WILKINS, Associate Chief Justice:

¶ 1 Tracy and Robert Wagner seek review of the court of appeals’ ruling that the trial court properly granted a rule 12(b)(6) motion dismissing their suit against the State. The Wagners’ suit, which sought recovery for injuries Mrs. Wagner sustained when a mentally handicapped man attacked her while he was in the custody of state employees, was dismissed at the trial court, and affirmed at the court of appeals, on the ground that the attack constituted a battery, a tort for which the State has retained immunity from suit. The Wagners then petitioned this court for certiorari, which we granted. We now affirm.

BACKGROUND

¶ 2 When reviewing a 12(b)(6) motion, we recite the facts in a light most favorable to the non-moving party, though there is no dispute in this case as to the facts. Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993).

¶ 3 Tracy Wagner was standing in a customer service line at a K-Mart store in American Fork, Utah, when she was suddenly and inexplicably attacked from behind. The Wagners’ alleged that Sam Giese, a mentally disabled patient of the Utah State Development Center (“USDC”), “became violent, took [Mrs. Wagner] by the head and hair, threw her to the ground, and otherwise acted in such a way as to cause serious bodily injury to her.”

¶ 4 USDC employees had accompanied Mr. Giese to K-Mart as part of his treatment program and had remained in K-Mart to supervise him. While this particular episode of violence was sudden, it was not altogether unpredictable. Mr. Giese had a history of violent conduct and presented a potential danger to the public if not properly supervised.

¶ 5 Mrs. Wagner and her husband subsequently filed a complaint against USDC and the Utah Department of Human Services, the state agency under which USDC operates, for failing to “properly supervise the activity of’ Mr. Giese while he was in its care. Because the defendants to this matter are all governmental entities, they moved to dismiss the complaint under Utah Rule of Civil Procedure 12(b)(6) for failure to state a claim, arguing that Mrs. Wagner’s injuries arose out of a battery, a tort for which the government is immune from suit. Thus, under the Governmental Immunity Act, Utah Code Ann. § 63-30-10(2) (Utah 1997) (repealed 2004), the defendants could not be held liable for injuries arising out of the battery here. The district court agreed with the government and dismissed the Wagners’ complaint, holding that because Giese initiated a contact with “deliberate” intent, his attack constituted a battery and the government was immune under the statute.

¶ 6 The Wagners appealed the decision to the court of appeals, arguing that the intentional tort of battery requires proof of both an intent to make a contact and an intent to cause harm thereby, and because Mr. Giese was mentally incompetent to formulate the intent to cause harm, his attack could not constitute a battery as a matter of law. The defendants, on the other hand, maintained that a person need only intend to make a harmful or offensive contact in order for that contact to constitute a battery upon another. A person need not intend to cause harm or appreciate that his contact will cause harm so *602long as he intends to make a contact, and that contact is harmful.

¶ 7 Both parties filed briefs with the court of appeals, but oral argument was not heard on the matter. Instead, the court issued a memorandum opinion affirming the district court’s order of dismissal. Wagner v. Utah Dep’t of Human Servs., No. 20030106-CA, 2004 WL 530728, *8, 2004 Utah App. LEXIS 282, at *8 (Utah Ct.App. Mar.18, 2004) (mem.). The court of appeals reasoned that Mr. Giese’s attack on Mrs. Wagner constituted a battery under Utah jurisprudence interpreting the Governmental Immunity Act. Id., 2004 WL 530728, *1, at *5 The court distinguished the case at bar from the case the Wagners cited in support of their argument, finding that Mr. Giese’s attack, unlike the incident involved in the cited case, “ ‘creatfed] a substantial certainty [that] harm’ ” would arise out of the contact. Id., 2004 WL 530728, *2, at *6 (quoting Matheson v. Pearson, 619 P.2d 321, 323 (Utah 1980)).

¶ 8 Looking to outside case law as well, the court of appeals found that the decisions reached in other jurisdictions supported its conclusion that the resolution of the issue turned not on whether the perpetrator of the attack intended to cause harm, but rather upon “ ‘whether the injury was perpetrated deliberately or accidentally.’ ” Id. at *7 (quoting Miele v. United States, 800 F.2d 50, 52 (2d Cir.1986)). The court of appeals joined the courts of other jurisdictions, both state and federal, in declining to incorporate a requirement that the perpetrator have a certain mental state at the moment of the attack in order for that attack to constitute a battery. The Wagners appealed to this court, and we have jurisdiction pursuant to Utah Code section 78-2-2(3)(a) (2002).

STANDARD OF REVIEW

¶ 9 When reviewing a court of appeals decision affirming a grant of a rule 12(b)(6) motion to dismiss, “we review the decisions of the court of appeals rather than that of the trial court ... for correctness.” Taghipour v. Jerez, 2002 UT 74, ¶ 8, 52 P.3d 1252. Because we are reviewing a rule 12(b)(6) motion, we must “accept the material allegations in the complaint as true and interpret those facts and all reasonable inferences drawn therefrom in a light most favorable to the plaintiff as the non-moving party.” Russell Packard Dev. v. Carson, 2005 UT 14, ¶ 3, 108 P.3d 741. We will affirm the court of appeals’ dismissal of the case only if, after granting such deference to the Wagners’ factual presentation, we still find that they have failed to state a claim upon which relief can be granted. Utah R. Civ. P. 12(b)(6).

ANALYSIS

I. GOVERNMENTAL IMMUNITY ACT

¶ 10 In interpreting any statute, rules of statutory construction require the court to “first look[ ] to the statute’s plain language, and give effect to the plain language unless the language is ambiguous.” Blackner v. State, 2002 UT 44, ¶ 12, 48 P.3d 949. At the time of the incident in this case, the Governmental Immunity Act read as follows:

Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if the injury arises out of ...:

(2) assault, battery, [or] false imprisonment. ...

Utah Code Ann. § 63-30-10(2) (Utah 1997) (repealed 2004).

¶ 11 This court has previously held in governmental immunity cases that the State is immunized against a negligence action if the action arises out of an assault or battery. Tiede v. State, 915 P.2d 500, 502-03 (Utah 1996) (holding the State immune from suit for negligence in the shooting deaths of two and the assault and battery upon three others under the assault and battery exception to the immunity waiver); Higgins v. Salt Lake County, 855 P.2d 231, 241 (Utah 1993) (county immune from suit under the battery exception where a mentally ill patient at a county facility stabbed a child); Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1166 (Utah 1993) (school district immune from suit under the battery exception for failing to properly supervise high school stu*603dents where those studénts severely beat another student during a physical education class).

¶ 12 Utah courts make three inquiries to determine whether the government is immune from suit under the Governmental Immunity Act. First, courts must ascertain whether the activity was a governmental function and thereby entitled to blanket immunity under the Act. Second, if the activity constituted a governmental function, courts must then look to see whether the State has waived immunity under another section of the Act. Finally, courts must determine whether there is an exception to the waiver of immunity that retains immunity against suit for the cause of action in the particular case. Taylor v. Ogden City Sch. Dist., 927 P.2d 159, 162 (Utah 1996).

¶ 13 Both sides concede that “the first two factors do not shield the State” from suit. Wagner v. State, No. 20030106-CA, 2004 WL 530728, *1, 2004 Utah App. LEXIS 282, *4. The State does argue, however, that the third inquiry requires that the suit against the State be dismissed under the Governmental Immunity Act because Mr. Giese’s attack constituted a battery, an exception to the waiver of immunity under former section 63-30-10(2).

¶ 14 The Wagners argue that Mr. Giese’s attack could not legally constitute a battery because that intentional tort requires the actor to intend harm or offense through his deliberate contact, an intent Mr. Giese was mentally incompetent to form. The State, on the other hand, argues that the only intent required under the statute is simply the intent to make a contact. The contact must be harmful or offensive by law, but the actor need not intend harm so long as he intended contact.

¶ 15 The outcome of this ease, then, turns upon which interpretation of the definition of battery is correct. Accordingly, we turn our attention now to the law of battery as defined in the Restatement.

II. THE RESTATEMENT DEFINITION OF BATTERY

¶ 16 While there is some variation among the definitions of the tort of battery, Prosser and Keeton on the Law of Torts § 8, at 33-34 (W. Page Keeton et al. eds., 5th ed.1984) (hereinafter Prosser), Utah has adopted the Second Restatement of Torts to define the elements of this intentional tort, including the element of intent. Tiede v. State, 915 P.2d 500, 503 n. 3. The Restatement represents a “concept [of the law] consistent with the most common usage in judicial opinions in tort cases.” Prosser, supra, § 8, at 34. The Restatement reads:

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 or a third person, or an imminent apprehension of such a contact, and

(b) a harmful contact with the person of the other directly or indirectly results.

Restatement (Second) of Torts § 13 (1965).

¶ 17 The only point of dispute in this case is whether the language of the Restatement requires Mr. Giese to have intended not only to make physical contact with Mrs. Wagner, which the Wagners concede he did, but also to have intended the contact to be harmful or offensive. In other words, is a battery committed only when the actor intends for his contact to harm or offend, or is it sufficient that the actor deliberately make physical contact, which contact is harmful or offensive by law? Determining the answer requires a careful dissection of the elements of battery and the meaning of intent.

¶ 18 We conclude that the plain language of the Restatement, the comments to the Restatement, Prosser and Keeton’s exhaustive explanation of the meaning of intent as described in the Restatement, and the majority of case law on the subject in all jurisdictions including Utah, compels us to agree with the State that only intent to make contact is necessary.

¶ 19 In order for a contact to constitute a battery at civil law, two elements must be satisfied. First, the contact must have been deliberate. Second, the contact must have been harmful or offensive at law. We hold that the actor need not intend that his contact be harmful or offensive in order *604to commit a battery so long as he deliberately made the contact and so long as that contact satisfies our legal test for what is harmful or offensive.

¶ 20 We first address the intent element of battery to explain our holding. Next, we discuss how the limited legal nature of harmful or offensive contact restricts the types of contacts for which actors may be potentially liable.

A. Legal Intent to Commit a Battery

¶21 Prosser described intent as “one of the most often misunderstood legal concepts.” Prosser, supra, § 8, at 33. Because intent is also “one of the most basic, organizing concepts of legal thinking,” id., it is crucial that the term is properly defined and understood. We begin our analysis with the language in the Restatement itself.

¶ 22 The Restatement defines a battery as having occurred where “[an actor] acts intending to cause a harmful or offensive contact.” Restatement (Second) of Torts § 13. The comments to the definition of battery refer the reader to the definition of intent in section 8A. Id. § 13 cmt. c. Section 8A reads:

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.

Id. § 8A (emphasis added).

¶ 23 Although this language might not immediately seem to further inform our analysis, the comments to this section do illustrate the difference between an intentional act and an unintentional one: the existence of intent as to the contact that results from the act. Because much of the confusion surrounding the intent element required in an intentional tort arises from erroneously conflating the act with the consequence intended, we must clarify these basic terms as they are used in our law before we analyze the legal significance of intent as to an act versus intent as to the consequences of that act.

¶ 24 Section 2 of the Restatement (Second) of Torts defines the term “act” as “an external manifestation of the actor’s will and does not include any of its results, even the most direct, immediate, and intended.” Id. § 2. To illustrate this point, the comments clarify that when an actor points a pistol at another person and pulls the trigger, the act is the pulling of the trigger. Id. at cmt. c. The consequence of that act is the “impingement of the bullet upon the other’s person.” Id. It would be improper to describe the act as “the shooting,” since the shooting is actually the conflation of the act with the consequence. For another example, the act that has taken place when one intentionally strikes another with his fist “is only the movement of the actor’s hand and not the contact with the others body immediately established.” Id. Thus, presuming that the movement was voluntary rather than spastic, whether an actor has committed an intentional or negligent contact with another, and thus a tort sounding in battery or negligence, depends not upon whether he intended to move his hand, but upon whether he intended to make contact thereby.

¶25 The example the Restatement sets forth to illustrate this point is that of an actor firing a gun into the Mojave Desert. Restatement (Second of Torts) § 8A cmt. a. In both accidental and intentional shootings, the actor intended to pull the trigger. Id. Battery liability, rather than liability sounding in negligence, will attach only when the actor pulled the trigger in order to shoot another person, or knowing that it was substantially likely that pulling the trigger would lead to that result. Id. § 8A cmts. a & b. An actor who intentionally fires a bullet, but who does not realize that the bullet would make contact with another person, as when “the bullet hits a person who is present in the desert without the actor’s knowledge,” is not liable for an intentional tort. Id.

¶ 26 A hunter, for example, may intentionally fire his gun in an attempt to shoot a bird, but may accidentally shoot a person whom he had no reason to know was in the vicinity. He intended his act, pulling the trigger, but not the contact between his bullet and the body of another that resulted from that act. Thus, he intended the act but not the consequence. It is the consequential contact with the other person that the actor must either *605intend or be substantially certain would result, not the act — pulling the trigger — itself. He is therefore not liable for an intentional tort because his intentional act resulted in an unintended contact. On the other hand, the actor is liable for an intentional tort if he pulled the trigger intending that the bullet released thereby would strike someone, or knowing that it was substantially likely to strike someone as a result of his act. Id. at emts. a & b.

¶ 27 Can an actor who acknowledges that he intentionally pulled the trigger, and did so with the intent that the bullet make contact with the person of another, defeat a battery charge if he can show that he did so only as a joke, or did not intend that the contact between the bullet and the body of the person would cause harm or offense to that person? The Wagners argue that such a showing would provide a full defense to a battery charge because the actor lacked the necessary intent to harm.

¶ 28 We agree with the Wagners that not all intentional contacts are actionable as batteries, and that the contact must be harmful or offensive in order to be actionable. We do not agree, however, that, under our civil law, the actor must appreciate that his act is harmful or offensive in order for his contact to constitute a battery. Before we resort to case law to interpret the language and application of our battery law, we can simply turn first to the plain language of the law itself for a clear refutation of the Wagners’ theory.

¶29 The plain language of the comments makes clear that the only intent required to commit a battery is the intent to make a contact, not an intent to harm, injure, or offend through that contact. Restatement (Second) of Torts § 13. So long as the actor intended the contact, “it is immaterial that the actor is not inspired by any personal hostility to the other, or a desire to injure him.” Id. § 13 cmt. c. The actor will be liable for battery even if he honestly but “erroneously believe[d] that ... the other has, in fact, consented to [the contact].” Id. In fact, even a healing contact motivated by a helpful intent, as in an act of medical assistance, is actionable as a battery if the actor did not in fact have permission to make the contact. Id. The linchpin to liability for battery is not a guilty mind, but rather an intent to make a contact the law forbids. The actor need not appreciate that his contact is forbidden; he need only intend the contact, and the contact must,.in fact, be forbidden.

¶ 30 The Restatement comments illustrate this principle using two examples. In the first, an actor playing a good-natured practical joke, under the mistaken belief that he has his victim’s consent to make the contact, has committed a battery. Id. In the second example, the healing contact of a physician, acting with helpful intent but against the patient’s wishes, constituted a battery. Id. The fact that the procedure preserved the patient’s life does not change the result. Id.; see, e.g., Meyers v. Epstein, 232 F.Supp.2d 192, 198 (S.D.N.Y.2002) (holding that “the only intent necessary to support a claim of battery is simply the intent to make contact” and a physician who did not have specific permission to do so has committed a battery); Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 16 (1905), overruled on other grounds by Genzel v. Halvorson, 248 Minn. 527, 80 N.W.2d 854 (1957) (holding that a physician committed a battery even though he acted with helpful intent because he did not have the patient’s consent to perform surgery on her right ear instead of her left); Mink v. Univ. of Chicago, 460 F.Supp. 713, 718 (N.D.Ill.1978) (holding for plaintiffs in their negligence action against physicians because “[t]he requisite element of intent is ... met, since the plaintiffs need show only an intent to bring about the contact; an intent to do harm is not essential to the action.”).

¶31 If a physician who has performed a life-saving act of assistance upon an uneon-senting patient with the hope of making that patient whole is liable for battery under the express terms of the Restatement, and a practical joker who makes a contact which he thinks will be taken as a joke or to which he thinks his victim has actually given consent is likewise liable, we cannot then say that other actors must intend harm through their deliberate contact in order to perfect a battery. It is beyond argument that the Restatement itself requires neither a “desire to injure” nor a realization that the contact is injurious or *606offensive. Restatement (Second) of Torts § 13. Instead, the actor need only intend the contact itself, and that contact must fit the legal definition of harmful or offensive.

¶ 32 Prosser echoed the Restatement when he clarified that “[t]he intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do 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.” Prosser, supra, § 8, at 36. While it may be argued that this statement means that the actor must intend that the contact be forbidden, all ambiguity on the point is eviscerated by Prosser’s next comment, in which he lists as one type of intentional tort the act of “intentionally invading the rights of another under a mistaken belief of committing no wrong.” Id. § 8, at 37.

¶ 33 Though Prosser recognizes that the plaintiff will often recover to the greatest extent “where the [defendant’s] motive is a malevolent desire to do harm,” he nonetheless ascribes the malevolence to motive, not intent, and labels the less culpable act of innocent invasion of another’s rights as an intentional invasion. Id. These comments only underscore the point repeated throughout both the Restatement and Prosser’s analysis that the only intent required is the intent to make a contact to which the recipient has not consented, and the actor need not appreciate that the victim has not consented.

¶ 34 In Prosser’s analysis of battery itself, he states that, in order for the contact to constitute a battery, “[t]he act must cause, and must be intended to cause, an unpermit-ted contact.” Id. § 9, at 41. In discussing the difference between battery and mere negligence, he focused upon “the risk that contact will result” from the act, not the risk that harm would result from the contact. Id. Yet, if battery required an intent to harm or offend, or to realize that the contact was harmful or offensive or otherwise unpermit-ted, the proper focus of a discussion distinguishing between negligent and intentional conduct would be upon the risk that harm or offense would result from the contact. Instead, the focus was upon whether the contact itself, not the harm resulting therefrom, was intended or resulted from mere inadvertence.

¶ 35 The Wagners’ argument that an actor lacks intent to commit a battery where he deliberately makes physical contact that is harmful or offensive so long as he does not realize his contact is harmful or offensive is simply in direct conflict with the commentaries in the Restatement itself and other commentaries on the law. As Prosser states, “a defendant may be liable [for battery] when intending only a joke, or even a compliment, as where an unappreciated kiss is bestowed without consent, or a misguided effort is made to render assistance.” Id. § 9, 41-42.

¶ 36 The Wagners’ theory is also in conflict with the majority of case law on the subject in both federal and state courts, including Utah. See, e.g., 4 Restatement (Second) of Torts § 895J; id. § 238B; Meyers v. Epstein, 232 F.Supp.2d 192, 198 (S.N.D.Y.2002); Cheney v. Studstrup, 32 F.Supp.2d 1278, 1284 & n. 6 (D.Utah 1998); Delahanty v. Hinckley, 799 F.Supp. 184, 187 (D.D.C.1992); Williams v. Kearbey, 13 Kan.App.2d 564, 775 P.2d 670, 673-74 (1989); Polmatier v. Russ, 206 Conn. 229, 537 A.2d 468, 469-70 (1988). While there is a dearth of case law on this precise subject from Utah state courts, our eases that do touch upon the intent element of battery generally support the majority rule to which we subscribe in this decision.

¶ 37 For instance, in Wright v. University of Utah, 876 P.2d 380, 387 (Utah Ct.App.1994), cert. denied, 883 P.2d 1359 (Utah 1994), the court of appeals rejected Mrs. Wright’s argument that the autistic university employee who struck her could not have committed a battery because he lacked the mental capacity to form the requisite intent. The court discussed her argument in the context of explaining why it denied her request to amend her complaint to include a pure negligence charge, justifying its denial on the basis that “a party is not entitled to file an amended complaint when the new claim is legally insufficient or futile.” Wright, 876 P.2d at 387.

¶38 Describing Wright’s attempt to circumvent the governmental immunity statute by recasting her claim as one sounding in *607negligence rather than battery as “fruitless, albeit creative,” the court looked to analogous federal cases to dismantle her argument. Id. at 386-87. In accordance with the federal courts’ analysis of the parallel provision in the federal immunity statute, Federal Tort Claims Act, 28 U.S.C. § 2680(h) (2000), the court of appeals concluded that “[njoth-ing in the Act or in our case law indicates that the distinction Wright champions was contemplated by the legislature to determine whether immunity exists under section 63-30-10(2). The focus is on the result, not the circumstances leading thereto.” Wright, 876 P.2d at 387.

¶ 39 We have also implicitly held that mental capacity is not relevant to a liability determination in other cases involving civil battery. In Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993), the plaintiffs sued Salt Lake County for negligently supervising a mental patient who attacked and repeatedly stabbed their ten-year-old daughter. Though the Higginses did not raise the argument that the attacker’s insanity adjudication meant that her attack could not constitute a battery, we found that the battery exception applied. Id. at 240. The patient’s schizophrenia and marginal intelligence did not persuade us that her actions could not amount to a battery for lack of requisite intent. Id. at 241.

¶ 40 The Wagners correctly point out that our decision in Matheson v. Pearson, 619 P.2d 321 (Utah 1980), does not conform to the rule we have applied here. In Matheson, a maintenance man sustained injuries when a student threw a piece of candy from an open window at him, striking him in the back. Id. at 321-22. The only way the injured plaintiff could recover against the student for his injuries was if the act sounded in negligence rather than battery, since the statute of limitations on battery had already run by the time the case was filed. Id. at 322. We held that battery requires an intent to harm, not just an intent to make contact, and that the adolescent prank did not involve the requisite intent. Id. at 322-23. Thus, the injured maintenance man was able to proceed with his suit on a theory of negligence.

¶ 41 The Matheson case, however, was decided before we expressly adopted the Restatement definition of battery, and it has been superceded by more recent case law on the subject of intent. The reasoning promulgated in Matheson directly contradicts the very example of battery the Restatement provided. Restatement (Second) of Torts § 13 cmt. c. (“One who plays dangerous practical jokes on others takes the risk that his victims may not appreciate the humor of his conduct....”). Matheson is not a correct interpretation of the Restatement on battery and it is hereby overruled. Instead, we ratify the position taken by the majority of federal and state courts in rejecting the argument that the actor must intend harm or offense through his contact in order for that contact to constitute a battery.

¶42 The discussion in Miele v. United States, 800 F.2d 50 (2d Cir.1986), is informative on this point. There, the Second Circuit held that the family of a child blinded and disfigured when an insane AWOL soldier attacked him with sulphuric acid was barred by the immunity doctrine from recovering against the government, despite the family’s argument that the insane soldier could not form the requisite intent to commit a battery. The court held that the attacker’s mental capacity was irrelevant to the question of whether the actor committed a battery for two reasons.

¶ 43 First, the government’s fault in the attack “does not change depending upon whether the aggressor was sane or insane at the time.” Id. at 52. “While an insane employee may or may not be less culpable personally for such attacks, the question of whether the injury was perpetrated deliberately or accidentally does not depend upon the employee’s sanity.” Id. Second, under the common law, “one who suffers from deficient mental capacity is not immune from tort liability solely for that reason.” Id. at 53, (citing W.L. Prosser, The Law of Torts § 135 (4th ed.1971)). The linchpin of an action for battery, then, is simply “the intent to make contact.” Id. Thus, the Mieles’ cause of action against the government arose out of a battery, despite the attacker’s mental incompetency.

*608¶ 44 Though the majority rule is not without its critics, “the fact remains that ‘courts in this country almost invariably say in the broadest terms that an insane person is liable for his torts.’ ” Delahanty, 799 F.Supp. at 187 (quoting Williams, 775 P.2d at 673). Individuals such as Mr. Giese are included in this category of liable actors because “ ‘mental deficiency does not relieve [them] from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.’ ” Polmatier, 537 A.2d at 470 (quoting Restatement (Second) of Torts § 283B). Indeed, the Restatement provides that, for the sane but mentally deficient, “no allowance is made, and the actor is held to the standard of conduct of a reasonable man who is not mentally deficient, even though it is in fact beyond his capacity to conform to it.” Restatement (Second) of Torts § 283B cmt. c.

¶ 45 Otherwise, the law would err on the side of protecting actors who voluntarily make physical contacts with other people, producing injury or offense, from liability for their deliberate action. The result would be that the victims who were subjected to a harmful or offensive physical contact are at the mercy of those who deliberately come into contact with them, and must bear the costs of the injuries inflicted thereby. The practical consequences of such an interpretation would turn the law of our civil liability on its head.

¶46 For example, a man who decides to flatter a woman he spots in a crowd with an unpetitioned-for kiss, one of the examples of battery Prosser provides, Prosser, supra, § 9, at 41-42, would find no objection under the Wagners’ proposed rule so long as his intentional contact was initiated with no intent to injure or offend. He would be held civilly liable for his conduct only if he intended to harm or offend her through his kiss. A woman in such circumstances would not enjoy the presumption of the law in favor of preserving her bodily integrity; instead, her right to be free from physical contact with strangers would depend upon whether she could prove that the stranger hoped to harm or offend her through his contact. So long as he could show that he meant only flattery and the communication of positive feelings towards her in stroking her, kissing her, or hugging her, she must be subjected to it and will find no protection for her bodily integrity in our civil law.

¶ 47 The law would serve to insulate perpetrators of deliberate contact from the consequences their contact inflicts upon their victims. Bodily integrity would be secondary to protecting a perpetrator’s right to deliberately touch another person’s body without being accountable for the consequences that contact occasioned. The “harmful or offensive” element would, in essence, be viewed from the perspective of the actor, not the objective eye of the law. Under this rule, so long as the actor does not deem his deliberate contact to be harmful or offensive, he may touch others however he wishes without liability under our law of battery. It is clear that the purpose of our civil law on battery was designed to create the opposite incentive. See, e.g., Restatement (Second) of Torts § 283B cmts. b & c.

¶ 48 The objection can be raised that such a theory of liability as we posit today expands liability beyond all reasonable bounds. Perhaps a handshake or other similar gesture will now expose a person to a lawsuit for battery if he happens to unknowingly shake the hand of an unwilling individual. The Restatement, however, and Prosser’s analysis thereof, yields this objection wholly without basis.

¶49 We must bear in mind that not all physical contacts deliberately initiated constitute batteries, only harmful or offensive ones. Though it is true that the actor need not appreciate that his contact is, nor need he intend it to be, harmful or offensive in order for it to be so and for him to be accountable for the injuries he inflicted by his intentional contact, the contact must in fact be harmful or offensive in order to constitute a battery.

¶ 50 We now explain that the legal test for harmful or offensive contact preserves the Restatement’s purpose of protecting the bodily integrity of individuals from invasion while still recognizing the practical realities of our physical world and the inevitable contacts therein. Because “harmful or offensive contact” is determined objectively by the law, *609only those deliberate contacts that meet the legal test for harmful or offensive will constitute batteries.

B. Harmful or Offensive Contact at Law

¶ 51 A harmful or offensive contact is simply one to which the recipient of the contact has not consented either directly or by implication. Prosser, supra, § 9, at 41-42. Under this definition, harmful or offensive contact is not limited to that which is medically injurious or perpetrated with the intent to cause some form of psychological or physical injury. Instead, it includes all physical contacts that the individual either expressly communicates are unwanted, or those contacts to which no reasonable person would consent.

¶ 52 What is not included in this definition are the uncommunicated idiosyncratic preferences of individuals not to be touched in ways considered normal and customary in our culture. Instead, the law assumes consent to contacts “according to the usages of decent society,” and unless an individual expressly states that he does not want to shake hands, for example, someone who shakes his hand against his silent wishes has not committed a harmful or offensive contact. Id. § 9, at 42.

¶ 53 As Prosser notes in his analysis on the subject, “in 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 intercourse of life.” Id. Among the contacts Pros-ser noted as part of this common intercourse were: “a tap on the shoulder,” “a friendly grasp of the arm,” and “a casual jostling to make a passage.” Id. Thus, the tort of battery seeks to strike a balance between preserving the bodily integrity of others and recognizing and accommodating the realities of our physical world.

¶ 54 Because the law defines “harmful and offensive” with reference to the mores of polite society, and protects against invasions of bodily integrity perpetrated outside those bounds, whether consent is assumed also depends upon who is making the contact. For example, it seems clear that “the usages of a decent society” and “polite manners” are in nowise offended when a baby reaches out to perform the non-medically injurious act of stroking the hair of a nearby stranger. Such encounters with babies are “customary ... in the course of life.” Id. § 9, at 42.

