DENNIS, Justice.

This ease presents the question of whether the worker’s compensation statute, La.R.S. 23:1032 as amended by Act 147 of 1976, constitutionally makes compensation an employee’s exclusive remedy for a work-related injury caused by a co-worker, except for a suit based on an intentional tort. The trial court sustained an exception of no cause of action to plaintiff’s suit against his fellow employee because he alleged that the co-worker was guilty of negligence and not an intentional tort. The court of appeal reversed, holding that, to afford due process and equal protection of the laws, the worker’s compensation statute, as amended, must be interpreted to permit an employee the same remedy in tort against co-employees for negligently caused work-related injuries as he would have if injured by any other tortfeasor. We reverse the judgment of the court of appeal. The worker’s compensation statute was amended by Act 147 of 1976 to preclude suits by an employee to recover for work-related injuries from certain designated persons, including a fellow employee engaged at the time of injury in the normal course and scope of employment, unless his injury resulted from the co-worker’s intentional tortious act. The 1976 amendment does not deprive the plaintiff of due process of law, equal protection of law or access to the judicial process. It was duly adopted, in accordance with the Louisiana constitution.

Plaintiff, Sidney Bazley, a Jefferson Parish garbage worker filed suit against an unidentified co-employee truck driver, the co-employee’s insurer, Sardo Tortorich and Tortorich’s insurer as result of work-related injuries Bazley received when he was struck by Tortorieh’s car while he was mounting the back of a parish garbage truck. In his petition, as supplemented and amended, Bazley alleged that the accident was caused by his co-employee’s intentional acts in operating a garbage truck without a working horn, disregarding mechanical and electrical maintenance standards, failing to keep a lookout, failing to see what he should have seen, failing to stop in a safe place and failing to warn plaintiff of danger. Bazley did not allege, however, that the co-employee desired the consequences of his acts or believed that they were substantially certain to follow his acts.

The trial court sustained an exception of no cause of action to Bazley’s suit against the garbage truck driver on the ground that it constituted a negligence action against a co-employee based on a work-related injury in contravention of the exclusive remedy rule of the Compensation Act. The court of appeal reversed holding that compensation is an employee’s exclusive remedy against his employer but the statute constitutionally cannot be interpreted to bar his suit in tort against other persons. 380 So.2d 727 (La.App. 4th Cir. 1980). We granted certiorari. 383 So.2d 1263 (1980).

La.R.S. 23:1032, as amended by Act 147 of 1976, in pertinent part, provides:

“The rights and remedies herein granted to an employee ... on account of an injury . . ., shall be exclusive of all other rights and remedies . . . against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal . . .

*479“Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.

“The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.”

We are called upon to decide (1) whether La.R.S. 23:1032, as amended, prevents an injured employee from seeking recovery in tort for a work-related injury negligently caused by his co-employee; and, if so, (2) whether the legislature may constitutionally expand the exclusive remedy rule to bar negligence actions by employees against tortfeasors other than employers.

1.

The exclusive remedy rule prevents an employee from seeking recovery in tort for a work-related injury negligently caused by his co-employee.

By Act 147 of 1976 the legislature enlarged the category of employee injuries for which workers’ compensation is the exclusive remedy. Formerly, the workers’ compensation statute provided that compensation was an employee’s exclusive remedy against his employer for a compensable injury, leaving him free to pursue other remedies against third persons. The amendment modified the exclusive remedy rule in two respects. First, it provided that for an unintentional injury compensation shall be the exclusive remedy, not only against the employer, but also against any principal, officer, director, stockholder, partner1 or employee of the employer or principal who was engaged at the time of the injury in the normal course and scope of his employment. Second, it provided that for an intentional act resulting in compensable injury the employee may exercise his right under the compensation act and pursue any other remedy available against the employer and other persons under general law.

The principal legislative aim of the 1976 amendment was to broaden the class of defendants to be granted immunity from suits by injured employees in tort or delict. Although the legislative history is meager, accounts indicate that the amendment was enacted to provide employers relief from the cost of furnishing liability insurance to executive officers and other employees. Malone & Johnson, Workers’ Compensation, § 364 in 14 Louisiana Civil Law Treatise 155 (2d ed. 1980); The Work of the Louisiana Legislature for the 1976 Regular Session, 37 La.L.Rev. at 182 (1976). Before the amendment, the absence of a prohibition against tort suits against co-employees allowed injured workers to seek tort recovery from negligent executive officers and their liability insurers. E. g., Canter v. Koehring Co., 283 So.2d 716 (La.1973); Berry v. Aetna Cas. & Surety Co., 240 So.2d 243 (La.App.2d Cir. 1970), cert. denied 256 La. 914, 240 So.2d 374, cert. denied 401 U.S. 1005, 91 S.Ct. 7255, 28 L.Ed.2d 541 (1971). This avenue of recovery provoked considerable critical comment. Comment, 33 La.L.Rev. 325 (1973); Note, 34 La.L.Rev. 141 (1973); Note, 46 Tul.L.Rev. 352 (1971); The Work of the Louisiana Appellate Courts, 1973-74 Term — Insurance, 35 La.L.Rev. 415, 419 (1975). It was argued that, since the employer’s enterprise would in the end pay for the tort remedy, either directly or through insurance premiums for officers and employees, the result would be a denial to the employer of much of the practical advantage of the exclusive remedy provision. W. Malone, Louisiana Workmen’s Compensation Law and Practice, 1964 Supp. § 366 (1st ed. 1951). It was apparently for this reason that the legislature acted to close this ave*480nue of recovery by adopting Act 147 of 1976.

In abolishing the executive officer suit, however, the legislature provided that the exclusive nature of the compensation remedy does not apply to intentional acts. After considering broader penalties that would have provided double benefits for an employer’s violation of a safety rule, failure to provide a safety device required by law, or gross negligence on the part of a supervisory employee, which caused injury, death or disease, Official Journal of the House of Representatives, June 4, 1976, H.B. 354, p. 20, our legislature chose to impose a sanction for intentional wrongs by making the exclusive remedy rule inapplicable to such acts. Because of the general practice of severely punishing intentional wrongdoers, which is widely accepted in the field of workers’ compensation, because of the received meaning and acceptance of the statutory language, and considering the object of the legislation, we conclude that the words “intentional act” mean the same as “intentional tort” in reference to civil liability.

In drawing a line between intentional and unintentional acts we believe the legislative aim was to make use of the well established division between intentional torts and negligence in common law. See W. Prosser, Law of Torts, §§ 7, et seq. (4th ed. 1971). The lawmakers probably perceived this distinction as entirely consistent with the division in civil law between offenses, which require an intention to injure, and quasi offenses, damages caused without intention to harm. See 2 M. Planiol, §§ 815, 823, 825, 827, Civil Law Treatise (11th ed. La.St.L.Inst. trans. 1959). Universally, harmful conduct is considered more reprehensible if intentional. As Holmes said, “Even a dog distinguishes between being stumbled over and being kicked.” Holmes, The Common Law, 3 (1881). There is a definite tendency to impose greater responsibility upon a defendant whose conduct has been intended, to do harm, or morally wrong. W. Prosser, Law of Torts, § 7 (4th ed. 1971); Bauer, The Degree of Moral Fault as Affecting Defendant’s Liability, 1933, 81 U.Pa.L.Rev. 586; Note, 1962, 14 Stan.L.Rev. 362.

Many states provide an employee an election to sue in tort, or a percentage increase in compensation, as the penalty for his intentional injury by the employer or for other forms of employer misconduct. 2A Larson, The Law of Workmen’s Compensation, §§ 69 et seq. (1976). Even in jurisdictions with no statutory penalty for employer misconduct, intentional injury inflicted upon an employee by the employer, its alter ego, or in some instances its supervisory employee, may be made the subject of a common law action for damages on the theory that, in such an action, the employer will not be heard to say his intentional act was an “accidental” injury and so under the exclusive provisions of the compensation act. 2A Larson, §§ 68, et seq. See also, Miller v. Keating, 349 So.2d 265 (La.1977); Le Brane v. Lewis, 292 So.2d 216 (La.1974); Malone & Johnson, Workers’ Compensation, § 365 (2d ed. 1980). Courts in most states imposing such statutory or common law penalties for intentional misconduct have required the commission of a genuine intentional tort and have refused to stretch liability to include negligence, recklessness, or constructive intent. 2A Larson, Workmen’s Compensation, §§ 68.13, 69.20.

Plaintiff ingeniously has proposed, however, that the concept “intentional act” should be equated with “voluntary act.” He interprets “intentional” to mean merely that before the actor acted he directed his mind on his own physical movement and not on the consequences of his act. Under his interpretation an injured employee may sue in tort on any voluntary act setting in motion events leading to his injury regardless of whether the harm appeared likely or was even apparent at all to the actor. For example, in the present case, plaintiff contends he alleged an intentional act triggering his escape from the compensation system when he averred that the defendant garbage truck driver intentionally did not blow his horn to warn plaintiff of an oncoming motorist, although plaintiff con*481cedes that the driver did not intend for harm to come to him. Plaintiffs interpretation is incongruous, not only because it departs from the almost universal practice of differentiating between intentional and unintentional harms, prevalent in most workers’ compensation programs, but also because it ignores the accepted usage of the statutory terms in this state and generally, and his construction would thwart the legislative purpose.

Although the theorists have not always agreed, the words “act” and “intent” now have generally accepted meanings in the fields of tort and criminal law. The word act is used to denote an external manifestation of the actor’s will which produces consequences. There cannot be an act subjecting a person to civil or. criminal liability without volition. Therefore, a contraction of a person’s muscles which is purely a reaction to some outside force, such as a knee jerk or the blinking of the eyelids in defense against an approaching missile, or the convulsive movements of an epileptic, are not acts of that person. Restatement (Second) of Torts, American Law Institute § 2 (1965); La.R.S. 14:8 comment. See also, Prosser, supra, § 8; LaFave and Scott, Criminal Law, § 25 (1972). The meaning of “intent” is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself. Restatement (Second) of Torts, supra, § 8; LaFave and Scott, Criminal Law, § 28 (1972); see also, Prosser, supra, § 8.

Our criminal and civil codes manifest legislative acceptance of these received meanings of “act” and “intent.” As the criminal code articles and reporters’ comments make clear, “act” refers to an external manifestation of will which must be voluntary, and “intent” is present when the offender either desires the consequences of his act or when he knew that the consequences were reasonably certain to result from his act. La. R.S. 14:8,10 and Reporter’s Comments. Although the civil code does not contain definitions of the terms, the word “act” is used many times and must be read in light of the code’s underlying civilian concepts. See, e. g., Articles 2815-17. In Article 2315, for example, the word act is used to refer to both offenses and quasi offenses. As we noted above, the difference between these two acts of fault is that offenses require an intention to injure and quasi offenses are committed without intention to harm. 2 M. Planiol, §§ 815, 823, 825, 827. Thus, we see again a basic distinction between intentional and unintentional acts and use of intent in reference to the consequences of the act, rather than the act itself.

Our jurisprudence likewise reflects approval of the general notions of act and intent. This Court as early as 1936, approvingly recited the following: “It seems clear that, in the absence of language expressing a contrary meaning, an ‘act’ involves an exercise of the will. It signifies something done voluntarily.” Heiman v. Pan American Life Ins. Co., 183 La. 1045, 165 So. 195 (1936). Only where the actor entertained a desire to bring about the consequences that followed or where the actor believed that the result was substantially certain to follow has an act been characterized as intentional. See Freeman v. Bell, 366 So.2d 197 (La.App. 2d Cir. 1978, writ denied, 369 So.2d 151 (1979)); Monk v. Veillon, 312 So.2d 377 (La.App. 3d Cir. 1975). See also Langlois v. Eschet, 378 So.2d 189, 190 (La.App. 4th Cir. 1979) (word “intended” synonymous with having in mind as an end or aim, implying mind is directed to some definite end), von Dameck v. St. Paul Fire & Marine Ins. Co., 361 So.2d 283 (La.App. 1st Cir.), writ denied 362 So.2d 794, 802 (1978) (if person has such a lack of reason, memory, and intelligence that prevents him from comprehending the nature and consequences of his acts, he cannot intentionally inflict injury).

Plaintiff’s suggested interpretation of “intentional act,” equates the term with “voluntary act” and robs it of any reference to the actor’s state of mind concerning the *482consequences of his act. It is most unlikely the legislature intended the words as plaintiff suggests, rather than in their most usual signification and in the sense in which the lawmakers have used them in other legislation.

Furthermore, plaintiff’s interpretation would thwart the legislative objective of broadening the class of defendants to be granted tort immunity. Instead, Act 147 of 1976 would have the reverse effect of restricting the exclusive remedy rule to claims of employees injured without any other person’s fault. Any employee could bring suit and recover under Article 2315 by pleading and proving that his injury was negligently caused by the voluntary conduct of his employer or co-employee. Since there cannot be an act subjecting a person to liability for negligence without volition, the exclusive remedy rule as interpreted by the plaintiff would abolish all tort immunity for employers and co-employees. In the absence of a clearer expression of legislative design to curtail drastically the workers’ compensation system, we cannot attribute such aims to the lawmakers.

For these reasons, we construe the legislation under review as providing that the exclusive remedy rule shall be inapplicable to intentional torts or offenses. The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did. Several courts of appeal have stated the two prongs of the definition in the conjunctive, thus requiring a plaintiff to prove, in order to recover, that the defendant desired the physical results of his act in every case. Waldrop v. Vistron Corp., 391 So.2d 1274 (La.App.1980); McGuire v. Honeycutt, 387 So.2d 674 (La.App. 3d Cir. 1980); Johnson v. Chicago Mill & Lumber Co., 385 So.2d 878 (La.App. 2d Cir. 1980); Courtney v. BASF Wyandotte Corp., 385 So.2d 391 (La.App. 1st Cir.) writ denied 386 So.2d 359 (La.1980); Bourgoyne v. City of Baton Rouge, 380 So.2d 131 (La.App. 1st Cir. 1979), cert. denied 382 So.2d 164 (1980); Frazier v. Woodward, 378 So.2d 209 (La.App. 4th Cir. 1979); Johnson v. Narcisse, 373 So.2d 207 (La.App. 4th Cir. 1979); Tobin v. Jacobson, 369 So.2d 1161 (La.App. 1st Cir. 1979); Guidry v. Aetna Casualty & Surety Company, 359 So.2d 637 (La.App. 1st Cir.) writ denied, 362 So.2d 578 (La.1978). 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 the. law as if he had in fact desired to produce the result. Restatement (Second) of Torts, § 8A, Comment; Prosser, supra, § 8.

Applying the statute to the facts set forth in plaintiff’s petition, we conclude that the petition fails to state a cause of action in intentional tort or offense. The pleadings do not express or imply that the co-employee garbage truck driver desired the consequences of his acts or omissions or that he believed the consequences were substantially certain to result from them.

2.

The exclusive remedy rule does not violate plaintiff’s rights to substantive due process and equal protection of the laws or other constitutional safeguards.

Bazley argues that the exclusive remedy rule violates several constitutional safeguards. First, he contends that the guarantees of substantive due process and equal protection are offended by arbitrary statutory classifications having no rational purpose which deprive some but not all employees injured by the negligence of another person of their tort remedies. Secondly, he contends for the same reason that he has been deprived of his state constitutional right to access to the courts. Finally, he urges us to declare Act 147 of 1976 unconstitutional because it was passed without a title indicative of its object.

The constitutions of the United States and this state impose no obligation on the legislature to provide injured employees with a particular kind of remedy for loss of income and medical expenses. But when a legislature acts to alleviate *483some of the suffering and hardships of industrial accidents, the manner in which it provides for relief is subject to constitutional limitations. Bazley’s claim is that the legislature must accord equal treatment to all employees with regard to work-related tort claims, and may not evidence a policy preference by allowing only those employees injured by strangers to the employer’s enterprise to pursue their claims outside the compensation system. This challenge to the classifications established by the compensation statute presents a question arising under the Equal Protection Clause of the Fourteenth Amendment and the Louisiana constitution.

The basic framework of analysis of such a claim is well settled. We must decide, first, whether the legislation operates to the disadvantage of some suspect class or impinges on a fundamental right explicitly or implicitly protected by the constitution, thereby requiring strict judicial scrutiny. If not, the legislative scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination. Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977); San Antonio School District v. Rodriguiz, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Burmaster v. Gravity Drainage Dist. No. 2, 366 So.2d 1381, 1387-88 (La.1978); Everett v. Goldman, 359 So.2d 1256 (La.1978); Succession of Robins, 349 So.2d 276 (La.1977).

This case involves no suspect class. An injured employee entitled to compensation but seeking more complete recovery by tort suit does not come within the limited category of disadvantaged classes so recognized by the Supreme Court. The statute does not classify persons on the basis of race, alienage, national origin, or discriminate against discrete and insular minorities. Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); United States v. Carolene Product Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783 n. 4, 82 L.Ed. 1234 (1938).

Nor does the statute limit the exercise of a fundamental constitutional right. The list of rights which have been found to be fundamental may be divided as follows: Freedom of expression and association, NAACP v. Alabama ex rel Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Right to vote and participate in the electoral process, Harper v. Virginia Board of Election, 383 U.S. 663, 89 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Right to interstate travel, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Right to fairness in the criminal process, e. g., Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Right to fairness in procedures concerning governmental deprivations of life, liberty or property, e. g., Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Right to privacy, e. g., Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Pierce v. Society of Sisters, 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). See generally, Nowak, Rotunda & Young, Constitutional Law, 418 (1978). This list is not permanently exhaustive, but the right Bazley seeks to exercise is not within these fundamental categories.

As with the use of the equal protection clauses, in review of statutes for substantive due process, cases involving fundamental civil rights are to be distinguished from cases involving economic and social welfare legislation. In a case merely involving general police power or social welfare legislation such as our workers’ compensation statute, the test of substantive due process is whether the regulation is reasonable in relation to the goal to be attained and is adopted in the interest of the community as a whole. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937); Everett v. Goldman, 359 So.2d 1256 (La.1978).

Applying these principles, we conclude that the amended exclusive remedy rule of our workers’ compensation statute can be *484sustained under the less demanding test of rationality that applies in the absence of a suspect classification or the impingement of a fundamental right. The legitimate articulated state purpose served by the workers’ compensation statute “will disclose that its purpose is primarily to ‘abolish the common-law system relating to injuries to employees as inadequate to meet modern conditions and conceptions of moral obligations, and substitute therefor a system based on a high conception of man’s obligation to his fellow man * * *.’ By that system the loss incurred as a result of the employee’s injury is recognized ‘as an element of the cost of production to be charged to the industry, rather than to the individual employer, and liquidated in the steps ending with consumption, so that the burden is finally borne by the community in general. * * ’” Puchner v. Employers Liability Assur. Corp., 198 La. 922, 931, 5 So.2d 288 (1941); see also, 1 Larson, Workers’ Compensation, § 1. The exclusive remedy rule extension is reasonable in relation to this goal and rationally furthers it. Although it is debatable and sharply contested, defendants reasonably contend that the 1976 amendment promotes the ends of the Act by relieving employers of the burden of liability insurance premiums for their officers and employees, thereby providing a more effective mechanism for providing cash-wage benefits and medical cost to victims of work-connected injuries, and for placing the cost of these injuries ultimately on the consumer. See, 1 Larson, Workers’ Compensation, § 1, and that it will promote peace and harmony among employees by providing them with immunity from co-workers’ tort claims. See 2A Larson, Workers’ Compensation, § 72.20.

Bazley contends that the classifications of the exclusive remedy rule which grant tort immunity to executive officers, employees, and other persons related to the employer’s enterprise are not rationally related to the legislative purpose. He argues that each employer in every instance will not be induced or compelled by collective bargaining or competition for management personnel to purchase liability insurance for _the individuals granted immunity. However, in the area of economics and social welfare, a legislature does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some reasonable basis, it does not offend the constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality. Lindsley v. National Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369, 377 (1911). “The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.” Metropolis Theater Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 57 L.Ed. 730, 734 (1913). “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399 (1961); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).

We do not decide that the legislature’s formulation of the exclusive remedy rule is wise, that it best fulfills the relevant social and economic objectives that Louisiana might ideally espouse, or that a more just and humane system could not be devised.2 Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the diffi-Éult economic and social problems presented y workers’ compensation programs cannot yroperly be resolved by this Court. Cf. Dandridge v. Williams, supra, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491. Our federal and state constitutions may impose certain procedural safeguards upon systems of workmen’s compensation, but they do not *485empower this Court to second-guess legislators who are charged with the heavy responsibility of regulating the social obligations that exist between the employee, the employer, and the public. Accordingly, we conclude that Bazley’s equal protection and due process claims are without merit.

The state constitutional guarantee of access to courts is Article 1, § 22 of the Louisiana Constitution, which reads:

“All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him and his person, property, reputation, or other rights.”

This provision, like the Fourteenth Amendment to the United States Constitution, protects an individual’s access to the judicial process. Where access to the judicial process is not essential to the exercise of a fundamental constitutional right, the legislature is free to allocate access to the judicial machinery on any system or classification which is not totally arbitrary. Everett v. Goldman, 359 So.2d 1256 (La.1978); see Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973); United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973); Jones v. Union Guano Co., 264 U.S. 171, 44 S.Ct. 280, 68 L.Ed. 623 (1924). The legislation under review does not substantially alter a claimant’s access to the judicial process, and, therefore, it does not contravene the access to courts guarantee of our state constitution. Bazley’s complaints that he has been denied the right to sue in tort for full recovery for his injuries, and that he is discriminated against with respect to other plaintiffs who may bring such suits, actually raise the same substantive due process and equal protection issues which we have already resolved. See also Perez v. Continental Casualty Co., 367 So.2d 1284 (La.App. 3d Cir. 1979); Branch v. Aetna Casualty & Surety Co., 370 So.2d 1270 (La.App. 3d Cir. 1979).

Finally, Bazley contends that Act 147 of 1976 was enacted in contravention of Article 3, § 15(A) of the Louisiana Constitution of 1974 which, in pertinent part, provides:

“Every bill ... shall be confined to one object. Every bill shall contain a brief title indicative of its object.”

The purpose of the one-object requirement is to restrict a legislative act so that a legislator will not have to consider the validity of two unrelated objects in deciding how to vote on a bill. State v. Cooper, 382 So.2d 963 (La.1980); State v. Dooley, 261 La. 295, 259 So.2d 329 (1972). If all the parts of a statute have a natural connection and reasonably relate, directly or indirectly, to one general and legitimate subject of legislation, the statute is not considered as being open to the objection of plurality, no matter how extensively it deals with the details looking to the accomplishment of the main legislative purpose. State v. Cooper, supra; Wall v. Close, 203 La. 345, 15 So.2d 19 (1943).

The purpose of the indicative title requirement is to give the legislature and the public fair notice of the scope of the legislation. The requirement is designed to defeat deceitful practices of misleading the legislature into the passage of provisions not indicated by the title of the bill. State v. Welkner, 259 La. 815, 253 So.2d 192 (1971).

Act 147 of 1976 is confined to one object because all of its parts have a natural connection and reasonably relate to one general and legitimate subject of legislation, the expansion of the exclusive remedy rule and the concomitant elimination of some third party actions.

The title of Act 147 of 1976 provides that it is an act “[t]o amend and reenact sections 1032 and 1101 of Title 23 of the Louisiana Revised Statutes of 1950 relative to workmen’s compensation, to provide with respect to the exclusive nature of the compensation remedy in cases of injury or compensable sickness or disease and to provide with respect to third party actions and to otherwise provide with respect thereto.” The title is indicative of the legislative object because it gives the public fair notice of the scope of the legislation.

*486We find meritless Bazley’s contention that Act 147 of 1976 is not germane to the object of the original compensation act, Act 20 of 1914, the title of which provides as follows:

“An act prescribing the liability of an employer to make compensation for injuries received by an employee in performing services arising out of and incidental to his employment in the course of his employer’s trade, business or occupation in certain trades, business or occupations, abolishing in certain cases the defenses of assumption of risk, contributory negligence and negligence of a fellow servant in actions for personal injury and death, establishing a schedule of compensation, regulating procedure for the determination of liability and compensation thereunder and providing for methods for payments of compensation thereunder.”

It is not fatal to the legislation that the title of the original act refers only to the employer’s liability and not to the liability of third persons. It is not the purpose of the constitution to require that the title be an index to the contents of the act, or that every end and means convenient or necessary for the accomplishment of the general object of the act be set out at length in the title, but it is deemed sufficient, under the constitution, that the act contain but one object and that the object be fairly stated, although it be expressed in general terms, in the title of the act. All things proper or necessary to carry out the general object, so stated in the title, are deemed to be within the scope of the title. State v. Welkner, 259 La. 815, 253 So.2d 192 (1972); Southern Hide Co. v. Best, 145 So. 682, 176 La. 347 (1933).

For the reasons assigned, the judgment of the court of appeal is reversed, the judgment of the trial court is reinstated, and the case is remanded for further proceedings.

REVERSED AND REMANDED.

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.

*466FRANK, Judge.

Jeremy Britt Adams (appellant) appeals his bench trial conviction of an assault and battery on a law enforcement officer in violation of Code § 18.2-57(C). On appeal, appellant contends the evidence was insufficient to prove: (1) a touching and (2) that he had the requisite intent to commit the offense. We disagree and affirm the conviction.

I. BACKGROUND

On September 22, 1998, while on duty at the Gloucester County High School, Sergeant Steven Giles of the Gloucester County Sheriffs Department was struck in his right eye by a laser light owned by appellant, who was a twelfth-grade student at the school. Giles had been talking with another officer, Sergeant Adams, and the school nurse when he felt a “stinging sensation” in his eye. Sergeant Adams told Giles that appellant had “just lit [him] up,” as there was “a red dot” on him.

Giles approached appellant and asked what he had. Appellant said, “It can’t hurt you,” and handed over the laser light, which was attached to his key chain. Giles gave the laser light to the assistant principal and told appellant he could retrieve it later.

Giles said he “felt a burning sensation” in his eye and “saw red” before looking away, but he did not know how long the laser had been pointed at him. Giles had his eye checked the next morning by a local doctor who found “heavy irritation” but no other injury.

Appellant moved to strike the evidence at the conclusion of the Commonwealth’s case-in-chief. He argued that the Commonwealth had not proved the laser light was capable of causing injury, had injured Giles, or appellant knew or should have known the laser was dangerous. The trial court overruled the motion.

Appellant then presented his case. Sergeant Adams testified that appellant was approximately 150 feet from Giles and *467the laser light had “jump[ed] all around his upper torso and head.” Adams did not “actually see the thing strike [Giles’] eye,” but he saw Giles flinch when he was hit.

James Brown and Jessica Hubbard, both students, testified that they did not see the laser strike Giles in the face or eyes. They also said they had not been hurt when similarly hit in the eye with a laser light.

Appellant testified that he purchased the laser light for six dollars at a convenience store two days before the offense. He said it had no warning on it regarding use and that he had not been hurt when hit in the eye by the light. Appellant denied hitting Giles in the face or eye and claimed he had not intended to strike Giles with the light but, instead, was “just goofing off” to get Adams’ attention by waving the laser around. Adams previously had been the school’s resource officer, and appellant had a friendly relationship with him. Appellant, however, did not get along well with Sergeant Giles. He stated that Giles had previously given him a hard time. Appellant acknowledged he had pled guilty to three felonies.

The trial court again overruled appellant’s motion to strike the evidence and convicted appellant of assault and battery on a law enforcement officer.

II. ANALYSIS

In reviewing the sufficiency of evidence on appeal, “the appellate court must examine the evidence and all inferences reasonably deducible therefrom in the light most favorable to the Commonwealth, the prevailing party in the trial court.” Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998) (citations omitted). “We may not disturb the trial court’s judgment unless it is ‘plainly wrong or without evidence to support it.’ ” Barlow v. Commonwealth, 26 Va.App. 421, 429, 494 S.E.2d 901, 904 (1998) (quoting Beavers v. Commonwealth, 245 Va. 268, 282, 427 S.E.2d 411, 421 (1993)).

*468Furthermore, “[t]he credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.” Sandoval v. Commonwealth, 20 Va.App. 133, 138, 455 S.E.2d 730, 732 (1995) (citations omitted). “In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt.” Marable v. Commonwealth, 27 Va.App. 505, 509-10, 500 S.E.2d 233, 235 (1998) (citation omitted).

Code § 18.2-57(C) provides that “any person [who] commits an assault or an assault and battery against ... a law enforcement officer ... shall be guilty of a Class 6 felony,” and shall be sentenced to a mandatory, minimum term of six months in jail.

To sustain a conviction for assault, the evidence need only prove “ ‘an attempt or offer, with force and violence, to do some bodily hurt to another.’ ” Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955) (citation omitted).

When the injury is actually inflicted, a battery has been committed regardless of how small the injury might be. “ ‘Battery is the actual infliction of corporal hurt on another (e.g., the least touching of another’s person), willfully or in anger, whether by the party’s own hand, or by some means set in motion by him.’ ”

Seegars v. Commonwealth, 18 Va.App. 641, 644, 445 S.E.2d 720, 722 (1994) (quoting Jones v. Commonwealth, 184 Va. 679, 682, 36 S.E.2d 571, 572 (1946)).

One cannot be convicted of assault and battery “ “without an intention to do bodily harm — either an actual intention or an intention imputed by law.’ ” Davis v. Commonwealth, 150 Va. 611, 617, 143 S.E. 641, 643 (1928).

A battery is an unlawful touching of another. It is not necessary that the touching result in injury to the person. Whether a touching is a battery depends on the intent of the actor, not on the force applied. See Wood v. Commonwealth, *469149 Va. 401, 405, 140 S.E. 114, 115 (1927). An assault may occur even though the victim is not aware of any acts directed at him, provided the actor intends to touch offensively rather than accidentally or negligently. See Park Oil Co., Inc. v. Parham, 1 Va.App. 166, 170, 336 S.E.2d 531, 534 (1985).

“[T]he slightest touching of another ... if done in a rude, insolent, or angry manner, constitutes a battery for which the law affords redress.” Crosswhite v. Barnes, 139 Va. 471, 477, 124 S.E. 242, 244 (1924) (citation omitted).

“[W]here there is physical injury to another person, it is sufficient that the cause is set in motion by the defendant, or that the [victim] is subjected to its operation by means of any act or control which the defendant exerts.” “The law upon the subject is intended primarily to protect the sacredness of the person, and, secondarily, to prevent breaches of the peace.”

Banovitch v. Commonwealth, 196 Va. 210, 219, 83 S.E.2d 369, 374 (1954) (citations omitted).

A Touching

Adams contends that shining the laser on Sergeant Giles was insufficient to constitute a touching for the purposes of assault and battery. Touch is defined as to be in contact or to cause to be in contact. See Merriam-Webster’s-Desk Dictionary 573 (1995).

In Virginia, it is abundantly clear that a perpetrator need not inflict a physical injury to commit a battery. See, e.g., Crosswhite, 139 Va. at 477, 124 S.E. at 244; Lynch v. Commonwealth, 131 Va. 762, 765, 109 S.E. 427, 428 (1921). The cases that guide our analysis, however, have not addressed circumstances where contact with the corporeal person was accomplished by directing a beam of light at the victim. Because substances such as light or sound become elusive when considered in terms of battery, contact by means of such substances must be examined further in determining whether a touching has occurred. Such a test is necessary due to the intangible nature of those substances and the need *470to limit application of such a principle (touching by intangible substances) to reasonable cases. Because the underlying concerns of battery law are breach of the peace and sacredness of the person, the dignity of the victim is implicated and the reasonableness and offensiveness of the contact must be considered. Otherwise, criminal convictions could result from the routine and insignificant exposure to concentrated energy that inevitably results from living in populated society.

Accordingly, we hold that for purposes of determining whether a battery has occurred, contact by an intangible substance such as light must be considered in terms of its effect on the victim. There need be no actual injury for a touching to have occurred. However, to prove a touching, the evidence must prove that the substance made objectively offensive or forcible contact with the victim’s person resulting in some manifestation .of a physical consequence or corporeal hurt.

