 551 (Colo. 1982); Bergman v. Anderson, 411 N.W.2d 336, 339 (Neb. 1987); Willey v. Carpenter, 23 A. 630, 631 (Vt. 1891); Restatement (Second) of Torts § 13, cmt. d (1965). In the context of this case, “[t]aking part in a game manifests a willingness to submit to such bodily contacts or restrictions of liberty as are permitted by its rules or usages.” Restatement (Second) of Torts § 50, cmt. b (1965), quoted in Thompson v. McNeill, 559 N.E.2d 705, 708 (Ohio 1990); see also Kabella v. Bouschelle, 672 P.2d 290, 292 (N.M. Ct. App. 1983). However, participating in a particular sport “does not manifest consent to contacts which are prohibited by rules or usages of the game if such rules or usages are designed to protect the participants and not merely to secure the better playing of the game as a test of skill.” Restatement (Second) of Torts § 50, cmt. b (1965) quoted in Thompson, 559 N.E.2d at 708; see also Kabella, 672 P.2d at 292.

The thrust of the plaintiffs’ allegations is that they did not consent to “Andy’s participation in aggressive contact tackling by the adult coaches” but that they consented only to Andy’s engaging “in a contact sport with other children of like age and experience.” They further alleged that the coaches had not previously tackled the players when instructing them about the rules and techniques of football.

It is notable, in my opinion, that the plaintiffs admitted in their pleading that Andy’s coach was “responsible ... for the supervision, training and instruction of the defensive players.” It cannot be disputed that one responsibility of a football coach is to minimize the possibility that players will sustain “something more than slight injury” while playing the sport. Vendrell v. School District No. 26C, Malheur County, 376 P.2d 406, 413 (Ore. 1962). A football coach cannot be expected “to extract from the game the body clashes that cause bruises, jolts and hard falls.” Id. Instead, a coach should ensure that players are able to “withstand the shocks, blows and other rough treatment with which they would meet in actual play” by making certain that players are in “sound physical condition,” are issued proper protective equipment, and are “taught and shown how to handle [themselves] while in play.” Id. The instruction on how to handle themselves during a game should include demonstrations of proper tackling techniques. Id. By voluntarily participating in football, Andy and his parents necessarily consented to instruction by the *19coach on such techniques. The alleged battery occurred during that instruction.

The plaintiffs alleged that they were not aware that Andy’s coach would use physical force to instruct on the rules and techniques of football since neither he nor the other coaches had done so in the past. Surely, the plaintiffs are not claiming that the scope of their consent changed from day to day depending on the coaches’ instruction methods during prior practices. Moreover, they did not allege that they were told that the coaches would not use physical demonstrations to instruct the players.

Additionally, the plaintiffs did not allege that the tackle itself violated any rule or usage of the sport of football. Nor did they plead that Andy could not have been tackled by a larger, physically stronger, and more experienced player either during a game or practice. Tackling and instruction on proper tackling techniques are aspects of the sport of football to which a player consents when making a decision to participate in the sport.

In sum, I conclude that the plaintiffs did not sufficiently plead a claim for battery. We must remember that acts that might give rise to a battery on a city street will not do so in the context of the sport of football. See Thompson, 559 N.E.2d at 707. We must also not blur the lines between gross negligence and battery because the latter is an intentional tort. I agree fully that the plaintiffs alleged sufficient facts to proceed with their claim for gross negligence.

For these reasons, I respectfully concur, in part, and dissent, in part, and would affirm the judgment of the circuit court sustaining the demurrer with regard to the claim for battery.