¶ 55 Thus, we can include this type of contact from babies in the category of contacts for which we are assumed to have consented. A grown man, on the other hand, perpetrating the same act for equally complimentary reasons, would not enjoy the same privilege, for his behavior would not be considered by reasonable people to be a customary contact in decent society to which members consent.

¶ 56 The Wagners argue that Mr. Giese has the mental age of a small infant, and should be held no more accountable for his acts than a child of his mental age would. We disagree with the Wagners’ legal conclusion.

¶ 57 As already explained, the law of torts, and battery in particular, was designed to protect people from unacceptable invasions of bodily integrity. Taking into account the realities of our physical world, and the physical contacts that are not only inevitable, but are part of our cultural customs, there are limits to the physical contacts from which the law will protect us. The law assumes consent as to all regular and culturally acceptable contacts. Certain contacts from very young children fall into this category primarily because most contacts from very young children are not medically injurious given their relative physical weakness and their standing in our society.

¶ 58 Not so with mentally handicapped adults. Even if the adult had the mental capacity of a small child, the difference in size and strength would make any attempt at an analogy between societal consent to a baby’s contact and societal consent to attacks at the hand of such an adult wholly unreasonable. Clearly, society has not simply consented to violent contacts from the mentally handicapped. Under the Restatement, as long as a person, mentally handicapped or not, intended to touch the person of another, and the touch was a harmful or offensive one *610at law, he has committed a battery, and the price of the injuries he inflicted must be paid out of his, or his caretaker’s, pockets.

¶ 59 Further, aside from this practical difference, there is a legal one as well. While the Restatement does provide that “[i]f an actor is a child, his mental deficiency is taken into account,” Restatement (Second) of Torts § 283B cmt. a, it grants no such exception for adults with the mental age of a child, instead clearly refusing to provide any allowance for the mentally handicapped to be free from liability for deliberate contacts that produce harm or offense. Id. § 283B cmt. e.

¶ 60 It does not matter that Mr. Giese may not have understood that Mrs. Wagner had not consented to the contact because it is not an element of the tort that the actor appreciate that the contact is unwanted. His mental incompetence may insulate him from criminal liability because the mental handicap may negate the mens rea requirement, but the same level of intent is not required for civil liability to attach.

¶ 61 The Wagners argue that Mr. Giese could not have committed any tort at all, either sounding in intentional torts or in negligence. However, if we were to adopt the rule urged by the Wagners, we would be contorting the law in order to provide recovery in this isolated instance. Yet, in doing so, we would be contracting the recoveries of all other plaintiffs victimized by insane or mentally handicapped individuals who are suing a non-State entity, and, in the process, limiting the protection of the bodily integrity of everyone.

¶ 62 The policy behind the Restatement definition of battery is to allow plaintiffs to recover from individuals who have caused them legal harm or injury, and to lay at the feet of the perpetrators the expense of their own conduct. Lawmakers have specifically declined to exempt mentally handicapped or insane individuals from the list of possible perpetrators of this tort for the express reason that they would prefer that the caretakers of such individuals feel heightened responsibility to ensure that their charges do not attack or otherwise injure members of the public.

¶ 63 We recognize that, in this instance, the retained immunity doctrine bars the caretakers of such a handicapped person from taking responsibility for the conduct of their charge. It is unfortunate, and perhaps it is improvident of the State to retain immunity in this area. But it is not our role as a judiciary to override the legislature in this matter; it is for us only to interpret and apply the law as it is. We will not limit the recoveries of all other plaintiffs similarly injured by defining the tort of battery in such a way as to make it far more burdensome for plaintiffs to satisfy its elements and recover, nor will we distort the plain language of the Restatement so as to elevate an actor’s “right” to deliberately touch others at will over an individual’s right to the preservation of her bodily integrity.

CONCLUSION

¶ 64 Applying the rule we have laid out today to the facts of this case, it is clear that Mr. Giese’s attack constituted a battery upon Mrs. Wagner. There is no allegation that his action was the result of an involuntary muscular movement or spasm. Further, the Wagners concede that Mr. Giese affirmatively attacked her; they do not argue that he made muscular movements that inadvertently or accidentally brought him into contact with her.

¶ 65 The fact that the Wagners allege that Mr. Giese could not have intended to harm her, or understood that his attack would inflict injury or offense, is not relevant to the analysis of whether a battery occurred. So long as he intended to make that contact, and so long as that contact was one to which Mrs. Wagner had not given her consent, either expressly or by implication, he committed a battery. Because battery is a tort for which the State has retained immunity, we affirm the court of appeals’ decision to dismiss the ease for failure to state a claim.

¶ 66 Justice DURRANT, Justice PARRISH, and Justice NEHRING concur in Associate Chief Justice WILKINS’ opinion.

*611DURHAM, Chief Justice,

concurring:

¶ 67 I concur in the lead opinion’s excellent treatment of the battery issue and write separately merely to note that the petitioners’ arguments regarding the continuing validity of Ledfors v. Emery County School District, 849 P.2d 1162 (Utah 1993), were stricken by this court because they were not addressed by the court of appeals and thus were not within the scope of our review on certiorari. Our opinion here therefore does not address that issue. Cf. Doe Parents No. 1 v. State, 100 Hawaii 34, 58 P.3d 545 (2002).

*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.

GREENHILL, Justice.

This is a suit for actual and exemplary damages growing out of an alleged assault and battery. The plaintiff Fisher was a mathematician with the Data Processing Division of the Manned Spacecraft Center, an agency of the National Aeronautics and Space Agency, commonly called NASA, near Houston. The defendants were the Carrousel Motor Hotel, Inc., located in Houston, the Brass Ring Club, which is located in the Carrousel, and Robert W. Flynn, who as an employee of the Carrousel was the manager of the Brass Ring Club. Flynn died before the trial, and the suit proceeded as to the Carrousel and the Brass Ring. Trial was to a jury which found for the plaintiff Fisher. The trial court rendered judgment for the defendants notwithstanding the verdict. The Court of Civil Appeals affirmed. 414 S.W.2d 774. The questions before this Court are whether there was evidence that an actionable battery was committed, and, if so, whether the two corporate- defendants must respond in exemplary as well as actual damages for the malicious conduct of Flynn.

The plaintiff Fisher had been invited by Ampex Corporation and Defense Electronics to a one day’s meeting regarding telemetry equipment at the Carrousel. The invitation included a luncheon. The guests were asked to reply by telephone whether they could attend the luncheon, and Fisher called in his acceptance. After the morning session, the group of 25 or 30 guests adjourned to the Brass Ring Club for lunch. The luncheon was buffet style, and Fisher stood in line with others and just ahead of a graduate student of Rice University who testified at the trial. As Fisher was about to be served, he was approached by Flynn, who snatched the plate from Fisher’s hand and shouted that he, a Negro, could not be *629served in the club. Fisher testified that he was not actually touched, and did not testify that he suffered fear or apprehension of physical injury; but he did testify that he was highly embarrassed and hurt by Flynn’s conduct in the presence of his associates.

The jury found that Flynn “forceably dispossessed plaintiff of his dinner plate” and “shouted in a loud and offensive manner” that Fisher could not be served there, thus subjecting Fisher to humiliation and indignity. It was stipulated that Flynn was an employee of the Carrousel Hotel and, as such, managed the Brass Ring Club. The jury also found that Flynn acted maliciously and awarded Fisher $400 actual damages for his humiliation and indignity and $500 exemplary damages for Flynn’s malicious conduct.

The Court of Civil Appeals held that there was no assault because there was no physical contact and no evidence of fear or apprehension of physical contact. However, it has long been settled that there can be a battery without an assault, and that actual physical contact is not necessary to constitute a battery, so long as there is contact with clothing or an object closely identified with the body. 1 Harper & James, The Law of Torts 216 (1956) ; Restatement of Torts 2d, §§ 18 and 19. In Prosser, Law of Torts 32 (3d Ed. 1964), it is said:

“The interest in freedom from intentional and unpermitted contacts witlrthe plaintiff’s person is protected by an action for the tort commonly called battery. The protection extends to any part of the body, or to anything which is attached to it and practically identified with it. Thus contact with the plaintiff’s clothing, or with a cane, a paper, or any other object held in his hand will be sufficient; * * * The plaintiff’s interest in the integrity of his person includes all those things which are in contact or connected with it.”

Under the facts of this case, we have no difficulty in holding that the intentional grabbing of plaintiff’s plate constituted a battery. The intentional snatching of an object from one’s hand is as clearly an offensive invasion of his person as would be an actual contact with the body. “To constitute an assault and battery, it is not necessary to touch the plaintiff’s body or even his clothing; knocking dr snatching anything from plaintiff’s hand or touching anything connected with his person, when done in an offensive manner, is sufficient.” Morgan v. Loyacomo, 190 Miss. 656, 1 So.2d 510 (1941).

Such holding is not unique to the jurisprudence of this State. In S. H. Kress & Co. v. Brashier, 50 S.W.2d 922 (Tex.Civ.App.1932, no writ), the defendant was held to have committed “an assault or trespass upon the person” by snatching a book from the plaintiff’s hand. The jury findings in that case were that the defendant “dispossessed plaintiff of the book” and caused her to suffer “humiliation and indignity.”

The rationale for holding an offensive contact with such an object to be a battery is explained in 1 Restatement of Torts 2d § 18 (Comment p. 31) as follows:

“Since the 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 and not in any physical harm done to his body, it is not necessary that the plaintiff’s actual body be disturbed. Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other’s person and therefore as partaking of its inviolability is actionable as an offensive contact with his person. There are some things such as clothing or a cane or, indeed, anything directly grasped by the hand which are so intimately connected with one’s body as to be universally regarded as part of the person.”

*630We hold,. therefore, that the forceful dispossession of plaintiff Fisher’s plate in an offensive manner was sufficient to constitute a battery, and the trial court erred in granting judgment notwithstanding the verdict on the issue of actual damages.

In Harned v. E-Z Finance Co., 151 Tex. 641, 254 S.W.2d 81 (1953), this Court refused to adopt the “new tort” of intentional interference with peace of mind which permits recovery for mental suffering in the absence of resulting physical injury or an assault and battery. This cause of action has long been advocated by respectable writers and legal scholars. See, for example, Prosser, Insult and Outrage, 44 Cal.L.Rev. 40 (1956); Wade, Tort Liability for Abusive and Insulting Language, 4 Vand.L.Rev. 63 (1950); Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich.L.Rev. 874 (1939); 1 Restatement of Torts 2d § 46(1). However, it is not necessary to adopt such a cause of action in order to sustain the verdict of the jury in this case. The Harned case recognized the well established rule that mental suffering is compensable in suits for willful torts “which are recognized as torts and actionable independently and separately from mental suffering or other injury.” 254 S.W.2d at 85. Damages for mental suffering are recoverable without the necessity for showing actual physical injury in a case of willful battery because the basis of that action is the unpermitted and intentional invasion of the plaintiff’s person and not the actual harm done to the plaintiff’s body. Restatement of Torts 2d § 18. Personal indignity is the essence of an action for battery; and consequently the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting. Prosser, supra; Wilson v. Orr, 210 Ala. 93, 97 So. 123 (1923). We hold, therefore, that plaintiff was entitled to actual damages for mental suffering due to the willful battery, even in the absence of any physical injury.

We now turn to the question of the liability of the corporations for exemplary damages. In this regard, the jury found that Flynn was acting within the course and scope of his employment on the occasion in question; that Flynn acted maliciously and with a wanton disregard of the rights and feelings of plaintiff on the occasion in question. There is no attack upon these jury findings. The jury further found that the defendant Carrousel did not authorize or approve the conduct of Flynn. It is argued that there is no evidence to support this finding. The jury verdict concluded with a finding that $500 would “reasonably compensate plaintiff for the malicious act and wanton disregard of plaintiff’s feelings and rights. * * * ”

The rule in Texas is that a principal or master is liable for exemplary or punitive damages because of the acts of his agent, but only if:

(a) the principal authorized the doing and the manner of the act, or

(b) the agent was unfit and the principal was reckless in employing him, or

(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or

(d) the employer or a manager of the employer ratified or approved the act.

The above test is set out in the Restatement of Torts § 909 and was adopted in King v. McGuff, 149 Tex. 432, 234 S.W.2d 403 (1950). At the trial of this case, the following stipulation was made in open, court:

“It is further stipulated and agreed to by all parties that as an employee of the Carrousel Motor Hotel the said Robert W. Flynn was manager of the Brass Ring Club.”

We think this stipulation brings the case squarely within part (c) of the rule an*631nounced in the King case as to Flynn’s managerial capacity. It is undisputed that Flynn was acting in the scope of employment at the time of the incident; he was attempting to enforce the Club rules by depriving Fisher of service.

The rule of the Restatement of Torts adopted in the King case set out above has four separate and disjunctive categories as a basis of liability. They are separated by the word “or.” As applicable here, there is liability if (a) the act is authorized, or (d) the act is ratified or approved, or (c) the agent was employed in a managerial capacity and was acting in the scope of his employment. Since it was established that the agent was employed in a managerial capacity and was in the scope of his employment, the finding of the jury that the Carrousel did not authorize or approve Flynn’s conduct became immaterial.

The King case also cited and relied upon Ft. Worth Elevator Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934). In that case, it was held not to be material that the employer did not authorize or ratify the particular conduct of the employee; and the right to exemplary damages was supported under what is section (b) of the Restatement or King rule: The agent was unfit, and the principal was reckless in employing [or retaining] him.

After the jury verdict in this case, counsel for the plaintiff moved that the trial court disregard the answer to issue number eight [no authorization or approval of Flynn’s conduct on the occasion in question] and for judgment upon the verdict. The trial court erred in overruling that motion and in entering judgment for the defendants notwithstanding the verdict; and the Court of Civil Appeals erred in affirming that judgment.

The judgments of the courts below are reversed, and judgment is here rendered for the plaintiff for $900 with interest from the date of the trial court’s judgment, and for costs of this suit.

The opinion of the court was delivered by

Davis, J.:

Celesta Baska brought an action for personal injuries sustained when she attempted to stop a fight by stepping between the defendants, Harry Scherzer, Jr., and Calvin Madrigal. Her action was brought after the expiration of a year from her injury but within 2 years from the date of her injury. After some discovery, the trial court granted the defendants’ motions for summaiy judgment and dismissed Baska’s action based upon its conclusion that her action was governed by the 1-year statute of limitations for assault and battery, K.S.A. 60-514(b). The Court of Appeals reversed, holding that Baska’s action sounded in negligence, and thus was subject to the 2-year statute of limitations under K.S.A. 60-513(a)(4), primarily because she was unintentionally struck by defendants. We granted the defendants’ petitions for review, and now we reverse the decision of the Court of Appeals and affirm the district court.

*752 Facts

Baslca had given her daughter Ashley, a high school senior, permission to organize a “scavenger hunt” with some friends. The scavenger hunt began at the Baskas’ house around 8:30 p.m. and was to end with the participants returning to the house by midnight. When people returned, a number of them remained at the Baskas’ home for a “party.”

Scherzer and Madrigal were both at the party. Madrigal had participated in the scavenger hunt; Scherzer remained at the house while the hunt ensued, playing cards with Baska. He then went outside as people began to return to the house.

Around midnight, an altercation broke out between Scherzer and Madrigal. Madrigal approached Scherzer from behind, and the two boys began to push each other and throw punches at one another. Upon being informed of the fight by one of her daughter’s friends, Baska yelled at the boys to stop in order to break up the fight. When they continued to fight, Baska placed herself between the boys and was punched in the face, losing several teeth and receiving injuries to her neck and jaw. Baska is certain that Scherzer hit her in the face; she also believes that Madrigal punched her in the back of the head.

On April 8, 2004, just short of 2 years after the incident, Baska filed suit against Madrigal and Scherzer, alleging that she was injured by the defendants’ negligence. In her petition she alleged:

“5. That die defendants, in their excitement and totally unintentionally, struck the plaintiff with powerful blows intended for the other participant in the fight.

“6. That the sole and proximate cause of plaintiff s injuries was tíre negligence and carelessness of the defendants.”

Both defendants filed motions to dismiss based on tire statute of limitations, alleging that the suit was barred by the 1-year statute of limitations for assault and battery, K.S.A. 60-514(b). The district court originally granted the motions; however, the court later granted Baska’s motion to reconsider and allowed the parties to pursue additional discovery.

Depositions were taken of Baska, Madrigal, and Scherzer. Both Madrigal and Scherzer testified in their depositions that they did *753not intend to strike or injure Baska in any way. Instead, each defendant testified that it was his intention in throwing the punches to strike and injure the other defendant. In her deposition, Baska’s counsel asked her whether she “would anticipate that the intended recipient of [Scherzer’s] blow was Mr. Madrigal and not [herself].” Baska answered, “Yes, sir.”

After depositions, Madrigal and Scherzer filed motions for summary judgment again based on the 1-year statute of limitations for assault and battery. In its decision after conducting a hearing, the court concluded that the doctrine of transferred intent applied and that Baska’s cause of action was an action for assault and battery, not negligence. The court explained:

“Well, the plaintiffs theory, as I understand it, is that in trying to bréale up this altercation that she was injured by the negligent acts of the two participants who were defending themselves, each of them claiming self defense, and in a negligent manner.

“The depositions of both of the combatants having been taken now, it appears to me that they were striking at each other. Those are intentional acts. The doctrine of transferred intent has been the law in Kansas probably since this place became a state because I think it came straight out of the common law, and it’s certainly been the law since I was in law school 30 years ago.

“I don’t see anything in [the plaintiff s] citations . . . that the State of Kansas has gone away from that. So I think that in each of these two cases, each — as to each defendant, motion for summary judgment must be granted on the basis that these are intentional acts and the doctrine transferred intent would apply, and they should have been filed within the one year of statute of limitations.”

Court of Appeals

The Court of Appeals reversed in an unpublished opinion, Baska v. Scherzer, Case No. 94,879, filed August 4, 2006. Although the court did not dispute the district court’s statement of the facts, it disagreed with the district court’s conclusion. The Court of Appeals noted that “[t]he key distinction between assault and battery on one hand, and negligence on the other, is that assault and battery are both intentional torts and negligence is unintentional. [Citation omitted.]” Slip op. at 5. The court ultimately held that the plaintiff s action in this case sounded in negligence, because the plaintiff was “unintentionally struck” by the defendants. Slip op. at 14.

*754The Court of Appeals reviewed a number of Kansas decisions as well as a number of cases from other jurisdictions, concluding that “the law on this issue is unclear.” Slip op. at 6-13 (citing Harris v. Richards, 254 Kan. 549, 867 P.2d 325 [1994]; Hackenberger v. Travelers Mutual Cas. Co., 144 Kan. 607, 62 P.2d 545 [1936]; Byrum v. Edwards, 66 Kan. 96, 71 Pac. 250 [1903]; Laurent v. Bernier, 1 Kan. *428 [1863]; and Vetter v. Morgan, 22 Kan. App. 2d 1, 913 P.2d 1200, rev. denied 257 Kan. 1096 [1995]). The court noted that “Laurent, Byrum, and Hackenberger tend to suggest that Baska’s only cause of action is assault and battery because Madrigal and Scherzer acted intentionally.” Slip op. at 12. Nevertheless, it noted that “[although these cases have not been overruled, they appear inconsistent with Vetter and the dicta in Harris.” Slip op. at 12. In light of tírese inconsistencies, the court explained its synthesis of tírese decisions as follows:

“The law on this issue appears to have shifted from the earlier position that an intentional act of violence, which has an unintentional effect on a third party, must be viewed as assault and batteiy for purposes of application of the statute of limitations. . . .

“If we can take guidance from these cases, it appears that a specific intent to perform a certain act, such as shooting someone, even if there is a mistaken identity, will generally lead to a finding that the 1-year limitation on assault and batteiy is applied.

“However, threatening actions which lead to unanticipated results may well be viewed as negligence as long as the plaintiff is not purposefully and intentionally struck by the defendant.

“We have a blending in this case, where Baska was probably unintentionally struck during a fight between Scherzer and Madrigal. AMiough the law may not be clear, we find the rationale in Vetter should be used. We, therefore, reverse the district court’s finding that the 1-year statute of limitations applied and remand for further proceedings.” Slip op. at 13-15.

Both defendants, Madrigal and Scherzer, filed petitions for review, claiming that the Court of Appeals misstated the applicable law. In particular, the defendants argue that tire Court of Appeals, without any discussion thereof, eviscerated the doctrine of transferred intent by holding a negligence tort action lies for an assault and battery when the injured party is not the intended victim.

*755The sole issue we must resolve is whether plaintiff s action is governed by the 1-year statute of limitations for assault and battery under K.S.A. 60-514(b) or by the 2-year statute of limitations for negligence under K.S.A. 60-513(a)(4). The facts are not in dispute, and the answer to this question is one of law.

Standard of Review

Baska appeals from the district court’s grant of summary judgment on the basis that she filed her claim after the 1-year statute of Mmitations for assault and battery had run.

“ ‘ “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, togedier with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” [Citations omitted.]’ ” State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).

Where the facts are undisputed, appellate review of an order granting summary judgment is de novo. Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004).

Discussion and Analysis

While the plaintiff alleges negligence in her petition, calling for the application of a 2-year statute of limitations, this court is not bound by the claims as set forth in the petition. Instead, “ ‘[t]he law of this state is realistic. Substance prevails over form.’ ” Murray v. Modoc State Bank, 181 Kan. 642, 647, 313 P.2d 304 (1957) (quoting Travis v. Bishoff, 143 Kan. 283, 285, 54 P.2d 955 [1936]). The determinative question is whether the substance of plaintiff s claims against the defendants sounds in assault and battery or negligence.

*756K.S.A. 60-514(b) provides that civil actions for assault and battery must be initiated within 1 year of the date of the incident giving rise to the action. Under K.S.A. 60-513(a)(4), negligence claims must be brought within 2 years. The fight between defendants that resulted in the plaintiff s injuries occurred on April 13, 2002. Baska filed her action on April 8, 2004. The outcome of this case depends upon whether Baska’s claims are in substance based upon intentional or negligent actions of the defendants. If intentional, Baska’s claims are barred by the 1-year statute of limitations; if negligent, her claims are not barred and are governed by dre 2-year statute of limitations.

Assault is defined in this state as “an intentional threat or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm. No bodily contact is necessary.” PIK Civ. 3d 127.01; see State v. Hazen, 160 Kan. 733, 740-41, 165 P.2d 234 (1946). Battery is defined as “the unprivileged touching or striking of one person by another, done with the intent of bringing about either a contact or an apprehension of contact, that is harmful or offensive.” PIK Civ. 3d 127.02; see Laurent, 1 Kan. at “431. The gravamen of a civil assault and battery is grounded upon the actor’s intention to inflict injury. Stricklin v. Parsons Stockyard Co., 192 Kan. 360, 366, 388 P.2d 824 (1964).

In order to state a claim for negligence, a plaintiff must show “ ‘(1) [t]he existence of a duty on the part of defendant to protect plaintiff from the injury; (2) failure of defendant to perform that duty; and (3) injury to plaintiff from such failure of defendant.’ ” Murray, 181 Kan. at 646 (quoting McMillen v. Summunduwot Lodge, 143 Kan. 502, 509, 54 P.2d 985 [1936]). Put another way, '[n]egligence is an unintentional breach of a legal duty causing damage reasonably foreseeable without which breach the damage would not have occurred.’ ” ’ ” Murray, 181 Kan. at 646 (quoting McMillen, 143 Kan. at 509, and 45 C.J. 631).

As these definitions make clear, “the fundamental distinction between assault and battery, on the one hand, and negligence, on the other, is that the former is intentional and the latter is unintentional. [Citations omitted.]” Murray, 181 Kan. at 646; see *757 Baska, slip op. at 5. The district court held that Baska’s cause of action was truly one for assault and battery because the defendants intended to strike one another when they were fighting. The Court of Appeals, however, found that where Baska was “unintentionally struck” by the defendants, her cause of action sounded in negligence. Baska, slip op. at 15. The defendants intended to harm each other, but as Baska claims in her petition, “the defendants, in their excitement and totally unintentionally, struck the plaintiff with powerful blows intended for the other participant in the fight.” (Emphasis added.)

The above situation is not unfamiliar in the law of intentional torts. The Restatement (Second) of Torts and this court’s decisions discuss this situation as being contemplated by the long-standing doctrine of transferred intent. The Restatement explains that the term “intent,” as it is used in the law of torts, “denotefs] 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.” Restatement (Second) of Torts § 8A (1964). The comments to this section state that

“[a]ll consequences which the actor desires to bring about are intended, as the word is used in this Restatement. Intent is not, however, 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 tire law as if he had in fact desired to produce the result. As the probability that the consequences will follow decreases, and becomes less tiran substantial certainty, the actor’s conduct loses the character of intent, and becomes mere recklessness .... As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence . . . .” Restatement (Second) of Torts § 8A, comment b.

This court has similarly explained that an actor will be held liable for an intentional tort if the plaintiff s injuries were the “natural and probable consequence of [the defendant’s] intended actions.” Harris, 254 Kan. at 554. However, an action need not be directed at the plaintiff in order to give rise to liability for intentional torts (such as assault or battery). Rather, the doctrine of transferred intent states that “[t]he tort of battery or of assault and battery may be committed, although the person struck or hit by the defendant *758is not the one whom he intended to strike or hit.” 6 Am. Jur. 2d, Assault and Battery § 99, p. 83.

The comments to the Restatement (Second) of Torts, in describing the intent necessary for battery, explain:

“The intention which is necessary to malee the actor hable [for civil battery] is not necessarily an intention to cause a harmful or offensive contact or an apprehension of such contact to the plaintiff himself or otherwise to cause him bodily harm. It is enough that the actor intends to produce such an effect «pon some other person and that his act so intended is the legal cause of a harmful contact to the other. It is not necessary that tire actor know or have reason even to suspect that the other is in the vicinity of the third person whom the actor intends to affect and, therefore, that he should recognize that his act, though directed against the third person, involves a risk of causing bodily harm to the other so that the act would be negligent toward him.” (Emphasis added.) Restatement (Second) of Torts § 16, comment b (1964).

Similarly, the comments to the section describing the intent required to state an action for assault state that “[i]n order to become liable [for civil assault], it is necessary that the actor intend to inflict a harmful or offensive bodily contact upon the other or a third person or put him [her] in apprehension of such contact.” (Emphasis added.) Restatement (Second) of Torts § 21, comment f (1964).

This court’s recognition of the transferred intent principle dates to Laurent, 1 Kan. *428, which was decided during the Civil War. In that case, the plaintiff sued the defendant in negligence, alleging that he had been injured when the defendant negligently shot him. This court determined that the plaintiff s claim was barred by the 1-year statue of limitations for battery, because the action described (shooting someone) was a batteiy. 1 Kan. at *432. The court cited a New York decision in Bullock v. Babcock, 3 Wend. 391 (1829), and referred to “several English authorities” that supported its conclusion that “the wounding charged in the case under consideration may properly be described as a battery, and the case, therefore, comes within the provisions . . . limiting the time for commencing action to one year.” 1 Kan. at *431-32.

This conclusion was reiterated in Byrum, 66 Kan. 96. There, both the plaintiff and an undersheriff were searching for the perpetrator of a robbery in Oswego. When the two searchers met, *759each mistakenly thought the other was the robber. Both fired shots, and tire undersheriff s shot hit the plaintiff. The plaintiff then sued the sheriff “to recover damages for the injuries sustained because of tire negligent shooting of him by his under-sheriff.” 66 Kan. at 97. In a veiy short opinion, this court cited Laurent and held that the action was barred by the 1-year statute of limitations. 66 Kan. at 97. This court later summarized its opinion in Byrum as follows: “It is well to note tire shooting in the Byrum case was in fact intentional. The undersheriff intended to shoot and he did shoot. True, the injured party was not the robber as the undersheriff drought, but the act of shooting was nevertheless intentional.” Hackenberger, 144 Kan. at 609.

These two early opinions were discussed in detail by this court in Hackenberger, wherein the plaintiff was a passenger in the back of a truck and was sitting with his legs over the side. A cattle truck coming the other direction was passing another car as it was speeding around a curve; the cattle truck crowded the plaintiff s truck off of the highway and came into contact with the plaintiff s legs, causing him injury. The plaintiff filed suit in negligence. The defendant, however, claimed that the petition actually stated an action for batteiy and thus was barred by the 1-year statute of limitations. Citing Laurent and Byrum, this court clarified that had the driver of tire cattle truck intended to hit the truck on which the plaintiff was riding, the action should have been dismissed. 144 Kan. at 609-10. However, because “[t]he petition is not susceptible of an interpretation that [the driver of the cattle truck] intentionally inflicted the injury,” the court held that the 2-year limitations period for negligence should be applied. 144 Kan. at 611.