Here, the evidence established that appellant hit Sergeant Giles in the eye with a laser light. Giles felt a stinging sensation in his eye as a “red dot” hit him. Appellant admitted he did not get along with Giles and that he had been waving the laser in the area where the two officers were standing.

Appellant, by aiming the laser at the officers, effected a contact that caused bodily harm to Sergeant Giles. Appellant argued there was no touching because the laser has no mass and, therefore, cannot physically touch Sergeant Giles. This argument is misplaced. The laser, directed by appellant, came into contact with Sergeant Giles’ eye and, as a result, there was an unlawful touching.1

B. Intent

Proving intent by direct evidence often is impossible. See Servis v. Commonwealth, 6 Va.App. 507, 524, 371 S.E.2d *471156, 165 (1988). Like any other element of a crime, it may be proved by circumstantial evidence, as long as such evidence excludes all reasonable hypotheses of innocence flowing from it. See Rice v. Commonwealth, 16 Va.App. 370, 372, 429 S.E.2d 879, 880 (1993) (citations omitted). Circumstantial evidence of intent may include the conduct and statements of the alleged offender, and “[t]he finder of fact may infer that [he] intends the natural and probable consequences of his acts.” Campbell v. Commonwealth, 12 Va.App. 476, 484, 405 S.E.2d 1, 4 (1991) (en banc) (citation omitted).

The trial court, sitting as the fact finder, was entitled to reject appellant’s testimony that he was “just goofing off’ to attract Sergeant Adams’ attention. The court specifically found that appellant intended to hit Giles with the laser and that an assault and battery occurred. That decision is not plainly wrong or without supporting evidence and must be upheld on appeal.

For the reasons stated, we affirm the judgment of the trial court.

Affirmed.

LEMONS, Judge,

dissenting.

This case was not prosecuted as an assault; rather, the evidence and the argument of counsel confined the prosecution to a battery. An assault occurs where “the overt act done puts the party assailed in well founded fear of bodily harm.” Burgess v. Commonwealth, 136 Va. 697, 708, 118 S.E. 273, 276 (1923). There was no evidence and no contention that shining the low intensity laser light on Sergeant Giles caused him to experience reasonable apprehension of bodily harm. Sergeant Giles testified that he did not see the light beam and did not know how long it had been focused upon him. He did not react until the light beam shined in his eye. Sergeant Adams became aware of the light beam only after Sergeant Giles reacted to the light beam. Apparently still uncertain of exactly what had occurred, Sergeant Giles approached Adams and asked him what he had. Adams gave the laser light *472device which was attached to his key chain to Giles and said, “It can’t hurt you.”

It is entirely possible that the appearance of a red dot on a person could cause reasonable apprehension that they had been targeted by a laser-sighting device attached to a firearm. However, the allegations and proof offered in this case clearly demonstrate that prosecution of Adams was based upon alleged battery and not assault.

Whether a touching is a battery depends upon the intent of the actor, not upon the force applied. See Wood v. Commonwealth, 149 Va. 401, 405, 140 S.E. 114, 115 (1927). Here, the evidence does not support beyond a reasonable doubt that Adams had the intent to offensively touch Sergeant Giles. In order to have such intent, Adams would have to know or be reasonably charged with knowledge that a six-dollar novelty item attached to his key chain had the potential for offensive touching. It is not within common knowledge that such' a device has such capacity. There is no evidence that Adams had specific knowledge of such capacity. That Adams had a bad relationship with Giles may explain his motive, but it does not prove intent to offensively touch. A finder of fact may infer that an actor intends the natural and probable consequences of his acts. See Campbell v. Commonwealth, 12 Va.App. 476, 484, 405 S.E.2d 1, 4 (1991). In the absence of common knowledge of the capacity of this device, no inference may be drawn. Without inference or specific knowledge, there is no proof that Adams intended to offensively touch Giles.

Additionally, the majority redefines “touching” for the purpose of common law battery. Although the reasoning is logical, it is unwise, because the unintended consequences may reach too far. Will the next prosecution for battery be based upon failure to dim high beams in traffic, flash photography too close to the subject, high intensity flashlight beams or sonic waves from a teenager’s car stereo? Rather than stretch the boundaries of the common law understanding of what is necessary for a “touching” to occur, criminalizing *473conduct that involves intangible objects put in motion should be left to specific legislative action rather than generalized redefinition that may sweep into the ambit of criminal behavior conduct that is not intended. See, e.g., 720 Ill. Comp. Stat. 5/2-10.2, 2-10.3, 5/12-2, 12-4 (West 2000) (shining or flashing a laser gunsight near or on a person constitutes aggravated assault or aggravated battery); 720 Ill. Comp. Stat. 5/24.6-20 (West 2000) (aiming a laser pointer at a police officer is a misdemeanor); Wash. Rev.Code § 9A-49.020 (1999) (felony to discharge a laser beam at various peace officers or pilots, bus drivers or transit operators in the commission of their respective duties).

I respectfully dissent.

Justice SOTOMAYOR delivered the opinion of the Court.

*159Recognizing that "[f]irearms and domestic strife are a potentially deadly combination," United States v. Hayes, 555 U.S. 415, 427, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009), Congress forbade the possession of firearms by anyone convicted of "a misdemeanor crime of domestic violence." 18 U.S.C. § 922(g)(9). The respondent, James Alvin Castleman, pleaded guilty to the misdemeanor offense of having "intentionally or knowingly cause[d] bodily injury to" the mother of his child. App. 27. The question before us is whether this conviction qualifies as "a misdemeanor crime of domestic violence." We hold that it does.

I

A

This country witnesses more than a million acts of domestic violence, and hundreds of deaths from domestic violence, *160each year.1 See Georgia v. Randolph, 547 U.S. 103, 117-118, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). Domestic violence often escalates in severity over time, see Brief for Major Cities Chiefs Association et al. as Amici Curiae 13-15; Brief for National Network to End Domestic Violence et al. as Amici Curiae 9-12, and the presence of a firearm increases the likelihood that it will escalate to homicide, see id., at 14-15; Campbell et al., Assessing *1409Risk Factors for Intimate Partner Homicide, DOJ, Nat. Institute of Justice J., No. 250, p. 16 (Nov. 2003) ("When a gun was in the house, an abused woman was 6 times more likely than other abused women to be killed"). "[A]ll too often," as one Senator noted during the debate over § 922(g)(9), "the only difference between a battered woman and a dead woman is the presence of a gun." 142 Cong. Rec. 22986 (1996) (statement of Sen. Wellstone).

Congress enacted § 922(g)(9), in light of these sobering facts, to " 'close [a] dangerous loophole' " in the gun control laws: While felons had long been barred from possessing guns, many perpetrators of domestic violence are convicted only of misdemeanors. Hayes, 555 U.S., at 418, 426, 129 S.Ct. 1079. Section 922(g)(9) provides, as relevant, that any person "who has been convicted ... of a misdemeanor crime of domestic violence" may not "possess in or affecting commerc[e] any firearm or ammunition." With exceptions that do not apply here, the statute defines a "misdemeanor crime of domestic violence" as

*161"an offense that ... (i) is a misdemeanor under Federal, State, or Tribal law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim." § 921(a)(33)(A).

This case concerns the meaning of one phrase in this definition: "the use ... of physical force."

B

In 2001, Castleman was charged in a Tennessee court with having "intentionally or knowingly cause[d] bodily injury to" the mother of his child, in violation of Tenn.Code Ann. § 39-13-111(b) (Supp.2002). App. 27. He pleaded guilty. Id., at 29.

In 2008, federal authorities learned that Castleman was selling firearms on the black market. A grand jury in the Western District of Tennessee indicted him on two counts of violating § 922(g)(9) and on other charges not relevant here. Id., at 13-16.

Castleman moved to dismiss the § 922(g)(9) charges, arguing that his Tennessee conviction did not qualify as a "misdemeanor crime of domestic violence" because it did not "ha[ve], as an element, the use ... of physical force," § 921(a)(33)(A)(ii). The District Court agreed, on the theory that "the 'use of physical force' for § 922(g)(9) purposes" must entail "violent contact with the victim." App. to Pet. for Cert. 40a. The court held that a conviction under the relevant Tennessee statute cannot qualify as a "misdemeanor crime of domestic violence" because one can cause bodily injury without "violent contact"-for example, by "deceiving *162[the victim] into drinking a poisoned beverage." Id., at 41a.

A divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed, by different reasoning. 695 F.3d 582 (2012). The majority held that the degree of physical force required by § 921(a)(33)(A)(ii) is the same as required by § 924(e)(2)(B)(i), which defines "violent felony." Id., at 587. Applying our decision in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), which held that § 924(e)(2)(B)(i) requires "violent force," id., at 140, 130 S.Ct. 1265, the majority held that Castleman's conviction did not qualify as a "misdemeanor crime of domestic violence" because Castleman could have been convicted for "caus[ing] a slight, nonserious *1410physical injury with conduct that cannot be described as violent." 695 F.3d, at 590. Judge MCKEAGUE dissented, arguing both that the majority erred in extending Johnson 's definition of a "violent felony" to the context of a "misdemeanor crime of domestic violence" and that, in any event, Castleman's conviction satisfied the Johnson standard. Id., at 593-597.

The Sixth Circuit's decision deepened a split of authority among the Courts of Appeals. Compare, e.g., United States v. Nason, 269 F.3d 10, 18 (C.A.1 2001) ( § 922(g)(9)"encompass[es] crimes characterized by the application of any physical force"), with United States v. Belless, 338 F.3d 1063, 1068 (C.A.9 2003) ( § 922(g)(9) covers only "the violent use of force"). We granted certiorari to resolve this split, 570 U.S. ----, 134 S.Ct. 49, 186 L.Ed.2d 962 (2013), and now reverse the Sixth Circuit's judgment.

II

A

"It is a settled principle of interpretation that, absent other indication, 'Congress intends to incorporate the well-settled meaning of the common-law terms it uses.' " Sekhar v. United States, 570 U.S. ----, ----, 133 S.Ct. 2720, 2724, 186 L.Ed.2d 794 (2013). Seeing no "other indication" here, we hold that Congress incorporated the common-law meaning of "force"-namely, offensive touching *163-in § 921(a)(33)(A)'s definition of a "misdemeanor crime of domestic violence."

Johnson resolves this case in the Government's favor-not, as the Sixth Circuit held, in Castleman's. In Johnson, we considered whether a battery conviction was a "violent felony" under the Armed Career Criminal Act (ACCA), § 924(e)(1). As here, ACCA defines such a crime as one that "has as an element the use ... of physical force," § 924(e)(2)(B)(i). We began by observing that at common law, the element of force in the crime of battery was "satisfied by even the slightest offensive touching." 559 U.S., at 139, 130 S.Ct. 1265 (citing 3 W. Blackstone, Commentaries on the Laws of England 120 (1768)).2 And we recognized the general rule that "a common-law term of art should be given its established common-law meaning," except "where that meaning does not fit." 559 U.S., at 139, 130 S.Ct. 1265. We declined to read the common-law meaning of "force" into ACCA's definition of a "violent felony," because we found it a "comical misfit with the defined term." Id., at 145, 130 S.Ct. 1265; see United States v. Stevens, 559 U.S. 460, 474, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) ("[A]n unclear definitional phrase may take meaning from the term to be defined"). In defining a " 'violent felony,' " we held, "the phrase 'physical force' " must "mea[n] violent force." Johnson, 559 U.S., at 140, 130 S.Ct. 1265. But here, the common-law meaning of "force" fits perfectly: The very reasons we gave for rejecting that meaning in defining a "violent felony" are reasons to embrace it in defining a "misdemeanor crime of domestic violence."3

*1411*164First, because perpetrators of domestic violence are " routinely prosecuted under generally applicable assault or battery laws," Hayes, 555 U.S., at 427, 129 S.Ct. 1079, it makes sense for Congress to have classified as a "misdemeanor crime of domestic violence" the type of conduct that supports a common-law battery conviction. Whereas it was "unlikely" that Congress meant to incorporate in the definition of a " 'violent felony' a phrase that the common law gave peculiar meaning only in its definition of a misdemeanor," Johnson, 559 U.S., at 141, 130 S.Ct. 1265, it is likely that Congress meant to incorporate that misdemeanor-specific meaning of "force" in defining a "misdemeanor crime of domestic violence."

Second, whereas the word "violent" or "violence" standing alone "connotes a substantial degree of force," id., at 140, 130 S.Ct. 1265,4 *165THAT IS NOT TRUE OF "DOMESTIC VIOLENCE." "DOMESTIC Violence" is not merely a type of "violence"; it is a term of art encompassing acts that one might not characterize as "violent" in a nondomestic context. See Brief for National Network to End Domestic Violence et al. as Amici Curiae 4-9; DOJ, Office on Violence Against Women, Domestic Violence (defining physical forms of domestic violence to include "[h]itting, slapping, shoving, grabbing, pinching, biting, [and] hair pulling"), online at http://www.ovw.usdoj.gov/domviolence.htm.5 Indeed, "most physical *1412assaults committed against women and men by intimates are relatively minor and consist of pushing, grabbing, shoving, slapping, and hitting." DOJ, P. Tjaden & N. Thoennes, Extent, Nature and Consequences of Intimate Partner Violence 11 (2000).

Minor uses of force may not constitute "violence" in the generic sense. For example, in an opinion that we cited with approval in Johnson, the Seventh Circuit noted that it *166was "hard to describe ... as 'violence' " "a squeeze of the arm [that] causes a bruise." Flores v. Ashcroft, 350 F.3d 666, 670 (2003). But an act of this nature is easy to describe as "domestic violence," when the accumulation of such acts over time can subject one intimate partner to the other's control. If a seemingly minor act like this draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a "misdemeanor crime of domestic violence."

Justice SCALIA'S concurrence discounts our reference to social-science definitions of "domestic violence," including those used by the organizations most directly engaged with the problem and thus most aware of its dimensions. See post, at 1420 - 1422. It is important to keep in mind, however, that the operative phrase we are construing is not "domestic violence"; it is "physical force." § 921(a)(33)(A). "Physical force" has a presumptive common-law meaning, and the question is simply whether that presumptive meaning makes sense in defining a "misdemeanor crime of domestic violence."6

A third reason for distinguishing Johnson 's definition of "physical force" is that unlike in Johnson -where a determination that the defendant's crime was a "violent felony" would have classified him as an "armed career criminal"-the statute here groups those convicted of "misdemeanor crimes of domestic violence" with others whose conduct does not warrant such a designation. Section 922(g) bars gun possession by anyone "addicted to any controlled substance," § 922(g)(3) ;

*167by most people who have "been admitted to the United States under a nonimmigrant visa," § 922(g)(5)(B) ; by anyone who has renounced United States citizenship, § 922(g)(7) ; and by anyone subject to a domestic restraining order, § 922(g)(8). Whereas we have hesitated (as in Johnson ) to apply the Armed Career Criminal Act to "crimes which, though dangerous, are not typically committed by those whom one normally labels 'armed career criminals,' " Begay v. United States, 553 U.S. 137, 146, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), we see no anomaly in grouping domestic abusers convicted of generic assault or battery offenses together with the others whom § 922(g) disqualifies from gun ownership.

*1413An additional reason to read the statute as we do is that a contrary reading would have rendered § 922(g)(9) inoperative in many States at the time of its enactment. The "assault or battery laws" under which "domestic abusers were ... routinely prosecuted" when Congress enacted § 922(g)(9), and under which many are still prosecuted today, Hayes, 555 U.S., at 427, 129 S.Ct. 1079, fall generally into two categories: those that prohibit both offensive touching and the causation of bodily injury, and those that prohibit only the latter. See Brief for United States 36-38. Whether or not the causation of bodily injury necessarily entails violent force-a question we do not reach-mere offensive touching does not. See Johnson, 559 U.S., at 139-140, 130 S.Ct. 1265. So if offensive touching did not constitute "force" under § 921(a)(33)(A), then § 922(g)(9) would have been ineffectual in at least 10 States-home to nearly thirty percent of the Nation's population7 -at the time of its enactment. See post, at 1419, and n. 5 (SCALIA, J., concurring in part and concurring in judgment) (acknowledging that § 922(g)(9) would have been inapplicable in California and nine other States if it did not encompass offensive touching); App. to Brief for United States 10a-16a (listing statutes *168prohibiting both offensive touching and the causation of bodily injury, only some of which are divisible); cf. Hayes, 555 U.S., at 427, 129 S.Ct. 1079 (rejecting an interpretation under which " § 922(g)(9) would have been 'a dead letter' in some two-thirds of the States from the very moment of its enactment").

In sum, Johnson requires that we attribute the common-law meaning of "force" to § 921(a)(33)(A)'s definition of a "misdemeanor crime of domestic violence" as an offense that "has, as an element, the use or attempted use of physical force." We therefore hold that the requirement of "physical force" is satisfied, for purposes of § 922(g)(9), by the degree of force that supports a common-law battery conviction.

B

Applying this definition of "physical force," we conclude that Castleman's conviction qualifies as a "misdemeanor crime of domestic violence." In doing so, we follow the analytic approach of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). We begin with Taylor 's categorical approach, under which we look to the statute of Castleman's conviction to determine whether that conviction necessarily "ha[d], as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon," § 921(a)(33)(A).

The Tennessee statute under which Castleman was convicted made it a crime to "commi[t] an assault ... against" a "family or household member"-in Castleman's case, the mother of his child. Tenn.Code Ann. § 39-13-111(b). A provision incorporated by reference, § 39-13-101, defined three types of assault: "(1) [i]ntentionally, knowingly or recklessly caus[ing] bodily injury to another; (2) [i]ntentionally or knowingly caus[ing] another to reasonably fear imminent bodily injury; or (3) [i]ntentionally or knowingly caus[ing] physical contact with another" in a manner that a "reasonable person would regard ... as extremely offensive or provocative." § 39-13-101(a).

*169It does not appear that every type of assault defined by § 39-13-101 necessarily *1414involves "the use or attempted use of physical force, or the threatened use of a deadly weapon," § 921(a)(33)(A). A threat under § 39-13-101(2) may not necessarily involve a deadly weapon, and the merely reckless causation of bodily injury under § 39-13-101(1) may not be a "use" of force.8

But we need not decide whether a domestic assault conviction in Tennessee categorically constitutes a "misdemeanor crime of domestic violence," because the parties do not contest that § 39-13-101 is a " 'divisible statute,' " Descamps v. United States, 570 U.S. ----, ----, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). We may accordingly apply the modified categorical approach, consulting the indictment to which Castleman pleaded guilty in order to determine whether his conviction did entail the elements necessary to constitute the generic federal offense. Id., at ----, 133 S.Ct., at 2281-2282; see Shepard, 544 U.S., at 26, 125 S.Ct. 1254. Here, that analysis is straightforward: Castleman pleaded guilty to having "intentionally or knowingly cause[d] bodily injury" to the mother of his child, App. 27, and the knowing or intentional causation of bodily injury necessarily involves the use of physical force.

*170First, a "bodily injury" must result from "physical force." Under Tennessee law, "bodily injury" is a broad term: It "includes a cut, abrasion, bruise, burn or disfigurement; physical pain or temporary illness or impairment of the function of a bodily member, organ, or mental faculty." Tenn.Code Ann. § 39-11-106(a)(2) (1997). Justice SCALIA'S concurrence suggests that these forms of injury necessitate violent force, under Johnson 's definition of that phrase. Post, at 1417. But whether or not that is so-a question we do not decide-these forms of injury do necessitate force in the common-law sense.

The District Court thought otherwise, reasoning that one can cause bodily injury "without the 'use of physical force' "-for example, by "deceiving [the victim] into drinking a poisoned beverage, without making contact of any kind." App. to Pet. for Cert. 41a. But as we explained in Johnson, "physical force" is simply "force exerted by and through concrete bodies," as opposed to "intellectual force or emotional force." 559 U.S., at 138, 130 S.Ct. 1265. And the common-law concept of "force" encompasses even its indirect application. "Force" in this sense "describ[es] one of the elements of the common-law crime of battery," id., at 139, 130 S.Ct. 1265, and "[t]he force used" in battery "need not be applied directly to the body of the victim." 2 W. LaFave, Substantive Criminal Law § 16.2(b) (2d ed. 2003). "[A] battery may be committed by administering a poison or by infecting with *1415a disease, or even by resort to some intangible substance," such as a laser beam. Ibid. (footnote omitted) (citing State v. Monroe, 121 N.C. 677, 28 S.E. 547 (1897) (poison); State v. Lankford, 29 Del. 594, 102 A. 63 (1917) (disease); Adams v. Commonwealth, 33 Va.App. 463, 534 S.E.2d 347 (2000) (laser beam)). It is impossible to cause bodily injury without applying force in the common-law sense.

Second, the knowing or intentional application of force is a "use" of force. Castleman is correct that under Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), the word "use" "conveys the idea *171that the thing used (here, 'physical force') has been made the user's instrument." Brief for Respondent 37. But he errs in arguing that although " [p]oison may have 'forceful physical properties' as a matter of organic chemistry, ... no one would say that a poisoner 'employs' force or 'carries out a purpose by means of force' when he or she sprinkles poison in a victim's drink," ibid. The "use of force" in Castleman's example is not the act of "sprinkl[ing]" the poison; it is the act of employing poison knowingly as a device to cause physical harm. That the harm occurs indirectly, rather than directly (as with a kick or punch), does not matter. Under Castleman's logic, after all, one could say that pulling the trigger on a gun is not a "use of force" because it is the bullet, not the trigger, that actually strikes the victim. Leocal held that the "use" of force must entail "a higher degree of intent than negligent or merely accidental conduct," 543 U.S., at 9, 125 S.Ct. 377; it did not hold that the word "use" somehow alters the meaning of " force."

Because Castleman's indictment makes clear that the use of physical force was an element of his conviction, that conviction qualifies as a "misdemeanor crime of domestic violence."

III

We are not persuaded by Castleman's nontextual arguments against our interpretation of § 922(g)(9).

A

First, Castleman invokes § 922(g)(9)'s legislative history to suggest that Congress could not have intended for the provision to apply to acts involving minimal force. But to the extent that legislative history can aid in the interpretation of this statute, Castleman's reliance on it is unpersuasive.

Castleman begins by observing that during the debate over § 922(g)(9), several Senators argued that the provision would help to prevent gun violence by perpetrators of severe domestic abuse. Senator Lautenberg referred to "serious *172spousal or child abuse" and to "violent individuals"; Senator Hutchison to " 'people who batter their wives' "; Senator Wellstone to people who "brutalize" their wives or children; and Senator Feinstein to "severe and recurring domestic violence." 142 Cong. Rec. 22985-22986, 22988. But as we noted above, see supra, at 1414, the impetus of § 922(g)(9) was that even perpetrators of severe domestic violence are often convicted "under generally applicable assault or battery laws." Hayes, 555 U.S., at 427, 129 S.Ct. 1079. So nothing about these Senators' isolated references to severe domestic violence suggests that they would not have wanted § 922(g)(9) to apply to a misdemeanor assault conviction like Castleman's.

Castleman next observes that § 922(g)(9) is the product of a legislative compromise. The provision originally barred gun possession for any "crime of domestic violence," defined as any "felony or misdemeanor crime of violence, regardless of length, term, or manner of punishment."

*1416142 Cong. Rec. 5840. Congress rewrote the provision to require the use of physical force in response to the concern "that the term crime of violence was too broad, and could be interpreted to include an act such as cutting up a credit card with a pair of scissors," id., at 26675. See Hayes, 555 U.S., at 428, 129 S.Ct. 1079. Castleman would have us conclude that Congress thus meant "to narrow the scope of the statute to convictions based on especially severe conduct." Brief for Respondent 24. But all Congress meant to do was address the fear that § 922(g)(9) might be triggered by offenses in which no force at all was directed at a person. As Senator Lautenberg noted, the revised text was not only "more precise" than the original but also "probably broader." 142 Cong. Rec. 26675.

B

We are similarly unmoved by Castleman's invocation of the rule of lenity. Castleman is correct that our "construction of a criminal statute must be guided by the need for fair warning." Crandon v. United States, 494 U.S. 152, 160, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990). But "the rule of lenity only applies if, after considering *173text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the Court must simply guess as to what Congress intended." Barber v. Thomas, 560 U.S. 474, 488, 130 S.Ct. 2499, 177 L.Ed.2d 1 (2010) (citation and internal quotation marks omitted). That is not the case here.

C

Finally, Castleman suggests-in a single paragraph-that we should read § 922(g)(9) narrowly because it implicates his constitutional right to keep and bear arms. But Castleman has not challenged the constitutionality of § 922(g)(9), either on its face or as applied to him, and the meaning of the statute is sufficiently clear that we need not indulge Castleman's cursory nod to constitutional avoidance concerns.

* * *

Castleman's conviction for having "intentionally or knowingly cause[d] bodily injury to" the mother of his child qualifies as a "misdemeanor crime of domestic violence." The judgment of the United States Court of Appeals for the Sixth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice SCALIA, concurring in part and concurring in the judgment.

I agree with the Court that intentionally or knowingly causing bodily injury to a family member "has, as an element, the use ... of physical force," 18 U.S.C. § § 921(a)(33)(A)(ii), and thus constitutes a "misdemeanor crime of domestic violence," § 922(g)(9). I write separately, however, because I reach that conclusion on narrower grounds.

I

Our decision in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), is the natural place to begin. Johnson is significant *174here because it concluded that "the phrase 'physical force' means violent force-that is, force capable of causing physical pain or injury to another person ." Id., at 140, 130 S.Ct. 1265 (second emphasis added). This is an easy case if the phrase "physical force" has the same meaning in § 921(a)(33)(A)(ii), the provision that defines "misdemeanor crime of domestic violence" for purposes of § 922(g)(9), as it does in § 924(e)(2)(B)(ii), the provision interpreted in Johnson, since it is impossible to cause bodily injury without *1417using force "capable of" producing that result.

There are good reasons to give the phrase Johnson 's interpretation. One is the presumption of consistent usage-the rule of thumb that a term generally means the same thing each time it is used. Although the presumption is most commonly applied to terms appearing in the same enactment, e.g., IBP, Inc. v. Alvarez, 546 U.S. 21, 33-34, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005), it is equally relevant "when Congress uses the same language in two statutes having similar purposes," Smith v. City of Jackson, 544 U.S. 228, 233, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005) (plurality opinion); see also Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) (per curiam ). This case is a textbook candidate for application of the Smith - Northcross branch of the rule. The "physical force" clauses at issue here and in Johnson are worded in nearly identical fashion: The former defines a "misdemeanor crime of domestic violence" as an offense that "has, as an element, the use or attempted use of physical force," § 921(a)(33)(A)(ii), while the latter defines a "violent felony" as an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another," § 924(e)(2)(B)(i). And both statutes are designed to promote public safety by deterring a class of criminals from possessing firearms.

Respondent's arguments fail to overcome the presumption of consistent usage. In respondent's view, "physical force" cannot mean "any force that produces any pain or bodily injury," Brief for Respondent 25, because § 921(a)(33)(A)(ii)

*175defines a violent crime and one can inflict all sorts of minor injuries-bruises, paper cuts, etc.-by engaging in nonviolent behavior. Respondent therefore reasons that § 921(a)(33)(A)(ii) requires force capable of inflicting "serious" bodily injury. That requirement is more demanding than both of the plausible meanings of "physical force" we identified in Johnson : common-law offensive touching (which Johnson rejected) and force capable of causing physical pain or injury, serious or otherwise. See 559 U.S., at 138-140, 130 S.Ct. 1265. It would be surpassing strange to read a statute defining a "misdemeanor crime of domestic violence" as requiring greater force than the similarly worded statute in Johnson, which defined a "violent felony, " and respondent does not make a convincing case for taking that extraordinary step.

For these reasons, I would give "physical force" the same meaning in § 921(a)(33)(A)(ii) as in Johnson . The rest of the analysis is straightforward. Because "intentionally or knowingly caus[ing] bodily injury," App. 27, categorically involves the use of "force capable of causing physical pain or injury to another person," 559 U.S., at 140, 130 S.Ct. 1265, respondent's 2001 domestic-assault conviction qualifies as a "misdemeanor crime of domestic violence" under § 922(g)(9).1 I would reverse the judgment below on that basis and remand for further proceedings.

II

Unfortunately, the Court bypasses that narrower interpretation of § 921(a)(33)(A)(ii) in favor of a much broader one that treats any offensive touching, no matter how slight, as sufficient. That expansive common-law definition *1418cannot be squared with relevant precedent or statutory text. *176We have twice addressed the meaning of "physical force" in the context of provisions that define a class of violent crimes. Both times, we concluded that "physical force" means violent force. In Johnson, we thought it "clear that in the context of a statutory definition of 'violent felony,' the phrase 'physical force' means violent force." Id., at 140, 130 S.Ct. 1265. And we held that common-law offensive touching-the same type of force the Court today holds does constitute "physical force"-is not sufficiently violent to satisfy the Armed Career Criminal Act's "physical force" requirement. See id., at 140-144, 130 S.Ct. 1265. Our analysis in Johnson was premised in large part on our earlier interpretation of the generic federal "crime of violence" statute, 18 U.S.C. § 16. In Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), we observed that § 16(a) -which defines a "crime of violence" as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another"-comprehends "a category of violent, active crimes." The textual similarity between § 921(a)(33)(A)(ii)'s "physical force" clause and the clauses at issue in Johnson and Leocal thus raises the question: Why should the same meaning not apply here?

The Court gives four responses that merit discussion, none of which withstands scrutiny. First, the Court invokes the " 'settled principle of interpretation that, absent other indication, "Congress intends to incorporate the well-settled meaning of the common-law terms it uses." ' " Ante, at 1410 (quoting Sekhar v. United States, 570 U.S. ----, ----, 133 S.Ct. 2720, 2724, 186 L.Ed.2d 794 (2013)). That principle is of limited relevance, since the presumption of consistent statutory meaning is precisely "other indication" that § 921(a)(33)(A)(ii) does not incorporate the common-law meaning. Anyway, a more accurate formulation of the principle cited by the Court is that when " 'a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.' "

*177Sekhar, supra, at ----, 133 S.Ct., at 2724 (quoting Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947); emphasis added). Section 921(a)(33)(A)(ii) was enacted after the statutes involved in Johnson and Leocal,2 and its "physical force" clause is quite obviously modeled on theirs.

Second, the Court asserts that any interpretation of "physical force" that excludes offensive touching "would have rendered § 922(g)(9) inoperative in many States at the time of its enactment." Ante, at 1413. But there is no interpretive principle to the effect that statutes must be given their broadest possible application, and § 922(g)(9) without offensive touching would have had application in four-fifths of the States. Although domestic violence was "routinely prosecuted" under misdemeanor assault or battery statutes when Congress enacted § 922(g)(9), United States v. Hayes, 555 U.S. 415, 427, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009), and such statutes generally prohibited "both offensive touching and the causation of bodily injury" or "only the latter," ante, at 1412 - 1413, it does not follow that interpreting "physical force" to mean violent force would have rendered § 922(g)(9) a *1419practical nullity. To the contrary, § 922(g)(9) would have worked perfectly well in 38 of the 48 States that had misdemeanor assault or battery statutes at the time of § 922(g)(9)'s enactment. At that point, 19 States had statutes that covered infliction of bodily injury but not offensive touching,3 and 19 more had statutes that prohibited *178both of types of conduct, but did so in a divisible manner-thus making it possible to identify the basis for a conviction by inspecting charging documents and similar materials, see Descamps v. United States, 570 U.S. ----, ----, 133 S.Ct. 2276, 2283-2285, 186 L.Ed.2d 438 (2013).4 That leaves only 10 States whose misdemeanor assault or battery statutes (1) prohibited offensive touching, and (2) were framed in such a way that offensive touching was indivisible from physical violence.5 The fact that § 922(g)(9) would not have applied immediately in 10 States is hardly enough to trigger the presumption against ineffectiveness-the idea that Congress presumably does not enact useless laws. Compare Hayes, supra, at 427, 129 S.Ct. 1079 (rejecting an interpretation that supposedly would have rendered § 922(g)(9)" 'a dead letter' in some two-thirds of the States"). I think it far more plausible that Congress enacted a statute that covered *179domestic-violence convictions in four-fifths of the States, and left it to the handful of nonconforming States to change their laws (as some have), than that Congress adopted a meaning of "domestic violence" that included the slightest unwanted touching.

Third, the Court seizes on the one and only meaningful distinction between § 921(a)(33)(A)(ii) and the other provisions referred to above: that it defines a violent "misdemeanor" rather than a "violent felony" or an undifferentiated "crime of violence." Ante, at 1410 - 1411. We properly take account of the term being defined when interpreting "an unclear definitional phrase." United States v. Stevens, 559 U.S. 460, 474, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) ; but see *1420Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 717-719, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (SCALIA, J., dissenting). But when we do so, we consider the entire term being defined, not just part of it. Here, the term being defined is "misdemeanor crime of domestic violence ." Applying the term-to-be-defined canon thus yields the unremarkable conclusion that "physical force" in § 921(a)(33)(A)(ii) refers to the type of force involved in violent misdemeanors (such as bodily-injury offenses) rather than nonviolent ones (such as offensive touching).

Fourth, and finally, the Court seeks to evade Johnson and Leocal on the ground that " 'domestic violence' encompasses a range of force broader than that which constitutes 'violence' simpliciter ." Ante, at 1411, n. 4. That is to say, an act need not be violent to qualify as "domestic violence." That absurdity is not only at war with the English language, it is flatly inconsistent with definitions of "domestic violence" from the period surrounding § 921(a)(33)(A)(ii)'s enactment. At the time, dictionaries defined "domestic violence" as, for instance, "[v]iolence between members of a household, usu. spouses; an assault or other violent act committed by one member of a household against another," Black's Law Dictionary 1564 (7th ed. 1999), and "[v]iolence toward or physical *180abuse of one's spouse or domestic partner," American Heritage Dictionary 534 (4th ed. 2000).6 Those definitions, combined with the absence of "domestic violence" entries in earlier dictionaries, see, e.g., Black's Law Dictionary 484 (6th ed. 1990); American Heritage Dictionary 550 (3d ed. 1992), make it utterly implausible that Congress adopted a "term of art" definition "encompassing acts that one might not characterize as 'violent' in a nondomestic context," ante, at 1411.

The Court's inventive, nonviolent definition fares no better when judged against other accepted sources of meaning. Current dictionaries give "domestic violence" the same meaning as above: ordinary violence that occurs in a domestic context. See, e.g., American Heritage Dictionary 533 (5th ed. 2011) ("[p]hysical abuse of a household member, especially one's spouse or domestic partner"). The same goes for definitions of "domestic violence" found in other federal statutes.7 Indeed, Congress defined "crime of domestic violence" as a "crime of violence" in another section of the same bill that enacted § 921(a)(33)(A)(ii). See § 350(a), 110 Stat. 3009-639, codified at 8 U.S.C. § 1227(a)(2)(E)(i).

The Court ignores these authorities and instead bases its definition on an amicus brief filed by the National Network *181to End Domestic Violence and other private organizations,8 and two publications issued *1421by the Department of Justice's Office on Violence Against Women. The amicus brief provides a series of definitions-drawn from law-review articles, foreign-government bureaus, and similar sources-that include such a wide range of nonviolent and even nonphysical conduct that they cannot possibly be relevant to the meaning of a statute requiring " physical force," or to the legal meaning of "domestic violence" (as opposed to the meaning desired by private and governmental advocacy groups). For example, amici 's definitions describe as "domestic violence" acts that " humiliate, isolate, frighten, ... [and] blame ... someone"; "acts of omission"; "excessive monitoring of a woman's behavior, repeated accusations of infidelity, and controlling with whom she has contact." Brief for National Network to End Domestic Violence et al. as Amici Curiae 5-8, and nn. 7, 11. The offerings of the Department of Justice's Office on Violence Against Women are equally capacious and (to put it mildly) unconventional. Its publications define "domestic violence" as "a pattern of abusive behavior ... used by one partner to gain or maintain power and control over another," including " [u]ndermining an individual's sense of self-worth," "name-calling," and " damaging one's relationship with his or her children." See, e.g., Domestic Violence, online at http://www.ovw.usdoj.gov/domviolence. htm (all Internet materials as visited Mar. 21, 2014, and available in the Clerk of Court's case file).9 *182Of course these private organizations and the Department of Justice's (nonprosecuting) Office are entitled to define "domestic violence" any way they want for their own purposes-purposes that can include (quite literally) giving all domestic behavior harmful to women a bad name. (What is more abhorrent than violence against women?) But when they (and the Court) impose their all-embracing definition on the rest of us, they not only distort the law, they impoverish the language. When everything is domestic violence, nothing is. Congress will have to come up with a new word (I cannot imagine what it would be) to denote actual domestic violence .

Although the Justice Department's definitions ought to be deemed unreliable in toto on the basis of their extravagant extensions alone (falsus in uno, falsus in omnibus ), the Court chooses to focus only upon the physical actions that they include, viz., "[h]itting, slapping, shoving, grabbing, pinching, biting, [and] hair pulling." Ibid. None of those actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury. Cf.

*1422Johnson, 559 U.S., at 143, 130 S.Ct. 1265 (identifying "a slap in the face" as conduct that might rise to the level of violent force). And in any event, the Department of Justice thankfully receives no deference in our interpretation of the criminal laws whose claimed violation the Department of Justice prosecutes. See *183Gonzales v. Oregon, 546 U.S. 243, 264, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (citing Crandon v. United States, 494 U.S. 152, 177, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990) (SCALIA, J., concurring in judgment)). The same ought to be said of advocacy organizations, such as amici, that (unlike dictionary publishers) have a vested interest in expanding the definition of "domestic violence" in order to broaden the base of individuals eligible for support services.10

This is a straightforward statutory-interpretation case that the parties and the Court have needlessly complicated. Precedent, text, and common sense all dictate that the term "physical force," when used to define a "misdemeanor crime of domestic violence," requires force capable of causing physical pain or bodily injury.

Justice ALITO, with whom Justice THOMAS joins, concurring in the judgment.

The decision in this case turns on the meaning of the phrase "has, as an element, the use ... of physical force." 18 U.S.C. § 921(a)(33)(A)(ii). In Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), the Court interpreted the very same language and held that "physical force" means "violent force." Id., at 140, 130 S.Ct. 1265. I disagreed and concluded that the phrase incorporated the well-established meaning of "force" under the common law of battery, which did not require violent force. See id., at 146, 130 S.Ct. 1265 (dissenting opinion).

The Court of Appeals in the present case understandably followed the reasoning of Johnson, but now this Court holds that Johnson actually dictates that the identical statutory *184language be interpreted in exactly the same way that the Johnson majority rejected. See ante, at 1410.

In my view, the meaning of the contested statutory language is the same now as it was four years ago in Johnson, and therefore, for the reasons set out in my Johnson dissent, I would not extend the reasoning of Johnson to the question presented here, on which the Johnson Court specifically reserved judgment. 559 U.S., at 143-144, 130 S.Ct. 1265.

OPINION

LEDERBERG, Justice.

This case came before the Supreme Court on the appeal of Jesse Silvia (defendant) from a judgment against him for assault and battery, for compensatory damages in the amount of $60,346, and for punitive damages in the amount of $6,350, plus interest and costs. We affirm the judgment in respect to the assault and battery but sustain the defendant’s appeal in respect to damages. We vacate the award of damages and remand the case to the Superior Court for a new trial on damages.

FACTS AND PROCEDURAL HISTORY

This case began eight years ago with a broken signal light. The plaintiff, Victorie A. Picard, brought her mother’s car to Barry Pontiac-Buick, Inc. (Barry Pontiac)1 in Newport, Rhode Island, where the car had been purchased, to have the light repaired. While the car was being repaired, plaintiff decided to have its annual inspection performed as well. The car failed this inspection because, according to a Barry Pontiac representative, the brakes needed to be replaced. The plaintiff brought the car to Kent’s Alignment Service (Kent’s Alignment), also located in Newport, where the car passed inspection.

The plaintiff then contacted a local television news “troubleshooter” reporter, presumably to report her experience at the two inspection sites. Shortly after Kent’s Alignment had inspected plaintiff’s car, Barry Pontiac phoned Kent’s Alignment to ask that the car be checked again and the sticker removed because the brakes “were bad.” Accordingly Edward Kent (Kent), the owner of Kent’s Alignment, set January 27,1987, as the date that plaintiff, accompanied by her goddaughter Kristen Ann Seyster (Seyster), returned with the car to Kent’s garage.

Kent’s Alignment was divided into a garage area separated by a glass partition from an office area. At the time of the incident at issue in this case, Seyster was in the office, while plaintiff was in the garage. After Kent inspected the car, he told plaintiff that he had been asked to call Barry Pontiac which also wished to inspect the brakes. Ray Stevens (Stevens), the service manager at Barry Pontiac arrived at Kent’s Alignment, accompanied by defendant, who was employed by Barry Pontiac.

*692The defendant began to inspect the brakes. He and plaintiff gave vastly different descriptions of what next happened. The plaintiff said she began to take a picture of defendant as he was facing away from her, presumably as evidence for the troubleshooter report. The plaintiff testified that she did intend to photograph defendant although the photograph was not intended to identify defendant. The photograph did, however, clearly show defendant fully facing the camera, standing upright while pointing his index finger at plaintiff. After the camera snapped, the events that gave rise to this case occurred.

The plaintiff testified that defendant “lunged” at her and “grabbed [her] around around [sic ] the shoulders,”2 although plaintiff did not experience any pain. The plaintiff then testified on cross-examination that after defendant grabbed her by both her shoulders, she and defendant “spun around wrestling.” According to plaintiff, defendant released her after someone said, “let her go.” The plaintiff then left the garage with her goddaughter.

Seyster and Stevens also testified at trial, and Kent’s deposition was admitted into evidence. Seyster, who had remained in the office area, testified that she saw defendant “grab her [plaintiff's] left shoulder and try to get the picture with his other hand,” but defendant did not touch either the photograph or the camera. Seyster further testified that defendant had reached for plaintiff with only one arm, not two, and that plaintiff was not spun around, shaken, picked up or thrown against a wall. Stevens testified that he did not see what transpired because his back was turned. He did, however, remember defendant “hollering” that he did not want his picture taken. Kent stated that after plaintiff came out of the office and attempted to photograph defendant, he heard defendant say something such as “don’t take my picture.” Kent then saw defendant reach for the camera and touch it, but saw no contact between plaintiff and defendant, nor did he see defendant lift plaintiff.

The defendant testified that as he was looking at the car, plaintiff had come up behind him and aimed the camera toward him. He then pointed at plaintiff and said, “who gave you permission to take my picture?” then walked around the car to plaintiff, placed his index finger on the camera and again asked, “who gave you permission to take my picture?” The defendant denied grabbing plaintiff, touching her body, threatening her or making any threatening gestures, scuffling with her or reaching for the photograph. He also testified that he did not intend to cause plaintiff any bodily harm.

The plaintiff testified that although she did not experience any pain immediately after the incident, she did experience numbness in her hips and legs. However, about a week after the incident, plaintiff visited William E. Kenney, M.D. (Kenney) because of “pain radiating down my right leg * * *,” pain that reportedly continued periodically up to the time of trial. Kenney examined plaintiff and advised a CAT scan. W.R. Courey, M.D., of St. Anne’s Hospital in Fall River, Massachusetts, prepared a radiology report on April 17, 1987, that described “[g]eneralized degenerative bulging of the annulus at [L-3-L-4, L-4-L-5 and L-5-S-1].” Kenney himself saw plaintiff five times in his office between January 30, 1987, and May 26, 1987, each time with a $30 charge.

On April 28, 1987, Kenney wrote a “To Whom it May Concern” letter, in which he stated:

“This patient had had a ruptured intervertebra disc on the left which was apparent in October or earlier of 1985. She had not complained of her right lower extremity, however, on 1/30/87 she was seen with a history that she had been assaulted on 1/22/87 and had pain in the right lower extremity. The CAT scan taken at St. Anne’s Hospital on 4/17/87 reveals nerve root pressure on the right at L5-S1 level. *693Therefore, this change is probably causally related with the assault.”

On June 1,1987, Kenney wrote a second “To Whom it May Concern” letter, stating: “The question has been raised as to whether or not the pain in the right leg is permanent. The answer is that it is probably not permanent, but there is no way that I have of knowing for sure whether it is permanent or not.” (Emphasis added.) But, twenty-four days later, with no evidence of an intervening examination of plaintiff, Kenney, on June 25, 1987, wrote to plaintiff’s attorney:

“It is apparent that the patient sustained a ruptured disc on the right at L5-S1 found by CAT scan on 4/17/87, following an assault on 1/22/87. The ruptured disc at L5-Sl on the right is a permanent injury.” (Emphasis added.)

The injured area identified by Kenney was the right L5-S1 region of the spinal column. The defendant introduced into evidence a Newport Hospital Report dated March 26, 1985, which showed a left-sided disc herniation at the L5-S1 locus. The plaintiff confirmed at trial that she had had a history of back problems for at least ten years prior to her encounter with defendant.

On January 6,1993, some five and one-half years after he last examined plaintiff, Kenney again wrote to plaintiffs counsel and stated:

“To a reasonable degree of medical certainty, in my opinion, the ruptured disc Victorie Picard sustained at L5-S1 was proximately caused by the assault of January 22, 1987. The injury sustained on January 22, 1987, in my opinion, stated with a reasonable degree of medical certainty is permanent in nature.”

On January 11, 1993, Kenney swore an affidavit entitled: “Amended Affidavit Under Section 9-17-27 [sic] of the Rhode Island General Laws Entitled ‘Evidence of Charges for Medical and Hospital Services’” that amended his affidavit of 1987. Attached to the amended affidavit were Kenney’s letter of January 6,1993, the radiology report from St. Anne’s Hospital dated April 17,1987, and the receipts from plaintiffs five visits to Kenney’s office. The original affidavit had contained receipts of the office visits, Kenney’s letters of June 25, 1987, June 1, 1987, and April 28, 1987, the radiology report and a letter of May 5, 1987, describing the radiology report.

The amended affidavit stated in part: “Now comes William E. Kenney, M.D. and makes affidavit under oath and says as follows: * * *

(3) That the attached record of examination of the person examined reflects my true opinion with respect to the diagnosis, prognosis, and proximate cause of the conditions diagnosed.

(4) That to a reasonable degree of medical certainty, the condition detailed in the attached record, related in the history provided by the patient, was the proximate result of the incident which occurred on January 22, 1987.”

Other than plaintiff's testimony, these affidavits and their appended records and letters, admitted into evidence by the trial judge, constituted the only medical evidence that documented plaintiffs alleged injury. Kenney was not deposed, nor did he testify at trial.

The plaintiff prevailed at trial and was awarded compensatory damages in the amount of $60,346. Because the trial justice found that defendant’s conduct was “sufficiently egrigious [sic],” punitive damages in the amount of $6,350 were imposed, for a total judgment of $66,696, plus interest and costs. The defendant appealed the judgment, arguing (1) that plaintiff failed to prove an assault and battery; (2) that plaintiff failed to prove that defendant’s actions in fact caused the alleged harm to her; and (3) that the damage awards were grossly excessive and inappropriate as a matter of law.

STANDARD OF REVIEW

The findings made by a trial justice, sitting without a jury, are accorded great weight. Raheb v. Lemenski, 115 R.I. 576, 579, 350 A.2d 397, 399 (1976). These findings will not be disturbed on appeal absent a determination that the trial justice misconceived or overlooked relevant evidence or was otherwise clearly wrong. Rego Dis*694plays, Inc. v. Fournier, 119 R.I. 469, 473, 379 A.2d 1098, 1100-01 (1977); Barattini v. McGovern, 110 R.I. 360, 362, 292 A.2d 860, 861 (1972).

ASSAULT AND BATTERY

The defendant contended that plaintiff failed to prove the occurrence of an assault because plaintiff was not placed in reasonable fear of imminent bodily harm. Further, defendant argued that plaintiff failed to prove a battery because the evidence failed to establish that defendant intended to inflict an unconsented touching of plaintiff. We disagree with both contentions.

Assault and battery are separate acts, usually arising from the same transaction, each having independent significance. Proffitt v. Ricci, 463 A.2d 514, 517 (R.I.1983). “An assault is a physical act of a threatening nature or an offer of corporal injury which puts an individual in reasonable fear of imminent bodily harm.” Id. It is a plaintiff's apprehension of injury which renders a defendant’s act compensable. Id.; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 10, at 43 (5th ed. 1984) (“[t]he damages recoverable for [assault] are those for the plaintiffs mental disturbance, including fright, humiliation and the like, as well as any physical illness which may result from them”). This apprehension must be the type of fear normally aroused in the mind of a reasonable person. Keeton et al, supra, at 44.

The plaintiff testified that she was frightened by defendant’s actions. A review of the attendant circumstances attests that such a reaction was reasonable. The defendant admitted approaching plaintiff, and the photograph taken that day clearly showed defendant pointing his finger at plaintiff as defendant approached her. Because plaintiff's apprehension of imminent bodily harm was reasonable at that point, plaintiff has established a prima facie case of assault.

We have defined battery as an act that was intended to cause, and in fact did cause, “an offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault. An intent to injure plaintiff, however, is unnecessary in a situation in which a defendant willfully sets in motion a force that in its ordinary course causes the injury.” Proffitt, 463 A.2d at 517.

In the instant case, defendant contended that a battery did not occur because defendant did not intend to touch or injure plaintiff. Rather, defendant argued, the evidence showed that he intended to touch plaintiff's camera, not plaintiff's person, and therefore the contact was insufficient to prove battery. With this contention we must disagree. Even if this court were to accept defendant’s characterization of the incident, a battery had nonetheless occurred. The defendant failed to prove that his actions on January 22, 1987, were accidental or involuntary. Therefore, defendant’s offensive contact with an object attached to or identified with plaintiff's body was sufficient to constitute a battery. As noted in the comments to the Restatement (Second) Torts § 18, comment c at 31 (1965):

“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.” (Emphasis added.)

The defendant’s contact with the camera clutched in plaintiff's hand was thus sufficient to constitute a battery. We conclude, therefore, that plaintiff has proven the elements of assault and battery.

PROOF OF CAUSATION

The defendant next asserted that evidence was insufficient to prove that his actions caused plaintiff's condition because the medical evidence submitted by plaintiff was *695not competent.3 We agree.

At the start of trial, defendant objected to the admission of Kenney’s January 11, 1993 affidavit which refers to Kenney’s opinions to the permanency of plaintiff's condition. The record disclosed that Kenney last examined plaintiff on May 26, 1987, but included no evidence that Kenney examined plaintiff at any time during the ensuing five and one-half year period before executing the affidavit. At the time of trial Kenney had been retired for six years and resided in Massachusetts. It is an impermissible affront to reason to uphold Kenney’s affidavit which attested to the cause and permanency of injury in a patient whom he had not treated in five and one-half years and whose medical file he apparently did not consult at the time he signed the affidavit.4 Furthermore, the material which supported the affidavit was substantively inconsistent. Kenney’s 1993 letter stated that the injury to plaintiff was “permanent in nature.” However, in support of the 1987 affidavit, shortly after his last examination of plaintiff, he wrote on June 1, 1987, that the injury was “probably not permanent.” Yet, twenty-four days later, without reexamining plaintiff, he stated in a letter to plaintiff’s attorney, that the injury was permanent, a position which he maintained until 1993, though he never reexamined plaintiff in the intervening five and one-half years.

In Parrillo v. F.W. Woolworth Co., 518 A.2d 354, 355 (R.I.1986), this court stated that, “The substitution of a written affidavit for live medical testimony * * * in no way relaxes the minimum requirements for the admission of competent medical testimony.” Further, we have noted that, “Although all litigants have the right to take advantage of the provisions of § 9-19-27, they run the risk of a failure of proof unless the medical picture is sufficiently clear and unambiguous to lend itself to this simplified manner of proof.” Id. at 356. In the instant case, the conflicting descriptions by Kenney concerning the permanency of plaintiff's injury and the length of time between his examinations and the production of the amended affidavit conclusively demonstrate that the proof was not “clear and unambiguous.” Id. Our careful review of the record failed to disclose conclusive evidence that plaintiff's alleged injuries were caused by defendant’s assault and battery and that such alleged injury was permanent. Indeed, the trial justice stated that “the disability that she [plaintiff] suffers under is per the medical opinion permanent, or at least was at the time of the opinion.” The trial justice’s apparent doubt as to whether the injury was permanent at the time of trial illustrated further plaintiff's failure to present sufficient medical evidence under this simplified manner of proof. See Parrillo, 518 A.2d at 356. We therefore conclude that the medical evidence presented by plaintiff was incompetent to establish that the assault and battery by defendant was the proximate cause of plaintiff's alleged injury.

DAMAGES

A. Compensatory Damages

The defendant next argued that the trial justice’s award of compensatory damages in the amount of $60,346 was grossly excessive. We agree.

The trial justice based the award of compensatory damages in part on the pain and suffering alleged by plaintiff, whom the trial justice found credible and candid. The trial justice found that the inconsistencies in the testimony of the witnesses presented by plaintiff were “not significant in [the] Court’s *696mind.” Such a conclusion, however, ignored the contradictions between the witnesses’ testimony and the internal inconsistencies of plaintiff's own testimony. Indeed, our review of the record revealed that plaintiff's testimony was remarkably malleable.5 The plaintiff transformed a slight touching (as it was characterized by all witnesses except plaintiff) into a major assault and battery.

In addition to the inconsistencies in plaintiff's testimony concerning the event, plaintiff's testimony in respect to her pain and suffering was not credible, given her medical disabilities that predated the alleged additional injury that she claimed to have sustained as a result of the assault and battery. The trial justice was clearly wrong in relying on plaintiff's testimony concerning her pain and suffering absent additional evidence to establish the specific pain and suffering that developed from this contact with defendant.

This court will not disturb an award for pain and suffering unless the award “ ‘shocks the conscience’ or is grossly excessive.” Proffitt, 463 A.2d at 519 (citing Bruno v. Caianiello, 121 R.I. 913, 917, 404 A.2d 62, 65 (1979)). Given the absence of competent medical evidence of causation and given that plaintiff's testimony concerning the assault and her subsequent injuries was not credible, the award of $60,346 in compensatory damages was clearly excessive and out of all proportion to the alleged injury. Consequently, we vacate the award.

B. Punitive Damages

The defendant also argued that punitive damages should not have been awarded because the trial justice did not find that defendant acted with malice or in bad faith as directed by Palmisano v. Toth, 624 A.2d 314, 318 (R.I.1993). Disfavored in the law, an award of punitive damages is an extraordinary sanction permitted only with great caution and within narrow limits. Id. In the instant case there was no proof of malice or bad faith nor was there a finding that defendant acted with malice. Consequently, the award of punitive damages in this case was not consistent with the purpose of such damages, namely, the deterrence of a defendant’s “willfulness, recklessness or wickedness,” because evidence of these factors was not presented. Id. (quoting Sherman v. McDermott, 114 R.I. 107, 109, 329 A.2d 195, 196 (1974)).

In conclusion, we deny in part and sustain in part the defendant’s appeal. We affirm the judgment of the Superior Court in respect to the defendant’s commission of assault and battery, but we vacate the awards of compensatory and punitive damages. We remand the case to the Superior Court for a new trial on the damages sustained by the plaintiff.

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.

Wells, J.*

All the judges concur that the evidence introduced at the trial would warrant a conviction of assault and battery, or for a simple assault, which it includes. And in the opinion of a majority of the court, the instructions given required the jury to find all that was essential to constitute the offence of assault and battery.

The jury must have found a physical injury inflicted upon another person by a voluntary act of the defendant, directed towards her, which was without justification and unlawful. Although the defendant was ignorant of the qualities of the drug he administered, and of the effects to be expected from it, and had been *305assured and believed that it was not deleterious to health, yet he knew it was not ordinary food, that the girl was deceived into taking it, and he intended that she should be induced to take it without her conscious consent, by the deceit which he practised upon her. It is to be inferred from the statement of the case that he expected it would produce some effect. In the most favorable aspect of the facts for the defendant, he administered tc the girl, without her consent and by deceit, a drug or “ foreign substance,” of the probable effect of which he was ignorant, with the express intent and purpose “ to try the effect of it upon ” her. This, in itself, was unlawful, and he must be held responsible for whatever effect it produced. Being an unlawful interference with the personal rights of another, calculated to result and in fact resulting in physical injury, the criminal intent is to be inferred from the nature of the act and its actual results. 3 Bl. Com. 120. Rex v. Long, 4 C. & P. 398, 407, note. The deceit, by means of which the girl was induced to take the drug, was a fraud upon her will, equivalent to force in overpowering it. Commonwealth v. Burke, 105 Mass. 376. Regina v. Lock, 12 Cox C. C. 244. Regina v. Sinclair, 13 Cox C. C. 28.

Although force and violence are included in all definitions of assault, or assault and battery, yet, where there is physical injury to another person, it is sufficient that the cause is set in motion by the defendant, or that the person is subjected to its operation by means of any act or control which the defendant exerts. In 3 Chit. Crim. Law, 799, is a count, at common law, for an assault with drugs. For other instances of assault and battery without actual violence directed against the person assaulted, see 1 Gabbett’s Crim. Law, 82; Rose. Crim. Ev. (8th ed.) 296; 3 Bl. Com. 120, and notes; 2 Greenl. Ev. § 84.

If one should hand an explosive substance to another, and induce him to take it by misrepresenting or concealing its dangerous qualities, and the other, ignorant of its character, should receive it and cause it to explode in his pocket or hand, and should be injured by it, the offending party would be guilty of a battery, and that would necessarily include an assault; although he might not be guilty even of an assault, if the su bstance failed *306to explode or failed to cause any injury. It would be the same if it exploded in his mouth or stomach. If that which causes the injury is set in motion by the wrongful act of the defendant, it cannot be material whether it acts upon the person injured externally or internally, by mechanical or chemical force.

In Regina v. Button, 8 C. & P. 660, one who put Spanish flies into coffee to be drank by another, was convicted of an assault upon the person who took it, although it was done “ only for a lark.” This decision is said to have been overruled in England. Regina v. Dilworth, 2 Mood. & Rob. 531. The Queen v. Walkden, 1 Cox C. C. 282. Regina v. Hanson, 2 C. & K. 912. In the view of the majority of the court, the last only of these three cases was a direct adjudication, and that entirely upon the authority of mere dicta in the other two, and without any satisfactory reasoning or statement of grounds; and the earlier decision in Regina v. Button is more consistent with general principles, and the better law.

Exceptions overruled.

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.

MEMORANDUM

BARTLE, District Judge.

In these consolidated civil actions, plaintiffs Jose Illaraza (“Jose”) and Luis Illara-za (“Luis”),1 who are brothers, bring claims against defendant HOVENSA, LLC (“HOVENSA”) for wrongful discharge, slander and defamation per se, tortious interference with contractual relationship, abuse of process, malicious prosecution; and intentional or in the alternative negligent .infliction of emotional distress. Luis also asserts a claim against HOVENSA for false imprisonment. These lawsuits arise out of the brothers’ alleged involvement in an August 2006 theft of an air conditioner unit from HOVENSA’s oil refinery on St. Croix, and the company’s decision to bar the brothers from the refinery following the alleged theft.

Now before the court are the motions of defendant HOVENSA for summary judgment on all of plaintiffs’ claims against it *594under Rule 56 of the Federal Rules of Civil Procedure.2

I.

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Rule 56(c) states:

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials; or ... showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

A dispute is genuine if the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is granted where there is insufficient record evidence for a reasonable factfinder to find for the plaintiffs. Id. at 252, 106 S.Ct. 2505. “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the factfinder could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

When ruling on a motion for summary judgment, we may only rely on admissible evidence. See, e.g., Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 95 (3d Cir.1999). We view the facts and draw all inferences in favor of the nonmoving party. In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir.2004). However, “an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment.” Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir.1990).

II.

The following facts are undisputed or viewed in the light most favorable to the Illaraza brothers as the nonmovants.

Luis and Jose Illaraza are licensed crane and heavy equipment operators who were employed by Anthony Crane International (“ACI”), which did virtually all of its work at HOVENSA’s petroleum refinery on St. Croix.3 As ACI employees, plaintiffs worked at the refinery. At the time of plaintiffs’ employment with ACI, HOVEN-SA was the largest employer on the island. The terms of plaintiffs’ employment with ACI were governed, at least in part, by a collective bargaining agreement (“CBA”) between ACI and the United Steelworkers of America (“Steelworkers”). This CBA set forth the framework for plaintiffs’ wages and the benefits provided to them *595by ACI. HOVENSA was not a party to the CBA.

Under the terms of a contract between ACI and HOVENSA (the “contract”), ACI provided services at HOVENSA’s refinery. The contract characterized ACI as an independent contractor and its employees as “contractor’s employees.” ACI was responsible, among other things, for rigging cranes, refueling equipment, and managing a waste site at the refinery. The contract required ACI to administer pre-employment tests to any potential employees who would be hired to work at the refinery in order to “ensure that only those who are qualified are hired,” and described the areas that such a test should cover. Under the contract, the number of personnel to be provided by ACI was subject to approval by HOVENSA. The contract further set forth hourly compensation rates that HOVENSA would pay to ACI for ACI personnel. Plaintiffs received their paychecks from ACI and reported their hours to ACI.

The contract allowed for HOVENSA supervision and oversight of the work of ACI employees at the refinery and enabled HOVENSA to provide field personnel with the authority to direct the actions of ACI’s operators. ACI was bound by the contract to comply with the instructions of these HOVENSA supervisors to the extent that their instructions related directly to the work being supervised. Nonetheless, plaintiffs were primarily supervised by ACI employees. They received most of their day-to-day instructions from their ACI supervisor or from an ACI dispatcher. The contract between ACI and HO-VENSA also made explicit that representatives provided by HOVENSA would “not control or supervise [ACI]’s day-to-day work since [ACI] is a qualified independent contractor.”

The contract gave HOVENSA certain management and oversight responsibilities over the refinery’s waste site. HOVENSA personnel, including environmental-compliance officials, inspected the waste site periodically. HOVENSA also had the responsibility to procure the necessary permits and licenses for ACI’s work on the refinery and to provide security in accordance with its existing policies.

ACI and its employees working at the HOVENSA refinery were subject to detailed plant rules and procedures which were binding on all contractors at the refinery. A detailed list of these rules and procedures appeared as an attachment to the original HOVENSA-ACI contract. Among these rules were requirements that ACI maintain current contact information and personal data for each employee, that each employee comply with HOVENSA security procedures (such as parking registration requirements), that ACI employees stay off refinery premises unless scheduled to work, and that they not bring unauthorized visitors onto the property. ACI employees had to submit all bags for inspection, to report any improper conduct of which they are aware, to wear certain required safety articles and protective gear, and to refrain from posting notices, calendars, pictures, and the like without prior approval. ACI employees were barred from certain activities which' included smoking, possessing or being under the influence of any controlled substance or intoxicant, and possessing cell phones at work without prior approval. They were not permitted to wear clothing deemed by HOVENSA to be “offensive or provocative.”

In addition, the rules and procedures provided for general cleanliness and care of the refinery premises and equipment and required “the employee’s company” to provide safety hats. HOVENSA displayed rules and regulations prominently in various locations around the refinery although *596neither plaintiff recalled ever receiving a written copy of them.

HOVENSA maintained procedures for granting ACI’s employees access to the refinery.4 According to HOVENSA Director of Administration Services Rocco Colabella (“Colabella”), any individual seeking entry to the refinery (including contractor employees like those working for ACI) had to obtain an identification badge from HOVENSA and were subject to a security screening by HOVENSA’s security department. After completing the safety comprehension examination provided for by the contract and submitting to a drug test, ACI employees were required to submit badge applications, which were subject to HOVENSA approval. HO-VENSA sometimes ran police background checks on potential employees before granting badge applications. There is no evidence as to whether such a check was conducted with respect to Jose or Luis.

Before the events of August 2006 which are the subject of this lawsuit, neither plaintiff had ever been disciplined in his capacity as an ACI worker. As far as the record discloses, the brothers were satisfactory employees. However, at some point prior to August 10, 2006, HOVENSA Security Manager Jay Galindo (“Galindo”) had begun to suspect that the brothers were involved in a rash of missing items at the refinery. According to Colabella, Gal-indo had an informant at the refinery who had led him to believe that the Illarazas were linked to the theft of items including tools, welders, and equipment parts from HOVENSA property.