Although tire court did not explicitly state that it was applying the doctrine of transferred intent in these early decisions, the outcome of the cases is consistent with the present understanding of transferred intent in tort cases. In Byrum, the officer intended to shoot the robber and mistakenly shot and injured the plaintiff. The court found that the officer s action was intentional and that the 1-year statute of limitations for assault and battery applied. In Hackenberger, the driver of the cattle truck never intended to drive the truck carrying the plaintiff off of the road or to hit anyone. When *760the truck hit the plaintiff s legs, the plaintiff s action sounded in negligence, and the 2-year statute of limitations was proper.

The Court of Appeals correctly concluded that Laurent, Byrum, and Hackenberger suggested that B as lea’s only cause of action was for assault and battery based upon defendants’ intentional acts. Slip op. at 12. However, the Court of Appeals concluded that it was not bound to follow these earlier decisions in light of “dicta” in Harris and the decision of the Kansas Court of Appeals in Vetter. These two decisions are discussed below, but it must be noted that the Court of Appeals did not discuss the doctrine of transfer in its opinion, a doctrine implicitly applied in Kansas civil law and explicitly applied in criminal law. See Laurent, 1 Kan. at *431; Byrum, 66 Kan. at 96; State v. Stringfield, 4 Kan. App. 2d 559, 561, 608 P.2d 1041, rev. denied 228 Kan. 807 (1980).

In the Harris case, the plaintiff was injured when Douglas Hawley fired a shotgun through the window of the plaintiff s pickup truck, killing Hawley’s ex-wife and injuring Harris. Hawley then killed himself. Harris brought a negligence action against Hawley’s estate to recover damages, asserting that Hawley had only intended to shoot his ex-wife and that his injuries arose out of Hawley’s negligence. The key issue in Harris was whether the act giving rise to liability was intentional, and thus excluded from coverage under the actor’s homeowner’s insurance policy. The trial court ruled that the plaintiff s claim against the estate was limited to any applicable insurance coverage. The court then granted the estate’s motion for summary judgment on the basis that tire shooting was not a covered occurrence under Hawley’s parent’s homeowner’s policy and that Plawley’s acts were excluded under the policy because they were intentional. This court affirmed. 254 Kan. at 556. Our decision in Harris is in this way consistent with our earlier decisions in Laurent and Byrum, based on the intentional act of Hawley injuring an unintended victim.

However, the Court of Appeals concluded, based upon the following dicta in Harris, that the precedent in Laurent, Byrum, and Hackenberger no longer controlled:

“The Richards [Hawleys’ parents and die administrators of his estate] argued [before the trial court] that the fundamental nature of the underlying tort was that *761of a battexy rather than negligence. Consequently, they asserted that K.S.A. 60-514(2), the one-year statute of limitations for battery, barred the claim, and they mooed for dismissal. The motion was denied. The Richards cross-appeal the denial of their motion to dismiss.

“Because we have affirmed the trial court’s analysis of the insurance coverage issue, we find it unnecessary to address the cross-appeal other than to indicate we find no error in the trial court’s ruling on the statute of hmitations issue.” (Emphasis added.) 254 Kan. at 550-51.

The Court of Appeals found that this language in Harris was “inconsistent” with this court’s previous decisions in Laurent, Byrum, and Hackenberger. It based its decision upon the erroneous conclusion that the trial court denied a summary judgment motion requesting a 1-year limitation period, which “the Kansas Supreme Court, in dicta, found not to be in error. [Citation omitted.]” Baska, slip op. at 13-14. However, the dicta in Harris involved an appeal from a motion to dismiss, not a motion for summary judgment. A motion to dismiss must be based solely on the petition. K.S.A. 60-212; Gardner v. McDowell, 202 Kan. 705, 706, 451 P.2d 501 (1969). Thus, based upon the petition only in Harris, this court approved the actions of the trial court in its conclusion not to dismiss because the petition in Harris was not invalid on its face with regard to the statute of limitations.

Only after discovery in Harris did the trial court grant the defendants’ motion for summary judgment, finding that there was no question that Hawley had intended to strike his wife and instead struck the plaintiff. At this point, the decision of this court in affirming the trial court’s grant of summary judgment was entirely consistent with our previous decisions in Laurent, Byrum, and Hackenberger. The dicta in Harris was misunderstood by the Court of Appeals and provides no support for its conclusion that it was not bound to follow earlier decisions of this court. Correctly understood and applied, the Harris dicta actually supports the district court’s grant of summary judgment in this case based upon the conclusion that the defendants’ actions were intentional.

The Court of Appeals cited this court’s decision in Murray, 181 Kan. 642, as “characterizing] a blatant assault and battery as negligence. [Citation omitted.]” Baska, slip op. at 14. The court noted *762that Murray was “based on a puzzling pleading ruling.” Slip op. at 14. Again, tire Court of Appeals’ characterization of Murray is incorrect. Although die facts giving rise to that case involved injuries arising from a physical altercation with a bank cashier, the case itself was based on the bank’s negligent hiring of the cashier in question. 181 Kan. at 644-45. This court explicitly stated that the action was not brought under respondeat superior, which would make the principal responsible for the acts of the servant. 181 Kan. at 649. The Murray decision based upon a negligent hiring has no application to the case we now consider.

The Court of Appeals’ decision below relied most heavily on its previous decision in Vetter, 22 Kan. App. 2d 1. In that case, the plaintiff s van ran off of the road after the defendant, a passenger in another vehicle, made verbal threats to the plaintiff and the car in which the defendant was riding veered at the plaintiff s van. The defendant claimed that he “did not intend to scare, upset, or harm Vetter,” but instead was attempting to amuse the other passengers in tire car with him. 22 Kan. App. 2d at 2. The plaintiff brought a number of claims against the defendant, including a claim for negligence. The trial court dismissed the negligence claim as a matter of law, finding that the defendant’s actions were intentional.

The Court of Appeals held that the trial court erred in dismissing tire plaintiffs negligence claim. It explained:

“A negligence claim may be based on intentional rude pranks and horseplay that cause unintended injuiy. [Citation omitted.] Actions that are not intended to, but do cause fear of harm may be negligence. [Citation omitted.] Moreover, a negligence claim may be based on actions tire defendant intends to affect, or should realize are likely to affect, the conduct of another in a manner that creates an unreasonable risk of harm to another. . . .

“. . . Although Morgan [the defendant] said his only intent was to amuse his friends, and he denied that he intended to frighten or harm Vetter, she testified that she was very, veiy frightened.’ The record supports a reasonable inference that Morgan should have realized Vetter would be frightened and that it was foreseeable that her fright would create a risk of harm.” 22 Kan. App. 2d at 5-6.

The Vetter court then concluded that the facts, when viewed in the light most favorable to the plaintiff, might be read to show that the defendant’s actions pi'oximately caused Vetter’s injuries. Thus, the court held that plaintiff s negligence claim should be brought *763before a jury-, and so it was error for the trial court to dismiss the action. 22 Kan. App. 2d at 6-7.

The Court of Appeals found that Vetter stood for the proposition that a negligence action may be brought to recover from “the unintended results of the intentional acts.” Baska, slip op. at 14. The court then used this rationale to hold that the facts in this case supported Baska’s negligence claim, since defendants Madrigal and Scherzer did not intend to strike her.

Contrary to the Court of Appeals’ conclusion, Vetter does not provide support for Baska’s negligence claim in the case we now consider. There was no question in Vetter that the defendant did not intend to frighten the plaintiff; instead, the Vetter court made clear that his actions were negligent — although they were not intended to cause injury, they created a foreseeable risk of harm. See Vetter, 22 Kan. App. 2d at 5-6. The facts in Vetter contrast sharply with the facts in this case. Vetter engaged in a prank but did not intend to frighten the plaintiff. Defendants Madrigal and Scherzer engaged in a fight, intending to harm one another. As the comment to the Restatement explains: “All consequences which the actor desires to bring about are intended.” Restatement (Second) of Torts § 8A, comment b. Vetter did not intend to frighten the plaintiff, but it was foreseeable that his intentional actions would frighten the plaintiff. Defendants Madrigal and Scherzer intended to punch someone (the other defendant) and did punch someone (the plaintiff). Although their actions were not specifically directed at the plaintiff, their punches were intentional acts and did injure Baska.

The exact scenario presented in this case was described in the Corpus Juris Secondum as a “text book” example of transferred intent:

“ ‘It is not necessary, to constitute an assault and battery, that there be a specific intention of striking or otherwise injuring plaintiff. If defendant unlawfully aims at one person and hits another, [under the doctrine of transferred intent] he is guilty of assault and battery on the person hit, the injury being the direct, natural, and probable consequence of the wrongful act. So, if one of two persons fighting unintentionally strikes a third, the person so striking is liable in an action by the third person for an assault and battery.’ ” (Emphasis added.) Morrow v. Flores, *764225 S.W.2d 621, 624 (Tex. Civ. App. 1949, reh. denied January 6, 1950) (quoting 6 C.J.S., Assault and Battery § 10[2], p. 804).

The decision of the Court of Appeals in this case holds that for a tort to be considered intentional, it must cause injury to the person at whom it was directed. In other words, a defendant must have a specific intent to commit the battery on the plaintiff to be liable to the plaintiff for battery; otherwise the defendant may be liable to the plaintiff in negligence. Its decision is contrary to tire law of Kansas expressed in Laurent, Byrum, and Hackenberger, and to the provisions regarding transferred intent included in the Restatement (Second) of Torts and other authorities.

The defendants’ acts of throwing punches in this case were intentional actions. Each defendant intended to strike at tire other in order to cause harm. The defendants intended to punch, and they did punch. The fact that the punches in question hit the plaintiff rather than the defendants is immaterial to the analysis. Because the defendants’ actions were intentional, the “substance” of Baska’s action is one for assault and battery. Failure to initiate her action within 1 year of the fight bars her action by reason of die 1-year statute of limitations in K.S.A. 60-514(b).

The Court of Appeals stated that “[ojther courts have suggested a similar approach.” Baska, slip op. at 11. However, the court cited only one opinion from the Maryland Court of Appeals that purportedly supported its position; in fact, the Baska decisión cited seven opinions of other jurisdictions which held under such circumstances that the statute of limitations for assault and battery applied. See slip op. at 11-12. Moreover, the Maiyland case cited by the Court of Appeals, Ghassemieh v. Schafer, 52 Md. App. 31, 447 A.2d 84, cert. denied 294 Md. 543 (1982), fails to support its decision in this case.

In Ghassemieh, a teacher brought claims for both battery and negligence against a student for injuries the teacher received when the student pulled the chair out from under her. The Maryland court held that the plaintiff could bring her negligence claim even when the act of pulling the chair out from under her was intentional. The court explained: “We see no reason why an intentional *765act that produces unintended consequences cannot be a foundation for a negligence action.” 52 Md. App. at 42. All agreed the defendant did not intend to injure the plaintiff with the prank. The court noted that “an intentional act — the pulling away of the chair — had two possible consequences: the intended one of embarrassment and the unintended one of injury.” (Emphasis added.) 52 Md. App. at 42-43. However, the court found that because the plaintiff had failed to request a negligence instruction, she could not appeal the verdict for the defendant on the negligence claim. 52 Md. App. at 43.

The language cited in Ghassemieh, though inconsequential to its holding in light of the plaintiff s failure to request an instruction on the issue, is quite similar to the Kansas Court of Appeals’ decision in Vetter. The defendants in both cases did not intend to injure the plaintiff with the prank; however, foreseeable injury resulted. Neither Vetter nor Ghassemieh presents a situation that involves transferred intent and neither case provides a reason to reverse the district court’s grant of summary judgment for the defendants in this case.

A similar pleading question was considered by the Ohio Supreme Court in Love v. Port Clinton, 37 Ohio St. 3d 98, 524 N.E.2d 166 (1988). There, Love was arrested and handcuffed by Hickman, a Port Clinton police officer. Love later sued the city, claiming that Hickman used improper police procedures and injured him. The trial court granted Hickman’s motion to dismiss based on the fact that Ohio’s 1-year statute of limitations for assault and battery had run. The Ohio Court of Appeals reversed, finding that “further development of the facts could show that Hickman acted negligently in handcuffing Love. If such could be shown, . . . plaintiff should have received the benefit of the two-year statute of limitations for personal injury.” 37 Ohio St. 3d at 98.

The Ohio Supreme Court reversed, holding that “ ‘courts must look to the actual nature or subject matter of the case, rather than to the form in which the action is pleaded. The grounds for bringing the action are the determinative factors, the form is immaterial.’ ” 37 Ohio St. 3d at 99 (quoting Hambleton v. R.G. Barry Corp., 12 Ohio St. 3d 179, 183, 465 N.E.2d 1298 [1984]). The *766court found that “the specific acts of Officer Hickman — ’subduing’ and 'handcuffing’ — are acts of intentional contact which, unless privileged, constitute a battery.” 37 Ohio St. 3d at 99. “Love’s complaint against Hickman alleges, in substance, an action in battery and is barred by the one-year statute of limitations.” 37 Ohio St. 3d at 100. The court explained:

“Where the essential character of an alleged tort is an intentional, offensive touching, the statute of limitations for assault and battery governs even if the touching is pled as an act of negligence. To hold otherwise would defeat the assault and battery statute of limitations. Nearly any assault and battery can be pled as a claim in negligence. . . . ’[T]hrough clever pleading or by utilizing another theory of law, the assault and battery cannot be [transformed] into another type of action subject to a longer statute of limitations as it would circumvent the statute of limitations for assault and battery to allow that to be done.’” 37 Ohio St. 3d at 99-100 (quoting Grimm v. White, 70 Ohio App. 2d 201, 203, 435 N.E.2d 1140 [1980]).

Conclusion

The undisputed facts in this case show that the defendants intended to strike and cause harm to one another. When Baska intervened and stepped between the two boys, she was “unintentionally” struck by punches intended for the defendants. Had the defendants struck each other and brought suit, they would be liable to one another for assault and battery. Under the doctrine of transferred intent, which has long been recognized in this state, the fact that the defendants struck the plaintiff does not change the fact that their actions (punching) were intentional. Moreover, the fact that Baska’s petition describes her claims against the defendants as actions for negligence does not alter the nature of those claims, which the law recognizes as claims for intentional torts of assault and battery. The trial court correctly granted defendant’s motion for summary judgment.

The Court of Appeals’ decision reversing the district court is reversed, and the decision of the district court is affirmed.

Johnson, J., not participating.

Lockett, J., Retired, assigned.

Shea, J.

This appeal raises questions relating to the civil liability of one who, without having any intention to cause confinement, knowingly gives false information to (Ke police which results in the arrest or detention of another. The plaintiff sought damages for false imprisonment in the first count and for a violation of his civil rights in the second count of the complaint. After a trial to the court judgment was rendered for the defendants. The plaintiff has appealed, claiming error in the disposition of both counts.

There is no dispute about the unusual circumstances giving rise to this suit and they may be summarized as follows: On January 26, 1978, the named defendant (hereinafter the defendant), who was at that time emotionally disturbed, shot himself in the shoulder while he was at his place of employment, a package store in West Haven. He contacted the local police and when they arrived he said that he had been robbed and shot by a black male wearing a green jacket and a blue hat, that his assailant had a medium skin tone, a round face, a medium build and was about five feet ten inches in *267height. He lied to the police because he could not tolerate admitting that he had shot himself.

Wholly by chance the police picked up the plaintiff, a black man who was wearing a green jacket, and brought him to the defendant. When the defendant did not identify him, the plaintiff was released. He was detained by the police for approximately ten minutes and suffered no other harm as a result of the incident. In a subsequent interview with the police at the hospital the defendant admitted that he had shot himself because of an emotional disturbance resulting from a marital dispute and that his report of the robbery was a hoax. He was arrested and prosecuted for giving false information to the police.

The trial court concluded that, despite the unpleasant and embarrassing experience which the plaintiff suffered as a result of the defendant’s wrongful conduct, the law afforded no relief. We agree with this conclusion.

I

False imprisonment, or false arrest, is the unlawful restraint by one person of the physical liberty of another. Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 499, 101 A.2d 500 (1953). Any period of such restraint, however brief in duration, is sufficient to constitute a basis for liability. 32 Am. Jur. 2d, False Imprisonment §14. The fact that there was no formal arrest of the plaintiff in this case and that he remained in the custody of the police for only ten minutes would not necessarily defeat his cause of action for false imprisonment. 1 Restatement (Second), Torts §41.

*268False imprisonment comes within the category of intentional torts for which the remedy at common law was an action of trespass. McGann v. Allen, 105 Conn. 177, 188, 134 A. 810 (1926). “A person is not liable for false imprisonment unless his act is done for the purpose of imposing a confinement, or with knowledge that such confinement will, to a substantial certainty, result from it.” 32 Am. Jur. 2d, False Imprisonment § 9; 1 Restatement (Second), Torts § 35. The facts found by the trial court, which are not challenged, negate any intention on the part of the defendant to bring about the detention of the plaintiff, or, indeed, of anybody. See 1 Restatement (Second), Torts §43. His contrivance of the bogus robbery was found to have been motivated solely by his embarrassment over shooting himself. The trial court was not compelled to infer from the description he gave to the police that he intended or expected any arrest to result. The cases relied upon by the plaintiff, in which liability was imposed for confinements resulting from false reports given to the police, are distinguishable in that there an intention to cause the arrests was established. Jensen v. Barnett, 178 Neb. 429, 134 N.W.2d 53 (1965); Wehrman v. Liberty Petroleum Co., 382 S.W.2d 56 (Mo. App. 1964).

The plaintiff claims that the defendant should have been found liable for his reckless or, at least negligent, conduct in furnishing false information to the police in violation of § 53a-180 (a) (3),1 which *269imposes a criminal penalty for such an act. Recklessness, in the sense of a conscious disregard of a substantial and unjustifiable risk of harm; see General Statutes § 53a-3 (13); is sometimes equated with intentional conduct in terms of legal consequences. Collens v. New Canaan Water Co., 155 Conn. 477, 490, 234 A.2d 825 (1967); Soucy v. Wysocki, 139 Conn. 622, 628, 96 A.2d 225 (1953); Bordonaro v. Senk, 109 Conn. 428, 432-33, 147 A. 136 (1929). Ip. the context of false imprisonment the label of “reckless” fairly characterizes a state of mind amounting to knowledge that confinement is substantially certain to result from the wrongful conduct but not attaining the proportions of an actual intention to bring it about. Nothing less than this rather extreme brand of recklessness will substitute for the standard requirement of intention in false imprisonment cases. “It is not enough that the actor realizes or should realize that his actions involve a risk of causing a confinement, so long as the likelihood that it will do so falls short of a substantial certainty.” 1 Restatement (Second), Torts § 35, comment h. The facts found by the trial court do not indicate that the defendant’s false report created a virtual certainty that someone would be arrested or that the defendant must have expected such a result. Where there is no intention to cause the confinement of a person or the equivalent variety of recklessness, there is no liability for an act result*270ing in a merely transitory detention which might otherwise sustain an action for false imprisonment. Id., §35 (2).

Negligent conduct which results in a confinement of sufficient consequence to constitute the actual damage required to maintain a negligence action2 is a sufficient basis for imposing liability. 1 Harper & James, Law of Torts § 3.7; Prosser, Law of Torts (4th Ed.) § 30. In Collins v. City National Bank & Trust Co., 131 Conn. 167, 38 A.2d 582 (1944), a plaintiff whose check was negligently dishonored by his bank was allowed to recover compensatory *271damages when he had been arrested on a charge of obtaining money by false pretenses, jailed for two hours, compelled to post a bond for his release, and injured in reputation. Incarceration of even brief duration has been found sufficient to fulfill the requirement of actual damage. Weaver v. Bank of America National Trust & Savings Assn., 30 Cal. Rptr. 4, 380 P.2d 644 (1963); Mouse v. Central Savings & Trust Co., 120 Ohio St. 599, 167 N.E. 868 (1929). The complaint in this suit, however, cannot be read so broadly as to include such a cause of action, since it contains no allegation of negligence or damages suffered as a result of the plaintiff’s misdeed in “knowingly and wilfully” making a false *272statement. “A plaintiff may not allege one canse of action and recover npon another.” Malone v. Stein-berg, 138 Conn. 718, 721, 89 A.2d 213 (1952).

II

In the second count of his complaint the plaintiff relies upon 42 U.S.C. § 1983 which provides in part that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, or any State . . . subjects, or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” For liability to be imposed under the statute it is essential to prove that the actions complained of were taken “under color” of law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Henig v. Odorioso, 385 F.2d 491, 494 (3d Cir. 1967), cert. denied, 390 U.S. 1016, 88 S. Ct. 1269, 20 L. Ed. 166 (1968). “Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.” United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 85 L. Ed. 1368 (1941). “To act ‘under color’ of law does not require that the (defendant) be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.” United States v. Price, 383 U.S. 787, 794, 86 S. Ct. 1152, 16 L. Ed. 2d 267 (1966).

In this case the lack of any intention on the part of the defendant to bring about any arrest or detention would preclude a finding that he had acted in concert with the police in causing the plaintiff to be *273detained. Since he was not a willing participant in the deprivation of the constitutional rights claimed by the plaintiff, his wrongful conduct was not “under color” of state law and he is not liable under § 1983.

There is no error.

In this opinion Speziale, C. J., Armentano and Covello, Js., concurred.

Parskey, J.

(concurring in part and dissenting in part). Except for its discussion of negligent conduct I have no quarrel with the court’s opinion. In fact, because the complaint alleges intentional rather than negligent conduct, this would furnish a sufficient basis for rejecting a recovery based on a cause of action sounding in negligence. But when the majority categorically states that in order to recover in a negligence action the plaintiff must allege and prove actual damage, it is at that point that we part company because this statement is contrary to Connecticut law.

In Hageman v. Freeburg, 115 Conn. 469, 162 A. 21 (1932), a case involving a negligence action for personal injuries, speaking through Chief Justice Maltbie, we stated (pp. 471-72) “every invasion of a legal right imports damage.” We followed this holding in Urban v. Hartford Gas Co., 139 Conn. 301, 93 A.2d 292 (1952), which also involved a negligence action for personal injuries, with the further observation (pp. 306-307) that “[t]he wrong to Mrs. Urban became actionable when her legal right was invaded by the intentional or negligent violation of duty on the defendant’s part.” In neither case was a showing of aetual damage made an essential requirement of the negligence *274action.1 That this was not an oversight can be gleaned by the comment by Toelle in “The Urban Case,” 27 Conn. B.J. 74, 79 (1953) and the oblique footnote in 2 Harper & James, Torts § 25.1, n.4. Hageman and Urban state the common law of this state. Until and unless they are overruled, if stare decisis represents anything more than flash paper, they must be followed, the ancient common law and the pronouncements of eminent academicians to the contrary notwithstanding.

An invasion of a person’s legal rights, whether occasioned by trespass or negligence, by intentional or unintentional conduct, should have the same legal consequences. If invasions of one’s rights by assault and battery without actual damages are actionable; Petrucelli v. Catapano, 107 Conn. 122, 123, 139 A. 634 (1927); and if invasions by negligent assault and battery are also actionable; Sansone v. Bechtel, 180 Conn. 96, 99, 429 A.2d 820 (1980); Russo v. Porga, 141 Conn. 706, 708-709, 109 A.2d 585 (1954); Lentine v. McAvoy, 105 Conn. 528, 530-31, 136 A. 76 (1927); then what manner of legal logic excludes invasions by other negligent conduct?

The fact is the different treatment of intentional and negligent acts in the old common law is due neither to logic nor experience but rather to procedural history. Actions of trespass were treated differently from actions of trespass on the case. As Holmes cogently observed in The Common Law (Howe Ed.) (p. 64) “[i]n place of a theory of tort, we have a theory of trespass. And even within *275that narrower limit, precedents of the time of the assize and jurata have been applied without a thought of their connection with a long forgotten procedure.” While legal history should not be sloughed off, neither should it command our slavish obedience. To replace our own soundly reasoned law on the basis of ancient pronouncements founded on arcane common law concepts of forms of action is to replace reason with rote.

With the exceptions noted I respectfully record my concurrence.

Fuchsberg, J.

This appeal brings up for review the dismissal, at the end of the plaintiff’s case, of two causes of action, both of which arise out of the same somewhat unusual train of events. One is for false imprisonment and the other for negligence. The judgment of dismissal was affirmed by the Appellate Division by a vote of three to two. The issue before us, as to each count, is whether a prima facie case was made out. We believe it was.

Bearing in mind that, at the procedural point at which the case was decided, the plaintiff was entitled to the benefit of the most favorable inferences that were to be drawn from the record (Andersen v. Bee Line, 1 NY2d 169, 172; 10 Carmody-Wait 2d, NY Prac, § 70:359, p 627 et seq.), we turn at once to the proof. In doing so, for the present we rely in the main on testimony plaintiff adduced from the defendant’s own employees, especially since plaintiff’s own recollection of the events was less than satisfactory.

Sometime after 9:00 p.m. on the evening of May 28, 1972, a date which occurred during the Memorial Day weekend, two police officers employed by the defendant City of Kingston responded in a radio patrol car to the rear of a commercial building in that city where they had been informed some *555individuals were acting in a boisterous manner. Upon their arrival, they found three men, one Raymond Dugan, his brother Dixie Dugan and the plaintiff, Donald C. Parvi. According to the police, it was the Dugan brothers who alone were then engaged in a noisy quarrel. When the two uniformed officers informed the three they would have to move on or be locked up, Raymond Dugan ran away; Dixie Dugan chased after him unsuccessfully and then returned to the scene in a minute or two; Parvi, who the police testimony shows had been trying to calm the Dugans, remained where he was.

In the course of their examinations before trial, read into evidence by Parvi’s counsel, the officers described all three as exhibiting, in an unspecified manner, evidence that they "had been drinking” and showed "the effects of alcohol”. They went on to relate how, when Parvi and Dixie Dugan said they had no place to go, the officers ordered them into the police car and, pursuing a then prevailing police "standard operating procedure”, transported the two men outside the city limits to an abandoned golf course located in an unlit and isolated area known as Coleman Hill. Thereupon the officers drove off, leaving Parvi and Dugan to "dry out”. This was the first time Parvi had ever been there. En route they had asked to be left off at another place, but the police refused to do so.

No more than 350 feet from the spot where they were dropped off, one of the boundaries of the property adjoins the New York State Thruway. There were no intervening fences or barriers other than the low Thruway guardrail intended to keep vehicular traffic on the road. Before they left, it is undisputed that the police made no effort to learn whether Parvi was oriented to his whereabouts, to instruct him as to the route back to Kingston, where Parvi had then lived for 12 years, or to ascertain where he would go from there. From where the men were dropped, the "humming and buzzing” of fast-traveling, holiday-bound automobile traffic was clearly audible from the Thruway; in their befuddled state, which later left Parvi with very little memory of the events, the men lost little time in responding to its siren song. For, in an apparent effort to get back, by 10:00 p.m. Parvi and Dugan had wandered onto the Thruway, where they were struck by an automobile operated by one David R. Darling. Parvi was severely injured; Dugan was killed. (Parvi elected not to appeal from the dismissal of his cause of action against *556Darling, who originally had been joined as an additional defendant.)

THE CAUSE OF ACTION FOR FALSE IMPRISONMENT

With these facts before us, we initially direct our attention to Parvi’s cause of action for false imprisonment. Only recently, we had occasion to set out the four elements of that tort in Broughton v. State of New York (37 NY2d 451, 456), where we said that "the plaintiff must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged”.

Elements (1) and (3) present no problem here. When the plaintiff stated he had no place to go, he was faced with but one alternative—arrest. This was hardly the stuff of which consent is formed, especially in light of the fact that Parvi was, in a degree to be measured by the jury, then under the influence of alcohol. It is also of no small moment in this regard that the men’s request to be released at a place they designated was refused. Moreover, one of the policemen testified that his fellow officer alone selected the location to which Parvi was taken; indeed, this was a place to which the police had had prior occasion to bring others who were being "run out of town” because they evidenced signs of intoxication. Further, putting aside for the time being the question of whether such an arrest would have been privileged, it can hardly be contended that, in view of the direct and willful nature of their actions, there was no proof that the police officers intended to confine Parvi.