The Illaraza brothers’ claims against HOVENSA hinge on or arise out of the events of August 10 and 11 of 2006. On August 10, an ACI foreman named Nelven Noelien (“Noelien”), who happened to be Luis’s and Jose’s supervisor, signed an. air conditioning unit (the “a/c unit”) out of HOVENSA’s warehouse. Noelien later claimed that he did so to install it as a replacement for the inoperative air conditioner in the trailer where his work crew usually ate lunch and changed their clothes. In his deposition, Jose asserted that this was his understanding of Noe-lien’s intentions when he helped Noelien move the a/c unit from the HOVENSA warehouse into the white pickup truck which belonged to ACI and which had been assigned to Noelien.

Plaintiffs assert that the a/c unit was supposed to be installed in the trailer that same day. However, a sudden change in their work schedule required the three men to return to the refinery at 10 p.m. that night. As a result, they would need to leave work earlier that evening if they wanted to get any rest. They claim that they did not have time to complete the installation on the evening of August 10. Because of this time constraint, Noelien decided to move the a/c unit from the open bed of the pickup truck into the front compartment of an ACI-owned red tractor-trailer at the refinery. Jose helped Noelien secure the a/c unit in the red tractor-trailer after which the three men left the refinery.5

The same evening, HOVENSA security officer Juan Espinosa (“Espinosa”) re*597ceived a telephone call from a person who refused to identify himself. According to Espinosa’s later testimony, the caller stated that he “was in a location where he saw something suspicious happening.” The caller advised Espinosa to check the location at the refinery where the trailers were stored and added that he had observed men putting boxes into some of the trucks. Espinosa recalled that the caller seemed apprehensive, particularly about the fact that HOVENSA maintained multiple security cameras at the refinery. Plaintiffs infer that the caller’s nervousness, coupled with his reluctance to identify himself, stemmed from concern that his own actions had been captured on camera and that he hoped to “save his own skin” by calling in a tip.

In response to the call, Espinosa and fellow security officer Blaise Charles went to the location described by the tipster but were unable to access any of the locked trucks that were parked there. They contacted Galindo, who in turn contacted HOVENSA’s locksmith, Nick Henry (“Henry”). Together, Henry and Gal-indo returned to the site and unlocked the red tractor-trailer. Inside its cab, they found the a/c unit. Galindo later testified that it was located in the truck’s “sleeping compartment,” which was separated from the front seat by a curtain. Galindo took photographs of the truck and the a/c unit and made note of the unit’s serial number.

Galindo notified Henry, HOVENSA Harbor Security Officer Chris Webster (“Webster”), and another security employee named Brian Harrell (“Harrell”) that they should report to the refinery early the next morning to assist with an investigation. At some point that evening, Galin-do also contacted Haraldo Charles (“Charles”), a police officer who often “moonlighted” for HOVENSA by directing traffic at the refinery. Galindo asked Charles to stay at the refinery beyond his normal departure time of 8:00 a.m. on the morning of August 11, 2006, in case Galin-do needed his assistance. Finally, Galindo contacted Colabella, HOVENSA’s Director of Administration Services, to alert him to the investigation.

Meanwhile, the Illaraza brothers, as well as Noelien, returned as scheduled to the refinery at 10:00 p.m. on August 10. They remained there working until approximately 3:00 a.m. on August 11. At that point, knowing they needed to return to work again before 5:00 a.m., they left the refinery to obtain some rest.

On the morning of August 11, HOVEN-SA was slated to donate a number of trailers to the IQRA Academy, a school on St. Croix. The trailers were to be transported to the school by a convoy of trucks. Early that morning, Galindo, along with Harrell, Webster, and Henry, initiated surveillance of the convoy. Luis Illaraza arrived at the refinery before 5:00 a.m., while Jose, who had overslept, did not arrive until shortly after 5:00. By the time Jose entered the refinery, the convoy was already approaching the refinery gates. Jose jumped into the red tractor-trailer, which was being driven by Luis and which contained the a/c unit. In the rush to leave the refinery, Jose has stated that he had forgotten that the a/c unit was still in the tractor-trailer. As the convoy left the refinery, HOVENSA security required the employees to exit the trucks and display their badges. Security officials also wrote down the license plate numbers for each truck.

While the convoy drove to the IQRA Academy under police escort, Galindo made contact with Kevin Scott (“Scott”), the manager of the HOVENSA warehouse. Galindo provided Scott with the serial number that he had collected from the a/c unit the previous evening. An email from Scott, sent that morning to Galindo and *598HOVENSA electrical supervisor Dana Hanning, confirmed that an a/c unit with the same serial number as the one in the red tractor-trailer had been signed out of HOVENSA’s warehouse by Noelien on August 10.

Meanwhile, the convoy arrived at the IQRA Academy, where the team worked to remove the trailers from the trucks and to set them in place. HOVENSA’s civil superintendent, Bobby Gustafson (“Gustaf-son”), assisted the team at the school for a period of time. Following Gustafson’s departure, Noelien drove the white pickup truck, which had been assigned to him by ACI, alongside the red tractor-trailer containing the a/c unit. At his request, Jose then helped him to move the a/c unit into the pickup truck.

Noelien and Luis began to drive away from the IQRA Academy in the white pickup truck while Jose remained behind to finish work at the school. As Noelien and Luis did so, Harrell followed in his vehicle, with Webster as a passenger, and pulled up in front of the pickup truck driven by Noelien. Galindo, who was driving a second vehicle with Henry as a passenger, pulled up alongside the pickup truck. Unable to proceed, Noelien stopped and exited the truck, while Luis remained in the passenger seat. Luis admitted in his deposition that no one explicitly told him to stay where he was. In his Counter Statement of Facts, he stated that “the implication to him was he had to stay in the truck.”

Noelien stepped out of the truck and approached Galindo. According to Galin-do, Noelien told him that he “was not going to lie” and that he had stolen the a/c unit. Galindo has also testified that Noe-lien told him that the plaintiffs “were involved, that they had knowledge.” Galin-do’s handwritten contemporaneous notes say “Jose + Luis both knew about it.” Webster, who was with Galindo at the time, testified that he also overheard Noe-lien say “I did a stupid thing, you know. I’m sorry.”

Galindo contacted HOVENSA security guard Lazarus Joseph, who arrived and took a written statement from Noelien at Galindo’s request. Noelien dictated his statement to Joseph, who wrote it down by hand. In his statement, Noelien admitted that “I intended to transfer the air conditioning unit into the truck assigned to me from Maxim Crane. I intended to carry the unit to my house.... Whatever I did I am very sorry and ashamed.” Noelien signed the statement. Joseph told Noelien that he could correct or add to his statement later if he chose to do so. A notation to this effect was made in the statement itself, alongside Noelien’s signature.

As Galindo and Joseph were speaking with Noelien, Webster stood alongside the pickup truck where Luis was still sitting. Webster testified that he said hello to Luis but'that they exchanged few words.

Galindo contacted Officer Charles, who was still at the HOVENSA refinery following the end of his morning shift and asked him to come to the IQRA Academy and assist in an investigation. Officer Charles, in turn, contacted the Virgin Islands Police Department (“VIPD”). Approximately 30 minutes after the initial stop of the pickup truck, VIPD officers arrived at the school, and Galindo relayed to them his version of the sequence of events. The VIPD arrested both Noelien and Luis, and HOVENSA officials confiscated their refinery badges. VIPD Officers then arrested Jose, and HOVENSA confiscated his badge as well. With the exception of Webster’s brief conversation with Luis, no HOVENSA official spoke to either of the brothers about the alleged theft prior to the arrests.

Following their arrests, Luis and Jose, along with Noelien, were transported to the Police Department, where the three *599were fingerprinted and placed together in a cell. Jose was released into the custody of his mother the same day while Luis remained in jail until August 14, when he, too was released into his mother’s custody. At around the same time, HOVENSA’s security department deactivated the refinery access badges of Luis, Jose and Noe-lien.

The record supports plaintiffs’ contention that the VIPD relied heavily on the statements of HOVENSA employees in making the decision to arrest them. Specifically, Galindo testified that a report prepared by Officer Charles was based on information Galindo had provided to the VIPD. He also confirmed that the VIPD based its arrests of Jose and Luis on the reports of several witnesses, all of whom were HOVENSA employees. In addition, Galindo stated that the VIPD’s offense report concerning the arrests was based on information he supplied. Photographs taken by Galindo at the scene of the arrest were also provided to the VIPD by HO-VENSA. Finally, a probable cause affidavit prepared by VIPD Officer Herminia Rivera appears to be based exclusively on information provided by Galindo to Officer Rivera.

Approximately one week after the arrests, Noelien, who had by then been released from jail, contacted ACI General Manager Andy Alcorn. Noelien presented Alcorn with an explanation for the events of August 10 and 11. He stated that he had not had time on August 10 to install the a/c unit in the Waste Site trailer where the crew ate lunch and that he had inadvertently left it in the red truck when the convoy traveled to the IQRA Academy. Noelien told Alcorn that he had been bringing the a/c unit back to HOVENSA at the time of his arrest. At Alcorn’s request, Noelien put his explanation in a typewritten statement approximately two days later. He explained that when he had told Galindo he was taking the a/c unit to his house, he had done so “jokingly,” having perceived Galindo’s inquiry as a “stupid pointless thing to ask [him].” Al-corn forwarded Noelien’s statement to Gal-indo, who dismissed it as “ridiculous.” Galindo later testified that he never investigated or followed up on any of the explanations set forth in-Noelien’s typed statement.

Noelien ultimately pleaded guilty to the possession of stolen property and was sentenced to one year of probation. He served his probation in Orlando, Florida, where he had obtained a job as a crane operator with ACI’s parent company Maxim Crane.

In the weeks following the arrests of the three men, Galindo met with a person who claimed to be the anonymous informant who had alerted HOVENSA to the alleged theft. Galindo paid him a reward of $500 for which he signed a receipt with the name “Wilfredo Rios.” Galindo has stated that this was not his actual name.

In July 2007, the Virgin Islands government elected not to prosecute the Illaraza brothers, and the charges against them pertaining to the alleged theft were dismissed without prejudice. Following the dismissal, Steelworkers representative Mike Francis (“Francis”) sent ACI’s Mike Corn (“Corn”) a copy of the dismissal. ACI subsequently communicated to both Francis and HOVENSA that Luis and Jose were good workers whom ACI wanted to reinstate to continue their work at the HOVENSA refinery. Colabella, however, responded that “due to the admitted theft of HOVENSA property,” the men could not return to work there. Since that time, neither Jose nor Luis has been permitted to do so. According to his deposition testimony, Alcorn confirmed that the brothers were “effectively out of work” with ACI due to HOVENSA’s refusal to permit them on refinery property. During *600Alcorn’s time at ACI, the company had never had work on St. Croix other than under its contracts with HOVENSA.

After August 10 and 11, 2006, certain HOVENSA employees made various statements about Jose and Luis and their involvement in the events of those days. Plaintiffs emphasize, and the record confirms, that rumors about the events circulated at the HOVENSA refinery and in the St. Croix community. The record is often unclear as to the substance and source of the statements that made up these rumors. It is apparent, however, that at least a portion of the gossip about the events consisted of statements that the Illaraza brothers had been arrested. Statements were also made to the effect that the brothers had committed a theft, and that they had been caught stealing. With some exceptions which we discuss below,' the record does not make clear which individuals spread these rumors. Instead, several deponents simply attributed them to HO-VENSA security guards. A report of plaintiffs’ arrests also appeared in the police blotter of a local newspaper, the St. Croix Avis. While Galindo confirmed that the Avis report contained the same information HOVENSA had provided to the VIPD, he denied that HOVENSA had provided information to the newspaper.

Since the events of August 10 and 11, 2006, Jose has reported headaches at least twice weekly, as well as extreme stress about how he will pay his bills and meet his obligations to his family. He also reports trouble sleeping. Luis has also indicated that he experiences stress and emotional suffering linked to the events, as well as headaches and sleeplessness. Both plaintiffs report that they have sought medical attention for these ailments.

As of March 2010, when their depositions were taken, neither plaintiff has been employed full-time.

III.

We first address plaintiffs’ claims for wrongful discharge under the Virgin Islands Wrongful Discharge Act (‘WDA”), 24 V.I.C. § 76. The WDA provides that “an employer may dismiss any employee” for any of nine reasons enumerated in subsection (a) of the statute.6 Where an *601employee is terminated for a reason other than one of the nine articulated in subsection (a), a presumption exists that he has been wrongfully discharged.

The WDA applies to the dismissal of an “employee” by an “employer.” As a result, whether or not HOVENSA was plaintiffs’ employer is a threshold issue in determining whether plaintiffs’ WDA claim can succeed.7 Plaintiffs urge us to conclude that even though ACI was their employer HOVENSA is also properly, considered their employer under a “joint employer” theory.

As a starting point, we look to the Third Circuit’s decision in N.L.R.B. v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117 (3d Cir.1982). There, in upholding an order of the National Labor Relations Board, the court explained that a joint employment relationship exists where “one employer while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer.” Id. at 1123. The Browning-Ferris court specified that the “joint employer” inquiry is a fact-intensive one. Id. at 1121. Such an analysis in-' volves the consideration of factors which include, but are not limited to, the allegedly joint employers’ shared right to hire and fire, their establishment of work hours, their control of compensation, their degree of supervision of employees, and their authority to devise rules. Id. at 1124-25.

Our Court of Appeals has recently refined the Browning-Ferris standard for determining the existence of a joint-employer relationship. In In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litigation, the court affirmed a district court order granting summary judgment in favor of the alleged joint employer. It directed that a joint-employer analysis should consider the alleged employer’s “(1) authority to hire and fire employees; (2) authority to promulgate work rules and assignments, and set conditions of employment, including compensation, benefits, and hours; (3) day-to-day supervision, including employee discipline; and (4) control of employee records, including payroll, insurance, taxes,- and the like.” 683 F.3d 462, 469 (3d Cir. 2012). These factors, the court explained, “reflect the facts that will generally be most relevant in a joint employment context.” Id. However, the court cautioned that its list of factors was not exhaustive, and that district courts should consider all relevant evidence rather than confining themselves to “narrow legalistic definitions.” Id.

Although In re Enterprise addressed a claim brought under the Fair Labor Standards Act rather than a WDA claim, we find its framework instructive. Taking the facts in the light most favorable to plaintiffs, and relying on the framework articulated in In re Enterprise, HO-*602YENSA’s relationship with ACI cannot properly be characterized as a joint employer relationship.

The record discloses that HOVENSA’s role in the hiring and firing of ACI employees was minimal. While HOVENSA maintained supplemental screening procedures for those ACI employees who were assigned to work at the HOVENSA refinery, including the “pre-employment test” provided for by the ACI-HOVENSA contract and the background checks that sometimes preceded the issuance of badges, the record contains no indication that HOVENSA had any say as to the persons ACI could hire. Rather, HO-VENSA’s involvement in this aspect of ACI’s personnel management was limited to restricting who could enter the HO-VENSA refinery, not who could work for ACI.

Nor does the record contain any indication that HOVENSA played a role in ACI’s procedures for dismissing employees. Plaintiffs maintain that HOVENSA’s decision to deny them access to the refinery effectively amounted to a termination from ACI, since the ACI-HOVENSA contract accounted for virtually all of ACI’s work on St. Croix. See note 5, supra. Even if this may have been the case, it does not mean that HOVENSA had the authority to fire employees from ACI. Indeed, Noelien was also denied access to the HOVENSA refinery following the alleged theft but continued to work for ACI’s parent company, Maxim Crane, in Florida. In short, HOVENSA’s authority to revoke refinery badges did not amount to authority to fire ACI employees.

HOVENSA’s role in the determination of hours, compensation, and benefits for ACI employees was also minimal. The ACI-HOVENSA contract established a rate schedule under which HOVENSA would compensate ACI for its employees’ time. ACI was to submit periodically to HOVENSA invoices for the hours worked by its employees, including overtime, and HOVENSA was to compensate ACI on an hourly basis for this work. It was ACI, however, that established the wages which plaintiffs ultimately received from ACI. HOVENSA was not a party to the CBA which set forth ACI employees’ benefits. In any event, in all relationships involving an independent contractor, the contract sets forth what the independent contractor will be paid. This necessarily affects the compensation the employees of the independent contractor will receive.

Furthermore, the record makes clear that plaintiffs were primarily supervised by ACI. The ACI-HOVENSA contract provided HOVENSA with oversight authority over ACI personnel, but on a day-to-day basis, plaintiffs received the bulk of their instructions from Noelien and from an ACI dispatcher. We also note that the ACI-HOVENSA contract made explicit that HOVENSA did “not control or supervise [ACI]’s day-to-day work.”

HOVENSA did play a role in employee discipline, but only insofar as the company promulgated plant rules and procedures by which ACI’s employees as well as others at the refinery were bound. In large part, these rules appear designed to maintain the type of safe and secure work environment that is particularly important at ah oil refinery. For example, HOVENSA’s plant rules and procedures set forth limitations on who could enter the refinery and at what times, on the kinds of personal effects employees were permitted to bring to the refinery, and on conduct such as smoking, intoxication, and physical violence. The plant rules and procedures also set forth detailed procedures for keeping the refinery property and equipment clean. Ultimately, HOVENSA’s rules focused more on refinery safety and security than on employee discipline.

*603ACI also maintained control of employee records. ACI issued plaintiffs’ paychecks, and they reported their hours to ACI. There is no indication in the record that HOVENSA played a role in ACI’s employee scheduling or in its payroll procedures. HOVENSA’s plant rules and procedures required all contractors working with HO-VENSA to maintain current personal data for each employee who worked at the refinery. It was ACI, and not HOVENSA, that actually kept these records.

The issue of joint employer status is a fact intensive inquiry. We must always consider the specific circumstances involved. In this case, the bulk of the factors cited by plaintiffs as evidence of a joint employer relationship are in reality necessary and proper requirements for maintaining safety and security at an oil refinery. Particularly in the post-September 11, 2001 era, preventing unauthorized access to an oil refinery and maintaining a safe and secure work environment are of paramount importance, and HOVENSA’s oversight of ACI’s procedures appears designed to achieve those goals. It is also consistent within the independent contractor relationship for HOVENSA to oversee ACI’s work at an oil refinery where dangerous consequences can easily ensue if the work is not done properly.

HOVENSA points us to Boutin v. Exxon Mobil Corp., 730 F.Supp.2d 660 (S.D.Tex.2010), a decision which sheds light on the unique context in which HO-VENSA’s procedures took place. In that case, ExxonMobil argued that it was not the joint employer of a contract employee who worked at one of its chemical facilities in Texas, and that it was therefore exempt from liability for the employee’s Title VII claim. The court agreed. It .explained that “to the extent ExxonMobil supervised Boutin, it was to ensure that the contract with [her direct employer] was performed as required.” Id. at 682. Similarly, we conclude that any supervision and oversight of plaintiffs’ work by HOVENSA was designed to contribute to plant security and to ensure that ACI safely and properly performed its contract and did not amount to joint employment.

IV.

We turn next to the plaintiffs’ claims for slander and defamation per se. In support of these claims, plaintiffs point to statements made by HOVENSA employees to the VIPD implicating them in the theft; statements by HOVENSA to ACI and the Steelworkers about their alleged involvement; various rumors, jokes, and comments that allegedly persisted throughout the refinery following the incident; and a report of their arrests that appeared in a local newspaper, the St Croix Avis. Plaintiffs maintain that the statements in question were false and that they were therefore defamatory. They also allege that the statements made by and/or attributable to HOVENSA exposed them to ridicule and diminished their standing in the community.- Plaintiffs assert that HO-VENSA is vicariously liable for the defamatory statements uttered.

Slander and libel are forms of defamation. Slander is defamation by spoken word while libel is defamation accomplished by a writing or printed material. E.g., 12th St. Gym, Inc. v. Gen. Star Indem. Co., 93 F.3d 1158, 1163 (3d Cir.1996). Under Virgin Islands law, a plaintiff establishes a cause of action for defamation by demonstrating that the defendant’s actions satisfied the following four elements: “(a) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault amounting to at least negligence on the part of the publisher; and (4) either the actionability of the statement irrespective of ‘special harm’ or the existence of ‘special harm’ *604caused by the publication.” Illaraza v. Hovensa, L.L.C., 2010 WL 2342424, at *3 (D.V.I.2010); see also Restatement (Second) of Torts § 558 (1977). Remarks that impute a criminal offense to a plaintiff are considered defamation per se, that is they are actionable regardless of whether the plaintiff can show.special harm. Restatement (Second) of Torts § 571 (1977); Charleswell v. Bank of Nova Scotia, 44 V.I. 36, 43, 2001 WL 1464759 (Terr.Ct.2001).

A true statement cannot serve as the basis for a defamation claim. Restatement (Second) of Torts § 581A (1977); see also Flanders v. Shell Seekers, Inc., 39 V.I. 63, 68, 1998 WL 667782 (Terr.Ct.1998). In a defamation action, the defendant bears the burden of proving truth. Wilson v. V.I. Water & Power Auth., No. 07-24, 2010 WL 5088138, at *7 (D.V.I. Dec. 7, 2010). In support of their defamation claims, plaintiffs have pointed to a number of statements by HOVENSA employees about plaintiffs’ alleged involvement in the theft and their subsequent arrests. Some of the statements at issue involved various contentions that the plaintiffs had been arrested. For example, HOVENSA security officials told Lazarus Joseph that the brothers had been arrested, while Mike Francis heard HOVENSA employees making statements like “I hear your boys them got arrested” (referring to plaintiffs). It is undisputed that the plaintiffs were arrested. Any statement to the effect that Jose and Luis were arrested was therefore true, and cannot serve as the basis for a defamation claim.

A second category of allegedly defamatory statements involved claims that the brothers had committed or helped commit the theft. For example, Lazarus Joseph testified that “security officers” told him that the brothers “probably were involved in the air conditioner” and HOVENSA maintenance coordinator Winston Sinanan told Gideon James that he had heard “that [the brothers] stole some stuff.” Reynaldo Illaraza (“Reynaldo”), who is the brother of Jose and Luis and is not a party in this action,, overheard workers at the refinery discussing the fact that plaintiffs had been caught stealing an a/c unit. The record contains genuine disputes of material fact as to whether these statements implicating the plaintiffs in a theft were true. Accordingly, we will proceed by considering only those allegedly defamatory statements whose truth is in dispute.

In order to serve as the basis for a defamation claim, a statement must also constitute an unprivileged publication to a third party. In other words, where the publisher is privileged to make the statement, no cause of action will lie. The Virgin Islands recognizes an absolute privilege for statements made to law enforcement personnel for the purpose of reporting a crime or initiating a criminal investigation. Sprauve v. CBI Acquisitions, LLC, No. 09-165, 2010 WL 3463308, at *11 (D.V.I. Sep. 2, 2010) (citing Restatement (Second) of Torts § 587 (1977)).

In making statements to the VIPD and the prosecutor about the theft and the brothers” alleged involvement, HO-VENSA and its representatives were therefore protected by the absolute privilege accorded to parties who make statements to law enforcement in order to report purported violations of criminal law. See Sprauve, 2010 WL 3463308, at *11. Plaintiffs allege that HOVENSA and its representatives, particularly Jay Galindo, defamed them by contacting the VIPD and falsely reporting their role in the theft of the a/c unit. They also allege that HO-VENSA representatives engaged in defamation by providing the (allegedly false) information which ultimately served as the basis for the VIPD’s probable cause affidavit and for their prosecution. Whatever *605HOVENSA reported to the police and prosecutor was protected by an absolute privilege. A party cannot be subjected to defamation liability for reporting to the police his belief that a crime has been committed, even if this belief is unfounded or later turns out to be erroneous. Virgin Islands law supports this conclusion, and plaintiffs’ defamation claims for HOVEN-SA’s statements to the police and prosecutor must fail.

The Virgin Islands also recognizes a conditional privilege for statements made under circumstances that “lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that there is information that another sharing the common interest is entitled to know.” Restatement (Second) of Torts § 596 (1977). A party can avail himself of this privilege, only if he or she does not abuse it. Id. cmt. a. The conditional privilege is considered to apply to “[pjersons associated together in professional activities.” Id. cmt. d.

Plaintiffs claim that HOVENSA officials made defamatory statements about them by communicating to ACI representatives that they were involved in the alleged theft. For instance, plaintiffs note Colabella’s letter to ACI official James Workman, which stated that they had been denied access to the refinery “due to the admitted theft of HOVENSA property” and which ACI ultimately forwarded to the Steelworkers. They also draw our attention to Galindo’s statements to ACI officials immediately after the arrests. The record is undisputed that HOVENSA officials shared a common interest with the recipients of this information and reasonably believed that the recipients were entitled to receive it. The record demonstrates without contradiction that HO-VENSA officials were “associated together in [a] professional activity]” — that is, the ACI-HOVENSA contract — with ACI representatives, placing them squarely within the protection of the conditional privilege. Moreover, based on the evidence before us, it can only be concluded that'HOVENSA officials reasonably believed that ACI, as plaintiffs’ employer, was entitled to know that they were suspected of involvement in the alleged theft, as well as the facts that served as the basis for HOVENSA’s suspicion. Finally, there is no evidence that HOVENSA abused this privilege. Accordingly, we find that the allegedly defamatory statements made by HOVENSA officials to ACI officials fall within the scope of the conditional privilege, at least insofar as they pertain to ACI and HOVENSA’s shared professional endeavor.

Having determined that plaintiffs cannot maintain a defamation action based upon true statements about their arrests or upon statements made by HOVENSA and its representatives to the police, the prosecutor, and ACI, we need not determine whether these statements satisfy the third and fourth prong of the defamation analysis, that is, the “fault” prong and the “ac-tionability” prong.

We are now left with the rumors that circulated at the HOVENSA refinery about the theft, as well as the report in the St. Croix Avis police blotter. Plaintiffs urge that HOVENSA is responsible for defaming them by failing to curb the rumors, jokes, and negative comments that circulated at the refinery and throughout the larger St. Croix community following their arrests. Evidence in the record supports plaintiffs’ claim that these rumors were pervasive. For example, Gideon James stated in his deposition that he heard workers at the refinery “making little remarks and stuff like that about” the incident and that these rumors were “a refinery-wide thing.” ACI employee Le*606roy Peets recalled that “everybody was talking about” the arrests. Reynaldo testified that he had heard workers discussing the fact that plaintiffs had been caught stealing the a/c unit. The rumors about plaintiffs’ arrests spread outside the refinery as well. Mike Francis recalled hearing individuals in the street repeating the rumor that plaintiffs had been arrested and that they had been caught stealing the a/c unit.

The record is less clear with respect to the details of the rumors at issue. For the most part, James, Peets, and Reynaldo did not specify whether the alleged rumors were spread by ACI employees, HOVEN-SA employees, or both.8 Further, the record largely fails to make clear whether these rumors consisted of true statements that the brothers had been arrested, or allegedly false statements that the brothers had actually been involved in the theft. Moreover, there is no evidence as to the source of these rumors.

Plaintiffs point concretely to only four statements which are not protected by the defenses of truth or privilege and whose substance is set forth in the record. The first is the statement described in deposition testimony by Lazarus Joseph, who recalled a HOVENSA security guard telling him that the brothers “probably were involved in the air conditioner.” The second is described in deposition testimony by Mike Francis, who recalled hearing from HOVENSA security guards that “they had stuff on camera with them [plaintiffs] moving” the a/c unit. We do not know how many security guards to whom Francis was referring. The third is the recollection of Reynaldo Illaraza, the plaintiffs’ brother, that he heard workers discussing the fact that plaintiffs had been caught stealing. We do not know who they were, how many they were, whether they were HOVENSA employees, or what positions they held. The fourth is a statement made by Francis in his deposition that HOVEN-SA employee Alexander John, whose title was “Supervisor Traffic/Offsites,” said to him “[y]our boys them get catch t’iefing an A/C unit” (referring to plaintiffs).

In our view, these four instances are the only statements identified by plaintiffs that could conceivably constitute defamation. All other statements identified by plaintiffs are either true, privileged, or described in too little detail to support a defamation claim. Further, with the exception of their description of Alexander John’s statement, plaintiffs fail to identify critical details about these four allegedly defamatory statements, such as the identities of the speakers or the details of what was said. Without admissible evidence about the source or substance of these rumors, we are unable to credit plaintiffs’ allegations that these four statements serve as the basis for a defamation claim.-

Furthermore, even if we could conclude based on the evidence available that the four statements described above were defamatory, plaintiffs have not sued the speakers but instead have sued HOVEN-SA, on the basis of vicarious liability.

The Virgin Islands recognizes the imposition of vicarious liability against employers for torts committed by their employees within the scope of their employment. E.g., Warner v. Kmart Corp., No. 05-128, 2009 WL 1476476, at *5 (D.V.I. May 27, 2009); Tavarez v. Klingensmith, 267 F.Supp.2d 448, 454 (D.V.I.2003); see also Restatement (Second) of Agency *607§ 219(1) (1958).9 An employee’s conduct falls within the scope of his employment when

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master; and

(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master. ■

Restatement (Second) of Agency § 228(1) (1958). Conversely, an employee’s conduct falls outside the scope of his employment “if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.” Id. § 228(2).

Virgin Islands law also makes clear that employers may not be held ha-ble for torts committed by their employees outside the scope of their employment, except in limited circumstances. These limited circumstances include those in which

(a) the master intended the conduct or the consequences, or

(b) the master was negligent or reckless, or

(c) the conduct violated a non-delega-ble duty of the master, or

(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

Warner, 2009 WL 1476476, at *5-6 (citing Restatement (Second) of Agency § 219(2) (1958)).

Plaintiffs argue that HOVENSA is vicariously liable for defamation because the HOVENSA employees who made allegedly defamatory statements did so within the scope of their employment, or alternatively that liability can be imposed against HOVENSA for the statements even though they were made outside the scope of an employment relationship. We are unpersuaded. There is no evidence in the record that the statements we may properly consider here — that is, those statements that are not true, privileged, or insufficiently described by the record— were made by employees acting in the scope of their employment. Plaintiffs have produced no evidence that the HOVENSA employees who made unprivileged and allegedly untrue statements about them were engaging in conduct “of the kind [they were] employed to perform” or that such conduct was “actuated, at least in part, by a purpose to serve [HOVENSA].” As a result, any HOVENSA employees who made the allegedly defamatory statements before us did not do so within the scope of their employment.

Nor is there any evidence in the record that the allegedly defamatory statements fall within the exceptions to the general rule against vicarious liability for torts committed outside of the employment *608relationship. Plaintiffs' urge that HO-VENSA is liable for the conduct of the employees who made the statements under part (2)(b) of § 219 of the Restatement (Second) of Agency, which establishes an employer’s liability for acts committed outside of an employment relationship but attributable to the employer’s negligence or recklessness. However, there is nothing in the record to show that HOVENSA was negligent or reckless with respect to the allegedly defamatory statements. The record contains no indication that HO-VENSA had actual or constructive knowledge of the statements of its employees or that HOVENSA’s alleged negligence was in any way the cause of the rumors. HO-VENSA cannot be held vicariously liable on this basis.

We also note that plaintiffs have failed to point to evidence that would reveal HO-VENSA as the source of the rumors at issue. This court has previously held that an employee “cannot hold [her employer] hable for rumors generated by her coworkers.” Smith v. V.I. Port Auth., No. 02-227, 2010 WL 1381222 (D.V.I. Mar. 31, 2010). Without evidence that HOVENSA or one of its higher level employees was the source of the allegedly defamatory rumors, we are unable to see a basis to hold the company liable for those statements.10

Finally, we reject plaintiffs’ cláim that HOVENSA is liable for defamation because of statements it made to the St. Croix Avis, which published an account of plaintiffs’ arrests in its police blotter. The Avis published the same story with respect to both Jose and Luis. It reported that each “was arrested for stealing an air conditioner from Hovensa [sic] valued at $500 after he was seen by multiple witnesses.” This report matches the information allegedly provided to the VIPD by Galindo, a communication which we have already determined was subject to an absolute privilege. However, the record contains no indication that it was HOVENSA, as opposed to the VIPD or another party, that provided this report to the newspaper.11 Consequently, there is no basis to conclude that HOVENSA made defamatory statements to the St. Croix Avis, or that HO-VENSA is responsible for the Avis’s publication of the report in its police blotter. Accordingly, plaintiffs’ defamation claim, insofar as it concerns the report in the St. Croix Avis, cannot proceed.