Element (2), consciousness of confinement, is a more subtle and more interesting subissue in this case. On that subject, we note that, while respected authorities have divided on whether awareness of confinement by one who has been falsely imprisoned should be a sine qua non for making out a case (Barker v. Washburn, 200 NY 280; Robalina v. Armstrong, 15 Barb 247; Herring v. Boyle, 1 Cr M & R 377, 149 Eng Rep 1126; Meering v. Grahame White Aviation Co., 122 L & T 44; see Halpern, Intentional Torts and the Restatement, 7 Buffalo L Rev 7; Prosser, False Imprisonment: Consciousness of Confinement, 55 Col L Rev 847), Broughton (supra, p 456) has laid that question to rest in this State. Its holding gives recognition to the fact that false imprisonment, as a dignitary tort, is not *557suffered unless its victim knows of the dignitary invasion. Interestingly, the Restatement of Torts 2d (§ 42) too has taken the position that there is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it.

However, though correctly proceeding on that premise, the Appellate Division, in affirming the dismissal of the cause of action for false imprisonment, erroneously relied on the fact that Parvi, after having provided additional testimony in his own behalf on direct examination, had agreed on cross that he no longer had any recollection of his confinement. In so doing, that court failed to distinguish between a later recollection of consciousness and the existence of that consciousness at the time when the imprisonment itself took place. The latter, of course, is capable of being proved though one who suffers the consciousness can no longer personally describe it, whether by reason of lapse of memory, incompetency, death or other cause. Specifically, in this case, while it may well be that the alcohol Parvi had imbibed or the injuries he sustained, or both, had had the effect of wiping out his recollection of being in the police car against his will, that is a far cry from saying that he was not conscious of his confinement at the time when it was actually taking place. And, even if plaintiff’s sentient state at the time of his imprisonment was something less than total sobriety, that does not mean that he had no conscious sense of what was then happening to him. To the contrary, there is much in the record to support a finding that the plaintiff indeed was aware of his arrest at the time it took place. By way of illustration, the officers described Parvi’s responsiveness to their command that he get into the car, his colloquy while being driven to Coleman Hill and his request to be let off elsewhere. At the very least, then, it was for the jury, in the first instance, to weigh credibility, evaluate inconsistencies and determine whether the burden of proof had been met.

Passing on now to the fourth and final element, that of privilege or justification, preliminarily, and dispositively for the purpose of this appeal, it is to be noted that, since the alleged imprisonment here was without a warrant and therefore an extrajudicial act, the burden not only of proving, but of pleading legal justification was on the city, whose failure to have done so precluded it from introducing such evidence under its general denial (Broughton v. State of New York, 37 *558NY2d 451, 456, supra; Woodson v. New York City Housing Auth., 10 NY2d 30).

Since the city nevertheless contends that as a matter of law a privilege to arrest was established in this case and since, as already indicated, in our view of the case there will have to be a new trial, raising the possibility of an amendment of the pleadings, we deem it appropriate to comment. The city’s argument runs that a police officer is not required to arrest for drunkeness but may exercise discretion to take an intoxicated person home or to some other safe place as the circumstances dictate and that that was what was done here.

In Sindle v. New York City Tr. Auth. (33 NY2d 293), we reflected on the scope of the privileges which constitute justification. We there said (p 297), "[G]enerally, restraint or detention, reasonable under the circumstances and in time and manner, imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property in one’s lawful possession or custody is not unlawful”. Consequently, it may be that taking a person who is in a state of intoxication to a position of greater safety would constitute justification. But it is clearly not privileged to arrest such a person for the sole purpose of running him out of town, or, as further proof at the trial here established, once having arrested such a person, to follow a practice of running him out of town to avoid guardhouse chores for the police whenever there were no other prisoners in the local jail. Such acts cannot be sanctioned with the mantle of the privilege of justification. A person who has had too much to drink is not a chattel to be transported from one locus to another at the whim or convenience of police officers.

The Restatement of Torts 2d (§ 10, Comment d) states it well: "Where the privilege is based upon the value attached to the interest to be protected or advanced by its exercise, the privilege protects the actor from liability only if the acts are done for the purpose of protecting or advancing the interest in question. Such privileges are often called conditional, because the act is privileged only on condition that it is done for the purpose of protecting or advancing the particular interest. They are sometimes called 'defeasible’, to indicate the fact that the privilege is destroyed if the act is done for any purpose other than the protection or advancement of the interest in question.” It follows that, if the conduct of the officers indeed is found to have been motivated by the desire *559to run the plaintiff out of town, the action for false imprisonment would not have been rebutted by the defense of legal justification. For, under plaintiffs theory, the false imprisonment count does not rest on the reasonableness of the police officers’ action, but on whether the unwilling confinement of the plaintiff was the result of an arrest for a nonjustified purpose.

THE CAUSE OF ACTION FOR NEGLIGENCE

The Appellate Division upheld the dismissal of the negligence cause on the ground that it was not reasonably foreseeable that a person who is under the influence of alcohol will walk approximately 350 feet in the dead of night and climb over a guardrail onto the New York Thruway. Before treating with that issue, we prefer to give our attention to the more fundamental question of the basic duty owed by the city to the plaintiff in this situation, a question somewhat obscured by the jargon of negligence terminology (Green, The Duty Problem in Negligence Cases, 28 Col L Rev 1014, 29 Col L Rev 255).

In that connection, we do not believe it aids our analysis of the negligence count to speculate on the duty of a police officer to arrest or not to arrest intoxicated persons. Instead, we confront directly the duty of police officers to persons under the influence of alcohol who are already in their custody, as was the case here once Parvi was compelled to enter the police car. The case law is clear that, even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care (Marks v. Nambil Realty Co., 245 NY 256, 258; Glanzer v. Shepard, 233 NY 236, 239; Zelenko v. Gimbel Bros., 158 Misc 904, affd 247 App Div 867). As Restatement of Torts 2d (§ 324) puts it, "One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge or (b) the actor’s discontinuing his aid or protection, if by so doing, he leaves the other in a worse position than when the actor took charge of him”.

Comment g to that section makes it evident that this duty cannot be fulfilled by placing the helpless person in a position of peril equal to that from which he was rescued. So it tells us *560that "if the actor has succeeded in removing the other from a position of danger to one of safety, he cannot change his position for the worse by unreasonably putting him back into the same peril, or into a new one.”

We return now to the question of whether it was reasonably foreseeable that Parvi, who appeared sufficiently intoxicated for the police to take action, when set down in the dead of night in a lonely rural setting within 350 feet of a superhighway, whose traffic noises were sure to make its presence known, might wander onto the road. To state the question is to answer it. To be sure, much has to depend on what the jury finds to have been the state of his sobriety and the nature of the surrounding physical and other circumstances. But traditionally these are the kind of matters suitable for jury determination rather than for the direction of a verdict (Prosser, Torts [4th ed], § 45, p 290; cf. Sheehan v. City of New York, 40 NY2d 496, 502).

Finally, a word of clarification may be in order as to the legal role of plaintiff's voluntary intoxication. To accept the defendant’s argument, that the intoxication was itself the proximate cause of Parvi’s injury as a matter of law, would be to negate the very duty imposed on the police officers when they took Parvi and Dugan into custody. It would be to march up the hill only to march down again. The clear duty imposed on the officers interdicts such a result if, as the jury may find, their conduct was unreasonable (Fagan v. Atlantic Coast Line R. R. Co., 220 NY 301, 307; Black v. New York, New Haven & Hartford R. R. Co., 193 Mass 448; see Restatement, Torts 2d, § 324, Illustration 3). For it is the very fact of plaintiff’s drunkeness which precipitated the duty once the officers made the decision to act.

Accordingly, the order of the Appellate Division should be reversed, both causes of action reinstated and a new trial ordered, with leave to the defendant, if so advised, to move at Trial Term for leave to amend its answer to affirmatively plead a defense of justification to the cause of action for false imprisonment.

Chief Judge Breitel (dissenting).

I dissent. On no view of the facts should plaintiff, brought to causing his own serious injury by his voluntary intoxication, be allowed to recover from the City of Kingston for damages suffered when he wandered onto the New York State Thruway and was struck *561by an automobile. His attack is the familiar one on the good Samaritan, in the persons of two police officers, for not having, in retrospect, done enough.

The order of the Appellate Division should be affirmed, and the action stand dismissed.

On the night in question, the Kingston city police, responding to a complaint, found plaintiff Parvi and his companions in the midst of an uproarious argument behind a commercial establishment located on Broadway, in Kingston. Close by were railroad tracks, still in use by locomotives and freight trains. Plaintiff and his companion Dugan, both intoxicated, were asked if they had any place to go, and they said not. They were then taken to the police car, and informed that they would not be placed in jail on this holiday weekend, but, in accordance with their wishes, would instead be transported to a point out of the area where they could "sleep it off” without getting into further trouble. Dugan and Parvi repeatedly expressed their appreciation and gratitude at the option given them.

As the drive out of town proceeded, one of the men suggested a place where they might be left. The police officers, however, solicitous of the safety of their charges, declined this request, noting that the area suggested provided no shelter and, significantly, that the Thruway was "right there”. As an alternative, the officers, with the consent of plaintiff and Dugan, dropped the men off at "Coleman Hill”, the site of a former golf course, a spot often used by campers and equipped with several "lean-to” shelters. From the relative safety of this sheltered area, the two men, some time later, managed to wander onto the Thruway, over 350 feet away, where Dugan was killed and Parvi injured by passing automobiles.

On these facts, Parvi contends both that he was falsely imprisoned and that the city, through its police officers, was negligent. Neither claim withstands analysis, and both should fall.

In Broughton v. State of New York (37 NY2d 451, 456, cert den 423 US 929), this court enumerated the elements necessary to sustain a false imprisonment claim: (1) intention to confine, (2) consciousness of confinement, (3) lack of consent to confinement, and (4) lack of privilege. But before those factors may even be reached, there must be evidence of a confinement. In this case, there was none, but, instead, merely an exclusion from one particular area and activity (see Restate*562ment, Torts 2d, § 36, esp Comment b; Prosser, Torts [4th ed], p 42).

So long as Parvi did not remain out in public, intoxicated, creating a public nuisance, and endangering his own life, the officers had no wish to interfere with Parvi’s freedom of movement. Since Parvi could suggest no suitable place where the officers might take him, the officers chose another site. Apparently, Parvi and Dugan were pleased with the choice. And it should not matter that Parvi testified, although he could recall nothing else, that he was ordered into a police car "against [his] will”. (On cross-examination, he said he recalled nothing that day.) Parvi’s "will” was to stay where he was, intoxicated, in public. In order to deprive him of that one choice, which the officers could do without subjecting themselves to liability for false imprisonment, the officers had to transport Parvi some place else. He was given a choice as to destination. He declined it, except for his later suggestion of an unsafe place, and the officers made the choice for him. There was no confinement, and hence no false imprisonment.

Moreover, plaintiff has failed even to make out a prima facie case that he was conscious of his purported confinement, and that he failed to consent to it. His memory of the entire incident had disappeared; at trial, Parvi admitted that he no longer had any independent recollection of what happened on the day of his accident, and that as to the circumstances surrounding his entrance into the police car, he only knew what had been suggested to him by subsequent conversations. In light of this testimony, Parvi’s conclusory statement that he was ordered into the car against his will is insufficient, as a matter of law, to establish a prima facie case.

Plaintiff’s negligence claim is equally without merit. The police officers had no duty to leave Parvi absolutely free from danger in any form. Instead, they owed plaintiff only a duty to exercise ordinary care (Dunham v. Village of Canisteo, 303 NY 498, 502). That duty was discharged by leaving plaintiff at a camping ground equipped with "lean-to” shelters and removed from the holiday bustle of the city, where Parvi had been drinking for the past two or three days. Since it was not foreseeable that Parvi, rather than "sleeping off” his intoxication, would wander away, climb over a guardrail, and be struck by an automobile on the New York State Thruway, there was no breach of duty, no negligence, and hence, no liability (see Cartee v. Saks Fifth Ave., 211 App Div 606, 609-*563610, affd 303 NY 832). If, perchance, he was in search of more drinks, there was no chance of giving him absolute safety except by locking him up. It should not be the rule, common to an era long well past, that every drunkard must be locked up on being observed as intoxicated in public.

In removing Parvi and Dugan from the center of town, the police officers were performing a recognized public function. In his intoxicated state, Parvi, with his companions, was creating a public nuisance. It had been a long-standing practice in Kingston to transport publicly intoxicated people out of the center of town. The practice was followed in this case, and it is not, in a smaller city (population 25,544), an inherently unreasonable way of dealing with public intoxication. It avoids the humiliation and degradation to the offender, of maintaining him in jail. It is a commonplace that it is no longer acceptable, albeit it still continues, to treat the intoxicated and alcoholic in this fashion, as one does criminals.

Moreover, transplanting plaintiff from the center of town to an isolated area on the outskirts was protective of plaintiff himself. While a man in an intoxicated state can always be a hazard to himself, he is much more so when located in the center of town, in the midst of city streets, railroad tracks, molesters, muggers, street vehicles, and without shelter, than he would be in an isolated area. But one may not deprive him of reasonable access, after he recovers his sobriety, to food and other necessities. Had the police placed the two men out of reasonable access to any road, the isolation would have been inhumane. And any road would under some circumstances be dangerous. At least, the Thruway was bordered by a guardrail, and the record does not indicate the distance to the other accessible roads, including the road by which they reached Coleman Hill.

Restatement, Torts 2d, defines an act as negligent when it involves a risk of harm "of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done” (§ 291). Here, the risk was slight; the police officers obviously considered safety in choosing the camping site to deposit the two men, and reasonably regarded the site as safe. More significant, by removing Parvi from town, they removed him from a place of greater danger, and halted a public nuisance as well. The police conduct, therefore, was not unreasonable under the Restatement test. (See, also, Restatement, Torts 2d, §§ 292, 293.) The *564same analysis applies under section 324 of Restatement, Torts 2d, dealing with the duty of one who takes charge of helpless persons, since the officers materially improved plaintiffs position by removing him from town.

Since, therefore, there was no breach of duty to plaintiff, as a matter of law, the negligence count, too, was properly dismissed.

There is hubris in the bringing of an action of this kind. Parvi is one of a pair of drinkers, derelicts perhaps, engaged in making a public nuisance of themselves in the center of a small Hudson River Valley city on a holiday weekend. The police of that city, a tiny force, are not sisters of charity or baby-sitters.

Basically, the legal issues in this case are not difficult. And the justice issues are even less so. A drunken man, a pitiable character, is found with his companions in the middle of town. Sympathetic police officers offer to take the men any where they choose, but the poor fellows have no place to go. So, rather than locking them up for a holiday weekend, the officers deposit the men in a suburban setting, where some shelter is available. The officers are thanked for their kindness. But, in the end, the efforts of the officers are to no avail, as the drunken men wander away from safety and into danger. A tragedy, certainly. A miscalculation, perhaps. But even with the aid of hindsight, the facts in this case are not the stuff on which tort liability may be premised.

Accordingly, I dissent, and vote to affirm the order of the Appellate Division.

Judges Gabrielli, Jones, Wachtler and Cooke concur with Judge Fuchsberg; Chief Judge Breitel dissents and votes to affirm in a separate opinion in which Judge Jasen concurs.

Order reversed, with costs to abide the event, both causes of action reinstated and a new trial granted, with leave to respondent to move at Trial Term to amend its answer.

*720The opinion of the court was delivered by

Wertz, J.:

This was an action to recover damages for an alleged trespass. Plaintiff (appellant) in her petition alleged she was the owner of certain described real estate, and defendant (appellee), without her permission hired and caused the Arborfield Tree Surgery Company, its agents and employees, to go upon her property and top off, injure and in effect destroy three cedar trees of the válue of $150 each, which trees were growing upon plaintiff’s property and were both shade and ornamental in their presence. Plaintiff further stated she was entitled under the provisions of G. S. 1949, 21-2435, to recover from the defendant by reason of the matters hereinbefore set out three times the value of the plaintiff’s property thus injured and destroyed. Defendant answered by way of a general denial.

Plaintiff’s evidence disclosed that she and defendant owned adjoining residences and were neighbors for about five years. On September 8, 1950, defendant without her permission employed a tree surgery company to go upon plaintiff’s property and top three cedar trees. The trees were located some two or three feet north of plaintiff’s south boundary line. The trees before being topped were twenty to twenty-five feet high, and were as she wanted them on her property. About ten feet were cut off the tops of the trees, and from such topping the trees would never grow any higher, and she didn’t want them to stop growing. Cedars are not pruned from the top, but are feathered and shaped and not cropped. She considered the trees were, in effect, destroyed by improper pruning. She attached a sentimental value to them as they stood; they served a special purpose, were both shade and ornamental trees and were worth $150 to $200 each.

Defendant’s evidence was to the effect that the trees, prior to the time they were topped, seemed to be dying out at the top and they also contained bagworms; that two or three feet were taken out of the top of one tree and about a foot or so out of the other two; that the work done was beneficial to the trees and that they were not injured. The work consisted of cutting out dead branches and cleaning out bagworms. One of defendant’s expert witnesses testified on direct examination that the cutting away of dead wood tyould not injure the physical condition of the tree. • However, on cross-examination he testified that if the top is taken out, it is the ambition of every bud on the tree to try to take the place of the *721terminal bud which has been sacrificed, but the trunk itself is no longer going to grow in height. Defendant stated that she was mistaken as to the boundary line and believed the trees were on her property.

The case was submitted to a jury which returned a general verdict for the defendant. Plaintiff’s motion for a new trial was overruled and the court rendered judgment against plaintiff from which she appeals.

At the outset it may be stated that defendant admits the trespass upon plaintiff’s property. The determinative question on this appeal is whether the trial court erred in refusing plaintiff’s requested instruction to the effect that defendant had admitted the trespass upon plaintiff’s property by topping the three cedar trees and, therefore, she was liable to the plaintiff in damages. In lieu of this requested instruction, the court gave the following instruction:

“You are instructed that the motive of the defendant is not material, and is not necessary that the defendant be acting with malice or wrongful intent in order for plaintiff to recover damages to her trees, if any.

“The plaintiff is entitled to have her trees in such shape, condition and state of growth as she desires to have them, irrespective of the thoughts and wishes of others, and free from molestation by others.

“The defendant has admitted that she had plaintiff’s trees topped and therefore she has admitted the trespass and is liable in damages for such sum, if any, as you find from a preponderance of the evidence plaintiff has sustained.

“In arriving at the value of said trees you may, if you find from a preponderance of the evidence they have been damaged, injured or destroyed, and should take into consideration the cost of replacement and also the sentimental and utility value of the trees.” (Italics supplied.)

From every direct invasion of the person or property of another, the law infers some damage, without proof of actual injury. In an action of trespass the plaintiff is always entitled to at least nominal damages, even though he was actually benefited by the act of the defendant. (52 Am. Jur. 872, 873, Trespass, §47; 63 C. J. 1035, § 225.) Since from every unauthorized entry into the close of another, the law infers some damage, nominal damages are recoverable therefor even though no substantial damages result and none are proved. In Craig v. St. Louis-S. F. Rly. Co., 120 Kan. 105, 106, 242 Pac. 117, it was said:

“For present purposes it may be said that an invasion of a legally protected interest imports injury, and injury is redressed by damages. Quantum of damages depends on extent of injury caused by the invasion. If nothing but the invasion appears, the injury is technical, and is compensated by nominal damages.”

*722In Hefley v. Baker, 19 Kan. 9, it was said:

“An action in the nature of trespass quare clausum fregit may be maintained against a mere wrongdoer, by any person in the possession of the land upon which the trespass is committed, without any reference to who owns the land; and the plaintiff may in such a case recover for whatever loss he sustains, and if no actual loss is shown, he may then recover nominal damages.” (Syl. f 1.)

It is apparent the trial court erred in including the italicized portion in the mentioned instruction, thereby submitting the question to the jury whether plaintiff had suffered any damage by reason of the unlawful trespass, when in fact the jury should have been instructed that damages, in some amount, resulted as a matter of law.

Defendant admits that she committed a technical trespass upon the land of the plaintiff, but contends that had plaintiff chosen to do so, she could have sued defendant at common law for that trespass, and recovered judgment for nominal damages at the direction of the court, and in that event defendant would have had no defense and could have been so punished, no matter how innocent her intent, or that she had actually benefited the property of plaintiff. Defendant further contends that plaintiff’s petition failed to allege a cause of action at common law for trespass but seeks to recover damages under G. S. 1949, 21-2435, which statute reads:

“If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or ornament, . . . being or growing on the land of any other person; . . . the party so offending shall pay to the party injured treble the value of the thing so injured, . . . with costs, and shall be deemed guilty of a misdemeanor, and shall be subject to a fine not exceeding five hundred dollars.”

We find no merit in defendant’s contention on this point. The petition alleges the facts constituting trespass at common law, that is, that the plaintiff was the owner of certain property and that the defendant without permission or other just cause hired third persons to go upon a portion of plaintiff’s property and top, injure and, in effect, destroy three cedar trees, each of the value of $150, and then sought to invoke the penalty statute, G. S. 1949, 21-2435, to recover treble the damages sustained. Inherent in the statute is trespass. The statute is not applicable unless a trespass has been committed, and then only to certain kinds of trespass, one of which covers the facts involved in this action. Therefore, it follows that under the allegations of the petition for common law damages, no election between common law damages or statutory treble damages was necessary or proper. (Wright v. Brown, 5 Kan. 600.) It cannot be *723said that the erroneous instruction given by the trial court was not prejudicial to the rights of plaintiff. The judgment of the trial court is reversed and the cause is remanded with instructions to grant the plaintiff a new trial.

It is so ordered.

OPINION

WARD, Justice.

This is a case concerning trespass to property. The non-negligent defendant appeals from the granting of a judgment non obstante veredicto, which awarded the plaintiff his damages when the defendant in order to avoid a collision with a third party intentionally swerved his own vehicle off of the highway and onto the plaintiff’s property and caused damages thereto. We affirm.

The plaintiff, Roy L. Forman, filed suit to recover for damages caused when the automobile of Armando Ruiz struck a sign and certain personal property on the plaintiff’s premises located on the north side of Alameda Street in El Paso. The plaintiff alleged that various acts of negligence were committed by the defendant and alternatively alleged that the defendant committed a trespass by unlawfully going onto the property leased by the plaintiff where the damages occurred. Upon trial to a jury, the defendant Ruiz was absolved of all acts of negligence but it also found that the plaintiff suffered damages to his property in the amount of $270.00. No issues were requested and none were submitted concerning the plaintiff’s allegations of trespass. After the jury returned the verdict, the plaintiff moved for judgment non obstante veredicto on the grounds that the evidence clearly showed that the defendant intentionally entered the plaintiff’s property and thereby caused him damage. The trial Court granted the plaintiff’s motion and entered judgment against the defendant specifically finding in the judgment that the defendant, Armando Ruiz, having testified that he entered into plaintiff’s premises in order to avoid a collision caused the damage to the plaintiff’s property and was liable.

For reasons not apparent, the parties entered into a stipulation as to the cause of the plaintiff’s damages even though the case was fully developed by their testimony *818at the trial. The stipulation is to the effect that the defendant, with his automobile on or about February 27, 1973, when he was forced to swerve to avoid a collision with a truck, did strike and damage the property of the plaintiff. This indicates on first reading that the driving upon the plaintiff’s land was intentional. This is the interpretation made of the stipulation by the plaintiff on this appeal. This places the defendant within the terms of Section 197, Restatement (Second) of Torts, which provides as follows:

“(1) One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to

(a) the actor, or his land or chattels,

“(2) Where the entry is for the benefit of the actor or a third person, he is subject to liability for any harm done in the exercise of the privilege stated in Subsection (1) to any legally protected interest of the possessor in the land or connected with it, * * * .”

If the action of the defendant was intentional and Section 197 applies, then our case is quite similar to two of the illustrations under Section 197. Illustration 3 is to the effect that: A, an aviator, while carefully and skillfully operating his airplane makes a forced landing on B’s field in the reasonable belief that it is necessary to do so for the protection of himself and his plane. A is not liable for his mere entry, but under the statement in Subsection (2) is subject to liability for any harm thereby caused to B or to B’s buildings, crops or other belongings. Illustration 13 is also applicable: While A is canoeing on a navigable river, he is suddenly overtaken by a violent storm. To save himself and his canoe from destruction, A lands on B’s dock and pulls his canoe up onto the dock. In getting on B’s dock or in placing his canoe there, A damages the dock. Although A’s entry is privileged, he is liable to B for the harm so ■ occasioned, Since the entry was intentional, the actor is liable for the damage resulting therefrom however justifiable the entry, and even though it might have been made to save the actor’s life. The culpable or moral fault, if any, is said to be attributed to the actor’s refusal to pay for the damage done in the course of serving his own interests rather than in what he did. The legal fault centers around the notion that there was an intentional invasion of a legally protected interest. Keeton and Jones, 39 Texas L.Rev. 255. The above would afford a basis for a simple affirmance of the case.

The matter becomes involved however due to the testimony offered at the trial which is not contrary to the stipulation but which adds facts not contained in the stipulation. From this evidence it appears that defendant Ruiz was driving his car westerly in the outside lane of Alameda Street and that a Mr. Woodard was driving a truck in the inside lane westerly just ahead of the defendant Ruiz. The defendant testified that as he approached the truck it suddenly swerved into his lane of traffic forcing him to slam on his brakes and veer to the right. He stated that he “consciously and intentionally turned his wheels to the right to avoid hitting the truck.” He then ran onto the gravel shoulder of the road where he lost all control of his car and continued on to where he struck the plaintiff’s property. The Appellant argues that these facts present an entry or invasion which is both non-intentional and as found by the jury non-negligent. Such an entry fits within the terms of Section 166, Restatement (Second) of Torts, entitled: Non-liability for Accidental Intrusions. That section provides that an unintentional and non-negligent entry on land of another by one not engaged in an abnormally dangerous activity does not subject the actor to liability to the possessor even though the entry causes harm to the possessor. Section 166 was applied in First City National Bank of Houston v. Japhet, 390 S.W.2d 70 (Tex.Civ.App.—Houston 1965, writ dism’d), where the mo*819torist suffered a heart attack, immediately-lost consciousness and his car ran onto the plaintiff’s land. Under such circumstances, the Court held that the weight of authority and better reasoning would prevent liability.

The Appellant would have us apply the rule from the Japhet case to our fact situation. This we are unable to do because of the position adopted by our Texas Supreme Court in Mountain States Telephone and Telegraph Company v. Vowell Construction Company, 161 Tex. 432, 341 S.W.2d 148 (1960). There, the defendant’s scraper was deliberately and intentionally used to make a cut to a designated sub-grade. The scraper cut the plaintiff’s telephone cable which was underground and the defendant was held liable for the invasion and destruction of the plaintiff’s property right.

A similar situation was presented in Schronk v. Gilliam, 380 S.W.2d 743 (Tex.Civ.App.—Waco 1964, no writ). There, the defendant was held liable for damages to the plaintiff’s land caused by poison dropped from an airplane. The defendant was held to have trespassed upon the plaintiff’s land because he had intended the act which caused the trespass although he did not intend for the poison to fall on the plaintiff’s land.

As pointed out in the Japhet case, in both Mountain States Telephone and Telegraph Company v. Vowell Construction Company and Schronk v. Gilliam, the defendant intended the act which resulted in the trespass, although there was no intentional invasion of the plaintiff’s property. In each instance, the defendant was held liable. In the case before us, Armando Ruiz intentionally turned his automobile off the road and this caused the invasion of the plaintiff’s property. He intended the act which resulted in the trespass even though he did not intend to invade the plaintiff’s land or inflict damages upon the plaintiff. He is therefore liable.

Possibly some comfort can be afforded the Appellant by Professor Prosser who anticipates that Texas will abandon its present position. Prosser, Torts 4th Ed., at 64. • This is for the Texas Supreme Court to decide.

For the reasons stated, the judgment of the trial Court is affirmed.

OPINION

MAY, Judge.

Terry Garner appeals the small claims court's judgment in favor of Eric Kovalak. Garner raises one issue, which we restate as whether the court erred when it determined Kovalak was not liable to Garner for the damage Kovalak caused to Garner's trees when Kovalak swerved into Garner's yard to avoid a car crash. We affirm.

FACTS AND PROCEDURAL HISTORY

Garner and his wife, Elizabeth, own a property in St. Joseph County that measures just over four acres. Along the north and east sides of the property, next to the roadway, are trees that measure twenty to twenty-five feet tall. At about noon on September 29, 2008, Kovalak was driving on the road adjacent to the Garners' property when a brown Cadillac driven by an unidentified driver swerved over the centerline and into Kovalak's lane. To avoid the Cadillac, Kovalak drove onto the Garners' property. Kovalak avoided the Cadillac, but he knocked down two of the *313Garners’ trees. Garner obtained an estimate that removal and replacement of the damaged trees would cost $1,500.00.

On November 25, 2003, Garner filed a small claims action against Kovalak for the damaged trees. After a bench trial, the court entered judgment for Kovalak in an order that stated simply: “After due consideration, the Court finds that judgment should be and is entered in favor of [Kova-lak] and against [Garner].” (App. at 17.)

DISCUSSION AND DECISION

As an initial matter, we note Ko-valak did not file an appellee’s brief. When an appellee fails to file a brief, we may reverse the trial court’s decision if the appellant demonstrates a prima facie case of reversible error. Wright v. Wright, 782 N.E.2d 363, 366 (Ind.Ct.App.2002). Prima facie means “at first sight, on first appearance, or on the face of it.” Thurman v. Thurman, 111 N.E.2d 41, 42 (Ind.Ct.App. 2002). This rule relieves us of the burden of controverting appellant’s arguments for reversal, which is a burden that properly rests with the appellee. Wright, 782 N.E.2d at 366. It does not, however, relieve us of “our obligation to decide the law as applied to the facts in the record in order to determine whether reversal is required.” Vukovich v. Coleman, 789 N.E.2d 520, 525 n. 4 (Ind.Ct.App.2003).

Because the rules of small claims court make trials therein informal, “with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law,” Ind. Small Claims Rule 8(a), we review the court’s procedural and evidentiary decisions with deference. Lae v. Householder, 789 N.E.2d 481, 483 (Ind. 2003). However, we review de novo a small claims court’s decisions regarding substantive law. Id. Judgments of small claims courts are “subject to review as prescribed by relevant Indiana rules and statutes.” Id. (quoting S.C.R. 11(A)).

Garner claims the court should have found Kovalak responsible for the damage to his trees under the theory of trespass quare clausum fregit. 1 Under that theory:

[I]t is necessary for the plaintiff to prove only that he was in possession of the land and that the defendant entered thereon without right, such proof entitling the plaintiff to nominal damages without proof of injury, and upon additional proof of injury to products of the soil, the plaintiff is entitled to compensatory damages.

Hawke v. Maus, 141 IndApp. 126,131, 226 N.E.2d 713, 717 (1967).

Garner testified that he and his wife own the land on which Kovalak drove and the trees Kovalak damaged. Garner also testified he did not give Kovalak permission to enter his property on the day of the accident, and he presented an estimate indicating the damage was $1,500.00. Ko-valak acknowledged his vehicle hit two of Garner’s trees. Based on that testimony it appears uncontested that Garner possessed the land, Kovalak entered without right, and $1500 worth of damage was caused to Garner’s “products of the soil.” Id. Accordingly, Garner demonstrated all the elements required for recovery under the theory of trespass quare clausum fre-git.

However, a trespasser cannot be held liable unless a voluntary act caused his entry onto the plaintiffs property. As we explained in Hawke:

*314In order to be liable for a trespass on land ..., it is necessary only that the actor intentionally be upon any part of the land in question. It is not necessary that he intend to invade the possessor's interest in the exclusive possession of his land and, therefore, that he know his entry to be an intrusion. The intention which is required to make the actor liable under the rule stated in this Section is an intention to enter upon the particular piece of land in question, irrespective of whether the actor knows or should know that he is not entitled to enter.

Although it is not necessary that the trespasser intend to commit a trespass or even that he know that his act will constitute a trespass, it is required for trespass that there be an intentional act and an intent to do the very act which results in the trespass.

The driver of an automobile who suddenly loses control of his car because he is seized with a heart attack, a stroke, a fainting spell, is not liable unless he knew that he was likely to become ill, in which case he is to be found negligent in driving the car at all. The same conclusions are reached when the defendant's car is struck by another vehicle and thrown out of control.

Id. at 129-30, 226 N.E.2d at 715-16 (internal citations and quotations omitted).

Thus, the question before us is whether Kovalak's act, swerving his vehicle onto Garner's property to miss an on-coming car that had crossed the centerline and entered Kovalak's lane, was "intentional" or "unintentional." Kovalak testified he used both hands to turn his truck right to avoid the Cadillac and he left the road such that the closest his truck came to the Cadillac was "15 to 25 feet." (App. at 14.) Garner cites that testimony as proof Kova-lak intentionally drove onto Garner's property. We disagree.

Kovalak's testimony indicated he was driving on the highway at fifty-five miles per hour when an on-coming car crossed over his lane into the grass on his side of the road and then back into his lane. He claimed he swerved to prevent a head-on collision. The police report indicates the officer "photographed the tire marks left by the unidentified vehicle." (Defendant's Exhibit A at 4.) Kovalak's insurer found he was not responsible for the accident because an unidentified driver ran him off the road. Given those facts, we cannot say the trial court erred in implicitly finding the act of another caused Kovalak to leave the road and enter the Garners' property, and that Kovalak's act was therefore unintentional. See, eg., State v. Magnuson, 488 N.E.2d 743, 750 (Ind.Ct.App.1986) (The record contained evidence from which the trier of fact could determine the driver had no time for deliberation, and therefore an instruction on sudden emergency was not unwarranted.), reh'g denied, trans. denied.

Nor can we say as a matter of law that Kovalak's decision to steer his truck to the right to avoid a head-on collision was an "intentional" act. An intentional act is one "resulting for the actor's will directed to that end." Black's Law Dictionary 25 (7th ed.1999). "An act is intentional when foreseen and desired by the doer, and this foresight and desire resulted in the act through the operation of the will." Id. An act done intentionally is also done voluntarily. Id. at 1569. An act is voluntary if it is "not constrained, impelled or influenced by another." Webster's 3rd New International Dictionary Unabridged 2564 (G. & C. Merriam Co.1976). As a trier of fact could reasonably find Kovalak's action was impelled by the brown Cadillac, we *315decline to hold as a matter of law his act was intentional.

Affirmed.

SHARPNACK, J., and BAILEY, J., concur.

MEMORANDUM OPINION AND ORDER

REBECCA R. PALLMEYER, District Judge.

Centerline Equipment Corporation (“Centerline”) received a one-page, unsolicited fax advertisement from Banner Personnel Service, Inc. (“Banner”). In response to this perceived nuisance, Center-line filed a class action lawsuit against Banner, as well as ten unnamed additional defendants (“John Does 1-10”), all of whom are allegedly responsible. Center-line alleges that Banner is liable to it on three different theories: Count I asserts that sending the fax violated the Tele *772 phone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227; Count II asserts that sending the fax violated the Illinois Consumer Fraud Act (“ICFA”), 815 ILCS 505/2; and Count III asserts that, by causing a single page to be printed on Center-line’s fax machine, Banner committed the common law tort of conversion.

Banner now moves to dismiss the Complaint. For the reasons set forth below, the court denies the motion.

BACKGROUND

The following alleged facts are drawn from Centerline’s Complaint, and are presented in the light most favorable to Cen-terline.

Centerline alleges that, within the twelve months before it filed its Complaint, it received a fax (“the Fax”), which reads as follows:

Cover your holiday and vacation days now!

These are important days for you and your company

Call someone you have depended on for 36 years!

Call Banner Personnel Service

Since 1970

Call Myron Curry and get it done!

(The Fax [1], Ex. A to Compl. (underlining and extraneous capitalization omitted); Compl. [1] ¶ 8.) The Fax also provides Banner’s phone and fax numbers, and an e-mail address for Myron Curry. (The Fax.) Centerline alleges that Banner was responsible for sending this, as well as many other similar faxes, and that it derived economic benefit from doing so. (Compl.¶¶ 10-12, 14.) There was no prior relationship between Centerline and Banner, nor did Centerline authorize Banner to send it fax advertisements. (Compl.¶ 13.)

On information and belief, the Center-line alleges that the fax was sent “as part of a mass broadcasting of faxes” to at least forty other persons. (Compl.¶¶ 14-15.) Centerline alleges that, as a general matter, sending unsolicited faxes deprives the recipient of its paper and ink or toner, and causes wear and tear on fax machines. (Id. ¶ 2.) Centerline also claims that receiving unwanted faxes wastes the recipient’s time and prevents it from receiving and sending other faxes. (Id.)

DISCUSSION

When considering a motion to dismiss, the court tests the sufficiency of the complaint; it does not decide the merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990). The plaintiff must plead sufficient facts to give fair notice of the claim and the grounds upon which it rests, and those facts, if true, must plausibly suggest that the plaintiff is entitled to relief, “raising that possibility above a speculative level.” EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir.2007) (internal punctuation omitted); see Bell Atlantic v. Twombly, — U.S. -, 127 S.Ct. 1955, 1964-65, 1973 n. 14, 167 L.Ed.2d 929 (2007). The court treats well-pleaded allegations as true, and draws all reasonable inferences in the plaintiffs favor. Killingsworth v. HSBC Bank Nev., N.A, 507 F.3d 614, 618 (7th Cir.2007). The court does not defer to the plaintiffs characterizations as to the meaning of legal texts, however; such determinations are made as a matter of law. See, e.g., Hamlin v. Vaudenberg, 95 F.3d 580, 584 n. 3 (7th Cir.1996); Rochester v. Fishman, No. 95 C 3896, 1997 WL 24720, at *6 (N.D.Ill. Jan.17,1997).

I. Telephone Consumer Protection Act

Banner raises a constitutional challenge to Count I, arguing that the TCPA vio *773 lates the First Amendment. (Mot. to Dismiss [17] at 2-6.) Banner contends, farther, that the damages imposed by the TCPA are excessive in violation of the Due Process Clause and the Eighth Amendment. (Mot. to Dismiss at 6-8.) The United States has intervened to defend the constitutionality of the TCPA. (See U.S. Opp. [35] at 1.) For the reasons explained here, this court, like those others that have addressed the question, 1 finds that Banner has not demonstrated that the TCPA violates the Constitution, at least under the standards applicable to a motion to dismiss.

A. The TCPA and the First Amendment

The parties agree that unsolicited fax advertisements are commercial speech. (Mot. to Dismiss at 2; Pl.’s Opp. [25-2] at 3.) The court analyzes restrictions on commercial speech using the four-part test articulated in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 566, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Because Cen-terline does not allege that the speech involved here concerns unlawful activity or is misleading, the TCPA will survive First Amendment scrutiny if (1) there is a substantial government interest, which (2) the TCPA directly advances, so long as (3) the restriction of speech is not excessive in proportion to the interest it serves. Id. The court addresses these prongs below.

1. Step One: The Substantial Government Interest

According to Banner, the government’s interest in preventing individuals from receiving unsolicited and unwanted faxes does not constitute a substantial governmental interest. (Mot. to Dismiss at 6; Reply to Def. [32] at 5-6; Reply to U.S. [40] at 3-4.) Specifically, Banner argues that the cost of receiving a fax, “[a]t pennies per page,” is simply too low to give rise to a substantial governmental interest. (Mot. to Dismiss at 6.)

If a harm to the public is of a very small quantity, preventing that harm cannot be a substantial governmental interest. For instance, in Bolger v. Youngs Drug Products Corp., a contraceptive seller obtained a declaratory judgment that a statutory prohibition on the mailing of unsolicited advertisements violated the First Amendment. 463 U.S. 60, 62-62, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983). On a direct appeal, the Supreme Court affirmed, rejecting the government’s assertion that a prohibition on mailing unsolicited contraceptive advertisements was justified by an interest in protecting the public from receiving unwanted, potentially offensive mail. Id. at 71-72, 103 S.Ct. 2875. In the course of its discussion, the court noted that the “short, though regular, journey from mail box to trash can is an acceptable burden, at least so far as the Constitution is concerned.” Id. at 72, 103 S.Ct. 2875 (quoting Lamont v. Comm’r of Motor Vehicles, 269 F.Supp. 880, 883 (S.D.N.Y.1967)) (internal punctuation omitted).

Because it was reviewing a declaratory judgment action, Bolger was forced to address the merits of the underlying claim; this court, however, is presented with this question at the pleading stage. The question of how much cost is associated with *774 receiving unwanted faxes is a question of fact, and the court assumes that well-pleaded factual allegations are true at this stage. Centerline has alleged a number of costs associated with the receipt of junk faxes, including the use of paper and toner, wear and tear on fax machines, loss of use of the fax machine during the transmission of the unwanted message, and labor costs devoted to employees’ attempts to identify the purpose and source of the faxes. (Compl.¶ 2.) Because this is a motion to dismiss, the court draws reasonable inferences of fact in Centerline’s favor, and it is reasonable to infer that these costs, taken in the aggregate across many faxes to many recipients, would be substantial enough to justify government intervention. Furthermore, the complaint does not allege any facts suggesting that advancing technology has rendered these interests obsolete. 2 Cf. Missouri ex rel. Nixon v. Am. Blast Fax, Inc., 323 F.3d 649, 654-55 (8th Cir.2003) (congressional hearings held in 2001 disclosed evidence that costs were still substantial). Thus, the complaint has adequately alleged a substantial interest. 3

2. Step Two: Direct Advancement of the Interest

Once a substantial government interest has been identified, the next step is to determine whether the challenged statute directly advances that interest. Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343. This is not a difficult hurdle in this case; prohibiting the sending of some unsolicited faxes surely reduces the costs of receiving unwanted faxes. See Missouri ex rel. Nixon, 323 F.3d at 658 (finding that TCPA directly advances interest in preventing excessive cost-shifting from advertisers to fax recipients).

Banner nevertheless argues that arbitrary distinctions, exemptions, and inconsistencies in the Act’s coverage render it invalid. (Mot. to Dismiss at 3-4.) Indeed, underinclusiveness may render a statute unconstitutional when it demonstrates that an asserted substantial interest is in fact pretextual; in other words, a statute does not directly advance an interest when the scope of its protections demonstrate a lack of concern for that interest. *775 For instance, in Rubin v. Coors Brewing Co., the Supreme Court found that, by prohibiting disclosure of alcohol content on beer labels, but not in beer advertising, the government had made clear that it was not motivated by an interest in preventing competition on the basis of alcohol content. 514 U.S. 476, 488-91, 115 S.Ct. 1585, 131 L.Ed.2d 532 (1995). Although preventing competition between beer companies on the basis of alcohol content may be a substantial government interest, the statute in question did not directly advance such an interest, because it was irrationally under-inclusive. Id. at 485, 488-89, 115 S.Ct. 1585. See also Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173, 189-92, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999) (exemptions and inconsistencies in a ban on gambling advertisements, combined with Congressional encouragement of tribal gambling, undermined the asserted justification that Congress designed the ban to reduce the social costs of gambling); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417-18, 424-25, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993) (city’s interest in aesthetics was not directly advanced by a prohibition aimed only at some sixty-two commercial newsracks, when hundreds of non-commercial news-racks were equally unattractive but permitted by the ordinance).

In support of its argument that the TCPA is fatally underinclusive, Banner notes, first, that the Act draws an arbitrary distinction between commercial and noncommercial faxes, only prohibiting the former. (Mot. to Dismiss at 3.) As the Eighth Circuit observed in response to a similar challenge, however, commercial advertisements likely “constitute the bulk of all ... unsolicited faxes.” 4 Missouri ex rel. Nixon, 323 F.3d at 658. Congress’s focus on this segment of the universe of unsolicited faxes does not indicate that its asserted interest in lowering the costs of unsolicited faxes is pretextual. Nor are there any allegations in the Complaint that would lead the court to reject this everyday intuition. See Burson v. Freeman, 504 U.S. 191, 211, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (justifying restrictions on speech by reference to history, consensus and “simple common sense”).

Banner next argues that the Act unconstitutionally exempts telephone advertising. (Mot. to Dismiss at 4.) The fact that telemarketing is treated differently than fax advertising does not establish either irrationality or pretext, however. Unlike “junk faxing,” telemarketing does not require individuals to bear the economic brunt of unwanted advertising. Missouri ex rel. Nixon, 323 F.3d at 657. Thus, the legislature could legitimately believe that unwanted faxes cause different burdens than unwanted telephone calls, and require a different legislative response.

Finally, Banner argues that the Act is unconstitutional because it inconsistently permits some types of fax solicitation, such as announcements of job openings and requests for donations, while restricting only advertising faxes. (Mot. to Dismiss at 4.) This, too, falls short of showing that Congress’s stated interest in lowering the cost of receiving unwanted faxes was a pretext. It may be that job announcements or charitable solicitations make up a significant quantity of unsolicited faxes, but the Complaint makes no references to this issue, and its allegations are the only facts the Court considers at this stage. See also *776 Rudgayzer & Gratt v. Enine, Inc., 4 Misc.3d 4, 779 N.Y.S.2d 882, 889 (N.Y.App.Term 2004) (observing that “no evidence has yet emerged of an onslaught of unsolicited non-advertising faxes, jokes, surveys, free give-aways or political campaign faxes”). All federal statutes enjoy a strong presumption of constitutionality, see In re Search of Office of Tylman, 245 F.3d 978, 981 (7th Cir.2001), so a complaint need include no additional facts to “plausibly suggest” that a particular statute is valid. There is no basis at this stage of the proceedings for the court to assume that the permitted types of faxes are numerous enough to demonstrate that the asserted interest is pretextual. Banner has not convinced the court that the TCPA does not materially and directly advance the substantial government interest in lowering the costs imposed on the recipients of unwanted faxes.

3. Step Three: Reasonable Fit

Finally, a restriction on commercial speech must be no broader than is necessary to advance a substantial government interest. Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343. This is not a requirement that Congress always choose the least-restrictive method of advancing an interest; rather, all that is required is a “reasonable fit” between the interest and the means used to protect it. 5 See Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989). Banner argues that Congress could have used less-restrictive methods to cut down on the cost of unwanted faxes, such as: (1) expanding the nationwide do-not-call registry to apply to unsolicited fax advertising; or (2) creating a cause of action only for those persons who received a second unwanted fax after having complained to the sender in response to the first one. (Mot. to Dismiss at 4-5.) The second alternative represents the TCPA’s approach to live telemarketing. 47 U.S.C. § 227(c)(5).

The availability of these alternatives does not satisfy the court, at this stage, that the means used by Congress do not have a reasonable fit with the substantial interest it sought to promote. Both of the alternatives suggested by Banner would impose a significant share of the burden of avoiding unwanted faxes on the recipients themselves, who bear no share of that burden in the system set up by the TCPA. It was not unreasonable for Congress to choose a system that places the burden of avoiding unwanted costs on advertisers rather than on recipients. See Missouri ex rel. Nixon, 323 F.3d at 659. To be sure, the method chosen by Congress will mean that some people do not *777 receive unsolicited fax advertisements they would have liked to receive (Mot. to Dismiss at 5), but that will be the case with the alternative approaches as well. Advertisers remain free to contact their target audience using other methods of communication in order to solicit their consent, including such options as sending direct mail, telemarketing, and interacting with customers in retail stores. See id.

For this reason, Thompson v. Western States Medical Center, 535 U.S. 357, 122 S.Ct. 1497, 152 L.Ed.2d 563 (2002), on which Banner relies, is distinguishable. That case involved a restriction that totally forbade pharmacists to advertise compounded drugs, id. at 365, 122 S.Ct. 1497, whereas the TCPA permits advertisers to reach their audience through multiple alternative channels of communication. Similarly, Banner’s reliance on Discovery Network, 507 U.S. at 417-418, 113 S.Ct. 1505, is misplaced. (Mot. to Dismiss at 3.) In Discovery Network, the court did not find the requisite fit between the city’s substantial interest in aesthetics, and its prohibition of only commercial newsracks, which made up only a small number of the city’s newsracks. Conversely, unsolicited commercial faxes, like unsolicited commercial calls, likely “constitute the bulk of all ... unsolicited faxes.” Missouri ex rel. Nixon, 323 F.3d at 658.

Because the TCPA directly advances the legitimate government interest in controlling the costs of unwanted faxes, and because it is plausible to assume that it does so using means that are in reasonable proportion to that goal, the court concludes that Banner has failed to demonstrate that it violates the First Amendment, under the standards applicable to a 12(b)(6) motion.

B. Allowable Damages Under the TCPA

Banner claims that the Act’s remedy violates the Fifth and Eighth Amendments. (Mot. to Dismiss at 6-8.) The TCPA allows recovery of either actual damages, or statutory damages in the amount of “$500 in damages for each .'.. violation”; it also provides for treble damages for knowing or willful violations. 47 U.S.C. § 227(b)(3). Banner argues that the statutory damages amount violates the Eighth Amendment’s prohibition of “excessive fines.” This argument requires little discussion; the Excessive Fines clause does not apply to actions for civil damages unless the government is prosecuting the action or will receive a share of the damages. See Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 264, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989).

Banner’s due process challenge bears more analysis, but fares no better, at the pleading stage. Statutory penalties violate due process rights “only where the penalty prescribed is so severe and oppressive as to be wholly dispropor-tioned to the offense and obviously unreasonable.” United States v. Citrin, 972 F.2d 1044, 1051 (9th Cir.1992) (quoting St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 66-67, 40 S.Ct. 71, 64 L.Ed. 139 (1919)). Banner asserts that $500 “is approximately 10,000 times the actual cost of receiving a fax,” and that $1,500 is about 30,000 times the actual cost of receiving a fax. (Mot. to Dismiss at 7.) There is no requirement that the statutory remedy be proportional to the plaintiffs own injury, however; Congress may choose an amount that reflects the injury to the public as well as to the individual. Williams, 251 U.S. at 66, 40 S.Ct. 71.

In any event, in addition to the costs of paper and ink or toner, other costs associated with the receipt of unwanted faxes, such as wasted time and interfer- *778 enee with the plaintiffs fax machine, are difficult to quantify. Kenro, Inc. v. Fax Daily, Inc., 962 F.Supp. 1162, 1166 (S.D.Ind.1997). The $500 remedy serves the dual purpose of deterring unwanted solicitation while, at the same time, encouraging plaintiffs to bring suit. Id. The Due Process clause does not require Congress “to make illegal behavior affordable, particularly for multiple violations.” Phillips Randolph Enters., LLC v. Rice Fields, 06 C 4968, 2007 WL 129052, **2-3, 2007 U.S. Dist. LEXIS 3027, at *7-8, 2007 WL 129052 (N.D.Ill. Jan. 11, 2007).

In short, on the limited record presented by a motion to dismiss, Banner has not satisfied the court that the TCPA’s statutory damages remedy violates the Due Process clause. In any event, if Banner were able to show that the statutory damages are in fact so excessive as to be improper, the appropriate remedy would be a reduction of the aggregate damage award, not a dismissal of Centerline’s claim. See Tex. v. Am. Blastfax, Inc., 164 F.Supp.2d 892, 900-01 (W.D.Tex.2001) (interpreting the TCPA to provide “up to” $500 per violation, and awarding seven cents per violation); see also Murray v. GMAC Mortg. Corp., 434 F.3d 948, 954 (7th Cir.2006) (stating that, if a trial judge were concerned that a FCRA class action would result in unconstitutionally excessive damages, the appropriate judicial response would be to reduce an excessive award, not deny class certification). It is premature at this stage to consider whether any hypothetical award might be constitutionally excessive, however. 6 See Murray, 434 F.3d at 954.

II. Illinois Consumer Fraud Act

In Count II, Centerline alleges that Banner violated the Illinois Consumer Fraud Act by sending the Fax. The ICFA prohibits:

Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the “Uniform Deceptive Trade Practices Act” ... in the conduct of any trade or commerce ....

815 ILCS 505/2. Banner argues that Cen-terline failed to plead its ICFA claim with adequate specificity, that Centerline failed to allege that it was harmed by receiving the Fax, and that the conduct described in the complaint is not “unfair” within the meaning of the ICFA. (Mot. to Dismiss at 9-11.) The court overrules each of these objections, as explained below.

A. Pleading Standard for ICFA Unfairness Claims

Banner argues, first, that Center-line’s claim under the ICFA must fail because Centerline does not make its allegations with particularity. (Mot. to Dismiss at 9-10.) Federal Rule of Civil Procedure 9(b) requires claims of fraud to be pleaded with particularity, and Banner is correct *779 that this requirement extends to fraud claims brought pursuant to the ICFA. Appraiser’s Coal. v. Appraisal Inst., 845 F.Supp. 592, 608-09 (N.D.Ill.1994); see also Gallagher Corp. v. Mass. Mut. Life Ins. Co., 940 F.Supp. 176, 180 (N.D.Ill.1996) (citing Appraiser’s Coal, and applying the heightened Rule 9(b) standard to an ICFA claim which incorporated allegations of misrepresentation). Centerline argues only that sending the Fax was unfair, however; it does not argue that it was deceptive within the meaning of the ICFA. (Pl.’s Resp. at 12.) Thus, because Center-line has not alleged fraud or misrepresentation on the part of Banner, Rule 9(b) does not apply.

B. The ICFA Actual Damage Requirement for Private Plaintiffs

Banner next argument for the dismissal of Centerline’s ICFA claim focuses on the Act’s requirement that private plaintiffs plead and prove actual damages. (Def.’s Reply to Pl. at 11-12.) Banner is correct that private plaintiffs must suffer harm in order to sue. See 815 ILCS 505/10a(a); Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 149, 267 Ill.Dec. 14, 776 N.E.2d 151, 160 (2002). The court concludes, however, that Centerline has met this requirement: Centerline has alleged that it received a fax it did not wish to receive, and that such faxes waste toner and paper, wear down fax machines, and consume employee time. (Compl.¶¶ 2, 8.) This may be a minute injury, but it is an injury nonetheless. Cf. Dwyer v. Am. Express Co., 273 Ill.App.3d 742, 750, 210 Ill.Dec. 375, 652 N.E.2d 1351, 1357 (1st Dist.1995) (concluding that receiving unwanted mail, without more, is not “damage” for ICFA purposes). Nor, on a motion to dismiss, will the court presume that this injury is so minor that the maxim de minimis non curat lex applies. Such a presumption would be inconsistent with the court’s duty to draw reasonable inferences of fact (in this case, the size of the damages) in Cen-terline’s favor. Furthermore, characterizing the harm as de minimis would conflict with the ICFA’s remedial purpose, because it would allow defendants to freely engage in unfair practices so long as the effects were spread thinly over a large population of victims. Cf. Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 41-42, n. 9 (1st Cir.2003) (noting that consumer suits are especially well-suited for class treatment, because the vindication of consumer rights regularly involves class actions on behalf of members “whose individual claims would be too small to warrant litigation”).

C. Pleading Unfairness Under the ICFA

Finally, Banner argues that Centerline cannot establish that the sending of a single unsolicited fax 7 was unfair within the meaning of the ICFA. (Mot. to Dismiss at 9-10.) To establish an ICFA claim, Centerline must allege that Banner intentionally engaged in an unfair or deceptive act or practice “in the course of conduct involving trade or commerce,” and that this act or practice proximately caused harm to Centerline. Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 417, 266 Ill.Dec. 879, 775 N.E.2d 951, 960 (2002); Oliveira, 201 Ill.2d at 149, 267 Ill.Dec. 14, 776 N.E.2d at 160. In deter *780 mining whether a practice is unfair, Illinois courts will consider “(1) whether the practice offends public policy; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [and] (3) whether it causes substantial injury to consumers.” Robinson, 201 Ill.2d at 417-18, 266 Ill.Dec. 879, 775 N.E.2d at 960-61 (citing FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244 n. 5, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972)). A practice is unfair if it meets one of these criteria to a substantial extent, or if it meets all three to a lesser degree. Id. at 418, 266 Ill.Dec. 879, 775 N.E.2d 951, 266 Ill.Dec. 879, 775 N.E.2d at 961.

1. The Public Policy Factor

Banner appears not to contest that sending unsolicited faxes offends public policy. {See, e.g., Mot. to Dismiss at 9-10.) This is not surprising; not only is the practice unlawful under the TCP A, it is a misdemeanor criminal offense under Illinois law. 720 ILCS 5/26-3. Therefore, the public interest factor weighs in Center-line’s favor. W. Ry. Devices Corp. v. Lusida Rubber Prods., Inc., No. 06 C 0052, 2006 WL 1697119, at *4 (N.D.Ill. June 13, 2006).

2. The Oppressiveness Factor

Conduct is oppressive only if it imposes a lack of meaningful choice or an unreasonable burden on its target. Lusida, 2006 WL 1697119, at *5; see Robinson, 201 Ill.2d at 419-21, 266 Ill.Dec. 879, 775 N.E.2d at 962. A practice of sending unsolicited faxes does deprive consumers of choice, given that they cannot avoid such faxes without turning off their fax machines.