In sum, no defamation liability can lie against HOVENSA for: its statements to the police, prosecutor, and to ACI; the factually accurate statements made by HOVENSA employees about plaintiffs’ arrests; the alleged rumors that circulated about the theft; the few statements made by HOVENSA security guards and workers; or for the report in the St. Croix Avis. 12 We will therefore grant summary *609judgment in favor of HOVENSA on plaintiffs’ claims for defamation.

V.

The Illaraza brothers further claim that HOVENSA tortuously and wrongfully interfered with their contractual relationship with ACI and with their potential contractual relationships with other potential employers. The brothers argue that HOVENSA effectively ended their employment contract with ACI by deactivating their badges and barring them from the refinery, where ACI did virtually all of its work on St. Croix. They also claim that HOVENSA’s actions interfered with their ability to work for any other employer who might contract with HOVENSA.13 Pointing to ACI’s inability to hire them for other work on the HOVENSA refinery following the events of August 2006, they urge us to conclude that a reasonable jury could find HOVENSA liable for intentionally interfering with their contractual relationship with ACI and their prospective contractual relationship with other employers.

The Restatement (Second) of Torts establishes that an actor engages in intentional interference with contractual relationship when he “intentionally and improperly interferes with the perform-anee of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract.” Restatement (Second) of Torts § 766 (1979). In determining whether conduct is “improper,” courts are directed to consider a number of factors.14 However, the Restatement exempts from liability those actors who, “by asserting in. good faith a legally protected interest of his own or threatening in good faith to protect the interest by appropriate means, intentionally cause[] a third person not to perform an existing contract or enter into a prospective contractual relation with another” so long as the actor “believes that his interest may otherwise be impaired or destroyed by the performance of the contract or transaction.” Id. § 773 (1979).

In support of their claim that HOVEN-SA’s actions constituted intentional inference with contractual relationship, plaintiffs point us to Mendez v. HOVENSA, L.L.C., No. 02-169, 2008 WL 803115 (D.V.I. Mar. 24, 2008). In that case, a group of plaintiffs had been terminated from their employment with a contractor— allegedly at HOVENSA’s behest — after becoming ill from drinking water provided *610by HOVENSA. Id. at *1-2. The court found that there was a genuine issue of fact as to whether HOVENSA intentionally interfered with the plaintiffs’ employment contracts, and denied summary judgment on that claim. Id. at *9. Plaintiffs cite to Mendez in support of their claim that a reasonable jury could find that HO-VENSA’s actions constituted intentional interference with a contractual relationship.

Mendez is inapposite. Here, unlike in Mendez, the record establishes without dispute that the allegedly tortious interference was motivated by HOVEN-SA’s good-faith assertion of its own legally protected interest, that is, its interest in controlling who enters onto its land and in preventing and deterring theft of its property. As OVENSA points out, “each of [its] actions was reasonable and lawful under the circumstances known to it.” In light of these circumstances HOVENSA was privileged to deny the plaintiffs access to its land in order to protect its property.

The evidence is conclusive that HO-VENSA had reason to deny plaintiffs access to its land. For example, Colabella stated in his deposition that Cornelius Evans, the prosecutor assigned to the case, had given him “information that there is basically no opinion of guilt or innocence on [the] type of dismissal without prejudice” that was issued in plaintiffs’ case. Similarly, Galindo stated in his deposition that he continued to believe in Noelien’s and plaintiffs’ guilt, and that he believed the confession made by Noelien on the day of the alleged theft. We acknowledge that HOVENSA continued to deny plaintiffs access to its property even after Noelien recanted his statement implicating them and even after the charges against them were dropped. HOVENSA, however, was under no obligation to believe or accept a recantation of Noelien, who pleaded guilty to theft and was placed on one year’s probation. Plaintiffs can point to no evidence to show that HOVENSA’s refusal to change its position on this point was not a “good faith” assertion of its own interests. For this reason, HOVENSA’s conduct in denying plaintiffs access to the refinery falls squarely within § 773 of the Restatement (Second) of Torts, which shields from liability those actors whose interference with a contractual relationship constitutes a good-faith assertion of their legally-protected interests.

VI.

Plaintiffs have also alleged that HO-VENSA engaged in abuse of process and malicious prosecution.

The Virgin Islands recognizes a cause of action for abuse of process against “[o]ne who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed.” Illaraza, 2010 WL 2342424, at *5; Restatement (Second) of Torts § 682 (1977). The gravamen of the underlying misconduct is “not the wrongful procurement of legal process or the wrongful initiation of criminal or civil proceedings” but the misuse of process. Restatement (Second) of Torts § 682 cmt. a; cf. Deary v. Evans, 670 F.Supp. 189, 200 (D.V.I.1983). An arrest alone cannot give rise to an abuse of process claim since “arresting a criminal defendant is not using a legal process for a purpose for which it was not designed.” Trunzo v. Mayer, No. 13467, 2014 WL 2465269 (M.D.Pa. May 30, 2014).15

*611Plaintiffs argue that Galindo’s animus against them prompted him to call the VIPD and provide “incomplete, false, and/or unsubstantiated information in order to encourage an arrest.” Even if plaintiffs are correct on this point, the actions of HOVENSA and its representatives did not amount to the type of misuse of legal process necessary for a successful abuse of process claim.

Plaintiffs also urge that HOVENSA played a role in their prosecution as well as their arrests and that this serves as a basis for their abuse of process claims. Plaintiffs contend that HOVENSA was eager to see them prosecuted. They rely on a series of emails sent by Colabella to Galindo on August 11 stating that “Mike ... wants to prosecute” and “wants a written report for Alex and Franklin to begin prosecution.”16 The record provides no indication, however, that HOVENSA actually directed or assisted in plaintiffs’ prosecution once they had been arrested.

In essence, then, plaintiffs’ argument is not that HOVENSA misused legal proceedings but that HOVENSA wrongfully procured or initiated proceedings by seeking their arrests. They urge that HO-VENSA engaged in abuse of process by “calling the police to arrest” them and “g[iving] the police incomplete, false, and/or unsubstantiated information in order to encourage an arrest.”17 This cannot serve as the basis for an abuse of process claim under Virgin Islands law. See Greene v. V.I. Water & Power Auth., No. 06-11, 2011 WL 3032466, at *12 (D.V.I. July 22, 2011); Restatement (Second) of Torts § 682 cmt. a. Because an arrest such as the one at issue here cannot, standing alone, justify a finding of abuse of process liability, we must grant HOVENSA’s motion for summary judgment with respect to plaintiffs’ abuse of process claims.

Plaintiffs also allege that HO-VENSA engaged in malicious prosecution by initiating their arrests. Under Virgin Islands law, a plaintiff who raises a claim of malicious prosecution must show that the defendant “initiated the institution of criminal proceedings,” that he did so “without probable cause”' and “primarily for a purpose other than bringing an offender to justice,” and that the proceedings terminated in the accused plaintiffs favor. Greene v. V.I. Water & Power Auth., No, 06-11, 2012 WL 4755061, at *4 (D.V.I. Oct. 5, 2012); Restatement (Second) of Torts § 653 (1977).

The parties dispute whether or not HO-VENSA initiated the criminal proceedings against plaintiffs. According to the commentary that accompanies the relevant section of the Restatement (Second) of Torts, a defendant does not initiate the procurement of proceedings merely by providing information to a third-party public official, as long as “it is left to the uncontrolled choice of the third person to bring the proceedings or not as he may see fit.” Restatement (Second) of Torts § 653, cmt. d. If the information in question is known by the defendant to be false at the time he provides it to the official, however, “an intelligent exercise of the officer’s discretion becomes impossible, and a prosecution based upon it is procured by the per*612son giving the false information.” Id. § 658, cmt. g.

The record provides no support for a conclusion that HOVENSA officials “initiated” or “procured” the proceedings against plaintiffs. While HOVENSA’s Jay Galindo telephoned Officer Charles, who in turn contacted his colleagues at the VIPD, there is nothing before us that any HO-VENSA official instructed VIPD officers to arrest Jose or Luis. Galindo’s deposition, for example, merely contains a statement that Galindo “asked [Officer Charles] if he could come out to the scene and that [HOVENSA] had an investigation ... into a theft.” Nor does the record contain any support for the notion that HOVENSA officials knowingly provided false information to the VIPD in order to encourage the arrest and prosecution of Jose and Luis. While plaintiffs urge that Galindo was remiss in failing thoroughly to investigate the alleged theft before contacting the police, they provide no evidence in support of the claim that Galindo, or any other HO-VENSA official, provided any information to the VIPD that they knew to be false. We are therefore unable to conclude that HOVENSA initiated or procured proceedings against plaintiffs.

Moreover, even if HOVENSA had initiated proceedings against plaintiffs, there is no evidence that HOVENSA did so without probable cause — “the sine qua non of malicious prosecution.” See Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir.2001). A plaintiff who raises a malicious prosecution claim has the burden of showing a lack of probable cause. The defendant need not prove that it had probable cause in order to prevail. Id.

Plaintiffs maintain that even if the VIPD had probable cause to arrest them, HO-VENSA officials lacked probable cause to call the police. In support of this argument, they point us to Charleswell, in which the Territorial Court of the Virgin Islands denied a defendant’s motion for summary judgment on a malicious prosecution claim on the basis of a possible lack of probable cause. 44 V.I. 36. The defendant, a bank for which the plaintiff worked, had contacted the police about the plaintiffs alleged involvement in an unauthorized transaction but had withheld crucial information that could have exculpated her. Id. According to the Territorial Court, it was immaterial that the police department had probable cause to arrest the plaintiff. What mattered, for the purposes of her malicious prosecution claim, was whether the defendant had probable cause to call the police in the first place. Id. Relying on this precedent, plaintiffs urge that HOVENSA’s failure adequately to investigate their alleged involvement in the theft evinces a lack of probable cause and that this failure supports their malicious prosecution claim.

In Trabal, our Court of Appeals was presented with facts similar to those before us. 269 F.3d 243. There, the plaintiffs brought a claim of malicious prosecution against their employer for investigating and then reporting to the police the plaintiffs’ alleged involvement in the theft of a bag of money under defendant’s custody. Id. at 246-47. In summoning the police, the defendant’s Security Loss Prevention Manager had relied on the statements of a witness who was later shown to be unreliable. The plaintiffs there argued that this factor, coupled with the defendant’s failure to conduct a thorough investigation of the theft, showed a lack of probable cause. Id. at 247, 250-51. The district court granted summary judgment in the plaintiffs’ favor on the issue of probable cause, and in a subsequent jury trial, instructed the jury that the probable cause element of the malicious prosecution claim had already been decided as a *613matter of law. Following a verdict in the plaintiffs’ favor, the defendant unsuccessfully moved for judgment' as a matter of law, and then appealed.

The Court of Appeals disagreed with the district court’s determination that the defendant had acted without probable cause. It explained that later revelations about the witness’s lack of credibility were immaterial. The crucial issue, for malicious prosecution purposes, was whether the defendant had probable cause at the time it filed the criminal complaint against the plaintiffs. Id. at 250. The Trabal court also rejected the plaintiffs’ allegations that the defendant’s security officer did not conduct a thorough investigation prior to initiating proceedings. It concluded that he was under no obligation to “explore every potentially exculpatory lead before filing a criminal complaint or initiating a prosecution.” Id. at 250-51.

As far as the record discloses, when HOVENSA officials summoned the VIPD to the IQRA Academy, they knew that an informant had reported seeing individuals loading the a/c unit into a tractor-trailer, that that tractor-trailer had been driven off the refinery by Luis with Jose as a passenger, that Jose helped Noelien move the a/c unit into the pickup truck at the IQRA Academy, and that Luis rode in the pickup truck with Noelien away from the school. At the time the VTPD arrived, Galindo had been told by Noelien that “Jose and Luis knew about it.” Plaintiffs urge that if Galindo had spoken with either of them, he would have learned that they were assisting Noelien based on their understanding that he planned to return the a/c unit to the waste site. However, as was the case in Trabal, defendant here was not required to “explore every potentially exculpatory lead” before enlisting the help of the police. See Trabal, 269 F.3d at 251. To the extent that HOVENSA initiated proceedings against plaintiffs, it cannot be disputed that it had probable cause to do so at the time the police were called, and HOVENSA’s failure to pursue every possible lead does not change this fact.

Plaintiffs urge that Galindo had an “ulterior motive” in seeing them arrested and prosecuted and that HOVENSA’s primary purpose in reporting the theft was not to bring the alleged offenders to justice. Again no evidence in the record supports this contention. HOVENSA is correct that any claims of an ulterior motive or improper purpose are, at best, “mere speculation” by plaintiffs.

There is no evidence that HOVENSA “procured” or “initiated” proceedings against plaintiffs. Even if it had done so, there is no evidence that such a decision would not have been supported by probable cause. For these reasons, plaintiffs malicious prosecution claims must fail, and we will grant summary judgment in favor of HOVENSA on those claims.

VII.

This brings us to the claims of the Illar-aza brothers for intentional infliction of emotional distress or, in the alternative, negligent infliction of emotional distress. Both plaintiffs contend that HOVENSA’s actions rose to the level of intentional infliction of emotional distress or negligent infliction of emotional distress. Each has reported experiencing symptoms including sleeplessness, stress, headaches, and indigestion as a result of the events of August 2006.

In the Virgin Islands, a cause of action for intentional infliction of emotional distress may lie against an actor “who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another.” Claytor v. Chenay Bay Beach Resort, 79 F.Supp.2d 577, 583 (D.V.I.2000); Restatement (Sec*614ond) of Torts § 46(1) (1965).18 “Extreme and outrageous conduct” is defined as conduct “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 society.” Thomas Hyll Funeral Home, Inc. v. Bradford, 233 F.Supp.2d 704, 714 (D.V.I.2002) (quoting Restatement (Second) of Torts § 46 cmt. d); see also, e.g., McGreevy v. Stroup, 413 F.3d-359, 371 (3d Cir.2005). The District of the Virgin Islands has established that an independent intentional infliction of emotional distress cause of action cannot lie where “the gravamen of the complaint sounds in defamation.” Ali v. Intertek Testing Servs. Caleb Brett, 332 F.Supp.2d 827, 831 (D.V.I.2004) (quoting Barker v. Huang, 610 A.2d 1341, 1351 (Del.1992)).

Plaintiffs identify eight bases for their intentional infliction of emotional distress claims.19 The gravamen of at least three of these bases appears inextricably linked to their claims for defamation.20 Insofar as plaintiffs rely on these defamation-related bases, their intentional infliction of emotional distress claims cannot survive. See Ali, 332 F.Supp.2d at 831.

To make out a claim for intentional infliction of emotional distress, a plaintiff must show that a defendant’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Thomas Hyll Funeral Home, 233 F.Supp.2d at 714; Restatement (Second) of Torts § 46, cmt. d; McGreevy, 413 F.3d at 371. Even if plaintiffs intentional infliction of emotional distress claims are distinct from their cause of action for defamation, there is an *615absence of any evidence that HOVENSA’s conduct was so outrageous and extreme that it would justify a finding of intentional infliction of emotional distress liability.

In addition, plaintiffs have failed to make a showing that they suffered the requisite harms necessary to support an intentional infliction of emotional distress claim. This court has previously made clear, in Pemberton Sales and Service,' Inc. v. Banco Popular de Puerto Rico, that a plaintiff may only recover on an intentional infliction of emotional distress claim if “the distress inflicted is so severe that no reasonable man could be expected to endure it.” 877 F.Supp. 961, 967 (D.V.I.1994) (quoting Restatement (Second) of Torts § 46, cmt. j). The Pemberton Sales & Service court, granting summary judgment in favor of the defendant, found that this intentional infliction of emotional distress standard had not been satisfied by a plaintiff who had suffered hypertension, sleeplessness, and stress about his future, noting that such symptoms were “not of the type which are so severe that no reasonable person could be expected to endure them.” Id.

Here, both plaintiffs have reported that they continue to experience regular headaches and sleeplessness following the events of August 2006. Jose has also stated that he experiences stress about how he will pay his bills and meet his obligations to his family. Luis noted that he experiences stress and anxiety as well as backaches and frequent stomachaches for which he has sought medical attention. As in Pemberton Sales & Service, these symptoms cannot properly be characterized as “so severe that no reasonable person could be expected to endure them.” See id. Thus, plaintiffs have not shown the requisite harm for their intentional infliction of emotional distress claims.

Plaintiffs argue that, even if HOVENSA is not liable for intentional infliction of emotional distress, it is liable for negligent infliction of emotional distress. Under Virgin Islands law, a plaintiff who brings a negligent infliction of emotional distress claim must demonstrate both that the negligent conduct placed him in danger of hi’s own safety and that he suffered some physical harm as a result of the emotional distress. E.g. Int’l Islamic Cmty. Of. Masjid Baytulkhaliq, Inc. v. United States, 981 F.Supp. 352, 370 (D.V.I.1997). Plaintiffs have made no showing that HOVENSA’s conduct placed them in danger, nor have they provided any basis for a conclusion that any physical harm they may have suffered was the result of HOVENSA’s actions or of any emotional distress they experienced in connection with the events at issue. We must therefore grant summary judgment in favor of HOVENSA on plaintiffs’ negligent infliction of emotional distress claims.

VIII.

Finally, we turn to the claim brought by Luis Illaraza for false imprisonment.21 Luis argues that HOVENSA officials falsely imprisoned him during the period that preceded his arrest outside the IQRA Academy by parking their vehicles in front of and alongside the pickup truck in which he was riding as a passenger. According to Luis, this action prevented him from leaving the area. He also makes reference to his arrest by the VIPD as a basis for his false imprisonment claim against HOVEN-SA.

To succeed on a false imprisonment claim in the Virgin Islands, a *616plaintiff must prove that: (1) the defendant acted with the intent to confine him or a third party within boundaries fixed by the defendant; (2) the defendant’s act directly or indirectly resulted in the confinement of the plaintiff or third party; and (3) the plaintiff or third party is conscious of, or harmed by, the confinement. Illaraza, 2010 WL 2842424, at *6; Restatement (Second) of Torts § 35 (1965). To support a cause of action, a defendant’s confinement of the plaintiff or third party must be “complete.” Restatement (Second) of Torts § 36 (1965). In other words, the confined party must be unable to go in another direction in order to escape the confinement. E.g., id. cmt. a, illus. 1; Lloyd v. Jefferson, 53 F.Supp.2d 643, 673 (D.Del.1999). If “complete,” however, even a brief restraint can give rise to a cause of action. Byas v. Legislature of V.I., 2009 WL 485145, at *6 (D.V.I. Feb. 25, 2009); see also Blankenhorn v. City of Orange, 485 F.3d 463, 486 n. 15 (9th Cir.2007); Kerman v. City of N.Y., 374 F.3d 93, 125 (2d Cir.2004); Kelly v. Curtis, 21 F.3d 1544, 1556 (11th Cir.1994).

Luis Illaraza’s First Amended Complaint does not make clear whether his false imprisonment claim rests on HO-VENSA’s alleged role in his arrest by the VIPD, on HOVENSA’s act of situating several HOVENSA vehicles in front of and alongside Noelien’s company-issued truck, or on both. We first address the possibility that the false imprisonment claim is based on HOVENSA’s alleged involvement in Luis Illaraza’s arrest. In his memorandum opinion in support of an order granting ACI’s motion to dismiss, Judge Raymond L. Finch addressed a nearly identical claim against ACI. While Judge Finch dismissed the claim on the basis that Luis had failed to set forth sufficient allegations of ACI’s involvement in his confinement, he also noted that “even if Plaintiff had asserted that ACI had instigated the arrest, no liability would lie with ACI because the Plaintiff has not shown that the arrest itself was illegal.” Illaraza, 2010 WL 2342424, at *6 n. 12. We reach the same conclusion here. Without any evidence before us that Luis Illaraza’s arrest was illegal, we are unable to conclude that any role HOVENSA may have played in that arrest constituted false imprisonment.

To the extent that Luis’s false imprisonment claim is based on his purported confinement in the pickup truck while HO-VENSA officials interviewed Noelien and summoned the police, we are similarly unpersuaded by his arguments. To succeed on this claim, Luis must demonstrate that HOVENSA’s actions directly or indirectly resulted in his confinement, and this confinement must have been “complete.” Restatement (Second) of Torts §§ 35-36 (1965). Nothing in the record indicates that Luis lacked a reasonable means of escape during the time that he remained in the truck. To the contrary, it appears that HOVENSA officials pulled their vehicles in front of, and to only one side of, the truck in which Luis was a passenger. Nowhere does Luis allege that he could not have left the area by exiting through the side of the truck that was not blocked by a HOVEN-SA vehicle. In short, Luis’s confinement was not “complete,” and HOVENSA is entitled to summary judgment on his false imprisonment claim.

ORDER

AND NOW, this 10th day of November, 2014, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that judgment is entered in favor of defendant HOVENSA, LLC and against plaintiffs Jose Illaraza and Luis Illaraza.

Opinion

KLEIN, P. J.

Defendants and appellants, Critical Air Medicine, Inc., Executive Air Services, Inc., Harry A. Metz, and Kenneth Malcomson (collectively Critical Air), appeal the judgment entered following a jury verdict in favor of plaintiffs and respondents Erin Scofield (Erin) and Laura Scofield (Laura), by and through their guardian ad litem, Robert Scofield (collectively, the Scofields). The jury awarded Erin and Laura $60,000 each in damages for their claims of false imprisonment.1

In this fact situation involving the tort of false imprisonment, we are called upon to clarify some issues in a troublesome area of the law. We *996conclude false imprisonment involves an unlawful restraint or confinement which may be effected in a variety of ways, not only by force or threat of force, but also by fraud or deceit, or any other form of unreasonable duress. The tort requires knowledge of the restraint or confinement at some time, whether contemporaneous or subsequent, and resulting harm or damage.

Because the judgment is supported by substantial evidence and the controlling instruction, although general and somewhat incomplete, was correct in law, the judgment is affirmed.

Factual and Procedural Background2

1. Plaintiffs’ case.

On December 29, 1990, Nancy Scofield, the mother of Erin, Laura, and David, was killed in a truck accident in Baja California, Mexico. Thirteen-year-old David was seriously injured, and eleven-year-old Erin and eight-year-old Laura suffered minor injuries. Jackie and William Dalton witnessed the accident and drove the children to the nearest medical facility in Guerrero Negro, Mexico. Robert Scofield (Scofield), Nancy’s husband and the father of the children, was contacted in the Los Angeles area.

Scofield telephoned the Daltons at the clinic in Guerrero Negro, and was informed his son had suffered a head injury and was in a coma. Scofield then called several air transport services. Each of the air charter companies informed Scofield the Guerrero Negro airstrip had no lights and it would be impossible to fly the children out until the next morning. Believing his son might not live through the night, Scofield contacted the American Consulate and spoke with Kathleen List (List).

List contacted Cindy Clemment (Clemment) at the Bi-National Health Committee. Clemment called Hartsen’s Ambulance Service. When Clemment was informed Guerrero Negro was approximately 600 miles south of Sán Diego, she determined an air transport would be necessary. Clemment told the representative of Hartsen’s, who suggested Critical Air could make the transport, she “ ‘[was] going to take care of it,’ ” and “ ‘if she need[ed] further assistance, [she would] call [Hartsen’s] back.’ ”

*997The Bi-National Health Committee utilized the services of several air transport companies, including Schaeffer’s, Air Evac and Critical Air. The usual practice was to rotate the companies as services were needed. Since Air Evac was next on the list, Clemment called that company. Clemment then telephoned Scofield and informed him that at 8:15 that evening, an “Air Evac 421 flight team” would be ready to depart from Montgomery Field in San Diego to retrieve his children. Clemment instructed him to be in San Diego at 1 o’clock the next morning when the children were scheduled to arrive.

As soon as she had finished making the arrangements, Clemment received a call from a Critical Air employee, Carlos Ayala. When Clemment told Ayala she already had arranged for Air Evac to transport the children, Ayala stated, “ ‘Don’t bother, we’re going to go pick them up. We already have the information.’ ” Clemment informed Ayala she was “ ‘taking care of [the situation].’ ” Clemment then contacted a Red Cross worker named Francisco Amador in Guerrero Negro. She told Amador “the [Scofield] children were not to be discharged to anybody other than this specific [Air Evac] crew.”

Air Evac pilot, Richard Jones, got a crew ready to fly to Guerrero Negro. Jones obtained a United States customs number, and was informed Critical Air was also planning a flight to Guerrero Negro. Jones telephoned the Air Evac flight coordinator for clarification. The flight coordinator told Jones to continue with his flight plan and at approximately 8 p.m. on December 29, 1990, Jones and his crew left Montgomery Field, flying toward Tijuana, Mexico. Immediately after the Air Evac plane completed its take-off, Critical Air’s plane took off from a different runway at Montgomery Field.

The Critical Air pilot, Stuart Bachman, knew an Air Evac plane was also flying to Guerrero Negro. As the two planes approached the Tijuana airport, Bachman maneuvered his plane in front of and below Air Evac’s plane, forcing the Air Evac plane to turn to avoid a collision. As a result, the Critical Air plane landed first, proceeded through customs, and left ahead of the Air Evac plane.

Critical Air’s plane, which bore no distinctive markings or logo, arrived in Guerrero Negro about 20 minutes before the Air Evac flight. Bachman did not tell anyone on the ground the plane was from Critical Air, not Air Evac. The Daltons watched as the Critical Air crew, whose clothing had no distinctive markings, quickly loaded the three Scofield children onto the plane. Before the Air Evac plane landed in Guerrero Negro, Bachman had taken off.

*998Scofield had spoken with Erin on the telephone and told her he was sending a plane to take her, Laura and David back to the United States. Had anyone told Erin the plane was not the one her father had sent for her, she would not have boarded.

Clemment met Scofield in San Diego. Clemment told him although she had dispatched the Air Evac plane to retrieve his children, Critical Air had interfered and also had sent a plane to Mexico. Clemment informed Scofield she was not sure which service would transport the children, and at which airstrip they would be landing. Scofield was extremely upset; he had authorized Air Evac to transport his children, not Critical Air.

At approximately 1 a.m., Critical Air’s plane landed at Montgomery Field. The children were taken off the plane, loaded into an ambulance and taken to Sharp Hospital. David was later transferred to Children’s Hospital.3

2. The defense.

The president of Critical Air, Harry Metz (Metz), first learned of the Scofields’ accident in Mexico when a Hartsen’s Ambulance Service employee telephoned a Critical Air employee. When Metz contacted the United States Consulate about the situation, he was informed arrangements to transport the children already had been made. Metz indicated later he was led to believe he could continue to pursue the matter.4

Although Metz understood Air Evac was sending a plane to Mexico, he made arrangements for the Critical Air plane to fly to Guerrero Negro, and eventually spoke with a Dr. Rodriguez at the clinic there. Metz admitted Critical Air never obtained permission from Scofield or his representative to transport the three children. Metz, however, believed Dr. Rodriguez had authorized Critical Air to fly the children from Guerrero Negro to San Diego.

3. Proceedings.

The operative complaint, filed on February 14, 1992, by Scofield as guardian ad litem for the minors, alleged causes of action against Critical Air for negligence; fraud, by misrepresentation or concealment of its lack of *999authority to transport the children; false imprisonment of the children; intentional infliction of emotional distress; and conspiracy in transporting the children.5

The case was tried before a jury. Following 11 days of trial, both sides rested, and the trial court granted Critical Air’s motions for nonsuit as to the causes of action for fraud, intentional infliction of emotional distress and conspiracy, and struck the punitive damages allegations. The causes of action for negligence and false imprisonment were submitted to the jury.

The jury was instructed with BAJI No. 7.60, the standard false imprisonment instruction,6 and a modified version of the same instruction.7 The trial court refused all the Scofields’ requested instructions on fraud and deceit.

As to the cause of action alleging David’s wrongful death, the jury found for Critical Air. With regard to Erin’s, Laura’s and David’s claims of false imprisonment, pursuant to a general verdict, the jury awarded Erin and Laura $60,000 each in damages, and David, $68,583.42 in damages, for a total of $188,583.42.8

Critical Air moved for judgment notwithstanding the verdict and for a new trial. The trial court granted the motion for new trial as to the $68,583.42 awarded to David’s estate, and otherwise denied the motions. The date of the retrial was stayed pending resolution of this appeal.

Critical Air timely appealed.

*1000Contentions

Critical Air contends the trial court erred in giving an instruction on false imprisonment which made no reference to force or the threat of force; the evidence fails to support the jury’s finding Critical Air falsely imprisoned the children; and the award of $120,000 in damages to the girls was excessive.9

Discussion

I. Essential elements of the tort of false imprisonment disputed.

Both sides concede the basis for the tort of false imprisonment is the unlawful restraint of another’s liberty. But there is considerable disagreement as to other essential elements. The controversy centers on certain key issues: whether force or the threat of force is essential to a cause of action for false imprisonment, or may the tort also be effected by other means, such as fraud or deceit; and whether the tort of false imprisonment requires the victim’s contemporaneous awareness of the unlawful detention. The degree of harm necessary to support a cause of action for false imprisonment is also discussed.10

1. False imprisonment may be effected by violence, menace, fraud, deceit or any unreasonable duress.

Critical Air argues the element of force is an essential element of the cause of action because in the absence of force, it is impossible to establish a defendant’s intent to restrain or confine, or the existence of an actual restraint or confinement. However, established statutory and case law reveals force is merely one of a variety of ways by which false imprisonment can be accomplished.

a. Fermino definition.

Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715 [30 Cal.Rptr.2d 18, 872 P.2d 559], the latest pronouncement by the California Supreme Court on the topic, observes: “The crime of false imprisonment is defined by Penal *1001Code section 236 as the ‘unlawful violation of the personal liberty of another.’ The tort is identically defined. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1123 [252 Cal.Rptr. 122, 762 P.2d 46].) As . . . recently formulated [in Molko], the tort consists of the ‘ “nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.” ’ [Citation.] That length of time can be as brief as 15 minutes. (Alterauge v. Los Angeles Turf Club (1950) 97 Cal.App.2d 735, 736 [218 P.2d 802].) Restraint may be effectuated by means of physical force (Moffatt v. Buffums’ Inc. (1937) 21 Cal.App.2d 371, 374 [69 P.2d 424]), threat of force or of arrest (Vandiveer v. Charters (1930) 110 Cal.App. 347, 351 [294 P. 440]), confinement by physical barriers (Schanafelt v. Seaboard Finance Co. (1951) 108 Cal.App.2d 420, 423 [239 P.2d 42]), or by means of any other form of unreasonable duress. (See Rest.2d Torts, § 40A.)” (Italics added.)11

b. Methods of accomplishing the tort.

Because the crime of false imprisonment and the tort are identically defined (Fermino v. Fedco, Inc., supra, 7 Cal.4th at p. 715; Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1123 [252 Cal.Rptr. 122, 762 P.2d 46]), resort also may be had to the Penal Code to determine the means by which the tort may be brought about.

Penal Code section 236 states: “False imprisonment is the unlawful violation of the personal liberty of another.” With respect to the penalty, Penal Code section 237 states: “False imprisonment is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not more than one year, or by both. If such false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison.” (Italics added.)

The language of Penal Code section 237 was utilized by the Supreme Court in Molko v. Holy Spirit Assn., supra, 46 Cal.3d at page 1123, which involved a tort action for false imprisonment. In Molko, one of two plaintiffs, Tracy Leal, contended she was falsely imprisoned by the Unification Church at various locations. (Ibid.) Leal admitted, theoretically, she was free to leave at any time, was not physically restrained, and was not subjected to threats of physical force. (Ibid.) She urged, however, she had been falsely imprisoned, her imprisonment arising “ ‘from the harm she came to believe would result if she left the community.’ That harm, . . . was that her family *1002‘would be damned in Hell forever and they would forever feel sorry for having blown their one chance to unite with the Messiah and make it to Heaven.’ ” (Ibid.) Although Molko determined Leal’s tort claim could not survive constitutional scrutiny because it implicated the church’s beliefs, citing Penal Code section 237, it recognized “false imprisonment may be ‘effected by .. . fraud or deceit[.]’ ” (Ibid., italics added.)