Banner nevertheless challenges the notion that receipt of a single fax can be characterized as oppressive conduct. In support, Banner cites Tudor v. Jewel Food Stores, Inc., 288 Ill.App.3d 207, 224 Ill.Dec. 24, 681 N.E.2d 6 (1st Dist.1997), where the court concluded that occasional overcharges at a grocery store were not oppressive, in light of the facts that grocery store customers were given a receipt by which to check the price paid for their items, as well as a money-back guarantee that could be enforced whenever the price was incorrect. Id. at 210, 224 Ill.Dec. 24, 681 N.E.2d at 8. There are no allegations in the Complaint of similar procedures set up to compensate recipients for the losses incurred as a result of unwanted faxes; nor does the Fax that Centerline received give notice of any such procedures. The court concludes that the Complaint adequately alleges that the practice of sending unsolicited faxes is oppressive. Compare Lusida, 2006 WL 1697119, at *5 (finding a similar practice non-oppressive, where, unlike in this case, the sender included a “remove” number on the fax advertisements).

3.The Substantial Injury Factor

Costs that are imposed on an unwilling consumer can constitute a substantial injury. See, e.g., Ekl v. Knecht, 223 Ill.App.3d 234, 237, 241-42, 165 Ill.Dec. 760, 585 N.E.2d 156, 160, 162-63 (2d Dist.1991) (concluding that when a plumber refused to turn his customer’s water back on unless she paid him above-market rates for his work, the customer was substantially injured by the overcharge). Even very small individual harms can be considered substantial, if they are part of a practice that, in the aggregate, causes substantial losses to the public as a whole. People ex rel. Hartigan v. Stianos, 131 Ill.App.3d 575, 581, 86 Ill.Dec. 645, 475 N.E.2d 1024, 1029 (2d Dist.1985). Thus, in Stianos, a practice of overcharging consumers for sales tax caused but a few cents in losses to any individual customer. Id. The court nevertheless found that such losses, when *781 considered across all of the retailers’ customers, could be substantial, and that this fact supported a finding that the practice was unfair under the ICFA. Id.

As described earlier, Centerline alleges that unsolicited faxes impose costs on unwilling consumers, by wasting paper and toner, wearing down fax machines, and consuming employee time. (Compl.¶ 2.) Centerline also alleges that Banner engages in a general practice of sending unsolicited faxes, has sent “mass broadcast^]” of faxes, and has sent such faxes to at least forty people in Illinois. (Id. ¶¶ 14-15.) These allegations are adequate to constitute substantial harm.

Banner argues that Stianos is distinguishable because it was an action brought by the Attorney General of Illinois. (Reply to Pl. at 11-12.) Individual actions under the Consumer Fraud Act must be based upon claims of actual damage, 815 ILCS 505/10a(á), but the Act does not extend this restriction to civil enforcement by the Attorney General. See Oliveira, 201 Ill.2d at 149, 267 Ill.Dec. 14, 776 N.E.2d at 161. Banner contends, in effect, that this distinction should be read into the test for what practices are “unfair” within the meaning of the ICFA, so that private plaintiffs may only rely on their individual injuries to establish that an extended practice is unfair, while the Attorney General would be able to rely more generally on public injury to establish the unfairness of a challenged practice. (Reply to Pl. at 11-12.) Although some courts have interpreted the ICFA in this manner, see, e.g., Lusida, 2006 WL 1697119, at *6, 8 it is not a plausible construction of section 505/10a(a), which does not purport to alter the unfairness standard. Thus, because Centerline has alleged that Banner sent unsolicited faxes to many other people, the Complaint plausibly suggests that the aggregate harm caused by this practice would be substantial.

Centerline’s allegations, taken as true, suggest that Banner’s practice of sending unsolicited faxes violated public policy, deprived consumers of the choice to not receive advertising faxes, and caused a significant amount of harm to consumers, taken in the aggregate. The court concludes that Centerline has adequately pleaded that Banner’s conduct was unfair within the meaning of the ICFA.

III. Conversion

To survive a motion to dismiss its conversion claim, Centerline must allege (1) an unauthorized and wrongful assumption of control, dominion, or ownership by defendant over its property; (2) its right to the property; and (3) its right to immediate possession of the property, absolutely and unconditionally. General Motors Corp. v. Douglass, 206 Ill.App.3d 881, 886, 151 Ill.Dec. 822, 565 N.E.2d 93, 96-97 (1st *782 Dist.1990). Banner argues that it never deprived Centerline of its property, and that even if it had, taking someone’s paper or toner cannot give rise to a conversion action. (Mot. to Dismiss at 11-12.)

Banner first argues that Center-line’s claim fails because the Complaint does not allege that Centerline was dispossessed of its paper and ink or toner, and did not allege that Banner came into physical possession of the property. (Mot. to Dismiss at 11-12.) As a plain reading of the Complaint reveals, however, Center-line has indeed specifically alleged that recipients (presumably including itself) of unsolicited fax advertisements are deprived of their paper and toner (id. ¶ 2) — a plausible allegation; once paper has had an advertisement printed upon it, it is no longer useable for other purposes, nor can the ink be recovered for reuse. Likewise, Banner’s suggestion that it cannot be liable because it never physically held the paper and ink or toner is contrary to Illinois law. Altering a chattel to materially change its characteristics can constitute conversion, even if the defendant never comes into possession of the chattel. Restatement (Second) of Torts § 226 Cmt. b (1977); see Jensen v. Chi. and W. Ind. RR., 94 Ill.App.3d 915, 932, 50 Ill.Dec. 470, 419 N.E.2d 578, 593 (1st Dist.1981) (“The essence of conversion is not acquisition by the wrongdoer but a wrongful deprivation of the owner thereof.”).

Relying on Rossario’s Fine Jewelry, Inc. v. Paddock Publ’ns, Inc., 443 F.Supp.2d 976, 980 (N.D.Ill.2006), Banner next argues that no action can lie based on the conversion of ink and toner because such an injury is de minimis. In Rossar-io’s, a case nearly identical to this one, the court dismissed a class action conversion claim involving unwanted fax advertising on a number of grounds, including the maxim de minimis non curat lex. Id. The court respectfully disagrees with the Ros-sario’s court and declines to assume, at the pleading stage, that the alleged deprivation is de minimis. An individual claim for the loss of one sheet of paper might well be “niggling,” id., but a class claim could be more substantial, and class treatment is regularly afforded in cases where no individual plaintiff has suffered any great loss. See Smilow, 323 F.3d at 41-42; Egge v. Healthspan Servs., 208 F.R.D. 265, 271 (D.Minn.2002) (certifying a class action by which each individual plaintiff stood to recover approximately twenty-one cents). Furthermore, the maxim may not apply at all, as Illinois courts have permitted conversion claims to be brought for only nominal damages. See Ill. Educ. Assn. v. Ill. Fed’n of Teachers, 107 Ill.App.3d 686, 689, 63 Ill.Dec. 343, 437 N.E.2d 1265, 1267 (4th Dist.1982) (action for conversion can lie even if property has been returned, but only nominal damages are available). If Illinois courts recognize conversion claims where there are no damages at all, they might well also recognize actions for very small damages. The court concludes that Illinois law does not require application of the de minimis rule to class conversion claims founded upon very small individual losses, so long as those losses can plausibly be inferred to be substantial in the aggregate.

Finally, Banner argues that paper and toner are not the sort of “specific chattels” that can give rise to a conversion action, once again relying on Rossario’s, 443 F.Supp.2d at 980. Centerline allegedly had possession of specific paper and toner, which Banner caused to be converted into a less-useful form. Thus, the paper and toner resembles “specific money in coin or bills,” which can be the subject of a conversion action under Illinois law. Horbach v. Kaczmarek, 288 F.3d 969, 978 (7th Cir.2002).

*783 Banner’s motion to dismiss Centerline’s conversion claim is denied.

CONCLUSION

For the above reasons, Banner’s motion to dismiss [17] is denied.

JAMES EDWARD WELSH, Judge.

Moore Equipment Company appeals the circuit court’s grant of summary judgment in favor of Callen Construction Co., Inc., on Callen’s claim for conversion. Moore contends that Callen’s claim fails as a matter of law because it seeks the return of money and does not fall within the limited circumstances in which a claim for the return of money lies in conversion. Moore also alleges that the circuit court’s judgment is erroneous because it permits Cal-len to recover duplicate damages. We affirm.

When considering an appeal from a summary judgment, we review the record in the light most favorable to the party against whom judgment was entered, and we afford that party the benefit of all reasonable inferences. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record established that Moore, located in Chillicothe, is a retail distributor of new and used John Deere farming equipment. In August 2000, Moore sold a 1997 John Deere tractor to Scholten Equipment Company. As part of the sale, Scholten purchased a power and drive train “Fail Safe” warranty. The warranty was insured by Professional Reinsurance Services, Inc., d/b/a Heavy Equipment Dealers Purchase Group, Inc. (PRS/HEDPG).

Scholten sold the tractor to Callen in October 2000. The warranty on the tractor continued to be valid when Callen purchased the tractor, and the warranty transferred with the tractor. In May 2001, the tractor’s power and drive train malfunctioned. Callen took the tractor to North Washington Implement Company to have it repaired. A proof of loss form, which contained the work order number and the tractor’s serial number, was submitted to PRS/HEDPG for payment of the cost of the repairs covered under the warranty.

Approximately one month later, on September 19, 2001, PRS/HEDPG issued check number 7542, in the amount of $19,162.88, as payment on the claim. Instead of sending the check to Callen or North Washington, however, PRS/HEDPG mistakenly sent it to Moore, who had not performed any repairs on Callen’s tractor and was not involved in the claim. Nevertheless, Moore deposited the check. The check cleared PRS/HEDPG’s bank account on September 26, 2001.

Moore was subsequently notified that it had received the check in error. PRS/ HEDPG requested that Moore reimburse either PRS/HEDPG or North Washington for the $19,162.88 proceeds from the check. Moore refused.

Callen paid North Washington for the repairs to the tractor. Callen has not been reimbursed by anyone for the cost of the repairs.

*681 Moore filed a petition for declaratory judgment seeking a declaration that the repairs to the tractor were not covered by the warranty because Callen failed to comply with the warranty’s terms. Moore later voluntarily dismissed its petition. 1 Callen filed counterclaims against Moore for breach of contract, breach of warranty, conversion, and unjust enrichment. Callen also sued PRS/HEDPG for breach of contract and breach of warranty.

Callen filed a motion for summary judgment against Moore on the conversion claim and against PRS/HEDPG on the breach of contract and breach of warranty claims. The circuit court sustained the motion and awarded summary judgment in favor of Callen on all claims; the judgment awarded Callen damages against both Moore and PRS/HEDPG in the amount of $19,162.88, the face amount of the check erroneously sent by PRS/HEDPG to Moore. Moore appeals.

Our review of summary judgment is essentially de novo. Id. “The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially.” Id. Summary judgment is proper only if “the motion, the response, [and] the reply ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 74.04(c)(6).

Moore contends in its first point that Callen’s claim for conversion fails as a matter of law because it seeks the return of money and does not fall within the limited circumstances in which a claim for conversion for the return of money can be maintained. “Conversion is the unauthorized assumption of the right of ownership over the personal property of another to the exclusion of the owner’s rights.” Dwyer v. Unit Power, Inc., 965 S.W.2d 301, 305 (Mo.App.1998). Moore is correct that, in general, an action for “conversion does not lie for the wrongful taking of money.” K-Smith Truck Lines, Inc., v. Coffman, 770 S.W.2d 393, 398 (Mo.App.1989). The reason behind this rule is “that an ordinary debt or money cannot be described or identified as a specific chattel.” Id. at 399.

Where “[n]otes, bills, checks, and other representatives of value” can be described or identified as specific chattel, however, a conversion action can be maintained. Id. This is because “a representative of value is itself a thing of value.” Good Roads Mach. Co. v. Broadway Bank, 267 S.W. 40, 42 (Mo.App.1924). “The recognized measure of damages for conversion of an identifiable check is prima facie the value of the paper converted.” K-Smith, 770 S.W.2d at 399.

The property alleged to have been converted in this case is the check issued by PRS/HEDPG for the purpose of paying for the repairs to Callen’s tractor that were covered by the warranty. The undisputed facts show that the check was identifiable as check number 7542, in the amount of $19,162.88. The check constituted specific chattel for which a claim for conversion could be maintained.

Moore contends that the evidence does not establish that it converted the check. “In Missouri, ‘[a]ny distinct act *682 of dominion wrongfully exerted over the personal property of another in denial of or inconsistent with the latter’s right therein constitutes a conversion.’ ” Atlas Sec. Servs., Inc. v. Git-N-Go, Inc., 728 S.W.2d 727, 730 (Mo.App.1987) (citation omitted). There are three ways to prove conversion: “(1) by a tortious taking, (2) by any use, or appropriation to the use of the person in possession, indicating a claim of right in opposition to the rights of the owner, or (3) by refusal to give up possession to the owner on demand.” Glass v. Allied Van Lines, Inc., 450 S.W.2d 217, 220 (Mo.App.1970).

The undisputed evidence establishes that Callen was the holder of a valid warranty on its tractor. PRS/HEDPG, the insurer of the warranty, determined that the warranty covered the repairs that North Washington made to Callen’s tractor. Based upon this determination, PRS/ HEDPG issued a check, in the amount of $19,162.88, to pay for those repairs. Instead of sending the check to North Washington or Callen, PRS/HEDPG mistakenly sent the check to Moore, who had no involvement in repairing Callen’s tractor.

Moore argues that it deposited the check and retained the proceeds because it believed that the check represented payment for work it had performed on two unrelated claims for which PRS/HEDPG owed Moore money. PRS/HEDPG subsequently notified Moore, however, that that this specific check was sent to Moore in error. After advising Moore of the error, PRS/HEDPG demanded that Moore either return the value of the check, $19,162.88, to PRS/HEDPG or forward this amount to North Washington. Moore refused and informed PRS/HEDPG that “it would hold onto the money as payment for work accomplished” on the two unrelated claims. Moore later asserted that it was justified in retaining possession of the value of the check because Callen failed to comply with the warranty claim procedures.

Moore’s reasons for its continued exercise of dominion over the value of the check, after demand was made for its return, are irrelevant. To establish conversion, it is not essential to prove that “the defendant acted with wrongful motive or intent.” Hinton v. State Farm Mut. Auto. Ins. Co., 741 S.W.2d 696, 699 (Mo.App.1987). Indeed, “[g]enerally, questions of good faith, motive, knowledge or ignorance, or care or negligence are not involved in actions for conversion.” Id. at 700. The evidence establishes that Moore converted the check when it refused to return the value of the check after demand was made. See Glass, 450 S.W.2d at 220-21.

The circumstances in this case are similar to those in Atlas Security Senices, 728 S.W.2d 727. In that case, Atlas Security Services contracted with GiWN-Go to provide security monitoring services for several Git-N-Go convenience stores. Id. at 728. After Gih-N-Go terminated the contracts, Atlas sued Git-N-Go for breach of the monitoring contracts. Id. While the suit was pending, Git-N-Go’s parent company inadvertently issued and sent a check to Atlas. Id. Atlas cashed the check, stating that it did so because the amount was close to the amount that it believed Git-N-Go owed it under the monitoring contracts. Id. When Git-N-Go notified Atlas that the check was issued and sent to it by mistake and demanded the return of the check or its value, Atlas refused. Id. at 729. Git-N-Go sued Atlas for conversion, and the jury returned a verdict in Gib-N-Go’s favor. Id.

On appeal, Atlas alleged that the circuit court erred in submitting the conversion claim to the jury because the facts and law did not entitle Git-N-Go to recover on a theory of conversion of money represented *683 by a general debt. Id. In rejecting Atlas s claim, the Southern District of this court relied upon cases in which defendants were held liable for conversion after they were inadvertently issued incorrect stock certificates, notified of the error, and refused to return the stock or its value upon demand. Id. at 731 (citing Fireman’s Fund Ins. Co. v. Trippe, 402 S.W.2d 577 (Mo.App.1966) and Nat’l Sur. Corp. v. Hochman, 313 S.W.2d 776 (Mo.App.1958)). The court found that Atlas’s refusal to give up possession of the check or its value upon Git-N-Go’s demand supported the submission of the conversion claim to the jury and the jury’s subsequent verdict:

The jury obviously believed the check was sent to Atlas in error, believed Atlases] conversion of the check to a cashier’s check and retention thereof of its proceeds over Git-N-Go’s protests and demands all indicated a claim of right in opposition to Git-N-Go’s rights, believed that Atlas refused to give up its possession, or equivalent in money, upon Git-N-Go’s demand, and that Git-N-Go’s damage was the $8,520.77 face value of the check.

Id.

In this case, the undisputed evidence establishes that the check was sent to Moore in error. Moore’s depositing the check and retaining its proceeds over PRS/ HEDPG’s protests and demands on behalf of Callen, the rightful owner of the check’s proceeds, indicated a claim of right in opposition to Callen’s rights. Moore’s refusal to give up possession of the check or its equivalent in money upon demand rendered it liable to Callen for damages for conversion in the amount of $19,162.88, the face value of the check. The circuit court did not err in granting Callen’s motion for summary judgment on its claim for conversion.

Moore alleges m its second point that the circuit court’s judgment is erroneous because it permits Callen to recover duplicate damages. In addition to sustaining Callen’s motion for summary judgment against Moore on Callen’s claim that Moore converted the $19,162.88 check, the court also sustained Callen’s motion for summary judgment against PRS/HEDPG. Specifically, the court found that PRS/ HEDPG was in breach of the contract and warranty when it paid the $19,162.88 warranty claim to Moore instead of Callen.

Moore argues that the judgment allows Callen to recover $19,162.88 in damages from both it and PRS/HEDPG. We disagree. “It is an established principle that there may be only one satisfaction for one injury[,] but as long as the judgment for that injury remains unsatisfied, all means given by law are open to the creditor for requital of that debt.” State ex rel. Mather v. Carnes, 551 S.W.2d 272, 289 (Mo.App.1977) (citation omitted), overruled, in part on other grounds by Hensel v. Am. Air Network, Inc., 189 S.W.3d 582, 584 (Mo. banc 2006). Callen has the option of enforcing the judgment against either PRS/HEDPG or Moore. Id. That the court granted Callen a judgment against both PRS/HEDPG and Moore does not mean that Callen is entitled to receive satisfaction from both of them. The circuit court’s judgment does not permit Cal-len to recover duplicate damages.

We affirm the circuit court’s granting summary judgment in favor of Callen on its claim for conversion against Moore.

All concur.

I’Anson, C.J. delivered the opinion of the court.

Plaintiff, Danny Lee Womack, instituted this action against the defendant, Rosalie Eldridge, to recover compensatory and punitive damages for mental shock and distress allegedly caused by the defendant’s willful, wanton, malicious, fraudulent and deceitful acts and conduct toward him. The question of punitive damages was stricken by the trial court and the jury returned a verdict for the plaintiff in the amount of $45,000. The trial court set aside the verdict non obstante veredicto on the ground that there could be no recovery for emotional distress in the absence *339of “physical damage or other bodily harm.” We granted plaintiff a writ of error. Defendant did not assign cross-error, although the record shows she excepted to many rulings in the court below and several of them are relied upon in her brief and argument before us.

Plaintiff assigned numerous errors, but the controlling question is whether one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress absent any bodily injury.

The evidence shows that defendant had been engaged in the business of investigating cases for attorneys for many years. She was employed by Richard E. Seifert and his attorney to obtain a photograph of the plaintiff to be used as evidence in the trial of Seifert, who was charged with sexually molesting two young boys. On May 27, 1970, about 8 a.m., defendant went to plaintiffs home and upon gaining admittance told him that she was a Mrs. Jackson from the newspaper and that she was writing an article on Skateland. Defendant asked plaintiff, who was a coach at Skateland, if she could take a picture of him for publication with the article, and he readily consented.

Shortly thereafter defendant delivered the photograph to Seifert’s counsel while he was representing Seifert at his preliminary hearing. Seifert’s counsel showed plaintiff’s photograph to the two young boys and asked if he was the one who molested them. When they replied that he was not, counsel withdrew the photograph and put it in his briefcase. However, the Commonwealth’s Attorney then asked to see the photograph and requested additional information about the person shown in it. Defendant was then called to the stand and she supplied the plaintiff’s name and address. Plaintiff’s photograph in no way resembled Seifert, and the only excuse given by defendant for taking plaintiff’s picture was that he was at Skateland when Seifert was arrested. However, the offenses alleged against Seifert did not occur at Skateland.

The Commonwealth’s Attorney then directed a detective to go to plaintiff’s home and bring him to court. The detective told plaintiff that his photograph had been presented in court; that the Commonwealth’s Attorney wanted him to appear at the proceedings; and that he could either appear voluntarily then or he would be summoned. Plaintiff agreed to go voluntarily. When *340called as a witness, plaintiff testified as to the circumstances under which defendant had obtained his photograph. He also said that he had not molested any children and that he knew nothing about the charges against Seifert.

A police officer questioned plaintiff several times thereafter. Plaintiff was also summoned to appear as a witness before the grand jury but he was not called. However, he was summoned to appear several times at Seifert’s trial in the circuit court because of continuances of the cases.

Plaintiff testified that he suffered great shock, distress and nervousness because of defendant’s fraud and deceit and her wanton, willful and malicious conduct in obtaining his photograph and turning it over to Seifert’s attorney to be used in court. He suffered great anxiety as to what people would think of him and feared that he would be accused of molesting the boys. He had been unable to sleep while the matter was being investigated. While testifying in the instant case he became emotional and incoherent. Plaintiff’s wife also testified that her husband experienced great shock and mental depression from the involvement.

The precise issue presented on this appeal has not been decided by this court.

In the recent case of Hughes v. Moore, 214 Va. 27, 31, 197 S.E.2d 214, 219 (1973), where we also clarified Bowles v. May, 159 Va. 419, 437-38, 166 S.E. 550, 557 (1932), we held that when conduct is merely negligent, not willful, wanton or vindictive, and physical impact is lacking, there can be no recovery for emotional disturbance alone. However, where emotional disturbance is accompanied by physical injury there may be a recovery for negligent conduct, notwithstanding the lack of physical impact, provided the injured party proves by clear and convincing evidence a causal connection between the negligent act, the emotional disturbance and the physical injury.

We have also said that a recovery is permitted for mental distress and physical injuries unaccompanied by actual physical contact where the injuries were caused by a willful, intentional tort. Moore v. Jefferson Hospital, Inc., 208 Va. 438, 441, 158 S.E.2d 124, 127 (1967).

The case of Awtrey v. Norfolk & W. Ry. Co., 121 Va. 284, 93 S.E. 570 (1917), relied upon by the defendant, is distinguishable on the facts from the present case. There, liability was based on *341a negligent wrongful act; here, liability is based on willful, wanton, fraudulent and deceitful conduct.

Courts from other jurisdictions are not in accord on whether there can be a recovery for emotional distress unaccompanied by physical injury. However, most of the courts which have been presented with the question in recent years have held that there may be a recovery against one who by his extreme and outrageous conduct intentionally or recklessly causes another severe emotional distress.1 Annot., 64 A.L.R.2d 100, § 8 at 120, and the many cases there cited.

The Restatement (Second) of Torts, § 46 at 71, provides:

“(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”

In comment (i) to the Restatement it is expressly stated that this rule also covers a situation where the actor knows that distress is certain, or substantially certain, to result from his conduct.

A great majority of cases allowing recovery for such a cause of action do so when the act was intentional and the wrongdoer desired the emotional distress or knew or should have known that it would likely result. Aetna Life Insurance Co. v. Burton, 104 Ind.App. 576, 580, 12 N.E.2d 360, 362 (1938); Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla. 1950); Boyle v. Chandler, 33 Del. 323, 329, 138 A. 273, 276 (1927); Samms v. Eccles, 11 Utah 2d 289, 293, 358 P.2d 344, 346-47 (1961); Prosser on Torts, “Infliction of Mental Distress,” § 12 at 60 (4th ed. 1971).

In Samms, the Supreme Court of Utah aptly stated:

“. . . [T]he best considered view recognizes an action for severe emotional distress, though not accompanied by bodily impact or physical injury, where the defendant intentionally engaged in some conduct toward the plaintiff, (a) with the purpose of inflicting emotional distress, or, (b) where any reasonable person would have known that such would result; and his actions are of such a nature as to be considered outrageous and intolerable in that they offend against the *342generally accepted standards of decency and morality.” (Footnote omitted; emphasis added.) 11 Utah 2d at 293, 358 P.2d at 346-47.

We adopt the view that a cause of action will lie for emotional distress, unaccompanied by physical injury, provided four elements are shown: One, the wrongdoer’s conduct was intentional or reckless. This element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result. Two, the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. This requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved. Three, there was a causal connection between the wrongdoer’s conduct and the emotional distress. Four, the emotional distress was severe.

“It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so. Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” Restatement (Second) of Torts, supra, at 77.

In the case at bar, reasonable men may disagree as to whether defendant’s conduct was extreme and outrageous and whether plaintiff’s emotional distress was severe. Thus, the questions presented were for a jury to determine. A jury could conclude from the evidence presented that defendant willfully, recklessly, intentionally and deceitfully obtained plaintiff’s photograph for the purpose of permitting her employers to use it as a defense in a criminal case without considering the effect it would have on the plaintiff. There is nothing in the evidence that even suggests that plaintiff may have been involved in the child molesting cases. The record shows that the only possible excuse for involving the plaintiff was that Seifert was arrested at the place where plaintiff was employed. A reasonable person would or should have recognized the likelihood of the serious mental distress that would be caused in involving an innocent person in child molesting cases. If the two boys had hesitated in answering *343that the man in the photograph was not the one who had molested them, it is evident that the finger of suspicion would have been pointed at the plaintiff.

Defendant contended in her brief, and in oral argument before us, that the trial court erred in granting instruction 1-A in that it was contradictory and misled the jury; that the amount of damages fixed by the jury was excessive; and that the action of the Commonwealth’s Attorney in causing plaintiff’s name to be revealed was an intervening cause which absolved her of any liability.

We will not consider those contentions because defendant did not assign cross-error. Beasley v. Barnes, 201 Va. 593, 598, 113 S.E.2d 62, 65 (1960); Blue Ridge Poultry and Egg Co., Inc. v. Clark, 211 Va. 139, 141, 176 S.E.2d 323, 325 (1970); Rule 5:7, Rules of Court.

For the reasons stated, the judgment of the court below is reversed, the jury verdict reinstated, and final judgment hereby entered for the plaintiff.

Judgment reversed, jury verdict reinstated, and final judgment.

LUCK, J.

“Chapel of Love,” the tune made famous by the Dixie Cups, celebrates how a couple’s wedding day should feel like “Spring is here, the sky is blue/Birds all sing as if they knew ... Bells will ring, the sun will shine, I’ll be his and he’ll be mine.” The Dixie Cups, Chapel of Love (Red Bird Records 1964). The birds, however, did not sing and the bells did not ring on Kemesia Boota Ward’s wedding day. The hotel ballroom where she planned to have her wedding reception was closed by the city of Miami Beach, and the hotel moved the reception to its lobby. Ward’s wedding day was “ruined,” a “public spectacle,” “cramped,” and “very uncomfortable,” and caused her to be “embarrassed,” “cry[ ] uncontrollably,” and have “nightmares.” As a result, Ward and •her husband, Patrick James Ward, sued the hotel that hosted and catered the wedding, Deauville Hotel Management, LLC, for breach of contract and intentional infliction of emotional distress. 1 The jury, after a five day trial, found for the couple on both claims and awarded Ward- $23,000 and her husband $2,500 on their breach of contract claims, and the couple $5,000 for intentional infliction of emotional distress. The hotel contends on appeal that it did not breach the contract because it did not promise a specific location for the wedding within the hotel, the jüry awarded more breach of contract damages than the facts supported, and its conduct was not outrageous enough for an intentional infliction of emotioiial distress claim. After reviewing the briefs, and with the benefit of oral argument, we affirm in part and reverse in part.

Factual Background and Procedural History

On February 17, 2010, Ward signed the contract with Deauville to hold her wedding reception in the hotel’s Richelieu ballroom on July 9, 2010. The contract did not specify in which room or area of the hotel the wedding would be held and, instead, referred to the “function space.” The contract further stated that:

Function space is assigned, and reassigned if needed, to accommodate both the GROUP and all other parties who are using the HOTEL facilities during the GROUP’S event dates. THE GROUP agrees to promptly notify the HOTEL of any changes in function space requirements and/or attendance.

The contract also contained the following provision regarding the hotel’s cancellation policy:

*952 HOTEL’S CANCELLATION: If Hotel cancels this Agreement or is unable to provide the requested space, the Hotel will work with Group to arrange alternative space at the prices set forth herein. Hotel will arrange for comparable space in the same vicinity of the Hotel and shall provide, without charge, necessary transportation between the alternative site and the Hotel. Hotel’s liability is limited to these remedies, and Hotel shall not be liable for any consequential, punitive or special damages,

.Nine days before the Wards’ wedding, on June 30, 2010, the city of Miami .Beach red-tagged (i.e., shut down) the hotel’s three ballrooms, including the Richelieu, as unsafe and in violation of certain building codes. 2 Deauville did not inform the Wards of the shut down and, instead, staff was instructed to continue the preparations for the reception as planned. Meanwhile, Deauville attempted to have the red-tag removed. The next day after the city closed the ballrooms, the hotel sent a facsimile to the city’s building department requesting a ninety-day extension of time for compliance. The extension was denied. On July 8, the day before the wedding, the hotel filed an emergency motion for temporary injunction against the city to allow access to the ballrooms. The hotel was again unsuccessful in its attempts to have the ballrooms reopened. Finally, an emergency inspection was conducted on the day of the wedding, but because no repairs had been made, the ballroom remained closed.

The Wards learned of the shutdown hours before their wedding on July 9. While the Wards were married in a ceremony off-site, the Deauville moved the reception to the “Napoleon Pre-function area,” which is what the hotel called its lobby. The lobby, unlike the Richelieu ballroom, was too small for the 190 guests; the tables were “crammed” in the space; there was no privacy for the event; the disc jockey playing music was told numerous times to lower the volume; and hotel guests were walking through the wedding reception (some in their bathing suits) and .participating in the reception (clapping during the introduction of the wedding party).

For ruining their wedding, the Wards sued the hotel for breach of contract (as to Ward), breach of a third-party beneficiary contract (as to her husband), and intentional infliction of emotional distress. The jury found in favor of Ward on her breach of contract claim, and awarded her $23,000 in compensatory damages. The jury also found that Ward’s husband was a third-party beneficiary to the contract and suffered damages in the amount of $2,500.. With respect to the intentional infliction of emotional distress claim, the jury found that the hotel engaged in extreme and outrageous conduct and awarded damages in the amount of $5,000. The trial court denied Deauville’s post-trial motion for judgment in accordance with its directed verdict motion. This appeal followed.

Standard of Review

We review a denial of a motion for directed verdict de novo, viewing “all of the evidence presented and all available inferences from that evidence in the light most favorable” to the non-moving party. R.J. Reynolds Tobacco Co. v. Ballard, 163 So.3d 541, 545 (Fla. 3d DCA 2015) (quotation omitted), “[A]n appellate court,” in other words, “must affirm the denial of a motion for directed verdict if any reasonable view of the evidence could sustain a *953 verdict in favor of the non-moving party.” Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009).

Analysis

Deauville appeals the trial court’s denial of its post-trial motion for direct verdict on three grounds. The directed verdict motion should have been granted as to the breach of contract claims, Deauville contends, because: there was no breach as the contract between the hotel and Ward did not specify that the wedding would be held in the Richelieu ballroom; and the jury’s damage award exceeded what the law allowed and the evidence supported. The hotel argues, as to the intentional infliction of emotional distress claim, that directed verdict should have been granted because its conduct was not, as matter of law, extreme and outrageous.

1. Breach of contract.

To prevail in a breach of contract action, a plaintiff must prove: (1) a valid contract existed; (2) a material breach of the contract; and (3) damages. See Murciano v. Garcia, 958 So.2d 423 (Fla. 3d DCA 2007). Deauville contends that because the contract allowed it to reassign a space as needed and because “function space” was not defined as the Richelieu ballroom, the hotel did not breach the contract when it unilaterally moved the Wards’ reception to the lobby of the hotel. Deauville’s reading of the contract is an incomplete one.

The contract was unambiguous that it provided for an assigned, committed, and reserved function space. The contract provided that a “[f]unction space is assigned, and reassigned if needed, to accommodate both the GROUP [the Wards] and the other parties who are using the HOTEL facilities during the GROUP’S event dates.” It further provided that “[i]f the HOTEL resells the Function Space committed to the GROUP, revenue received by the HOTEL from the resale will reduce the amount owed by the GROUP.” The contract continued that “[i]f Hotel ... is unable to provide the requested space, the Hotel will work with Group to arrange alternative space.” The contract, in other words, provided for a function space that was “assigned,” “committed,” and “reserved” for the Wards. The only questions for the jury were whether the Richelieu ballroom was the assigned, committed* and requested function space, and whether the lobby was a “comparable” alternative space when the hotel was unable to provide the Richelieu ballroom.

The jury answered in favor of the Wards, and the evidence at trial supported the jury’s verdict. The hotel’s computer system had the Richelieu ballroom as the reserved function space for the reception. A banquet event order form generated by the hotel identified the Richelieu ballroom as the space rented for the wedding. And the electronic mail and text messages sent between Ward and Deauville’s catering managér confirmed the assigned function space was the Richelieu ballroom,

The alternative space that the hotel provided, moreover, was not “comparable.” The jury saw a schematic drawing and pictures of the hotel comparing the Richelieu ballroom and the lobby. Witnesses testified that the tables were “crammed” into the lobby; there was no ocean view; there was no room for a head table with bridesmaids and groomsmen; the music was drowned out; and there was no separation between wedding and hotel guests. This evidence, viewed in the light most favorable to the Wards, supported the jury’s verdict that the hotel did not provide the reserved and committed space, and when it was unable to do so, the hotel did not provide a “comparable” alternative as required by the contract.

*954 2Compensatory Damages.

Deauville, next, contends that the jury awarded more compensatory damages than was supported by the evidence. The Wards, the hotel argues, paid $12,985.65 for food and beverages, which money also included use of'the room. The jury’s award of $25,500 ($23,000 to Ward and $2,500 to her husband as a third-party beneficiary), Deauville continues, was far too high. The $25,500 was justified, the Wards respond, for two reasons: the incidental expenses for flowers, linens, photography, videogra-phy, entertainment, transportation, ■ and cake cost the couple $9,500; and the rental value of the Richelieu ballroom was $15,000.

As to the incidental expenses claimed by the Wards, the evidence at trial was that they had flowers, linens, photography, videography, entertainment, transportation, and cake at the wedding. While these things were not in the Richelieu ballroom, they were at the wedding and used by the Wards and their guests. “Compensatory damages are designed to make the injured party whole to the extent that it is possible to measure such injury in monetary terms.” MCI WorldCom Network Servs., Inc. v. Mastec, Inc., 995 So.2d 221, 223 (Fla. 2008). A plaintiff “is not entitled to recover compensatory damages in excess of the amount which represents the loss actually inflicted by the action of the defendant.” Id. The purpose of compensatory damages is not to punish defendants or to “bestow a:windfall on plaintiffs.” Id at 224 (quotation omitted). The Wards were already whole with regard to these incidental expenses. They cannot get the benefit of these expenses twice. See Kingswharf, Ltd. v. Kranz, 545 So.2d 276, 278 (Fla. 3d DCA 1989) (“Both counts were based on the same elements of damages, and there is clearly a duplication in the damages awarded. Double recovery on the same element of damages is prohibit ed”).

As to the Wards’ position that the damage award compensated them for the value of the ballroom, the evidence at trial showed that the cost of the Richelieu ballroom was free when a party, like them, entered into a food and beverage contract with the hotel. Only where a party rented the room by itself—without a food and beverage contract—would they pay $15,000 for the . rental. Here, , the Wards entered into a, food and beverage contract and, therefore, did not pay for renting the ballroom. Awarding them the value of renting the Richelieu ballroom when the couple was not charged and did not pay for renting it by virtue of the food and beverage contract would constitute a “windfall,” paying the Wards twice for the same thing. MCI, 995 So.2d at 224.

There was evidence at trial supporting the jury’s compensatory damages verdict for the $12,985.65 paid for the food and beverage contract to secure the requested function space. Beyond that, the directed verdict motion should have been granted.

3.' Intentional Infliction of Emotional Distress

Deauville, finally, contends that its conduct was legally insufficient to support a claim for outrageous conduct required for an, intentional infliction of emotional distress claim. To prove intentional infliction of emotional distress, the plaintiff must show:

(1) The wrongdoer’s conduct was intentional or reckless, that is, he intended his behavior when he knew or should have.. known that emotional distress would likely result;

(2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community;

*955 (3)- the conduct - caused emotional distress; and

(4) the emotional distress was severe.

LeGrande v. Emmanuel, 889 So.2d 991, 994 (Fla. 3d DCA 2004). What constitutes outrageous conduct is a question that must be decided as a matter of law. De La Campa v. Grifols Am., Inc., 819 So.2d 940, 943 (Fla. 3d DCA 2002) (“What constitutes outrageous conduct is a question for the trial court to determine as a matter of law.”) The plaintiffs “subjective response” to the conduct “does not control the question of whether the tort of intentional infliction of emotional distress occurred.” Liberty Mut. Ins. Co. v. Steadman, 968 So.2d 592, 595 (Fla. 2d DCA 2007).

As to the second element, for one’s actions to rise to the level of intentional infliction of emotional distress, it must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Clemente v. Horne, 707 So.2d 865, 867 (Fla. 3d DCA 1998) (quotation omitted). It is not “enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” Gallogly v. Rodriguez, 970 So.2d 470, 471-72 (Fla. 2d DCA 2007) (quotation omitted). In other words, even purposeful. conduct that one knows is going to hurt another is not outrageous enough to support a claim.

For example, calling a minister a thief in front of his parishioners is not legally outrageous. See LeGrande, 889 So.2d at 994; see also Food Lion, Inc. v. Clifford, 629 So.2d 201, 202-03 (Fla. 5th DCA 1993) (stating that a false accusation of theft was insufficient to support a cause of action for intentional infliction of emotional distress). Neither is a. supervisor calling an African-American employee the n-word and monkey, and threatening to.fire the employee without cause. See Williams v. Worldwide Flight SVCS., Inc., 877 So.2d 869, 870 (Fla. 3d DCA 2004).

Deauville, here, pulled a bait-and-switch. The Wards, expected and paid for birds and bells at their wedding reception, and instead got bikini-dad hotel guests arid background noise. We do not minimize or condone what Deauville did; It was wrong, and tortious (as reflected by the jury’s negligent misrepresentation verdict), and caused the Wards physical and emotional distress. It was not worse, however, than purposefully and falsely ruining a pastor’s reputation in his church and community, or ruining one’s career by hurling racial slurs and making him think he’s going to be fired for no reason. The Wards’ day was ruined; the LeGrande and Williams plaintiffs had ruined reputations and careers. Because the courts did not find what the LeGrande and Williams defendants did'to be sufficieritly outrageous, we cannot find the Deauville’s conduct to be legally outrageous either.

The two cases cited by the Wards in support of their intentional infliction claim, Steadman and Thomas v. Hosp. Bd. of Dirs. of Lee Cnty., 41 So.3d 246 (Fla. 2d DCA 2010), are telling, In Steadman, the insurance company intentionally denied and delayed payment for the plaintiffs treatment in an effort to speed up her demise, to induce stress that it knew would be detrimental to her health, and to inflict emotional distress. Steadman, 968 So.2d at 595. In Thomas, “[a] hospital and its employees negligently rendered medical care, resulting in the death of the decedent” and, “[subsequent to the death, the hospital and its employees then engaged in a purported cover-up and notified the' family that the decedent died from natural causes *956 despite knowing that such information was false.” Thomas, 41 So.3d at 254. The Steadman and Thomas cases, in essence, dealt with matters of life-and-death. The defendants in those cases caused the death of another, and intentionally inflicted harm.

A wedding day is an important one in the lives of a young couple. Wedding memories—good or bad—do not easily fade. Causing these bad memories (as the hotel did here), however, is many degrees removed from causing or covering up the negligent death of another on the outra-geousness scale. Purposefully causing death by withhold insurance benefits or covering up the negligent death of a family member is atrocious, utterly intolerable, and outside the bounds of decency in a way that causing nightmares, disappointment, and embarrassment because of a ruined wedding is not.

Conclusion

For these reasons, we affirm the trial court’s decision denying Deauville’s post-trial directed verdict motion as to jury’s finding the hotel breached the food and beverage contract. We reverse the trial court’s decision denying the directed verdict motion as to: (1) the jury’s award of breach of contract damages for any amount greater than $12,985.65; and (2) the jury’s finding that the hotel engaged in extreme and outrageous conduct. We remand for the trial court to enter judgment on Kemesia Ward’s breach of contract claim for $12,985.65; on Patrick Ward’s third-party beneficiary claim for $1.00 as nominal damages 3 ; and for Deauville on the intentional infliction of emotional distress claim.

Affirmed in part, reversed in part, and remanded with instructions.

Fisher, Associate Judge:

Almost simultaneously on August 7, 1998, al Qaeda terrorists detonated powerful truck bombs outside the United States embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, killing over two hundred people and injuring more than a thousand others. Owens v. Republic of Sudan , 864 F.3d 751 , 762 (D.C. Cir. 2017). Three years after the attacks, groups of plaintiffs began filing suit in the United States District Court for the District of Columbia, seeking to hold Sudan accountable for its role in the bombings. Id. Eventually, the case reached the United States Court of Appeals for the District of Columbia Circuit and, pursuant to D.C. Code § 11-723 (2012 Repl.), it certified the following question of District of Columbia law to this court:

Must a claimant alleging emotional distress arising from a terrorist attack that killed or injured a family member have been present at the scene of the attack in order to state a claim for intentional infliction of emotional distress?

Id. at 812 . For the reasons that follow, we answer this question "No."

I. Background

The D.C. Circuit and the district court have fully recounted the relevant facts and procedural history, see id. at 765-69 , 781-84 ; Owens v. Republic of Sudan , 826 F.Supp.2d 128 , 133-35, 139-46 (D.D.C. 2011), aff'd in part, vacated in part , 864 F.3d 751 (D.C. Cir. 2017), so we will discuss them only briefly here.

Much of the litigation in federal court centered on the Foreign Sovereign Immunity Act (FSIA), which generally bars suits against foreign sovereigns in federal and state courts. 28 U.S.C. § 1604 (2012). The FSIA contains exceptions, including the "[t]errorism exception," 28 U.S.C. § 1605A, which strips foreign states of immunity, and grants courts jurisdiction, in cases where certain plaintiffs sue state sponsors of terrorism for committing, or "provi[ding] material support" for, enumerated terrorist activities. 1

*40 § 1605A(a)(1), (2). Section 1605A(c) establishes a private right of action for the same conduct that gives rise to jurisdiction; however, only a subcategory of those plaintiffs who obtain jurisdiction under the terrorism exception can also invoke the statutory cause of action. 864 F.3d at 809 . The remainder must assert claims based "upon alternative sources of substantive law," such as state tort law. Id. at 808 (analyzing §§ 1605A and 1606 ).

Appellees are a subset of the plaintiffs who sued Sudan for its role in the embassy bombings. All of them are non-U.S. nationals related to someone who died or suffered injuries in one of the attacks. They allege that the injuries to their family members caused them severe emotional distress, and seek to recover damages for that injury to themselves.

The district court determined, 826 F.Supp.2d at 148 , and the D.C. Circuit later affirmed, 864 F.3d at 769 , that it had jurisdiction over appellees' claims under § 1605A. However, the district court also concluded that appellees could not rely on § 1605A(c)'s cause of action and would instead need to invoke an independent legal basis for recovery. 826 F.Supp.2d at 153 . After conducting a choice of law analysis, the court determined that District of Columbia law governed the "claims that [did] not arise under the federal cause of action at § 1605A(c)," id. at 157 , and, applying our tort law, held Sudan liable to appellees for intentional infliction of emotional distress ("IIED"). See, e.g. , Onsongo v. Republic of Sudan , 60 F.Supp.3d 144 , 149 (D.D.C. 2014), aff'd in part, vacated in part sub nom . Owens v. Republic of Sudan , 864 F.3d 751 (D.C. Cir. 2017).

The orders finding Sudan liable and awarding damages to appellees took the form of default judgments. 864 F.3d at 767 . Sudan did not participate in much of the litigation and even declined to engage in the evidentiary hearings held on issues related to jurisdiction, liability, and damages. Id. However, after the entry of default judgments, Sudan adopted a more active strategy. It filed motions for relief from the judgments under Fed. R. Civ. P. 60(b), and appealed the denial of that motion, as well as the underlying default judgments, to the D.C. Circuit. Id. at 768 .

In both proceedings Sudan argued that appellees could recover for IIED only if they were present when their family members were killed or injured, id. at 809-10 ; Owens v. Republic of Sudan , 174 F.Supp.3d 242 , 286-87 (D.D.C. 2016), a requirement the district court had not imposed, see, e.g. , Onsongo , 60 F.Supp.3d at 149 . On appeal, the D.C. Circuit reviewed our case law and was "genuinely uncertain" whether this jurisdiction "would apply the presence requirement in the Second Restatement of Torts to preclude recovery for IIED by family members absent from the scene of a terrorist bombing." 864 F.3d at 812 . Consequently, it certified to us the question of law quoted above. Id.

II. The General Rule

The certified question raises two issues of first impression. We must, as a general matter, identify the elements of an IIED claim arising from injury to a member of the plaintiff's immediate family. Depending on the answer to that question, we may then need to determine whether to permit more expansive liability when injury to the *41 family member was caused by a terrorist attack.

Our analysis starts with § 46 of the Restatement (Second) of Torts (Am. Law Inst. 1965) ("Second Restatement" or "Restatement Second"), which defines the elements of IIED liability as follows:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b) to any other person who is present at the time, if such distress results in bodily harm.

Section 46(1) governs IIED claims where the defendant "intentionally or recklessly causes severe emotional distress" to the plaintiff. In such cases the defendant typically has targeted the plaintiff. See, e.g. , Howard Univ. v. Best , 484 A.2d 958 , 985-86 (D.C. 1984) (holding that plaintiff "made out a prima facie case of intentional infliction of emotional distress ... [by] demonstrat[ing] repeated 'sexual harassment' by ... her supervisor"). By contrast, § 46(2)(a) applies when defendants "direct" their extreme and outrageous acts at a third person and "intentionally or recklessly cause[ ] severe emotional distress" to a member of that person's "immediate family who is present at the time." 2 This court has addressed many § 46(1)-type claims and, in doing so, has expressly adopted the Second Restatement's approach. See, e.g. , Sere v. Grp. Hospitalization, Inc. , 443 A.2d 33 , 37 (D.C. 1982) (quoting elements of IIED from Second Restatement § 46(1) ); Waldon v. Covington , 415 A.2d 1070 , 1076 & n.21 (D.C. 1980) (quoting from § 46 of Second Restatement). However, none of our published opinions has analyzed an IIED claim where § 46(2)(a) might apply. As a result, before we can discuss cases involving terrorist attacks, we must determine whether § 46(2)(a), and with its requirement that the plaintiff be "present at the time," generally governs IIED claims where the plaintiff's distress was caused by harm to a member of his or her immediate family.

We conclude that it does. As noted, this court has embraced the Restatement Second's approach to IIED liability. Subsection (2)(a) is an integral part of that regime and, in formally adopting that subsection today, we make explicit what our earlier cases implied. This holding is consistent with our customary caution when facing "the problem of potentially infinite liability that has been of central judicial concern in emotional distress cases." Hedgepeth v. Whitman Walker Clinic , 22 A.3d 789 , 801-02 (D.C. 2011) (en banc). For decades, this court permitted relief for negligent infliction of emotional distress only "if the distress result[ed] from a physical impact and [was] accompanied by physical injury." Id. at 796 . While we ultimately abandoned that rule, we replaced it with new ones deliberately crafted to contain "self-limiting principle[s]," id. at 812 , and to avoid "virtually *42 infinite liability," Williams v. Baker , 572 A.2d 1062 , 1069 (D.C. 1990) (en banc). 3

Like the rules cabining relief for negligent infliction of emotional distress, § 46(2)(a) defines this related tort to guard against potentially unbounded liability. Indeed, the reporters of the Second Restatement explained that § 46(2)(a)'s "presence" requirement exists, in part, to serve that very goal. § 46 cmt. l . Limiting recovery to those who are present and perceive the harm as it happens prevents excessive liability while affording relief to plaintiffs who suffer a uniquely traumatic experience. Accordingly, we hold that, as a general matter, to recover for IIED, a plaintiff whose emotional distress arises from harm suffered by a member of his or her immediate family must be "present" when the harm occurs and otherwise satisfy the rule established in Restatement Second § 46(2)(a). 4

III. The FSIA Terrorism Exception to the Presence Requirement

A caveat to § 46 of the Second Restatement leaves open the possibility of "other circumstances" in which a defendant could face liability for IIED, including "situations in which [the plaintiff's] presence at the time may not be required." § 46 Caveat & cmt. l . 5 The D.C. Circuit has asked us to determine whether the caveat applies to the scenario presented here-an IIED case where the defendant is a state sponsor of terrorism denied sovereign immunity by the FSIA. See 864 F.3d at 812 . Having considered the reasons for the requirement in more typical cases, we conclude that presence at the scene is not required in this special context. Accordingly, we answer the certified question in the negative.

The presence requirement serves many purposes. It shields defendants from unwarranted liability, tries to ensure that compensation is awarded only to victims with genuine claims of severe emotional distress, and provides a judicially manageable standard that protects courts from a flood of IIED claims. See Restatement Second § 46 cmt. l . In FSIA terrorism cases, however, the presence requirement is not needed to achieve these goals: the very facts that justify stripping foreign *43 sovereigns of their immunity allay the concerns that the presence requirement was designed to address. As a result, adhering to the rule in this context would serve only to create a high risk that compelling claims will go uncompensated. By establishing the caveat, the Restatement Second sought to prevent such unfair outcomes; by invoking it here, we do just that.

We begin our analysis by considering the role of the presence requirement in ensuring fairness to defendants. As noted previously, § 46(2)(a) governs cases in which the plaintiffs suffer severe emotional distress from conduct directed at a member of their immediate family. The Restatement Second appreciated that, in such cases, defendants might not anticipate the degree to which their conduct would affect family members absent from the scene-individuals whom such defendants did not target and did not see when they engaged in their extreme and outrageous conduct. See § 46 cmt. l . Requiring that the plaintiff have been "present at the time" mitigated this concern. "[W]here, for example, a husband is murdered in the presence of his wife, the actor may know that it is substantially certain, or at least highly probable, that it will cause severe emotional distress to the plaintiff." Id. Although § 46(2)(a) separately requires that the defendant "intentionally or recklessly cause" the plaintiff's anguish, the wife's presence at the time gives added assurance that the defendant knew he would cause her severe emotional distress. 6

Defendants in FSIA terrorism cases do not need this additional protection. Acts of terrorism are, by their very nature, designed " 'to create maximum emotional impact,' particularly on third parties." Estate of Heiser v. Islamic Republic of Iran , 659 F.Supp.2d 20 , 27 (D.D.C. 2009) (quoting Eisenfeld v. Islamic Republic of Iran , 172 F.Supp.2d 1 , 7 (D.D.C. 2000) ); see 18 U.S.C. § 2331 (1) (definition of "international terrorism" includes violent acts that "appear to be intended ... to intimidate or coerce a civilian population ... [or] to influence the policy of a government by intimidation or coercion"); D.C. Code § 22-3152 (1) (2012 Repl.) ("act of terrorism" similarly defined). Therefore, when foreign states provide material support for terrorist attacks, it should come as no surprise that the acts they facilitated have caused severe emotional distress to persons who were not present at the time.

Another purpose of the presence requirement is to increase the likelihood that only plaintiffs with "genuine" complaints of severe distress can recover. See Restatement Second § 46 cmt. l. Yet, the risk of trivial or feigned claims is exceedingly low when the anguish derives from a terrorist attack that killed or injured a member of the plaintiff's immediate family . Individuals naturally experience severe distress in response to such horrific events. Consequently, in such circumstances, courts need not rigidly enforce the presence requirement to ward off disingenuous claims.

Lastly, the presence requirement serves the goal of avoiding "virtually unlimited" liability and recognizes "the practical necessity of drawing the line somewhere." Id. Sudan emphasizes this point, arguing that invoking the caveat in this case would untether the tort from judicially manageable standards and unwisely discard our *44 carefully considered limits on liability for causing emotional distress. Indeed, Sudan suggests that any resort to the caveat is suspect.

We agree that the caveat should be invoked only rarely, but Sudan's argument seems to treat it as a nullity. Relaxing the presence requirement in cases where § 1605A applies should not open the floodgates to litigation. Indeed, the FSIA terrorism exception we recognize here is quite limited in scope. The provisions of 28 U.S.C. § 1605A are restricted to (1) plaintiffs who meet precise qualifications, § 1605A(a)(2)(A)(ii) ; (2) a limited range of conduct (in this instance "extrajudicial killing"), § 1605A(a)(1) ; and (3) defendants that have been classified as state sponsors of terrorism, § 1605A(a)(2)(A)(i). Our holding excuses the presence requirement only when plaintiffs demonstrate that these predicates are met. And even when they can make such a showing, plaintiffs may obtain relief only upon satisfying the remaining elements of § 46(2)(a) -that is, they must establish that the defendant engaged in "extreme and outrageous conduct" and "intentionally or recklessly" caused the plaintiffs' "severe emotional distress" by harming a member of their "immediate family." These are judicially manageable standards that should be sufficient to prevent a precipitous slide down the proverbial slippery slope.

This analysis demonstrates that when § 1605A applies, the need for the presence requirement does not. In such circumstances, rigid adherence to the rule would do little more than shield culpable defendants from liability and deny relief to deserving plaintiffs. The caveat exists precisely to avoid such unfair results, which is why we choose to invoke it.

Furthermore, precluding liability in contexts like the one at bar is not simply unjust but also unwise, as doing so would forego an opportunity to advance a policy goal of national importance. Congress enacted § 1605A"to deter [sovereign nations] from engaging, either directly or indirectly, in terrorist acts." 864 F.3d at 776 . It viewed the goal of deterrence as sufficiently important-and the means of civil liability sufficiently effective-that it curtailed sovereign immunity to promote it. Invoking the caveat here will increase the IIED liability of foreign states if they sponsor terrorism, furthering the objective of deterrence that Congress has emphasized. While § 1605A does not dictate our response to the certified question and we are not obligated to promote the purposes of that statute, it is sound jurisprudence to consider how our decisions will affect policies of national significance. Here, Congress deems civil litigation a useful tool in the nation's efforts to deter foreign states from sponsoring terrorism. Our holding today is consistent with that legislative judgment. 7

At the same time, we emphasize that our decision is not based simply on the outrageousness of the actions at issue. Sudan correctly reminds us that conduct must always be "extreme and outrageous" even to make out a prima facie case of IIED. And we take Sudan's point that creating gradations among extreme and outrageous wrongs is a precarious basis for determining *45 whether and when to enforce the presence requirement. Rather, we endorse an FSIA terrorism exception because few IIED claims involve facts that address the concerns of the presence requirement while simultaneously touching a matter of such national significance.

Arguing against excusing the presence requirement, Sudan relies heavily on the note to Restatement Third § 46. There, the reporters reviewed federal district court decisions that have declined or failed to apply the presence requirement in terrorism cases and concluded that this trend, although "worthy of note, ... falls well short of the development of another exception to the presence requirement that the Institute would endorse." Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 46 reporter's note cmt. m (Am. Law Inst. 2012). This statement does not draw our holding into question. The reporters primarily criticized the district courts for treating family members of those harmed in terrorist attacks as "direct" victims under Restatement Second § 46(1), see id. , a rationale we do not rely on here. 8

In sum, this is a situation contemplated by the Second Restatement "in which presence at the time [should] not be required." § 46 cmt. l . We see little need to enforce the presence requirement in IIED cases where the jurisdictional elements of § 1605A are satisfied and the plaintiff's severe distress arises from a terrorist attack that killed or injured a member of his or her immediate family. Excusing the presence element in such cases may further deter foreign states from sponsoring terrorism and allow deserving plaintiffs to hold culpable defendants accountable for their conduct. At the same time, making such an exception is not likely to produce the type of unfair and unbounded liability that the presence element is intended to prevent. In this limited context, therefore, we hold that the presence requirement does not apply.