Accordingly, it is clear that force or the threat of force are not the only means by which the tort of false imprisonment can be achieved. Fraud or deceit or any unreasonable duress are alternative methods of accomplishing the tort. (Pen. Code, §§ 236, 237; Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1123; Fermino v. Fedco, Inc., supra, 7 Cal.4th at p. 715.)

c. Critical Air’s reliance on BAJI definition unavailing.

To support its contention that force is an essential element of false imprisonment, Critical Air cites to BAJI No. 7.60 in the current, eighth edition, the sole BAJI instruction dealing with false imprisonment. The instruction requires a false imprisonment claimant to establish that the defendant “intentionally and unlawfully exercised force or the express or implied threat of force to restrain, detain or confine the plaintiff.” (Italics added.)12

Critical Air’s reliance on BAJI No. 7.60 is misplaced because said instruction, by its terms, applies to fact situations where the false imprisonment was accomplished by force or the threat of force. BAJI No. 7.60 is limited in its scope, and it does not purport to address situations where the false imprisonment was carried out through other means such as fraud, deceit or unreasonable duress. In those cases, as discussed below at part II, section 3(b), in the absence of a pertinent standard BAJI instruction, appropriate instructions must be fashioned to guide the jury as to the applicable law. BAJI No. 7.60, being of limited application, does not support Critical Air’s reliance thereon in the fact situation before us.

2. Contemporaneous awareness of unlawful restraint or confinement is not an essential element.

In its contention dealing with a victim’s state of mind, Critical Air also argues an essential element of a civil cause of action for false imprisonment *1003is that a victim feel compelled to stay or go against said victim’s will, or that a plaintiff possess a conscious understanding of being restrained or confined at the time thereof due to a defendant’s exercise of force or threat of force.

The issue apparently is one of first impression in California.13 After extensive research and careful consideration of the conflicting views in this area, we reject Critical Air’s argument that contemporaneous awareness is an essential element of the tort.

a. Overview.

There is scant authority bearing upon this discrete issue. There is the early English case of Herring v. Boyle (1834 Ex.) 149 Eng.Rep. 1126, which involved a 10-year old boy placed in a school operated by the defendant. When his mother asked the defendant to allow the youth to go home over the Christmas holidays, the defendant refused permission unless the term bill was paid. The boy knew nothing of the request or the refusal. Subsequently, an action for false imprisonment was brought in his name. The Court of Exchequer held there was no liability because the boy was not cognizant of any restraint. (See Prosser, False Imprisonment: Consciousness of Confinement (1955) 55 Colum. L.Rev. 847.)

The original Restatement of Torts concurred in the position taken by Herring, stating “. . . there is no liability for intentionally confining another unless the person physically restrained knows of the confinement.” (Rest., Torts, § 42, p. 82.)

In 1955, Prosser, in a well-reasoned law review article, criticized the Restatement position, observing “serious damage might result from [false] imprisonment even though the plaintiff is not aware of the restraint at the time.” (Prosser, False Imprisonment: Consciousness of Confinement, supra, 55 Colum. L.Rev. at p. 848.) For example, “. . . although the plaintiff might not know he was imprisoned, his captors might be boasting elsewhere that he was.” (Ibid.) Arguing against the inclusion of consciousness of confinement as an element of the tort, Prosser presciently warned: “[C]ases will arise in which small children, idiots, lunatics, intoxicated people, delirious people, or sick and unconscious people are imprisoned without knowing it, and consequently a tort of real gravity [will have] occurred.” (Id., at p. 850.)

*1004The Restatement Second of Torts, issued in 1965, retreated from the drastic position taken by the first Restatement. The revision states “. . . there is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it.“ (Rest.2d Torts, § 42, p. 65, italics added.)14

However, a comment following Restatement Second of Torts section 42 states “[w]here ... no harm results from a confinement and the plaintiff is not even subjected to the mental disturbance of being made aware of it at the time, his mere dignitary interest in being free from an interference with his personal liberty which he has only discovered later is not of sufficient importance to justify the recovery of the nominal damages involved. Accordingly, no [cause of] action for false imprisonment can be maintained in such a case.” (Rest.2d Torts, § 42, com. a., p. 65.)

Prosser subsequently took issue with the Second Restatement on this point, arguing it was unduly restrictive for disallowing a cause of action where the victim was unaware and solely nominal damage was sustained. (Prosser & Keeton, Torts (5th ed. 1984) § 11, p. 48.) Prosser reasoned “. . . it is not necessary that any damage result from [the false imprisonment] other than the confinement itself, [fn. omitted] since the tort is complete with even a brief restraint of the plaintiff’s freedom.” (Ibid.) Prosser further observed “[a]s in the case of other torts derived from the old action of trespass, the fact that there has been false imprisonment at all establishes a cause of action for at least nominal damages. [Fn. omitted.]” (Ibid.) 15

b. Other jurisdictions.

Other than Prosser and the Restatements of Torts, there is very little authority on the subject to guide this court. Decisions in other jurisdictions purport to follow the Restatement and/or Prosser, but mischaracterize those texts. Further, no rationale is given for the positions taken by the various courts.

For example, Broughton v. State (1975) 37 N.Y.2d 451, 456 [373 N.Y.S.2d 451, 335 N.E.2d 310, 314], citing the Second Restatement, states *1005that to establish a cause of action for false imprisonment “the plaintiff must show that: ... the plaintiff was conscious of the confinement.” (Accord, Parvi v. City of Kingston (1977) 41 N.Y.2d 553 [394 N.Y.S.2d 161, 362 N.E.2d 960, 962].) Similarly, Harrison v. Diversified Products Corporation (Ala. 1986) 499 So.2d 1384, invokes the Second Restatement for the proposition that one claiming false imprisonment must establish “he was aware that he was being detained.”

However, as discussed above, the Second Restatement allows recovery where the person physically restrained either “knows of the confinement or is harmed by it." (Rest.2d Torts, § 42, p. 65, italics added.)

Another variation appears in Creek v. State (Ind.App. 1992) 588 N.E.2d 1319, 1320, which relies on the Second Restatement for the principle that “[i]n general, the victim must be cognizant of his or her imprisonment or be physically harmed by the confinement to recover damages for the tort[.]” (Italics added.) However, the Second Restatement does not require physical harm, merely harm, resulting from a confinement. (Rest.2d Torts, § 42, p. 65.)

Even more curious is Blaz v. Molin Concrete Products Co. (1976) 309 Minn. 382 [244 N.W.2d 277, 279], which cites both the Second Restatement and Prosser for its assertion “the elements of false imprisonment [include] ... (3) awareness by the plaintiff that he is confined.” However, as discussed above, Prosser consistently has argued that awareness by the plaintiff is not required, and the Second Restatement allows recovery, irrespective of lack of awareness, if the confinement has resulted in actual harm.

Given the dearth of persuasive authority in our sister states, we are compelled to make our own reasoned determination on the issue of the significance of a false imprisonment victim’s state of mind.

c. Contemporaneous awareness of false imprisonment is not an essential element because harm may result even if the victim does not learn until afterward of the confinement or its wrongfulness.

It is readily apparent a victim can sustain substantial harm as a consequence of a false imprisonment, even if not immediately cognizant of being wrongfully detained.

In Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 714 [117 Cal.Rptr. 241, 527 P.2d 865], the plaintiff brought a false imprisonment *1006action against the county for the sheriff’s failure to release him from jail following the completion of his sentence. The plaintiff was released only after writing to the superior court for a release order. (Ibid.) The main issue in Sullivan was whether the action was barred by governmental immunity and the Supreme Court held the county was not immune. (Id., at p. 717.) However, Sullivan also can serve as the basis of an interesting hypothetical. Assuming arguendo the prisoner therein did not discover until after his release he had been wrongfully deprived of his liberty by being imprisoned beyond his release date, if contemporaneous awareness of the false imprisonment were an essential element of the tort, the plaintiff would be precluded from recovery.

An example of injury resulting from false imprisonment, where the victim is not even aware of the confinement, appears in the Restatement. “A, a diabetic, is suffering from shock brought on by an overdose of insulin. B believes A to be drunk, and without any legal authority to do so arrests A and locks him up over night in jail. In the morning A is released while still unconscious and unaware that he has been confined. On learning what has occurred A is greatly humiliated, and suffers emotional distress, with resulting serious illness. B is subject to liability to A for false imprisonment.” (Rest.2d Torts, § 42, com. b, illus. 5, p. 66.)

Thus, a victim may be entirely unaware of confinement and still suffer harm as a result of the false imprisonment, as in the Restatement’s example of the diabetic. Or, a victim may perceive the confinement, as in our example of the prisoner unknowingly incarcerated beyond his release date, yet not be contemporaneously aware the confinement was unlawful.16 In either situation, the false imprisonment results in harm.17

Therefore, contemporaneous awareness of the false imprisonment is not, and need not be, an essential element of the tort. Such an arbitrary limitation would leave persons harmed by false imprisonment uncompensated, while allowing perpetrators of an intentional tort to escape liability. Instead, the relevant factor is whether the unlawful restraint or confinement resulted in *1007 harm. This is essentially the view urged by Prosser. It is also the position of the Second Restatement, except that the Second Restatement disallows a cause of action where the harm is purely nominal. (Rest.2d Torts, § 42, com. a., p. 65.) In that limited respect, we take issue with the Second Restatement. It is that issue which is now examined.

3. Nominal harm is sufficient to support a cause of action for false imprisonment.

Here, the evidence established Erin and Laura suffered actual harm as a result of the false imprisonment. Nonetheless, due to some question as to whether physical injury is a prerequisite to recovery where the victim lacks contemporaneous awareness of the false imprisonment, the degree of harm necessary to give rise to a cause of action is addressed.

a. California law authorizes a cause of action for false imprisonment even where the damage is purely nominal.

Unlike the Second Restatement, the law of this state clearly allows a cause of action for false imprisonment notwithstanding the fact a plaintiff suffered merely nominal damage.

Civil Code section 3360, enacted in 1872, states: “When a breach of duty has caused no appreciable detriment to the party affected, he may yet recover nominal damages.” (See generally, 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1316, p. 774.)

Pursuant to Civil Code section 3360, in the long-standing case of Maher v. Wilson (1903) 139 Cal. 514, 520 [73 P. 418], our Supreme Court held a victim of false imprisonment was entitled to recover nominal damages, despite the absence of any appreciable detriment. Maher observed “[t]he detention of plaintiff, . . . was a technical false imprisonment[.]” (Id., at p. 518.) However, “[n]o actual damages were shown” (id., at p. 517), so as to preclude compensatory damages, and there was “no evidence of malice or oppression” (id., at p. 519), so as to preclude punitive damages. (Id., at p. 520.) Nonetheless, the defendants had “incurred a technical liability, entitling the plaintiff to nominal damages.” (Ibid.)

The BAJI committee also recognizes the availability of nominal damages for false imprisonment. The use note following current BAJI No. 7.60 (8th ed.), at page 358, states in relevant part: “If plaintiff is seeking nominal damages only, ... [a] special damage instruction will have to be devised, such as, ‘If you find that the defendant committed false [imprisonment] [or] *1008[arrest], plaintiff is entitled to nominal damages, that is, a trivial sum such as $1.00”

As previously noted, Prosser supplies a rationale for such an award, stating “[a]s in the case of other torts derived from the old action of trespass, the fact that there has been false imprisonment at all establishes a cause of action for at least nominal damages. [Fn. omitted.]” (Prosser & Keeton, Torts, supra, § 11, p. 48.) Therefore, “. . . it is not necessary that any damage result from it other than the confinement itself, since the tort is complete with even a brief restraint of the plaintiff’s freedom.” (Ibid., fn. omitted.)

Also, false imprisonment has been characterized as a “dignitary tort,” designed to allow recovery by one who either “knows of the dignitary invasion” or is actually harmed by it. (Parvi v. City of Kingston, supra, 41 N.Y.2d 553 [362 N.E.2d at p. 963].) The tort is intended to protect one’s “personal interest in freedom from restraint of movement!.]” (Jackson v. City of San Diego (1981) 121 Cal.App.3d 579, 585 [175 Cal.Rptr. 395].) In view of the nature of the interest protected, it is appropriate a cause of action may be brought even where the damage is purely nominal.

As Witkin observes, “[t]he advantages of ... an award [of nominal damages], other than psychological, are two: (1) The plaintiff is entitled to costs [citation]; (2) he may be entitled to punitive damages [citation].” (6 Witkin, Summary of Cal. Law, supra, Torts, § 1316, p. 774.)

b. Other damages recoverable for false imprisonment.

Frequently, emotional distress is the primary injury resulting from an intentional tort such as false imprisonment, and that injury clearly is compensable.

In Thing v. La Chusa (1989) 48 Cal.3d 644, 650 [257 Cal.Rptr. 865, 771 P.2d 814], our Supreme Court stated: “With recognition of intentional infliction of emotional distress as a discrete tort cause of action, this court accepted both freedom from emotional distress as an interest worthy of protection in its own right, and the proposition that it is possible to quantify and compensate for the invasion of that interest through an award of monetary damages even when the severity of the emotional distress is not manifested in physical symptoms. ‘If a cause of action is otherwise established, it is settled that damages may be given for mental suffering naturally ensuing from the acts complained of [citations], and in the case of many torts, such as assault, battery, false imprisonment, and defamation, mental suffering will frequently constitute the principal element of damages. [Citation.] In cases where mental suffering constitutes a major element of damages it is anomalous to deny recovery because the defendant’s intentional *1009misconduct fell short of producing some physical injury.’ [Citation.]” (Italics added.)

In addition to recovery for emotional suffering and humiliation, one subjected to false imprisonment is entitled to compensation for other resultant harm, such as loss of time, physical discomfort or inconvenience, any resulting physical illness or injury to health, business interruption, and damage to reputation, as well as punitive damages in appropriate cases. (Prosser & Keeton, Torts, supra, § 11, pp. 48-49.)

Following our effort to clarify the essential elements of the tort, we shift our focus to Critical Air’s contentions on appeal.

II. Resolution of Critical Air’s contentions.

1. No merit to Critical Air’s contention there was no false imprisonment as a matter of law.

As noted, Critical Air argues it did not falsely imprison the girls because a plaintiff must be contemporaneously aware of force or the threat of force sufficient to cause him or her to be restrained. However, such awareness is not an essential element of the tort. Moreover, almost by definition, where the false imprisonment is accomplished by fraud, as in this case, the plaintiff will not be immediately cognizant of the false imprisonment.

Here, the evidence established the girls’ consent to their confinement on the aircraft was procured through a misrepresentation by Critical Air as to its authority. The confinement therefore was nonconsensual. (Civ. Code, § 1567, Turner v. Turner, supra, 167 Cal.App.2d at p. 640.) Because “the tort consists of the ‘ “nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time,” ’ ” (Fermino v. Fedco, Inc., supra, 1 Cal.4th at p. 715), the jury properly found Critical Air’s conduct amounted to a false imprisonment.

2. Deletion of force or threat of force from instruction to jury was proper.

Critical Air avers the trial court prejudicially erred in deleting the elements of force or threat of force when it reinstructed the jury on false imprisonment, because force or the threat of force is an essential element of the tort. As discussed above, such a contention is unavailing.

As explained, false imprisonment may be completed through various means, including force or the threat of force. Here, there was no substantial *1010evidence Critical Air used force or the threat of force to confine the children. Instead, the Scofields’ theory at trial was that the false imprisonment was brought about through fraud.18 Accordingly, the trial court properly deleted the elements of force or threat of force in its modified instruction.

3. Critical Air cannot complain the given instruction was overly general.

Rather than force or the threat thereof to carry out the false imprisonment, the evidence showed a concealment or nondisclosure to Erin and Laura that the Critical Air plane was not the one authorized by their father to transport them.19 However, the trial court did not specifically instruct the jury on false imprisonment effected through fraud. The issue becomes whether the lack of such an instruction is cognizable on appeal.

a. Critical Air’s failure to request a more specific instruction forecloses the issue on appeal.

Both false imprisonment instructions given by the trial court herein were correct statements of the law. The modified instruction, from which reference to force or threat had been deleted, merely was general in nature in that it did not specify any of the unlawful means by which false imprisonment may be accomplished, including fraud. However, the lack of a more specific instruction to the jury is unavailing to Critical Air at this juncture.

In a civil case, “. . . there ordinarily is no duty to instruct in the absence of a specific request by a party; the exception is a complete failure to instruct on material issues and controlling legal principles which may amount to reversible error. [Citations.]” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 951 [160 Cal.Rptr. 141, 603 P.2d 58], italics added.) Thus, it is “settled that a party may not complain on appeal that an instruction correct in law is too general or incomplete unless he had requested an additional or qualifying *1011instruction.” (Id., at p, 948.) When a trial court “gives a jury instruction which is correct as far as it goes but which is too general or is incomplete for the state of the evidence, a failure to request an additional or a qualifying instruction will waive a party’s right to later complain on appeal about the instruction which was given. [Citation.]” (Suman v. BMW of North America, Inc. (1994) 23 CaI.App.4th 1, 9 [28 Cal.Rptr.2d 133].)

Critical Air did not request a more specific instruction below. Even on appeal, Critical Air does not contend the trial court should have instructed the jury that false imprisonment may be effected through fraud. Instead, Critical Air continually has maintained that force or the threat of force is the exclusive means by which false imprisonment can be accomplished, contrary to abundant California law on the subject. Because Critical Air did not seek a more specific instruction, the trial court properly discharged its duty by giving the jury a basic instruction on false imprisonment. As set forth in footnote 7, ante, the instruction given by the trial court did inform the jury false imprisonment is the unlawful violation of the personal liberty of another, and that to constitute the tort, there must be intentional and unlawful confinement or detention which compels the person to stay or go somewhere against his or her will.20

Further, and in any event, the jury could not have been misled by the generic instruction because the closing arguments of both counsel clearly addressed whether there had been a false imprisonment achieved through fraud.21 Because the Scofields’ theory at trial was that the false imprisonment was accomplished through fraud, not force or the threat of force, the only rationale by which this jury could have found for the Scofields was by finding a false imprisonment perpetrated by fraud. This record contains substantial evidence to support the jury’s determination on general verdicts.

b. Inadequacy of BAJI No. 7.60.

It would appear some of the difficulties the parties and the trial court had with the trial of this matter stemmed from the fact the standard BAJI *1012instruction on false imprisonment, BAJI No. 7.60, solely addresses false imprisonment being completed through force or the threat of force. Clearly, the standard BAJI instruction is inadequate because it does not cover fact situations where the false imprisonment is brought about by other well settled means, such as fraud, deceit or unreasonable duress. (See Pen. Code §§236, 237; Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1123; Fermino v. Fedco, Inc., supra, 7 Cal.4th at p. 715.)

Until the BAJI committee addresses the omission, the preface to BAJI is pertinent. It reminds “the bench and bar . . . that lawyers still have an obligation to present their own instructions, particularly in areas where BAJI hasn’t written, and that judges still have an obligation to give serious consideration to those non-BAJI instructions that counsel offer.” (BAJI (8th ed.) p. X, italics added.) Also relevant in such cases is the Judicial Council’s recommendation that “[wjhenever the latest edition of BAJI . . . does not contain an instruction on a subject upon which the trial judge determines that the jury should be instructed, or when a BAJI . . . instruction cannot be modified to submit the issue properly, the instruction given on that subject should be simple, brief, impartial and free from argument.” (Cal. Standards Jud. Admin., § 5 [Deering’s Cal. Ann. Codes, Rules (1996 ed.) p. 2328], italics added.)

4. Damage award was not excessive.

With respect to Critical Air’s contention the $120,000 damage award to the girls was excessive, we note at the outset that Critical Air did not present any evidence to controvert Dr. Long’s conclusion the girls would suffer long-term harm due to the deception.

Further, in approaching the issue, we are mindful “[t]he amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. . . . [A]ll presumptions are in favor of the decision of the trial court [citation]. The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.” (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-507 [15 Cal.Rptr. 161, 364 P.2d 337]; accord, Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 410 [27 Cal.Rptr.2d 457].)

Given the uncontroverted evidence with respect to psychological harm, the $120,000 which the jury awarded to Erin and Laura is not so large *1013a sum as to reflect passion, prejudice or corruption by the jury. Therefore, we decline to interfere with said damage award, which the trial court left undisturbed on the motion for new trial.22

Disposition

The judgment is affirmed. The Scofields to recover costs on appeal.

Croskey, J., and Kitching, J., concurred.

A petition for a rehearing was denied June 19, 1996, and the opinion was modified to read as printed above. Appellants’ petition for review by the Supreme Court was denied August 28, 1996.

*149GALLAGHER, Associate Judge:

A jury awarded appellant $7,000 on a false imprisonment claim. The trial court granted appellees’ motion for judgment notwithstanding the verdict (n. o. v.) and set aside the award.1 Seeking reinstatement of the verdict in her favor, appellant contends the trial court improperly granted judgment n. o. v. for appellees.2 We affirm.

Appellant’s false imprisonment suit arose out of actions taken by her employer, the American Telephone and Telegraph Company (AT&T) and its subsidiary, the Chesapeake and Potomac Telephone Company of Maryland (C&P) to recover an unauthorized telephone extension in appellant’s home. At the time of the alleged false imprisonment, appellant Essie Faniel was employed as a keypunch operator in AT&T’s Washington, D.C. office.

On August 20, 1976, a workday for Mrs. Faniel, a supervisor asked her to step into a conference room. There she was introduced to Mr. Aussem,3 who was identified as an AT&T security supervisor from New York, responsible for investigating misuse of equipment by AT&T employees. Mr. Aussem informed Mrs. Faniel that routine testing had revealed excessive electronic resistance on her line, suggesting the presence of an unauthorized, telephone installation.4 When asked, Mrs. Faniel told Mr. Aussem she had two phones. Later she admitted having a third, unauthorized telephone, and signed a written statement to that effect. After signing the statement, Mrs. Faniel was told a trip to her home would be necessary to recover the equipment. She did not object, because, as she testified at trial, “I just assumed that I had to go.” Appellant testified that her request to call her husband first was denied by Mr. Aussem. However, appellant’s supervisor, Mrs. Powell, testified that she placed a call to Mr. Faniel, at appellant’s request, from the conference room, and left a message that his wife would be leaving early.5

Accompanied by Mr. Aussem and Mrs. Powell, appellant was driven to her home, stopping briefly at a C&P facility in Maryland to pick up a C&P security officer. Mrs. Faniel testified that the stop came as a surprise, although Mr. Aussem testified that he advised her of the need to pick up the C&P security man who had the actual authority to recover the equipment.6 Dur*150ing the brief stop at the C&P building, Mrs. Faniel again asked to call her husband. According to appellant’s version of the facts, which we must accept, Mrs. Powell refused permission. On cross-examination, appellant could not recall whether Mrs. Powell had offered to make the call for her, as Mrs. Powell testified.

The foursome proceeded to Mrs. Faniel’s home where they were greeted at the door by her husband. The telephone was found unplugged and lying on the floor. After recovering the equipment, the telephone company employees left. Mrs. Faniel received a thirty-day suspension from work, but did not lose her job, and was promoted several months later.

At the close of all the evidence, the trial court reserved a decision on appellees’ motion for directed verdict, because it appeared to be a close question as to whether the case should be submitted to the jury. Seganish v. District of Columbia Safeway Stores, Inc., 132 U.S.App.D.C. 117, 406 F.2d 653 (1968). After the jury found for appellant, upon granting appellees’ motion for judgment n. o. v. the court stated, “[i]n view of the employee-employer relationship and the fact that the trip to her home was made during working hours, when she was being paid, the detention after the questioning, if any, was not unreasonable. I conclude, therefore, that there was no factual issue to present to the jury for resolution in order to determine whether probable cause existed and the evidence established probable cause for any detention as a matter of law.”

I.

A judgment n. o. v. provides the means by which a trial court may, after verdict, order the judgment required by law regardless of the verdict entered. See generally 5A Moore’s Federal Practice ¶ 50.07[1] (2d ed. 1977); 9 Wright & Miller, Federal Practice and Procedure: Civil § 2521 (1971). Like a directed verdict, a judgment n. o. v. allows the court to remove from jury consideration those cases in which the facts, viewed most favorably, to the nonmoving party, permit but one reasonable conclusion as to the proper judgment.7 See, e. g., McKnight v. Wire Properties, Inc., D.C.App., 288 A.2d 405, 406 (1972); District of Columbia v. Jones, D.C.App., 265 A.2d 594, 595 (1970). Thus, upon review of a judgment n. o. v., “[t]he question for us is not whether there is sufficient evidence in the record to support the findings and decision of the judge, but whether . a jury of reasonable men could properly have reached a verdict in favor of appellant, the party upon whom the onus of proof was imposed.” Baker v. D. C. Transit System, Inc., D.C.App., 248 A.2d 829, 831 (1969).

False imprisonment is defined, in this jurisdiction, as the restraint by one person of the physical liberty of another without consent or legal justification. See, e. g., Tocker v. Great Atlantic & Pacific Tea Company, D.C.App., 190 A.2d 822, 824 (1963). The essential elements of the tort are (1) the detention or restraint of one against his will, within boundaries fixed by the defendant, and (2) the unlawfulness of the restraint. See Tocker, supra. The threshold question in this false imprisonment action is necessarily, whether a detention of appellant occurred.8

As appellant’s counsel conceded at trial, any unlawful confinement took place during the automobile trip, not the initial questioning episode. The security officer was entitled to question Mrs. Faniel, an *151employee, on the employer’s premises, about a violation of company policy, without incurring liability for false imprisonment. Lansburgh’s, Inc. v. Ruffin, D.C.App., 372 A.2d 561 (1977). As this court has stated,

[o]ne does not lose one’s legal rights by virtue of having the status of an employee. On the other hand, up to a point an employer has the right to question employees about their sales practices generally and in a particular case. Proulx v. Pinkerton’s National Detective Agency, Inc., 343 Mass. 390, 178 N.E.2d 575 (1961); Roberts v. Coleman, 228 Or. 286, 365 P.2d 79 (1961). Taken too far, however, a detention of the employee may result depending upon the circumstances, including the length, nature and manner of interrogation. [Lansburgh’s, supra at 564.]

Here, Mr. Aussem’s brief questioning of Mrs. Faniel was directed toward investigation and explanation of suspicious circumstances,9 and terminated immediately upon admission of wrongdoing. In Lansburgh’s, supra, we held that a detention occurred at a late point in the questioning, when the store security employees told the employee that he would be “booked,” and proceeded to search him.10 Under the facts of this case, however, we cannot say that a detention occurred, even during the subsequent trip to appellant’s home for further investigation and for recovery of the unauthorized equipment.

To constitute imprisonment, the restraint of appellant’s freedom of movement by appellees must have been total. See 1 Restatement (Second) of Torts §§ 35, 36 (1965).11 Appellant’s movements could be restrained, of course, even in a traveling automobile, if she was compelled to go along against her will. See generally Prosser, Torts § 11, at 42-44 (4th ed. 1971); Harper & James, The Law of Torts § 3.6 (1956). The driver of a car imprisons an unwilling passenger by restraining the passenger’s liberty. Cheasapeake & Potomac Telephone Co. v. Lewis, 69 App.D.C. 191, 193 n.2, 99 F.2d 424, 426 n.2 (1938), citing Cieplinski v. Severn, 269 Mass. 261, 168 N.E. 722 (1929). Even when the place of confinement is in motion,

[i]f the actor by force or threats of force, or by exerting legal authority, compels another to accompany him from place to place, he has as effectively confined the other as though he had locked him in a room. [1 Restatement (Second) of Torts § 36, Comment e at 56.]

However, it‘ is not enough for plaintiff to feel “mentally restrained” by the actions of the defendant. See Riggs National Bank v. Price, D.C.App., 359 A.2d 25, 27 (1976); Herbst v. Wuennenberg, 83 Wis.2d 768, 266 N.W.2d 391, 394-97 (1978).12 The evidence *152must establish a restraint against the plaintiff’s will, as where she yields to force, to the threat of force or to the assertion of authority. See, e. g., Tocker, supra at 824. Although plaintiff may submit to a confinement without resistance, if the submission is voluntary, as where an accused voluntarily accompanies his accusers to vindicate himself, then no false imprisonment occurs. See, e. g., Bass v. Dunbar House, Inc., D.C.Mun.App., 161 A.2d 50 (1960).

Submission to the mere verbal direction of another, unaccompanied by force or threats of any character does not constitute false imprisonment. See Grayson Variety Store, Inc. v. Shaffer, 402 S.W.2d 424, 425 (Ky.1966). Similarly, fear of losing one’s job, although a powerful incentive, does not render involuntary the behavior induced. See, e. g., Prosser, Torts, supra § 11, at 106; Moen v. Las Vegas International Hotel, Inc., 90 Nev. 176, 521 P.2d 370, 371 (1974).13

Appellant’s testimony at trial indicates that she did not accompany the telephone employees because of threats, either of force or prosecution. She did not at any point object or attempt to leave the car. Her testimony is quite revealing:

Q: Okay. Now after you signed the statement that you had an extra phone, it is then that Mr. Aussem said we have to go to your house or something to that effect?

A: Yes.

Q: Okay. Did you voice any objection? A: No.

Q: Why didn’t you?

A: Because I just thought that I had to go.

Q: Did you want to go?

A: No, but with Doris Powell being my supervisor, she was going, and they told me I had to go, so I just assumed that I had to go.

Q: Were they going out to your house whether you went along with them or not?

A: The way he talked, yes.

* * * * * *

Q: What did you say to [Mrs. Powell], and what did ,she say to you?

A: I asked her could I make a call to my husband.

Q: And what did she say?

A: She said no .

Q: Why didn’t you get out of the car and make a phone call?

A: I was afraid I would lose my job. * * * * * *

Q: And you heard Mr. Aussem testify that you willingly said you would go along with him; is that correct?

A: Yes I heard him say that.

Q: Did you of your own free will go with him?

A: Yes.

Q: Were you afraid that you would be disciplined?

A: Yes.

In borderline cases a jury question may arise as to what was reasonably to be understood and implied from the defendant’s conduct. Our search of the record, however, reveals no evidence that appellant yielded to constraint of a threat, express or implied, or to physical force. Absent evidence that appellant accompanied the other employees against her will, we cannot say she was imprisoned or unlawfully detained by appellees. Indeed it cannot be false imprisonment where the “prisoner” voluntarily submits, without proof of duress or force legally sufficient to vitiate the apparent consent. See, e. g., Harper & James, supra, § 3.7, at 225; Prosser, supra, § 18, at 101. Appellant failed to demonstrate, however, the absence of lawful consent, part of the definition of false imprisonment.

*153Of course, if the defendant goes beyond the implied consent, and does a substantially different act, he will be liable. See Prosser, supra at 104. Whether the assent given was broad enough to cover the invasion inflicted is a question of fact to be determined by the jury in doubtful cases. Harper & James, supra at 235. Mrs. Faniel testified that she never consented to the detour to pick up the C&P security officers, and expressed concern during the ride, about the unfamiliar route.14 Nonetheless, Mrs. Faniel did not object, or manifest a desire to leave the car at that point, so as to negative her prior consent and convert her into an unwilling passenger on the trip to her home to recover the company equipment.15

We conclude that the evidence, viewed most favorably to appellant, was insufficient as a matter of law to establish false imprisonment.16 Therefore, the judgment n. o. v. for appellees was properly granted.

Affirmed.

HUITINK, J.

I. Background Facts and Proceedings.

Jim Foster, Ronnie G. Newton, Douglas Rice, Paul Prangler, Odilon Sales, Louis Hays, Olivia Wright and Marva Harris (plaintiffs) were among twelve plaintiffs who sued Menards, Inc. and Midland Security (defendants) seeking damages allegedly caused by the tortious conduct of Me-nard’s and Midland’s employees. All plaintiffs were variously detained, questioned, and subjected to personal or automobile searches by security personnel at Menard’s Des Moines and Ankeny stores. The plaintiffs theories of recovery included false imprisonment (all plaintiffs), and extortion (Prangler and Sales). The defendants denied liability under both of these theories and claimed entitlement to judgment as a matter of law on all of the plaintiffs’ claims. The district court agreed as to the above plaintiffs and granted the defendants’ joint motion for summary judgment. The claims of the remaining plaintiffs that survived summary judgment either proceeded to trial or were otherwise resolved.

The district court premised its disposition of the plaintiffs’ false imprisonment claims on the defendants’ statutory “immunity” from civil liability for false imprisonment claims by customers suspected of shoplifting. The court rejected plaintiffs’ extortion theories citing the absence of any evidence the defendants obtained anything of value by threatening to accuse the plaintiffs with a public offense.

On appeal, the plaintiffs contend the summary judgment record includes disputed issues of fact concerning their false imprisonment claims and defendants’ immunity defense. Prangler and Sales contend the defendants obtained valuable incriminating statements from them by threatening to file criminal charges and the district court erred by concluding otherwise.

II. Standard of Review.

Our standard for reviewing a grant of a motion for summary judgment are well established:

We will uphold a grant of summary judgment when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. An issue of fact is “material” only when the dispute is over facts that might affect the outcome of the litigation, given the applicable governing law.

When we review the propriety of a grant of summary judgment, the moving party is required to show that no genuine issue of material fact exists and that he or she is entitled to judgment as a matter of law. In determining whether the movant has met this burden, we review the record in a light most favorable to the party opposing summary judgment, in this case the plaintiff.

In this sense, we review the record as we would on a motion for directed verdict, with the nonmoving party entitled to every legitimate inference that reasonably can be deduced from the evidence and summary judgment is inap*326propriate if reasonable minds can differ on how the issue should be resolved.

Dickerson v. Mertz, 547 N.W.2d 208, 212 (Iowa 1996) (citations omitted).

III. Plaintiffs’ False Imprisonment Claims.

The district court’s summary judgment ruling provides:

With regard to the claims of False Imprisonment, except for the Plaintiff Zohn, all other named Plaintiffs have been unable to show their required levels of proof regarding summary judgment considering the provisions of Iowa Code Chapter 808.12(1), Chapter 808.12(3), and Chapter 714.5. For that reason, the Defendants’ motions for summary judgment against all plaintiffs for false imprisonment, except Zohn, should be and the same are hereby granted and those claims are dismissed ....

False imprisonment is the unlawful restraint of an individual’s personal liberty or freedom of locomotion. Sergeant v. Watson Bros. Transportation Co., 244 Iowa 185, 196, 52 N.W.2d 86, 92; Restatement (Second) of Torts § 35 (1965); 32 Am.Jur.2d False Imprisonment § 1 (1982). The essential elements of this tort are “(1) detention and restraint against one’s will and (2) the unlawfulness of such detention or restraint.” Valadez v. City of Des Moines, 324 N.W.2d 475, 477 (Iowa 1982) (quoting Sergeant, 244 Iowa at 196, 52 N.W.2d at 93).

The district court’s determination that Menards and Midland were immune from civil liability was premised on Iowa Code section 808.12. This statute provides:

1.Persons concealing property as set forth in section 714.5, may be detained and searched by a peace officer, person employed in a facility containing library materials, merchant, or merchant’s employee, provided that the detention is for a reasonable length of time and that the search is conducted in a reasonable manner by a person of the same sex and according to subsection 2 of this section.

2. No search of the person under this section shall be conducted by any person other than someone acting under the direction of a peace officer except where permission of the one to be searched has first been obtained.

3. The detention or search under this section by a peace officer, person employed in a facility containing library materials, merchant, or merchant’s employee does not render the person liable, in a criminal or civil action, for false arrest or false imprisonment provided the person conducting the search or detention had reasonable grounds to believe the person detained or searched had concealed or was attempting to conceal property as set forth in section 714.5.

Iowa Code section 714.5 provides in pertinent part:

The fact that a person has concealed ... unpurchased property of a store or other mercantile establishment, either on the premises or outside the premises, is material evidence of intent to deprive the owner, and the finding of ... unpur-chased property concealed upon the person or among the belongings of the person, is material evidence of intent to deprive and, if the person conceals or causes to be concealed ... unpurchased property, upon the person or among the belongings of another, the finding of the concealed ... property is also material evidence of intent to deprive on the part of the person concealing the ... goods.

The issue of the existence of reasonable grounds for detention by a shopkeeper is generally a question of fact for the jury. Lenstra v. Menard, Inc., 511 N.W.2d 410, 412 (Iowa App.1993). However, if the material facts on the issue of reasonable grounds for detention are undisputed, the issue becomes a question of law for the court. Children v. Burton, 331 N.W.2d 673, 681 (Iowa 1983)(finding question of probable cause in civil false arrest *327action was a question of law when the pertinent facts are not in dispute). With these principles in mind, we turn to the plaintiffs’ individual false imprisonment claims.

Jim Foster.

Foster was detained and searched by an employee at Menard’s Ankeny store who told Foster he needed to search Foster’s shoulder bag. In his deposition, Foster testified:

Q. What was your response?

A. I said why?

Q. What did he [the employee] say?

A. He said, it’s a new store policy. I asked him since when? He said, since they have been having a lot of shoplifting. I said okay. So he searched my bag.

Foster was briefly detained and left the store after the search disclosed no concealed property.

Defendants do not dispute Foster’s factual version of this encounter, nor do they claim the employee had reasonable grounds to believe Foster concealed or attempted to conceal any property. Rather, defendants contend, on these undisputed facts, Foster cannot prove he was detained against his will. We disagree.

As noted earlier, the disposition of Foster’s claim was premised on section 808.12(3). In the absence of evidence that anyone had reasonable grounds to believe Foster concealed or attempted to conceal property, the district court’s contrary conclusion is clearly erroneous and must be reversed. We nevertheless address the defendants’ claim that Foster was not detained against his will because this issue was raised in the district court, in this appeal, and may reoccur on remand. See Galloway v. Bankers Trust Co., 420 N.W.2d 437, 441 (Iowa 1988) (court may affirm where any proper basis appears for the district court’s ruling even though it is not the one upon which the district court based its ruling).

Detention or restraint against one’s will does not need to be accomplished by physical force or threats of physical force. Hobbs v. Illinois Cent. R. Co., 182 Iowa 316, 339, 165 N.W. 912, 918-19 (1917); Restatement (Second) of Torts § 40 at 61 (1965); 32 Am.Jur.2d False Imprisonment § 18 (1995). The requisite confinement can also result from submission to asserted legal authority. Restatement (Second) of Torts § 41 at 61 (1965). We believe Foster’s alleged submission to the employee’s asserted authority to search Foster’s bag raises a genuine issue of material fact concerning the involuntariness of his confinement.

We also reject the notion that the brevity of Foster’s confinement is insufficient as a matter of law to establish false imprisonment. Fox v. McCurnin, 205 Iowa 752, 757, 218 N.W. 499, 501 (1928); 32 Am.Jur.2d False Imprisonment § 17 at 58 (1995)(It is the fact of detention rather than its length that is relevant). The district court’s judgment dismissing Foster’s false imprisonment claim is reversed and remanded for further proceedings.

Douglas Rice.

Rice was detained as he left Me-nard’s Des Moines store. An assistant manager told Rice someone saw Rice place a bottle of glue in his pocket. A subsequent search of Rice’s pocket failed to disclose a bottle of glue.

Rice disputes these allegations and testified he did not enter the section of the store where bottles of glue were located. Under these circumstances, we conclude there is a genuine issue of material fact concerning the existence of reasonable grounds for anyone to detain or search Rice. See Lenstra v. Menard, Inc., 511 N.W.2d at 412. We also reject defendants’ claim Rice cannot show he was involuntarily confined for the same reasons stated earlier concerning Foster’s claim. We reverse the district court’s dismissal of *328Rice’s false imprisonment claim and remand for further proceedings.

Ronnie Newton.

Newton was detained after a Me-nard’s employee observed Newton leaving the store with two cans of paint without a “paid” sticker on the paint cans verifying payment. The employee escorted Newton to the appropriate cash register to verify payment. When payment was verified, Newton was allowed to leave.

Although Newton claims Menard’s employees ordered him to leave the store following this incident, he does not dispute the employee’s version of the facts. We believe on these undisputed facts, the defendants have established reasonable grounds for Newton’s detention as a matter of law. The district court’s disposition of Newton’s false imprisonment claim is accordingly affirmed.

Paul Prangler.

Prangler was detained after a Me-nards employee saw him place a drill bit into a paper folder and leave the store without paying for it. Prangler’s vehicle was subsequently stopped in the store parking lot and searched. When Prangler failed to produce a receipt verifying his purchase of the drill bit at another store, he was escorted to a private office, detained and questioned for approximately two hours about this and earlier theft allegations against him. Prangler claims he was told no criminal charges would be filed against him if he signed a written confession and release. Prangler signed the confession and release and was allowed to leave.

Like Newton, Prangler claims his interrogators were rude and verbally abusive. He, however, does not dispute the fact he was seen placing a drill bit in his folder and leaving the store without paying for it.

based on these undis-undisfacts, Prangler’s initial detention was supported by reasonable grounds, we nevertheless find it necessary to reverse. As noted earlier, Prangler claims he was detained and interrogated at length concerning prior theft allegations. Because the record does not contain evidence of reasonable grounds to believe Prangler concealed anything on prior occasions, there are genuine issues of fact concerning the reasonableness of the grounds for Me-nard’s suspicions, and length or purpose of Prangler’s detention. The district court’s dismissal of Prangler’s false imprisonment claim is therefore reversed and remanded for further proceedings.

Louis Hayes, Marva Harris, and Ollie Wright

The false imprisonment claims made by these plaintiffs are commonly based on their detention and search of their cars within the confines of a fenced and gated lumber yard next to Menard’s Urbandale store. Hayes and Harris each purchased items stored within this area and entered through a guarded gate to load these items in their cars. After loading the purchased items, each proceeded to the exit gate and presented receipts verifying purchase of the items loaded in their cars. Although Hayes and Harris claim the purchased items were plainly visible and accounted for, a security guard nevertheless insisted on searching the interior and trunk of their cars.

Wright entered the yard to exchange an item purchased earlier. After exchanging this item, Wright drove to the exit gate and waited briefly in a line of other departing vehicles. After growing impatient, Wright attempted to drive around the line of waiting vehicles and leave through the entrance gate. A security guard stopped Wright’s car and searched it, including the trunk.

[13]Menard no claim of reasonable reasonto believe Hayes or Harris concealed anything in their cars. Menard instead relies on a prominently displayed sign at the entrance to the yard announcing announcall vehicles were subject to search upon departure from the yard. They argue arcustomers’ entry into the yard *329was conditioned on the customer’s consent to a vehicle search and accordingly any resulting detention or search was voluntary. All plaintiffs deny seeing any sign or otherwise consenting to detention or search of their cars.

The defendants’ implied consent theory enjoys considerable support from other jurisdictions that have considered similar claims. See, e.g., Gillett v. State, 588 S.W.2d 361, 363-64 (Tex.Cr.App.1979)(search of customer on exit from a dressing room displaying similar warning); Lewis v. Dayton Hudson Corp., 128 Mich.App. 165, 339 N.W.2d 857, 860 (Mich.App.1983)(no expectation of privacy in presence of such warnings); U.S. v. Edwards, 498 F.2d 496, 500 (2d Cir.1974)(search of airline passenger baggage reasonable because of sign announcing that passengers and luggage were subject to search); bid see Stroeber v. Commission Veteran’s Auditorium, 453 F.Supp. 926, 933 (rock concert patrons did not voluntarily consent to searches because they were not forewarned until entering premises and content of similar warning sign was insufficient to establish implied consent).

At the very least, the disputed existence of or plaintiffs failure to notice signage at the entry of the yard generates a fact question on the implied consent issue. Moreover, we find the reasoning in Stroeber highly persuasive and conclude the presence of signs warning of possible vehicle searches does no more than raise a fact question on the issue of plaintiffs’ consent to detention and search. In any event, we hold the detentions and searches of the Hayes and Harris vehicles did not fall within the purview of the reasonable ground protections of section 808.12(3). There is no claim of reasonable grounds supporting either detention and search. Additionally, Hayes and Harris’s random selection for detention and search is undisputed. We therefore reverse the district court’s dismissal of Hayes’ and Harris’ false imprisonment claims.

Wright’s claim is distinguishable from the others. We hold Wright’s attempt to drive around the line of waiting cars to exit through the entrance gate provided reasonable grounds as a matter of law for his detention and subsequent search of his car. The district court’s dismissal of Wright’s false imprisonment claim is affirmed.

IV. Paul Prangler’s and Odilon Sales’ Extortion Claims.

Prangler and Sales were both detained and questioned by Menard’s employees. Each was assured that no criminal charges would be filed against them if they signed written confessions, restitution agreements, and a waiver of rights form absolving Menards from civil liability. Both signed as requested and no criminal charges were filed against them. Each subsequently received a letter from Me-nards demanding restitution pursuant to Iowa Code section 645.2.1

Iowa first recognized a civil cause of action for a violation of the criminal extortion statute in Hall v. Montgomery Ward & Co., 252 N.W.2d 421 (Iowa 1977). See also Iowa Code § 711.4 (1997).2 In *330 French v. Foods, Inc., 495 N.W.2d 768 (Iowa 1993), the supreme court modified Hall to reflect legislative changes to section 711.4. In French, the court held:

[s]ection 711.4 is now limited to conduct aimed at obtaining something of value and no longer prohibits compelling a person to perform an act against their will.

Id.

The district court summarily disposed of Prangler and Sales’ extortion claims stating:

... none of them have been able to sustain their burden to sustain such claims. Specifically, they have failed to show the Defendants did anything for the purpose of obtaining anything of value and specifically that the Iowa statute [711.4] no longer prohibits compelling a person to perform an act against his or her will and the requested signing of confessions and/or restitution agreements ....

Defendants, citing French, claim they obtained nothing of value by compelling Prangler or Sales to sign a confession, release, or restitution agreement in exchange for their willingness to forego criminal charges. We disagree.

The “anything of value” element of extortion has been more extensively considered in State v. Crone, 545 N.W.2d 267 (Iowa 1996). In Crone, the court stated:

The change in language made in section 711.4 merely altered the focus of our analysis in deciding whether a threat falls within the statute; we now look to whether the defendant hoped to obtain anything of value for himself or another. Under the old statute, there were alternate focal points; whether the defendant intended to extort money or a pecuniary advantage or whether the defendant attempted to compel the person threatened to do an act against that person’s will. As we noted in French, the new statute did, in one sense, “limit” the prohibited conduct by eliminating the second alternative; a threat only designed to compel a person to do something against that person’s will does not violate the statute. However, the amended statute also broadened the crime of extortion in Iowa because extortion is no longer limited to attempts to extort “money or pecuniary advantage”; the extortion of “anything” of value is no sufficient. Consequently, if a defendant’s conduct is done for the purpose of obtaining something of value for himself or another, that conduct falls within the scope of the statute even through the defendant’s threat might also be intended to compel the threatened person to do something that person does not want to do.

* * *

Because the legislature did not define the word “value,” we use its ordinary meaning. See State of Iowa ex rel. Lankford v. Allbee, 544 N.W.2d 639, 640 (Iowa 1996); [State v. ]Romeo, 542 N.W.2d [543] at 548; Iowa Code § 4.1(38) (1995). The dictionary defines value in several ways, two of which are potentially applicable here. One meaning is “the monetary worth of something.” Webster’s Third New Int’l Dictionary 2530 (1993)(emphasis added). Another meaning is “relative worth, utility, or importance.” Id. (emphasis added).

* * *

The word “value” is modified in section 711.4: “anything of value, tangible or intangible.” Iowa Code § 711.4 (1993) (emphasis added). We think this language clearly points to the broader definition of “value,’’-“relative worth, utility, or importance,” not the narrow definition-“the monetary worth of something.”

Id. at 272.

We, like the court in Crone, believe the district court’s reading of French is too broad. The usefulness of the documentation obtained from plaintiffs to secure restitution is arguably “anything of value” as *331defined in Crone. Because Prangler and Sales have raised resulting issues of fact concerning this element, we reverse the district court’s dismissal of their extortion claims and remand for further proceedings. We have considered all of the parties remaining claims and find them to be without merit.

V. Summary.

The judgment of the district court is affirmed in part reversed in part and remanded with further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

SKILLMAN, J. S. C.

Is it permissible for a casino to detain a patron suspected of being a “card counter” for the purpose of questioning? This issue is presented in the context of a tort action brought by four patrons of a casino who allege that they were falsely imprisoned by its security personnel. Defendants are the Boardwalk Regency Hotel Casino and several of its employees.

The matter is before the court on a motion for summary judgment filed by defendants. Therefore, the court must accept as true for the purpose of the motion the descriptions of the incident provided by plaintiffs in their depositions. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 73-75 (1954).

Plaintiffs are two brothers and two of their friends. All four are occasional social gamblers. They arrived at the Boardwalk Regency on December 26, 1979, played various casino games, including blackjack, and lost money. They returned to the gambling area around 11 a. m. the next morning and began playing blackjack. After playing for about an hour they were approached by two casino security guards dressed in uniforms. Plaintiffs were notified that they had been identified as card counters and were directed to accompany the guards. One plaintiff was grabbed by the back of the collar and pulled away from the blackjack table. The others were grabbed by the arms and led away. This physical removal happened so quickly and so forcefully that some plaintiffs were unable even to remove their chips from the table. All four were led to a nearby area where they were joined by a games manager, who ordered them to produce identification so that they could be registered and prevented from playing blackjack. At first plaintiffs refused to produce identification, protesting that they were not card counters. However, they were threatened with arrest if they refused to cooperate, and they then acceded to the demand. When identifications were produced, the games manager wrote plain*536tiffs’ names on a pad, told them they would not be permitted to play blackjack again at the Boardwalk Regency or any other casino and directed them to leave. During this entire confrontation the two uniformed casino security guards remained on either side of plaintiffs. The three plaintiffs who were deposed all testified that they did not feel free to leave the casino between the time they were pulled away from the blackjack table and when they produced identification.

After unsuccessfully seeking to lodge a complaint concerning the incident with an official of the New Jersey Casino Control Commission, plaintiffs arranged a meeting with the assistant manager of the casino. The assistant manager acknowledged that the casino personnel had been at fault and said that he would like to make amends by buying plaintiffs a meal and allowing them back into the blackjack game. However, plaintiffs declined the offer and departed from the casino. This lawsuit followed.

The complaint sets forth three separate theories of liability arising out of this incident: assault and battery, slander and false imprisonment. However, defendants concede that a contested material issue of fact is presented by the assault and battery claim, and plaintiffs concede that their slander claim must be dismissed due to an inability to show any damage to their business, professional or personal reputations resulting from the incident. Therefore, the sole question at this juncture is whether there is a contested material issue of fact on the false imprisonment claim.

The tort of false imprisonment is established upon showing any “unlawful restraint upon a man’s freedom of locomotion.” Earl v. Winne, 14 N.J. 119, 128 (1953). The unlawful restraint need not be imposed by physical force. As observed in Earl v. Winne: *537Furthermore, the assertion of legal authority to take a person into custody, even where such authority does not in fact exist, may be sufficient to create a reasonable apprehension that a person is under restraint. Hebrew v. Pulis, 73 N.J.L. 621 (E.&A. 1906); see, also, 1 Restatement, Torts 2d, § 41 at 61 (1965).

*536This constraint may be caused by threats as well as by actionable force, and the threats may be by conduct or by words. If the words or conduct are such as to include a reasonable apprehension of force and the means of coercion is at hand, a person may be as effectually restrained and deprived of liberty as by prison bars, [at 127]

*537There can be no serious doubt that the elements of false imprisonment would be established if plaintiffs’ version of this incident were believed by a jury. According to plaintiffs, they were accosted by uniformed security guards who physically removed them from the blackjack table. They were then subjected, while surrounded by security guards, to an interrogation by a games manager, who said that they would be arrested unless identification was produced. Under these circumstances, plaintiffs reasonably could have concluded that they would be forcibly restrained if they attempted to leave the site of this interrogation without producing identification and that they were thus under confinement.

Defendants do not seriously dispute that the incident, as described by plaintiffs, contains the essential elements of a false imprisonment. However, they assert that a casino has the legal right to detain temporarily a patron suspected of being a card counter. Hence, they argue that any restraint imposed upon plaintiffs was not “unlawful.” Defendants assert that they have the same right to detain a suspected card counter as a retail store owner has to detain a suspected shoplifter. See N.J.S.A. 2C:20 lie. In the words of defendants, it is their position that “a casino, in order to protect its interests, may reasonably detain a suspected card counter, and may not be held liable for false imprisonment in so doing.”

To assess this contention, it is appropriate to consider the nature of card counting and the asserted justification for casinos to exclude the persons who engage in this activity from blackjack tables. Former Casino Control Commissioner Prospero De Bona issued an addendum to a report on the exclusion of card counters from casinos which described the card counting process as containing three basic elements:

*538The first is the method for keeping track of, or “counting,” the cards that have been dealt. This is usually accomplished by assigning a certain plus or minus value to each card in the deck and keeping a “running total or count” of these values as the cards are being dealt. The “running count” is then converted into a “true count” which depends upon the number of cards left to be dealt. The second element of these systems is the strategy to be followed for hitting, standing, doubling down, splitting pairs or surrendering. This strategy is a variable one which depends on the specific cards held by the player, the exposed card of the dealer, and the plus or minus value of the count at that particular time. The third component of these systems is the ability to vary the amount of each wager so that minimal amounts are bet when the “count” is unfavorable and larger amounts when the “count” is favorable.

Thus, card counting does not involve dishonesty or cheating. On the contrary, a card counter is simply a highly skilled player who analyzes the statistical probabilities associated with blackjack and, based upon those probabilities, develops playing strategies which may afford him an advantage over the casino. It was solely this loss of the normal “house advantage” which caused the casinos to exclude card counters from the blackjack tables.

The Casino Control Commissioner upheld this exclusion policy on the grounds that the common law right of the proprietor of a business to exclude a person from its establishment for any reason it chooses (see Garifine v. Monmouth Park Jockey Club, 29 N.J. 47 (1959)) encompasses the right of a casino to exclude a patron who has devised a technique for winning at blackjack. That determination of the Casino Control Commission was reversed by the Appellate Division (Uston v. Resorts Int’l Hotel, Inc., 179 N.J.Super. 223 (1981)), and the issue is now before the Supreme Court of New Jersey, certification having been granted. 87 N.J. 419-420 (1982). Whichever way the issue ultimately may be resolved, the only point which needs to be made here is that the decision of the Casino Control Commission upholding the exclusion of card counters from blackjack tables was not predicated on the view that such conduct is dishonest or that it is prohibited by statute or administrative regulation, but solely upon the asserted common law rights of casinos as private entrepreneurs.

This circumstance sharply distinguishes the detention of suspected card counters from the detention of alleged shoplifters. *539Shoplifting is a crime. N.J.S.A. 2C:20-11(e). To aid in the apprehension of shoplifters as well as to enable retail stores to protect themselves from this form of criminal activity, the Legislature has provided that “a merchant, who has probable cause for believing that a person has willfully concealed unpurchased merchandise and that he can recover the merchandise by taking the person into custody, may, for the purpose of attempting to effect the recovery thereof, take the person into custody and detain him in a reasonable manner for not more than a reasonable time.” Ibid. Furthermore, to ensure that merchants will be able to exercise this power without inhibition, the Legislature has specifically provided that a merchant who takes a suspected shoplifter into custody as provided by this statute shall not be “civilly liable in any manner or to any extent whatever.” Ibid. The decision in Cooke v. J. J. Newberry & Co., 96 N.J.Super. 9 (App.Div.1967), upon which defendants place primary reliance in support of their motion for summary judgment, simply interprets the predecessor to this statutory provision authorizing the detention of suspected shoplifters. Therefore, it obviously has no pertinency to a case where no legislation has been enacted providing immunity for conduct which otherwise would constitute false imprisonment.

However, defendants contend that N.J.S.A 5:12--121(b) confers an immunity upon casinos comparable to that which N.J.S.A. 2C:20-11(e) confers upon retail merchants. This section provides in pertinent part:

Any licensee or its officers, employees or agents who shall have probable cause for believing there has been a violation of sections 113 through 116 of this act in the casino by any person may take such person into custody and detain him in the establishment in a reasonable manner for a reasonable length of time, for the purpose of notifying law enforcement or commission authorities. Such taking into custody and detention shall not render such licensee or its officers, employees or agents criminally or civilly liable for false arrest, false imprisonment, slander or unlawful detention unless such taking into custody or detention is unreasonable under all of the circumstances.

To be sure, this section authorizes casino officials to detain patrons under certain circumstances and provides an accompa*540nying qualified immunity from civil liability. However, the operation of this section can be triggered only by the existence of probable cause to believe that “there has been a violation of sections 113 through 116 of this act.” These sections (N.J.S.A. 5:12-112 through 5:12-116) make it a crime of the fourth degree or a misdemeanor to use bogus chips, marked cards, loaded dice, sleight of hand tricks and a variety of other devices to cheat or swindle a casino. However, there is no basis upon which card counting can be viewed as cheating or swindling a casino and hence a violation of one of these criminal provisions. Rather, it is simply a skillful technique for playing blackjack which negates the normal advantage of the casino over the player. Therefore, N.J.S.A. 5:12-121(b) affords no authorization to a casino to detain a suspected card counter.

Absent any affirmative statutory authorization to detain suspected card counters, the plaintiffs’ version of the incident at the Boardwalk Regency would constitute false imprisonment. Therefore, the defendants’ motion for summary judgment, except that part directed at the claim for slander, will be denied.

MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

The plaintiff in this case, William Eilers, has moved the Court to enter a directed verdict against the defendants on his claims that the defendants falsely imprisoned him and violated his civil rights during a deprogramming attempt in 1982. Both sides have submitted briefs on the question and the Court has heard oral argument.

After careful consideration the Court has decided as follows:

1. Plaintiffs motion for a directed verdict on the issue of false imprisonment is granted and the Court holds, as a matter of law, that plaintiff William Eilers was falsely imprisoned without legal justification.

2. Plaintiffs motion for a directed verdict with respect to 42 U.S.C. § 1985(3) is granted as to certain elements of the plaintiffs claim that a conspiracy on the part of the defendants deprived him of certain of his federal constitutional rights.

FACTS

The evidence in this case has established the following facts. The plaintiff William Eilers and his pregnant wife Sandy were abducted from outside a clinic in Winona, Minnesota in the early afternoon of Monday, August 16, 1982, by their parents and *1095relatives and by the defendant deprogrammers who had been hired by the parents of the plaintiff and his wife. The plaintiff was 24 years old at the time and his wife Sandy was 22. The couple was living on a farm near Galesville, Wisconsin and had traveled to Minnesota for Sandy’s pre-natal examination.

At the time of the abduction, Bill and Sandy Eilers were members of the religious group Disciples of the Lord Jesus Christ. There is ample evidence that this group is an authoritarian religious fellowship directed with an iron hand by Brother Rama Behera. There is also evidence that Bill Eilers’ personality, and to some extent his appearance, changed substantially after he became a member of the group. These changes were clearly of great concern to members of the plaintiff’s family. However, other than as they may have affected the intent of the parents of Bill and Sandy Eilers in the actions they took in seizing Bill and Sandy, the beliefs and practices of the Disciples of the Lord Jesus Christ should not be, and are not, on trial in this case.

While leaving the Winona Clinic on August 16, 1982 the plaintiff, who was on crutches at the time due to an earlier fall, was grabbed from behind by two or more security men, forced into a waiting van, and driven to the Tau Center in Winona, Minnesota.1 Forcibly resisting, he was carried by four men to a room on the top floor of the dormitory-style building. The windows of this room were boarded over with plywood, as were the windows in his bathroom and in the hallway of the floor. The telephone in the hallway had been dismantled.

The plaintiff was held at the Tau Center for five and one-half days and subjected to the defendants’ attempts to deprogram him. Shortly after his arrival at the Tau Center, and after a violent struggle with his captors, the plaintiff was handcuffed to a bed. He remained handcuffed to the bed for at least the first two days of his confinement. During this initial period, he was allowed out of the room only to use the bathroom, and was heavily guarded during those times. On one occasion, the plaintiff dashed down the hall in an attempt to escape, but was forcibly restrained and taken back to the room. After several days of resistance, the plaintiff changed tactics and apparently pretended to consent to his confinement.

The defendants and the plaintiff’s relatives had agreed in advance of the abduction that the plaintiff would be kept at the Tau Center for one week, regardless of whether the plaintiff consented to their actions. At no time during the week was the plaintiff free to leave the Tau Center, nor at any time were reasonable means of escape available to him. Three of the eight people hired by the parents were designated “security men.” These individuals, described by witnesses as at least six feet tall and weighing over 200 pounds, guarded the exits on the floor at all times.

On the evening of Saturday, August 21, 1982, as the plaintiff was leaving the Tau Center to be transported to Iowa City, Iowa for further deprogramming, he took advantage of his first opportunity to escape and jumped from the car in which he was riding. Local residents, attracted by the plaintiff’s calls for help, assisted the plaintiff in making his escape and the police were summoned.2

The evidence has also shown that within three weeks before the abduction occurred, the plaintiff’s relatives had contacted authorities in Trempealeau County, Wisconsin in an attempt to have the plaintiff civilly committed. Family members have testified that they believed the plaintiff was suicidal because of a letter he had written to his *1096grandmother before joining the Disciples of the Lord Jesus Christ in which he wrote that demons were attacking his mind and telling him to kill himself rather than go to the Lord. Defendants’ Exhibit A at 13-14. Joyce Peterson, a psychiatric social worker, interviewed the plaintiff in person on July 26, 1982. After interviewing the plaintiff and consulting with the Trempealeau County Attorney, Peterson informed the plaintiff’s relatives that no legal grounds existed in Wisconsin for confining the plaintiff because he showed no signs of being a danger to himself or to others. The defendants in this case were aware of that information at the time they abducted and held the plaintiff.

DISCUSSION

In considering the plaintiff’s motion for a directed verdict, the Court is required to view the evidence in the light most favorable to the defendants and to resolve all conflicts in the evidence in the defendants’ favor. Dace v. ACF Industries, Inc., 722 F.2d 374, 375 (8th Cir.1983). A directed verdict motion should be granted only when reasonable jurors could not differ as to the conclusions to be drawn from the evidence. Id.

The plaintiff has alleged two main causes of action against the defendants: false imprisonment and conspiracy to deprive the plaintiff of his constitutional rights in violation of 42 U.S.C. § 1985(3). These claims will be discussed separately.

A. False Imprisonment

The plaintiff’s first claim is that the defendants’ conduct in confining him at the Tau Center constituted false imprisonment for which the defendants had no legal justification. False imprisonment consists of three elements:

1) words or acts intended to confine a person;

2) actual confinement; and

3) awareness by the person that he or she is confined.

Blaz v. Molin Concrete Products Co., 309 Minn. 382, 385, 244 N.W.2d 277, 279 (1976); Restatement (Second) of Torts § 35 (1965).

The evidence in this case has overwhelmingly established each of the elements of false imprisonment. By their own admission, the defendants intended to confine the plaintiff for at least one week. While the defendants maintain that their purpose was to help the plaintiff, it is not a defense to false imprisonment that the defendants may have acted with good motives. Malice toward the person confined is not an element of false imprisonment. Strong v. City of Milwaukee, 38 Wis.2d 564, 567,157 N.W.2d 619, 621 (1968); Witte v. Haben, 131 Minn. 71, 74, 154 N.W. 662, 663 (1915); W. Prosser, Law of Torts 48 (4th ed. 1971).

There is also no question that the plaintiff was actually confined. Relying on the Minnesota Supreme Court’s decision in Peterson v. Sorlien, 299 N.W.2d 123, 129 (Minn.1980), cert. denied, 450 U.S. 1031, 101 S.Ct. 1742, 68 L.Ed.2d 227 (1981), the defendants contend that there was no actual confinement because there is evidence that the plaintiff consented to the defendants’ actions, at least by the fourth day of his confinement.3 The plaintiff, in con*1097trast, has testified that he merely pretended to consent in order to gain an opportunity to escape. The plaintiff's apparent consent is not a defense to false imprisonment. Many people would feign consent under similar circumstances, whether out of fear of their captors or as a means of making an escape. But in this case, unlike the Peterson case relied on by the defendants,4 it is undisputed that the plaintiff was at no time free to leave the Tau Center during the week in question, nor were any reasonable means of escape available to him. Under these circumstances, the Court finds, in agreement with many other authorities, that the plaintiffs apparent consent is not a defense to false imprisonment. 32 Am. Jur.2d False Imprisonment § 15 (1982); Restatement (Second) of Torts § 36 (1965). The Court therefore holds, as a matter of law, that the plaintiff has proven the necessary elements of false imprisonment.

The next question is, given that the defendants falsely imprisoned the plaintiff, were their actions legally justified so as to preclude liability for false imprisonment? As justification for their actions, the defendants rely on the defense of necessity. They claim that the confinement and attempted deprogramming of the plaintiff was necessary to prevent him from committing suicide or from otherwise harming himself or others. See State v. Hembd, 305 Minn. 120, 130, 232 N.W.2d 872, 878 (1975).

The defense of necessity has three elements.5 The first element is that the defendants must have acted under the reasonable belief that there was a danger of imminent physical injury to the plaintiff or to others.6 State v. Johnson, 289 Minn. 196, 199-200, 183 N.W.2d 541, 543 (1971); People v. Patrick, 126 Cal.App.3d 952, 961, 179 Cal-Rptr. 276, 282 (1981); People v. Patrick, 541 P.2d 320, 322 (Colo.Ct.App. 1975); Restatement (Second) of Torts § 892(D) comment a (1979).

*1098It is not clear that such a danger existed on August 16,1982. The alleged threats of suicide made by the plaintiff were contained in a letter dated June 14, 1982, and that letter recounted impressions the plaintiff had had some time earlier. Moreover, Joyce Peterson, the psychiatric social worker who personally interviewed the plaintiff on July 26, 1982, concluded in her report, and reported to the plaintiffs relatives, that the plaintiff was not dangerous to himself or to others. Nevertheless, viewing the evidence in the light most favorable to the defendants, the Court will assume for purposes of this motion that the plaintiff was in imminent danger of causing physical injury to himself or to others.

The second and third elements of the necessity defense are intertwined. The second element is that the right to confine a person in order to prevent harm to that person lasts only as long as is necessary to get the person to the proper lawful authorities. See State v. Hembd, 305 Minn. 120, 130, 232 N.W.2d 872, 878 (1975) (dictum); Annot., 92 A.L.R.2d 580 (1963). The third element is that the actor must use the least restrictive means of preventing the apprehended harm. People v. Patrick, 126 Cal.App.3d 952, 960, 179 Cal.Rptr. 276, 282 (1981); W. LaFave and A. Scott, Criminal Law 387 (1972); cf. Peterson v. Sorlien, 299 N.W.2d 123, 129 (Minn.1980) (where religious beliefs are implicated, first amendment requires resort to least restrictive alternative).

In this case, the defendants’ conduct wholly fails to satisfy either of these elements of the necessity defense. Once having gained control of the plaintiff, the defendants had several legal options available to them. They could have:

1) turned the plaintiff over to the police;

2) sought to initiate civil commitment proceedings against the plaintiff pursuant to Minn.Stat. § 253B.07 (1982);

3) sought professional psychiatric or psychological help for the plaintiff with the possibility of emergency hospitalization if necessary pursuant to Minn.Stat. § 253B.05 (1982).

At no time did the defendants attempt, or even consider attempting, any of these lawful alternatives during the five and one-half days they held the plaintiff, the first five of which were business days. Instead, they took the plaintiff to a secluded location with boarded-up windows, held him incommunicado, and proceeded to inflict their own crude methods of “therapy” upon him — methods which even the defendants’ own expert witness has condemned. Well aware that the police were searching for the plaintiff, the defendants deliberately concealed the plaintiff’s location from the police.

It must be emphasized that the Minnesota Legislature has prescribed specific procedures that must be followed before a person can be deprived of his or her liberty on the basis of mental illness. Minn.Stat. § 253B.07 et seq. (1982); see generally Janus and Wolfson, The Minnesota Commitment Act of 1982: Summary and Analysis, 6 Hamline L.Rev. 41 (1983). Those procedures include examination of the proposed patient by qualified professionals, Minn.Stat. § 253B.07, subd. 1 (1982), and a judicial determination that the proposed patient is dangerous and in need of treatment, id., subd. 6. Manifold procedural protections, including the right to counsel, Minn.Stat. § 253B.03, subd. 9 (1982), are afforded the proposed patient at all stages of this civil commitment proceeding. Obviously, none of these protections were afforded the plaintiff in this case.

Minnesota law also provides that, in situations where there is not time to obtain a court order, a person may be admitted or held for emergency care and treatment in a hospital, without a court order, upon a written statement by a licensed physician or psychologist that the person is mentally ill and is in imminent danger of causing injury to himself or to others. Minn.Stat. § 253B.05, subd. 1 (1982). The defendants in this case — unlicensed and untrained individuals — made no effort to obtain any such *1099statement from a licensed physician or psychologist.

The defendants’ failure to even attempt to use the lawful alternatives available to them is fatal to their assertion of the necessity defense. Where the Legislature has prescribed specific procedures that must be followed before a person can be deprived of his or her liberty on the ground of mental illness, not even parents or their agents acting under the best of motives are entitled to disregard those procedures entirely.7

The Court has assumed for the purposes of this motion that the defendants were justified in initially restraining the plaintiff based upon their belief that he was in imminent danger of harming himself or others. But even under those circumstances, the defense of necessity eventually dissipates as a matter of law. No specific time limit can be set, because the period during which an actor is acting out of necessity will vary depending on the circumstances of each case. In this particular case, however, where the defendants held the plaintiff, a 24-year-old adult, for five and one-half days with no attempt to resort to lawful alternatives available to them, the Court could not sustain a jury verdict in the defendants’ favor on the issue of false imprisonment. Accordingly, the Court rules as a matter of law that the plaintiff was falsely imprisoned without justification. The issue of what amount of damages, if any, the plaintiff suffered from this false imprisonment is a question for the jury.

B. Section 1985(3)

The next claim upon which the plaintiff has moved for a directed verdict is that the defendants conspired to and did deprive him of his federal constitutional rights in violation of 42 U.S.C. § 1985(3). The Court will direct a verdict as to some, but not all, of the elements of this claim.

A cause of action under section 1985(3) consists of the following elements:

1) a conspiracy;

2) for the purpose of depriving any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws;

3) an act or acts in furtherance of the conspiracy; and

4) an injury to the person or property of a citizen or a deprivation of the rights and privileges of any citizen.

Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971).

Three of these elements are clearly present in this case. By their own admission, the defendants planned and conspired to abduct the plaintiff and to hold him against his will. They committed several acts in furtherance of this conspiracy including seizing the plaintiff at the Winona Clinic, transporting him to the Tau Center, and holding him there against his will for five and one-half days. These actions were in clear violation of the plaintiff’s constitutional rights, including his right not to be deprived of liberty without due process of law, see Taylor v. Gilmartin, 686 F.2d 1346, 1358 (10th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 *1100(1983), and his right to freedom of interstate travel,8 see Ward v. Connor, 657 F.2d 45, 48 (4th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982). The Court holds as a matter of law that the plaintiff has established the first, third, and fourth elements of his section 1985(3) cause of action.

The remaining element is that the conspiracy be for the purpose of depriving the plaintiff of the equal protection of the laws. The United States Supreme Court has interpreted this element as requiring that the defendants’ conduct be motivated by class-based, invidiously discriminatory animus. Griffin, 403 U.S. at 102, 91 S.Ct. at 1798. In other words, in order for the plaintiff to recover under section 1985(3), the defendants must have taken action against him because of his membership in a group or class that is protected by that statute. The Court has previously ruled in this case that the religious group Disciples of the Lord Jesus Christ is a group protected by the statute. See, e.g., Taylor v. Gilmartin, 686 F.2d 1346, 1357-58 (10th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983); Ward v. Connor, 657 F.2d 45, 48 (4th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982); Action v. Gannon, 450 F.2d 1227, 1231-32 (8th Cir.1971) (en banc); Cooper v. Molko, 512 F.Supp. 563, 569 (N.D.Cal.1981); Comment, The Deprogramming of Religious Sect Members: A Private Right of Action Under Section 1985(3), 74 N.W.U.L.Rev. 229 (1979). The remaining question is whether the defendants took action against the plaintiff because of an animus toward that group or, as the defendants contend, because of a concern for the welfare of the plaintiff. The Court finds that the defendants’ motivation is an issue upon which reasonable jurors could differ. See, e.g., Augenti v. Cappellini, 84 F.R.D. 73, 78 (M.D.Pa.1979). The Court therefore denies the plaintiff’s motion for a directed verdict on this element of the plaintiff’s section 1985(3) cause of action.

C. Conclusion

This will not be a popular decision. While the Court has substantial sympathy for the feelings and reactions of the parents of Bill and Sandy Eilers, this Court is sworn to uphold the law and the Constitution of the United States. If the basic rights of an American citizen are not recognized in a federal court by a federal judge, where will they be recognized?

Based on the foregoing, IT IS ORDERED that the plaintiff's motion for a directed verdict is granted as to his claim for false imprisonment (Count IV of the Second Amended Complaint), and as to certain elements of his 42 U.S.C. § 1985(3) claim (Count I of the Second Amended Complaint) described herein. The plaintiff’s motion is in all other respects denied.

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.

*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.

Faulconer, J.

Appellee brought this civil action against appellants for damages to real estate resulting from a collision of appellant’s (Associated Truck Lines, Inc.) truck with the trees of appellee, and based upon the alleged trespass of appellants to the realty of appellee.

Appellee alleged that he was the owner and in possession of certain real estate on the southwest corner of the intersection of State Highway 16 and United States Highway 31 in Miami County, Indiana, and that there were growing on said real estate three Maple trees; that a 1963 tractor truck being driven by defendant-appellant’s agent, Gerald S. Hawke, “wrongfully came upon the Plaintiff’s [appellee’s] said real estate and collided with Plaintiff’s said maple trees, completely destroying one maple tree and breaking limbs from the other two, tore up the grass and soil and otherwise injured and damaged said real estate.” Appellee alleged damages and demanded judgment in the sum of $1,000.

Appellants’ demurrer for want of sufficient facts was overruled, after which appellants filed their answer in general denial. Trial was to the court without a jury, and judgment entered for appellee.

Appellants’ motion for new trial specified that the decision of the court is not sustained by sufficient evidence and is contrary to law; and that the court erred in sustaining ob*128jections to certain questions propounded by appellants, and in overruling defendants-appellants’ motion for finding at the close of plaintiff-appellee’s evidence and in overruling defendants-appellants’ motion for leave to amend their answer by filing a second paragraph.

The overruling of appellants’ motion for new trial is the sole error assigned on appeal.

The question to which objections were made and sustained would have elicited testimony to the effect that appellant-Associated’s truck, while proceeding south on United States Highway 31 through the intersection with State Road 16, was struck by an automobile proceeding west on State Road 16, which automobile had run a red light, knocking the left front wheel loose and breaking the axle of appellant’s truck, thus causing appellant-Hawke to lose control of the truck whereby it entered upon appellee’s real estate. Such questions would have further elicited testimony that appellant-Hawke had no control over said truck after the impact, that he had no intention of entering appellee’s real estate, nor was such entry his voluntary act.

No issue is here presented concerning ownership, agency or amount of damage since all were stipulated at the trial.

“The most important of the trespass rules to survive was that which imposed liability for invasions of property which were neither intended nor negligent. The defendant was not liable so long as he had done no voluntary act, as where he was carried onto the plaintiff’s land by others against his will.” (Emphasis supplied.) Prosser, Torts, § 13, p. 63 (3d Ed. 1964).

“So long as the invasion was due to any kind of volitional act on the part of the actor, there was a wrong, and if the damage was direct, trespass was the appropriate action. If, hoioever, there loas no act of volition by the actor, he was not liable, as where one is cast on another’s land by third persons." (Emphasis supplied.) 1 Harper & James, The Law of Torts (1956), § 1.3, p. 10.

*129“The early English common law seems to have imposed liability upon one whose act directly brought about an invasion of land in the possession of another, irrespective of whether the invasion was intended, was the result of reckless or negligent conduct, or occurred in the course of an abnormally dangerous activity, or was a pure accident, and irrespective of whether harm of any sort resulted to any interest of the possessor. All that seems to have been required was that the actor should have done an act which in fact caused the entry. At the present time, however, except in the case of one carrying on an abnormally dangerous activity, an unintentional and non-negligent entry or remaining on land in the possession of another or causing a third person or thing so to enter or remain is not a trespass on land and imposes no liability upon him.” 1 Restatement, Second, Torts, § 166, Comment (b), p. 804 (1965).

It is true that in an action of trespass the intention of the defendant in making the entry or intrusion is immaterial. This proposition is strongly urged by appellee who cites two Indiana cases as authority. There are many decisions in Indiana setting forth this cardinal principle of trespass. However, a careful reading of these decisions will disclose that in each the entry was based upon a voluntary act of the defendant. This distinction is best described by the scholars.

“In order to be liable for a trespass on land under the rule stated in § 158, 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.” 1 Restatement, Second, Torts, §164, Comment (a), p. 296 (1965).

“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.” 1 Restatement, Second, Torts, § 163, Comment (b), p. 294 (1965) ; 1 Restatement, Second Torts, § 158, p. 277 (1965).

“Although it is not necessary that the trespasser intend to commit a trespass or even that he know that his act will *130constitute 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.” 87 C. J. S., Trespass, § 5, p. 960; Edgarton v. H. P. Welch Co. (1947), 321 Mass. 603, 74 N. E. 2d 674, 679-680, 174 A. L. R. 462; Wood v. United Air Lines, Inc. (1961), 223 N. Y. S. 2d 692, 694, 32 Misc. 2d 955; Phillips v. Sun Oil Co. (1954), 307 N. Y. 328, 121 N. E. 2d 249, 250, 251; Socony-Vacuum Oil Co. v. Bailey (1952), 109 N. Y. S. 2d 799, 801, 202 Misc. 364; United Electric Light Co. v. Deliso Constr. Co. (1943), 315 Mass. 313, 52 N. E. 2d 553, 556.

“[T]he 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, . . .” Prosser, Torts, § 29, pp. 143-44 (3d Ed. 1964).

The question we are called upon to decide in this cause is whether the evidence in the record before us is admissible under the general denial and, if not, whether the trial court was in error in refusing to allow appellants to file their written second paragraph of answer at the close of plaintiff’s (appellee’s) case.

Rule 1-3, Rules of the Supreme Court of Indiana, 1964 Revision, provides, in pertinent part, that a “party answering or replying to a pleading shall state, without enlargement or elaboration, that he (1) admits, (2) denies, or (3) is without information. ... New matter shall be confined to an affirmative paragraph . . . and shall not be commingled with the statement that the pleader admits, denies or is without information. . . . All defenses shall be provable under a specific denial or statement of no information, which were heretofore available under an ansioer or reply in general denial.” (Emphasis supplied.)

*131 *130Evidence of license or justification is admissible only by special answer. Chase v. Long, et al. (1873), 44 Ind. 427, *131428; Johnson v. Cuddington and Others (1871), 35 Ind. 43. 1 Lowe’s Revision, Works’ Ind. Pract., § 15.64, p. 626.

“Defenses admissible under the general denial are those which deny that there ever was a cause of action. Those which admit that it once existed, but seek to avoid it by showing subsequent or other matter, must be specially pleaded. . . .

“The defendant, under the general denial, is not confined to mere negative proof in denial of the facts stated in the complaint, but he may give evidence of independent facts inconsistent therewith which tend to meet and break down the cause of action stated in the complaint. If, however, these facts are such as admit a cause of action once existing, and avoid it, then they must be specially set up.” Crum et al. v. Yundt (1895), 12 Ind. App. 308, 311, 40 N. E. 79. See also: Interstate Public Service Co. v. Weiss, Admr. (1935), 208 Ind. 122, 127, 193 N. E. 226; Jeffersonville Water Supply Company v. Riter, et al. (1897), 146 Ind. 521, 526, 45 N. E. 697; National Live Stock Ins. Co. v. Owens (1916), 63 Ind. App. 70, 74, 113 N. E. 1024. 23 I. L. E., Pleading, § 58, p. 294.

“[E]very fact which the plaintiff, in the first instance, is under the necessity of proving to sustain his action, or every matter of fact which must or may be alleged in a good complaint, is the proper subject of denial; but that all other matters, that is to say, matters which do not go merely to controvert a fact, or the facts in the complaint, must be set up affirmatively in the answer.” National Live Stock Ins. Co. v. Owens, supra (1916), 63 Ind. App. 70, at page 74, 113 N. E. 1024.

In an action of trespass guare clausum fregit, it 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. Indiana Pipe Line Co. v. Christensen (1919), 188 Ind. 400, 407, 123 N. E. 789.

*132 *131Appellants argue that since their excluded evidence would show that appellant-Hawke entered appellee’s property *132through no fault on his part and that he had no intent to so enter and did no voluntary act which would cause or result in such entry, such evidence, going to defeat the cause of action, was admissible under the general denial. Appellee contends such evidence goes only to proof of a justification and, therefore, must be pleaded by special answer. We can see the merit of these contentions. Without specifically deciding the issue as to the admissibility of such evidence under the general denial, we are of the opinion that justice in this cause woud be better served by allowing appellants to file their second paragraph of answer.

Whether or not appellants’ evidence which they would introduce under the second paragraph of answer would have been sufficient to defeat appellee’s cause of action is, of course, not for us to determine, but justice, in our opinion, requires their opportunity to do so. It was brought out at oral argument that appellants did not become aware of the court’s attitude concerning admissibility of such evidence under the general denial until the close of appellee’s case and the denial of appellants’ motion for a directed verdict. Therefore, in our opinion the facts and circumstances of this case warrant a reversal for failure to allow appellants to file their second paragraph of answer.

The trial judge has great discretion in granting or denying amendments to pleadings after the issues are closed and such action will be reversed only upon a clear showing of an abuse of this discretion. Oppenheimer et al. v. Craft (1961), 132 Ind. App. 452, 459, 175 N. E. 2d 715, (Transfer denied) ; Frankfort, etc. Ins. Co. v. Lafayette Tel. Co. (1923), 79 Ind. App. 663, 666, 129 N. E. 329, (Transfer denied). 2 I. L. E., Appeals, § 553, pp. 466-67; 2 Lowe’s Revision, Works’ Ind. Pract., § 21.2, p. 76.

Appellee argues on appeal that although appellants’ tendered second paragraph of answer was in writing their motion to amend was oral, thus violating Rule 1-2A, Rules *133of the Supreme Court of Indiana. It is true that Rule 1-2A, supra, requires such motions to be in writing, however, in the case of Wolf, etc. et al. v. Lang Tr., Inc. (1965), 136 Ind. App. 571, at page 574, 203 N. E. 2d 308, 309, 310, 4 Ind. Dec. 394, 397, Judge Hunter, speaking for this court, stated:

“The appellants cannot predicate any error on the ground that the motion was oral. . . . Appellants’ objection at said time was not premised on appellee’s failure to comply with Supreme Court Rule 1-2A, supra. ... To present a question for review upon the ground that some procedure in the trial court is objectionable, appellant must make timely objection at the trial court level.”

The basic rule that a party, on appeal, is confined to the specific objection made in the trial court is well-settled in Indiana. Tompkins v. Smith (1952), 122 Ind. App. 502, 518, 106 N. E. 2d 487.

The record discloses no such objection made by appellee in the trial court.

Also, appellee’s evidence discloses testimony of the involvement of “another car”; an “accident” at an intersection; that appellant-Hawke was on U. S. Highway 31, “a preferential highway”; that 27 feet of skid marks were created by the truck “in an attempt ... to avoid a collision”; and that the front axle of the truck was seen on appellee’s property, detached from the truck. All of this evidence was admitted without objection, most of it on cross-examination of plaintiff-appellee’s witnesses. It was all introduced prior to the excluded evidence tendered by defendants-appellants, assigned as separate error and discussed above. AppellantHawke testified that he was “involved in an automobile collision”; and that he “did not intend to steer his truck upon the property of Mr. Maus, the plaintiff [appellee].”

*134 *133In our opinion appellants could reasonably believe during the presentation of plaintiff-appellee’s case that all evidence *134of the previous accident would be admissible under the general denial upon which theory they were proceeding. Considering that these facts are before us for the first time, both concerning the validity of the cause of action as well as the manner of proof, and further considering the confused state one finds the decisions applying the general rules of pleading in Indiana, we are of the opinion that appellants should have been allowed to file such answer, and that such refusal by the trial court was, under the facts and circumstances of this cause, an abuse of discretion.

In Watson v. Adams (1904), 32 Ind. App. 281, at page 286, 69 N. E. 696, this court said:

“The proposition that a license can not be given in evidence under the general denial is so firmly settled as to need no citation of authority to sustain it. Boltz v. Smith, 3 Ind. App. 43; Chase v. Long, 44 Ind. 427; Snowden v. Wilas, 19 Ind. 10, 81 Am. Dec. 370. In the case at bar evidence of the transaction and the license had been introduced by both parties to the action, without objection. As held in numerous cases, the filing of additional pleadings is largely within the discretion of the trial court; but when the justice of the case clearly requires that leave should be granted, it is error to refuse. Chicago, etc. R. Co. v. Jones, 103 Ind. 386, [6 N. E. 8] ; Fargo v. Cutshaw, 12 Ind. App. 392, [39 N. E. 532]. The additional paragraph of answer could not have prejudiced the rights of appellee. But if it had been to the disadvantage of appellee, the court would doubtless, upon proper application, have set aside the submission, and continued the cause at appellant’s costs.”

In Inter-State Motor Freight System v. Morgan (1943), 46 N. E. 2d 707, at page 710, this court stated:

“ [I] t is apparent to us, and it must have been equally apparent to the trial court, that a refusal to permit the appellant to file additional pleadings would deprive him of a defense he claimed to have and the entire subject matter of the action, as it then existed, would not be brought fully before the court. . . .

“Notwithstanding the general rule that the filing of additional pleadings is very much within the discretion of the trial court, the exercise of such discretion may be reviewed *135and will be disapproved when it appears that substantial injustice has resulted therefrom.”

The opinion from which the above quotation is taken was later recalled and a new opinion affirming the judgment of the trial court was filed on the ground that the bill of exception was not properly made a part of the record. (See: Inter-State Motor Freight System v. Morgan (1943), 113 Ind. App. 374, 47 N. E. 2d 326.) However, the above quoted part of the original opinion expresses our opinion in the cause presently before us.

Cause reversed with instructions to grant appellants’ motion for new trial.

Carson, P. J., Cooper and Prime, JJ. concur.

Note. — Reported in 226 N. E. 2d 713.

BRAND, J.

At the trial, evidence to the following effect was introduced. During the summer of 1945 the defendant commenced arrangements for the purchase of land and the construction thereon of a. one-mile race track. On 25 August, 1945, an option for the purchase of 21 acres of the required land was secured from H.'M. Seivert who is one of the promoters of the theater project and is the owner of the land on which the theater is situated. On 15 October, 1945, defendant applied for a license to *339operate a race meet to be held in May, 1946, and the license was issued. In October and early November, 1945, extensive newspaper publicity was given to the race track project, featuring the fact that the property would be lighted for night racing. On 15 October, 1945, a contractor was employed to plan and construct the race track and the facilities incidental thereto. Grading was commenced in November and the work was continued until the project was completed on 14 September, 1946.

During the fall of 1945 the land on which the plaintiff’s theater is located was being prepared and equipped for night auto racing by Northwest Sports, Inc.y an activity which, like that of defendant, would have involved the use of flood lights. On 29 November, 1945, a lease agreement was executed between Northwest Sports, Inc. and the promoters of the plaintiff corporation, entitling the lessees and their assignee, Amphitheaters, Inc., to construct and operate a drive-in outdoor motion picture theater upon the property adjoining the race track of defendants. But the lease provided. that the operation of the theater must not interfere with' the operations of the same property for auto racing. Plans for the construction of the theater were turned over in March, 1946, and construction was commenced in May or June of that year. At least some of the promoters of the theater project knew that the race track was to be lighted for night racing, though they may not have known the volume or extent of the proposed lighting.

The outdoor theater was completed and commenced operating on 31 August, 1946. The race track was completed and the first races held fifteen days later. The plaintiff invested $135,000 in the construction of *340the outdoor theater and sums greatly in excess of that amount were expended by the defendant in the development of the race track and facilities. The lighting facilities alone involved an investment by the defendant of $100,000. The two tracts operated by plaintiff and defendant respectively are located just north of the city limits of Portland, Oregon. They adjoin and lie between two arterial highways, Denver Avenue and Union Avenue. The defendant’s track consists of a mile-long oval extending in a general northerly and southerly direction. The auto race track which encloses the plaintiff’s moving picture amphitheater lies between Union Avenue and the Northeast curve of the defendant’s oval track. Union Avenue • runs in a northwesterly direction along and parallel to the plaintiff’s property of which it forms the northeasterly boundary. The theater screen, approximately 40 feet high and 50 feet wide, is backed up against the westerly line of Union Avenue and faces slightly south of west and directly toward the defendant’s race track. At the trial a photograph showing the relative positions of the two properties and the nature of the adjacent territory was offered in evidence by the plaintiff and received without objection. It fairly represents the true situation. It is reproduced as a part of this opinion to illustrate the facts giving rise to our problem. The picture was taken from a point on defendant’s property. The northeasterly portion of defendant’s oval track appears in the foreground. The camera was aimed directly at the screen of plaintiff’s theater. Par better than words, the picture indicates the character of the area in which the two properties are located.

In installing outdoor moving picture theaters, it is necessary to protect the premises from outside light *341interference. For that purpose the plaintiff constructed wing fences for a considerable distance on each side of the screen and along the westerly line of Union Avenue for the purpose of shutting off the light from the cars traveling on that arterial highway. It was also necessary to construct a shadow box extending on both sides and above the screen for the purpose of excluding the light from the moon and stars. The testimony indicates that the construction of the shadow box was necessary if a good picture was to be presented on the screen. The extreme delicacy of plaintiff’s operation and the susceptibility of outdoor moving pictures to light in any form was conclusively established by the evidence.

In order to illuminate the defendant’s track for night horse racing, approximately 350 1500-watt lights are mounted in clusters on 80-foot poles placed at intervals of approximately 250 feet around the track. The flood lights are in general, directed at the track, but there is substantial evidence to the effect that reflected light “spills” over onto the plaintiff’s premises and has a serious effect on the quality of pictures shown on the screen. The nearest cluster of lights on the defendant’s track is 832 feet distant from the plaintiff’s screen. The light from the defendant’s track not only impairs the quality of the pictures exhibited by the plaintiff, but there is also substantial evidence that plaintiffs have suffered financial loss as the result of the illumination of which they complain. On one occasion at least, plaintiffs felt themselves required to refund admission fees to their patrons on account of the poor quality of the picture exhibited. The evidence discloses that the light from the defendant’s race track when measured at plaintiff’s screen is approximately that of full moonlight.

*342

*343Upon the opening of the racing season in September, 1946, the plaintiff immediately complained to the defendant concerning the detrimental effect of defendant’s lights, and shortly thereafter suit was filed. In the fall of 1946 the defendant, while denying liability, nevertheless made substantial efforts to protect the plaintiff from the effect of defendant’s lights. One hundred hoods were installed on the lights, and particular attention was given to those nearest to the plaintiff’s property. In 1947, and prior to the spring racing season, which was to last 25 days, thirty louvers were also installed for the purpose of further confining the light to the defendant’s property. These efforts materially reduced, but did not eliminate the conditions of which plaintiff complains.

Plaintiff contends that the defendant, by casting light equivalent to that of a full moon upon plaintiff’s screen has committed a trespass upon real property and error is assigned by reason of the failure of the court to submit to the jury the question of trespass. While the dividing line between trespass and nuisance is not always a sharp one, we think it clear that the case at bar is governed by the law of nuisance and not by the law of trespass. Under our decisions every unauthorized entry upon land of another, although without damage, constitutes actionable trespass. Kesterson v. California-Oregon Power Co., 114 Or. 22, 228 P. 1092; Huber v. Portland Gas & Coke Co., 128 Or. 363, 274 P. 509; 52 Am. Jur., Trespass, § 47, p. 872; Restatement of the Law of Torts, Vol. 1, § 158, p. 359. The mere suggestion that the casting of light upon the premises of a plaintiff would render a defendant liable without proof of any actual damage, carries its own refutation. Actions for damages on account of smoke-, *344noxious odors and the like have been universally classified as falling within the law of nuisance. In fact, casés of this type are described in the Restatement of the Law as “non trespassory” invasions. Restatement of the Law of Torts, Vol. 4, Ch. 40, p. 214, et seq.

Many of the cases on which plaintiff relies in support of its theory of trespass involve the flight of airplanes at low level over plaintiffs ’ land. The modern law with reference to trespass by airplanes has developed under the influence of ancient rules concerning the nature of property. Ownership of lands, it has been said, “includes, not only the face of the earth, but everything under it or over it, and has in its legal signification an indefinite extent upward and downward, giving rise to the maxim, Cujus est solum ejus est usque ad coelum”. 50 C. J. 752, Property, § 24. Harmonizing the ancient rule with the necessities of modern life, the Restatement of the Law declares that one who.intentionally and without a privilege enters land, is a trespasser. Restatement of the Law of Torts, Vol..1, § 158, p. 359. Air travel over a plaintiff’s land is still .recognized as trespass prima facie imposing liability but the rights of airplane travel are established or recognized by the doctrine of privilege. Restatement of the Law of Torts, §§ 158, 159, 194.

In support of its theory of trespass, the plaintiff cites Swetland v. Curtiss Airports Corporation, 55 F. (2d) 201, 83 A. L. R. 319; United States v. Causby, 328 U. S. 256, 90 L. ed. 1206; and Guith v. Consumers Power Co., 36 F. Supp. 21. They are all cases which involve the flight of airplanes and which reflect the influence of the ancient rules of ownership ad coelum as modified by the rules of privilege set forth in the Restatement. The historical background of these cases dis*345tinguishes them from the non trespassory cases which are controlled by the law of nuisance. Portsmouth Harbor Land & Hotel Co. v. United States, 260 U. S. 327, 67 L. Ed. 287, was similar in principle to the Causby case, supra. The case involved a taking by the United States by means of the continuous firing of artillery over the petitioners’ land. We need not argue the distinction between a cannon ball and a ray of light. Upon this issue plaintiff also cites National Refining Co. v. Batte, 135 Miss. 819, 100 So. 388, 35 A. L. R. 91, and The Shelburns, Inc. v. Crossan Corporation, 95 N. J. Eq. 188, 122 Atl. 749, both of which cases involve the shedding of light upon defendant’s property, but both were decided upon the theory of nuisance and not of trespass. They will be considered later. We have considered the other cases cited in support of the theory of trespass and find them not in point.

As its second assignment, the plaintiff asserts that the trial court erred in failing to submit the case to the jury on the theory of nuisance.

This is a case of first impression. It differs in essential particulars from any case which has received consideration by this court. The nuisance cases appearing in our reports fall into four easily recognizable classes: (1) Cases involving harm to human comfort, safety or health by reason of the maintenance by a defendant upon his land of noxious or dangerous instrumentalities causing damage to the plaintiff in respect to legally protected interests of the plaintiff in his land. (2) Cases involving illegal or immoral practices, most of them being public as distinct from private nuisances. They relate to bawdy houses, gambling, abortions, lotteries, illegal possession of liquor, and acts outraging public decency. (3) Cases *346involving obstructions to streets, public ways, common rights, access to property and the like