IV. Conclusion

For the reasons stated, we answer the certified question "No." In accordance with D.C. Code § 11-723 (g) (2012 Repl.), the Clerk is directed to transmit a copy of this opinion to the United States Court of Appeals for the District of Columbia Circuit, to each of the parties, and to amici .

*447Chief Justice Roberts

delivered the opinion of the Court.

A jury held members of the Westboro Baptist Church liable for millions of dollars in damages for picketing near a soldier’s funeral service. The picket signs reflected the church’s view that the United States is overly tolerant of sin and that God kills American soldiers as punishment. The question presented is whether the First Amendment shields the church members from tort liability for their speech in this case.

*448I

A

Fred Phelps founded the Westboro Baptist Church in Topeka, Kansas, in 1955. The church’s congregation believes that God hates and punishes the United States for its tolerance of homosexuality, particularly in America’s military. The church frequently communicates its views by picketing, often at military funerals. In the more than 20 years that the members of Westboro Baptist have publicized their message, they have picketed nearly 600 funerals. Brief for Rutherford Institute as Amicus Curiae 7, n. 14.

Marine Lance Corporal Matthew Snyder was killed in Iraq in the line of duty. Lance Corporal Snyder’s father selected the Catholic church in the Snyders’ hometown of Westminster, Maryland, as the site for his son’s funeral. Local newspapers provided notice of the time and location of the service.

Phelps became aware of Matthew Snyder’s funeral and decided to travel to Maryland with six other Westboro Baptist parishioners (two of his daughters and four of his grandchildren) to picket. On the day of the memorial service, the Westboro congregation members picketed on public land adjacent to public streets near the Maryland State House, the United States Naval Academy, and Matthew Snyder’s funeral. The Westboro picketers carried signs that were largely the same at all three locations. They stated, for instance: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.”

The church had notified the authorities in advance of its intent to picket at the time of the funeral, and the picketers complied with police instructions in staging their demonstration. The picketing took place within a 10- by 25-foot plot of public land adjacent to a public street, behind a temporary *449fence. App. to Brief for Appellants in No. 08-1026 (CA4), pp. 2282-2285 (hereinafter App.). That plot was approximately 1,000 feet from the church where the funeral was held. Several buildings separated the picket site from the church. Id., at 3758. The. Westboro picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses. None of the picketers entered church property or went to the cemetery. They did not yell or use profanity, and there was no violence associated with the picketing. Id., at 2168, 2371, 2286, 2293.

The funeral procession passed within 200 to 300 feet of the picket site. Although Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event. Id., at 2084-2086.1

B

Snyder filed suit against Phelps, Phelps’s daughters, and the Westboro Baptist Church (collectively Westboro or the *450church) in the United States District Court for the District of Maryland under that court’s diversity jurisdiction. Snyder alleged five state tort law claims: defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. West-boro moved for summary judgment contending, in part, that the church’s speech was insulated from liability by the First Amendment. See 533 F. Supp. 2d 567, 570 (2008).

The District Court awarded Westboro summary judgment on Snyder’s claims for defamation and publicity given to private life, concluding that Snyder could not prove the necessary elements of those torts. Id., at 572-573. A trial was held on the remaining claims. At trial, Snyder described the severity of his emotional injuries. He testified that he is unable to separate the thought of his dead son from his thoughts of Westboro’s picketing, and that he often becomes tearful, angry, and physically ill when he thinks about it. Id., at 588-589. Expert witnesses testified that Snyder’s emotional anguish had resulted in severe depression and had exacerbated pre-existing health conditions.

A jury found for Snyder on the intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy claims, and held Westboro liable for $2.9 million in compensatory damages and $8 million in punitive damages. Westboro filed several post-trial motions, including a motion contending that the jury verdict was grossly excessive and a motion seeking judgment as a matter of law on all claims on First Amendment grounds. The District Court remitted the punitive damages award to $2.1 million, but left the jury verdict otherwise intact. Id., at 597.

In the Court of Appeals, Westboro’s primary argument was that the church was entitled to judgment as a matter of law because the First Amendment fully protected West-boro’s speech. The Court of Appeals agreed. 580 F. 3d 206, 221 (CA4 2009). The court reviewed the picket signs and concluded that Westboro’s statements were entitled to First *451Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric. Id., at 222-224.2

We granted certiorari. 559 U. S. 990 (2010).

II

To succeed on a claim for intentional infliction of emotional distress in Maryland, a plaintiff must demonstrate that the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress. See Harris v. Jones, 281 Md. 560, 565-566, 380 A. 2d 611, 614 (1977). The Free Speech Clause of the First Amendment — “Congress shall make no law . . . abridging the freedom of speech” — can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress. See, e. g., Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 50-51 (1988).3

Whether the First Amendment prohibits holding West-boro liable for its speech in this ease turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. “[SJpeech on ‘matters of public concern’... is ‘at the heart of the First Amendment’s *452protection.’” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 758-759 (1985) (opinion of Powell, J.) (quoting First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776 (1978)). The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964). Accordingly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U. S. 138, 145 (1983) (internal quotation marks omitted).

“ ‘[N]ot all speech is of equal First Amendment importance,’ ” however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous. Hustler, supra, at 56 (quoting Dun & Bradstreet, supra, at 758); see Connick, supra, at 145-147. That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: “[T]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas”; and the “threat of liability” does not pose the risk of “a reaction of self-censorship” on matters of public import. Dun & Bradstreet, supra, at 760 (internal quotation marks omitted).

We noted a short time ago, in considering whether public employee speech addressed a matter of public concern, that “the boundaries of the public concern test are not well defined.” San Diego v. Roe, 543 U. S. 77, 83 (2004) (per curiam). Although that remains true today, we have articulated some guiding principles, principles that accord broad protection to speech to ensure that courts themselves do not become inadvertent censors.

*453Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” Connick, supra, at 146, or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public,” San Diego, supra, at 83-84. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 492-494 (1975); Time, Inc. v. Hill, 385 U. S. 374, 387-388 (1967). The arguably “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” Rankin v. McPherson, 483 U. S. 378, 387 (1987).

Our opinion in Dun & Bradstreet, on the other hand, provides an example of speech of only private concern. In that case we held, as a general matter, that information about a particular individual’s credit report “concerns no public issue.” 472 U. S., at 762. The content of the report, we explained, “was speech solely in the individual interest of the speaker and its specific business audience.” Ibid. That was confirmed by the fact that the particular report was sent to only five subscribers to the reporting service, who were bound not to disseminate it further. Ibid. To cite another example, we concluded in San Diego v. Roe that, in the context of a government employer regulating the speech of its employees, videos of an employee engaging in sexually explicit acts did not address a public concern; the videos “did nothing to inform the public about any aspect of the [employing agency’s] functioning or operation.” 543 U. S., at 84.

Deciding whether speech is of public or private concern requires us to examine the “ 'content, form, and context’ ” of that speech, '"as revealed by the whole record.’” Dun & Bradstreet, supra, at 761 (quoting Connick, supra, at 147-148). As in other First Amendment cases, the court is obligated “to 'make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” Bose Corp. v. Consumers Union of United States, *454Inc., 466 U. S. 485, 499 (1984) (quoting New York Times, supra, at 284-286). In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.

The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of “purely private concern.” Dun & Bradstreet, supra, at 759. The placards read “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for lEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You.” App. 3781-3787. While these messages may fall short of refined social or political commentary, the issues they highlight — the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy — are matters of public import. The signs certainly convey Westboro’s position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible. And even if a few of the signs — such as “You’re Going to Hell” and “God Hates You” — were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.

Apart from the content of Westboro’s signs, Snyder contends that the “context” of the speech — its connection with his son’s funeral — makes the speech a matter of private rather than public concern. The fact that Westboro spoke in connection with a funeral, however, cannot by itself transform the nature of Westboro’s speech. Westboro’s signs, displayed on public land next to a public street, reflect the fact that the church finds much to condemn in modern *455society. Its speech is “fairly characterized as constituting speech on a matter of public concern,” Connick, 461 U. S., at 146, and the funeral setting does not alter that conclusion.

Snyder argues that the church members in fact mounted a personal attack on Snyder and his family, and then attempted to “immunize their conduct by claiming that they were actually protesting the United States’ tolerance of homosexuality or the supposed evils of the Catholic Church.” Reply Brief for Petitioner 10. We are not concerned in this case that Westboro’s speech on public matters was in any way contrived to insulate speech on a private matter from liability. Westboro had been actively engaged in speaking on the subjects addressed in its picketing long before it became aware of Matthew Snyder, and there can be no serious claim that Westboro’s picketing did not represent its “honestly believed” views on public issues. Garrison, 379 U. S., at 73. There was no pre-existing relationship or conflict between Westboro and Snyder that might suggest Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter. Contrast Connick, 461 U. S., at 153 (finding public employee speech a matter of private concern when it was “no coincidence that [the speech] followed upon the heels of [a] transfer notice” affecting the employee).

Snyder goes on to argue that Westboro’s speech should be afforded less than full First Amendment protection “not only because of the words” but also because the church members exploited the funeral “as a platform to bring their message to a broader audience.” Brief for Petitioner 44, 40. There is no doubt that Westboro chose to stage its picketing at the Naval Academy, the Maryland State House, and Matthew Snyder’s funeral to increase publicity for its views and because of the relation between those sites and its views — in the case of the military funeral, because Westboro believes that God is killing American soldiers as punishment for the Nation’s sinful policies.

*456Westboro’s choice to convey its views in conjunction with Matthew Snyder’s funeral made the expression of those views particularly hurtful to many, especially to Matthew’s father. The record makes clear that the applicable legal term — “emotional distress” — fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a “special position in terms of First Amendment protection.” United States v. Grace, 461 U. S. 171, 180 (1983), “[W]e have repeatedly referred to public streets as the archetype of a traditional public forum,” noting that “ '[t]ime out of mind’ public streets and sidewalks have been used for public assembly and debate.” Frisby v. Schultz, 487 U. S. 474, 480 (1988).4

That said, “[ejven protected speech is not equally permissible in all places and at all times.” Id., at 479 (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 799 (1985)). Westboro’s choice of where and when to conduct its picketing is not beyond the Government’s regulatory reach — it is “subject to reasonable time, place, or manner restrictions” that are consistent with the standards announced in this Court’s precedents. Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984). Maryland now has a law imposing restrictions on funeral picketing, Md. Crim. Law Code Ann. § 10-205 (Lexis Supp. 2010), as do 43 other States and the Federal Government. See Brief for American Legion as Amicus Curiae 18-19, n. 2 *457(listing statutes). To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case. Maryland’s law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.5

We have identified a few limited situations where the location of targeted picketing can be regulated under provisions that the Court has determined to be content neutral. In Frisby, for example, we upheld a ban on such picketing “before or about” a particular residence, 487 U. S., at 477. In Madsen v. Women’s Health Center, Inc., we approved an injunction requiring a buffer zone between protesters and an abortion clinic entrance. 512 U. S. 753, 768 (1994). The facts here are obviously quite different, both with respect to the activity being regulated and the means of restricting those activities.

Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.

The record confirms that any distress occasioned by West-boro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.

*458Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government-may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection ... is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).

The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Out-rageousness,” however, is a highly malleable standard with “an inherent subjeetiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of . . . Vehement, caustic, and sometimes unpleas-an[t]’” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it chose to say it, is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.

*459For all these reasons, the jury verdict imposing tort liability on Westboro for intentional infliction of emotional distress must be set aside.

m

The jury also found Westboro liable for the state law torts of intrusion upon seclusion and civil conspiracy. The Court of Appeals did not examine these torts independently of the intentional infliction of emotional distress tort. Instead, the Court of Appeals reversed the District Court wholesale, holding that the judgment wrongly “attache[d] tort liability to constitutionally protected speech.” 580 F. 3d, at 226.

Snyder argues that even assuming Westboro’s speech is entitled to First Amendment protection generally, the church is not immunized from liability for intrusion upon seclusion because Snyder was a member of a captive audience at his son’s funeral. Brief for Petitioner 45-46. We do not agree. In most circumstances, “the Constitution does not permit the government to decide which types of-otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, . . . the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes.” Erznoznik v. Jacksonville, 422 U. S. 205, 210-211 (1975) (internal quotation marks omitted). As a result, “[t]he ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen v. California, 403 U. S. 15, 21 (1971).

As a general matter, we have applied the captive audience doctrine only sparingly to protect unwilling listeners from protected speech. For example, we have upheld a statute allowing a homeowner to restrict the delivery of offensive mail to his home, see Rowan v. Post Office Dept., 397 U. S. 728, 736-738 (1970), and an ordinance prohibiting picketing *460“before or about” any individual’s residence, Frisby, 487 U. S., at 477, 484-485.

Here, Westboro stayed well away from the memorial service. Snyder could see no more than the tops of the signs when driving to the funeral. And there is no indication that the picketing in any way interfered with the funeral service itself. We decline to expand the captive audience doctrine to the circumstances presented here.

Because we find that the First Amendment bars Snyder from recovery for intentional infliction of emotional distress or intrusion upon seclusion — the alleged unlawful activity Westboro conspired to accomplish — we must likewise hold that Snyder cannot recover for civil conspiracy based on those torts.

IV

Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us. As we have noted, “the sensitivity and significance of the interests presented in clashes between First Amendment and [state law] rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.” Florida Star v. B. J. F., 491 U. S. 524, 533 (1989).

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here— *461inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

The judgment of the United States Court of Appeals for the Fourth Circuit is affirmed.

It is so ordered.

Justice Breyer,

concurring.

I agree with the Court and join its opinion. That opinion restricts its analysis here to the matter raised in the petition for certiorari, namely, Westboro’s picketing activity. The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”

While I agree with the Court's conclusion that the picketing addressed matters of public concern, I do not believe that our First Amendment analysis can stop at that point. A State can sometimes regulate picketing, even picketing on matters of public concern. See Frisby v. Schultz, 487 U. S. 474 (1988). Moreover, suppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A's use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected. See Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) (“fighting words”).

The dissent recognizes that the means used here consist of speech. But it points out that the speech, like an assault, seriously harmed a private individual. Indeed, the state *462tort of “intentional infliction of emotional distress” forbids only conduct that produces distress “so severe that no reasonable man could be expected to endure it,” and which itself is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Post, at 464 (opinion of Alito, J.) (quoting Harris v. Jones, 281 Md. 560, 567, 571, 380 A. 2d 611, 614, 616 (1977); internal quotation marks omitted). The dissent requires us to ask whether our holding unreasonably limits liability for intentional infliction of emotional distress — to the point where A (in order to draw attention to his views on a public matter) might launch a verbal assault upon B, a private person, publicly revealing the most intimate details of B’s private life, while knowing that the revelation will cause B severe emotional harm. Does our decision leave the State powerless to protect the individual against invasions of, e. g., personal privacy, even in the most horrendous of sueh circumstances?

As I understand the Court’s opinion, it does not hold or imply that the State is always powerless to provide private individuals with necessary protection. Rather, the Court has reviewed the underlying facts in detail, as will sometimes prove necessary where First Amendment values and state-protected (say, privacy-related) interests seriously conflict. Cf. Florida Star v. B. J. F., 491 U. S. 524, 533 (1989); Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499 (1984). That review makes clear that West-boro’s means of communicating its views consisted of picketing in a place where picketing was lawful and in compliance with all police directions. The picketing could not be seen or heard from the funeral ceremony itself. And Snyder testified that he saw no more than the tops of the picketers’ signs as he drove to the funeral. To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public *463concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm. Consequently, the First Amendment protects Westboro. As I read the Court’s opinion, it holds no more.

Justice Alito,

dissenting.

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived Mm of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.1 The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

I

Respondents and other members of their church have strong opinions on certain moral, religious, and political issues, and the First Amendment ensures that they have almost limitless opportunities to express their views. They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that *464wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964).

It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate. To protect against such injury, “most if not all jurisdictions” permit recovery in tort for the intentional infliction of emotional distress (or IIED). Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 53 (1988).

This is a very narrow tort with requirements that “are rigorous, and difficult to satisfy.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 12, p. 61 (5th ed. 1984). To recover, a plaintiff must show that the conduct at issue caused harm that was truly severe. See Figueiredo-Torres v. Nickel, 321 Md. 642, 653, 584 A. 2d 69, 75 (1991) (“[RJecovery will be meted out sparingly, its balm reserved for those wounds that are truly severe and incapable of healing themselves” (internal quotation marks omitted)); Harris v. Jones, 281 Md. 560, 571, 380 A. 2d 611, 616 (1977) (the distress must be “ ‘so severe that no reasonable man could be expected to endure it’ ” (quoting Restatement (Second) of Torts § 46, Comment j (1963-1964))).

A plaintiff must also establish that the defendant’s conduct was “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Harris, supra, at 567, 380 A. 2d, at 614 (quoting Restatement (Second) of Torts § 46, Comment d).

Although the elements of the IIED tort are difficult to meet, respondents long ago abandoned any effort to show *465that those tough standards were not satisfied here. On appeal, they chose not to contest the sufficiency of the evidence. See 580 F. 3d 206, 216 (CA4 2009). They did not dispute that Mr. Snyder suffered “'wounds that are truly severe and incapable of healing themselves.’ ” Figueiredo-Torres, supra, at 653, 584 A. 2d, at 75. Nor did they dispute that their speech was “'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” Harris, supra, at 567, 380 A. 2d, at 614. Instead, they maintained that the First Amendment gave them a license to engage in such conduct. They are wrong.

II

It is well established that a claim for the intentional infliction of emotional distress can be satisfied by speech. Indeed, what has been described as “[t]he leading case” recognizing this tort involved speech. Prosser and Keeton, supra, §12, at 60 (citing Wilkinson v. Downton, [1897] 2 Q. B. 57); see also Restatement (Second) of Torts § 46, Illustration 1. And although this Court has not decided the question, I think it is clear that the First Amendment does not entirely preclude liability for the intentional infliction of emotional distress by means of speech.

This Court has recognized that words may “by their very utterance inflict injury” and that the First Amendment does not shield utterances that form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942); see also Cantwell v. Connecticut, 310 U. S. 296, 310 (1940) (“[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution”). When grave injury is intentionally inflicted by *466means of an attack like the one at issue here, the First Amendment should not interfere with recovery.

Ill

In this case, respondents brutally attacked Matthew Snyder, and this attack, which was almost certain to inflict injury, was central to respondents’ well-practiced strategy for attracting public attention.

On the morning of Matthew Snyder’s funeral, respondents could have chosen to stage their protest at countless locations. They could have picketed the United States Capitol, the White House, the Supreme Court, the Pentagon, or any of the more than 5,600 military recruiting stations in this country. They could have returned to the Maryland State House or the United States Naval Academy, where they had been the day before. They could have selected any public road where pedestrians are allowed. (There are more than 4,000,000 miles of public roads in the United States.2) They could have staged their protest in a public park. (There are more than 20,000 public parks in this country.3) They could have chosen any Catholic church where no funeral was taking place. (There are nearly 19,000 Catholic churches in the United States.4) But of course, a small group picketing at any of these locations would have probably gone unnoticed.

The Westboro Baptist Church, however, has devised a strategy that remedies this problem. As the Court notes, church members have protested at nearly 600 military funerals. Ante, at 448. They have also picketed the funerals of *467police officers,5 firefighters,6 and the victims of natural disasters,7 accidents,8 and shocking crimes.9 And in advance of these protests, they issue press releases to ensure that their protests will attract public attention.10

This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity the Westboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree in Tucson — proclaiming that she was “better off dead”11 — their announcement was national news,12 and the church was able to obtain *468free air time on the radio in exchange for canceling its protest.13 Similarly, in 2006, the church got air time on a talk radio show in exchange for canceling its threatened protest at the funeral of five Amish girls killed by a crazed gunman.14

In this case, respondents implemented the Westboro Baptist Church’s publicity-seeking strategy. Their press release stated that they were going “to picket the funeral of Lance Cpl. Matthew A. Snyder” because “God Almighty killed Lance Cpl. Snyder. He died in shame, not honor — for a fag nation cursed by God .... Now in Hell — sine die.” Supp. App. in No. 08-1026 (CA4), p. 158a. This announcement guaranteed that Matthew’s funeral would be transformed into a raucous media event and began the wounding process. It is well known that anticipation may heighten the effect of a painful event.

On the day of the funeral, respondents, true to their word, displayed placards that conveyed the message promised in their press release. Signs stating “God Hates You” and “Thank God for Dead Soldiers” reiterated the message that God had caused Matthew’s death in retribution for his sins. App. to Brief for Appellants in No. 08-1026 (CA4), pp. 3787, 3788. Others, stating “You’re Going to Hell” and “Not Blessed Just Cursed,” conveyed the message that Matthew was “in Hell — sine die.” Id., at 3783.

Even if those who attended the funeral were not alerted in advance about respondents’ intentions, the meaning of these signs would not have been missed. Since respondents chose to stage their protest at Matthew Snyder’s funeral and not *469at any of the other countless available venues, a reasonable person would have assumed that there was a connection between the messages on the placards and the deceased. Moreover, since a church funeral is an event that naturally brings to mind thoughts about the afterlife, some of respondents’ signs — e.g., “God Hates You,” “Not Blessed Just Cursed,” and “You’re Going to Hell” — would have likely been interpreted as referring to God’s judgment of the deceased.

Other signs would most naturally have been understood as suggesting — falsely—that Matthew was gay. Homosexuality was the theme of many of the signs. There were signs reading “God Hates Fags,” “Semper Fi Fags,” “Fags Doom Nations,” and “Fag Troops.” Id., at 3781-3787. Another placard depicted two men engaging in anal intercourse. A reasonable bystander seeing those signs would have likely concluded that they were meant to suggest that the deceased was a homosexual.

After the funeral, the Westboro picketers reaffirmed the meaning of their protest. They posted an online account entitled “The Burden of Marine Lance Cpl. Matthew A. Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots!” Id., at 3788.15 Belying any suggestion that they had simply made general comments about homosexuality, the Catholic Church, and the *470United States military, the “epic” addressed the Snyder family directly:

“God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD — PERIOD! You did JUST THE OPPOSITE — you raised him for the devil.

“Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they condemned their own souls. They also, in supporting satanie Catholicism, taught Matthew to be an idolater.

“Then after all that they sent him to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life, putting him in the cross hairs of a God that is so mad He has smoke coming from his nostrils and fire from his mouth! How dumb was that?” Id., at 3791.

In light of this evidence, it is abundantly clear that respondents, going far beyond commentary on matters of public concern, specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military. Both Matthew and petitioner were private figures,16 and this attack was not speech on a matter of public concern. While commentary on the Catholic Church or the United States military constitutes speech on matters of public concern, speech regarding Matthew Snyder's purely private conduct does not.

*471Justice Breyer provides an apt analogy to a case in which the First Amendment would permit recovery in tort for a verbal attack:

“[S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected.” Ante, at 461 (concurring opinion).

This captures what respondents did in this case. Indeed, this is the strategy that they have routinely employed — and that they will now continue to employ — inflicting severe and lasting emotional injury on an ever growing list of innocent victims.

IV

The Court concludes that respondents’ speech was protected by the First Amendment for essentially three reasons, but none is sound.

First — and most important — the Court finds that “the overall thrust and dominant theme of [their] demonstration spoke to” broad public issues. Ante, at 454. As I have attempted to show, this portrayal is quite inaccurate; respondents’ attack on Matthew was of central importance. But in any event, I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected. The First Amendment allows recovery for defamatory statements that are interspersed with nondefama-tory statements on matters of public concern, and there is no good reason why respondents’ attack on Matthew Snyder and his family should be treated differently.

Second, the Court suggests that respondents’ personal attack on Matthew Snyder is entitled to First Amendment protection because it was not motivated by a private grudge,

*472see ante, at 455, but I see no basis for the strange distinction that the Court appears to draw. Respondents’ motivation— "to increase publicity for its views,” ibid. — did not transform their statements attacking the character of a private figure into statements that made a contribution to debate on matters of public concern. Nor did their publicity-seeking motivation soften the sting of their attack. And as far as culpability is concerned, one might well think that wounding statements uttered in the heat of a private feud are less, not more, blameworthy than similar statements made as part of a cold and calculated strategy to slash a stranger as a means of attracting public attention.

Third, the Court finds it significant that respondents’ protest occurred on a public street, but this fact alone should not be enough to preclude IIED liability. To be sure, statements made on a public street may be less likely to satisfy the elements of the IIED tort than statements made on private property, but there is no reason why a public street in close proximity to the scene of a funeral should be regarded as a free-fire zone in which otherwise actionable verbal attacks are shielded from liability. If the First Amendment permits the States to protect their residents from the harm inflicted by such attacks — and the Court does not hold otherwise — then the location of the tort should not be dispositive. A physical assault may occur without trespassing; it is no defense that the perpetrator had "the right to be where [he was].” See ante, at 457. And the same should be true with respect to unprotected speech. Neither classic “fighting words” nor defamatory statements are immunized when they occur in a public place, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder any differently.

One final comment about the opinion of the Court is in order. The Court suggests that the wounds inflicted by vicious verbal assaults at funerals will be prevented or at least mitigated in the future by new laws that restrict picketing *473within a specified distance of a funeral. See ante, at 456-457. It is apparent, however, that the enactment of these laws is no substitute for the protection provided by the established IIED tort; according to the Court, the verbal attacks that severely wounded petitioner in this case complied with the new Maryland law regulating funeral picketing. See ante, at 457, n. 5. And there is absolutely nothing to suggest that Congress and the state legislatures, in enacting these laws, intended them to displace the protection provided by the well-established IIED tort.

The real significance of these new laws is not that they obviate the need for IIED protection. Rather, their enactment dramatically illustrates the fundamental point that funerals are unique events at which special protection against emotional assaults is in order. At funerals, the emotional well-being of bereaved relatives is particularly vulnerable. See National Archives and Records Admin. v. Favish, 541 U. S. 157, 168 (2004). Exploitation of a funeral for the purpose of attracting public attention “intrud[es] upon their ... grief,” ibid., and may permanently stain their memories of the final moments before a loved one is laid to rest. Allowing family members to have a few hours of peace without harassment does not undermine public debate. I would therefore hold that, in this setting, the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern.

V

In reversing the District Court judgment in favor of petitioner, the Court of Appeals relied on several grounds not discussed in the opinion of this Court or in the separate opinion supporting affirmance. I now turn briefly to those issues.

First, the Court of Appeals held that the District Court erred by allowing the jury to decide whether respondents’ speech was “'directed specifically at the Snyder family.’” *474580 F. 3d, at 221. It is not clear whether the Court of Appeals thought that this was a question for the trial judge alone or a question on which the judge had to make a preliminary ruling before sending it to the jury. In either event, however, the submission of this question to the jury was not reversible error because, as explained above, it is clear that respondents’ statements targeted the Snyders.

Second, the Court of Appeals held that the trial judge went astray in allowing the jury to decide whether respondents’ speech was so “'offensive and shocking as to not be entitled to First Amendment protection.’” Ibid. This instruction also did respondents no harm. Because their speech did not relate to a matter of public concern, it was not protected from liability by the First Amendment, and the only question for the jury was whether the elements of the IIED tort were met.

Third, the Court of Appeals appears to have concluded that the First Amendment does not permit an IIED plaintiff to recover for speech that cannot reasonably be interpreted as stating actual facts about an individual. See id., at 222. In reaching this conclusion, the Court of Appeals relied on two of our cases — Milkovich v. Lorain Journal Co., 497 U. S. 1 (1990), and Hustler, 485 U. S. 46 — but neither supports the broad proposition that the Court of Appeals adopted.

Milkovich was a defamation case, and falsity is an element of defamation. Nothing in Milkovich even hints that the First Amendment requires that this defamation element be engrafted onto the IIED tort.

Hustler did involve an IIED claim, but the plaintiff there was a public figure, and the Court did not suggest that its holding would also apply in a case involving a private figure. Nor did the Court suggest that its holding applied across the board to all types of IIED claims. Instead, the holding was limited to “publications such as the one here at issue,” namely, a caricature in a magazine. 485 U. S., at 56. Unless a caricature of a public figure can reasonably be interpreted *475as stating facts that may be proved to be wrong, the caricature does not have the same potential to wound as a personal verbal assault on a vulnerable private figure.

Because I cannot agree either with the holding of this Court or the other grounds oh which the Court of Appeals relied, I would reverse the decision below and remand for further proceedings.17

VI

Respondents’ outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered.

In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent.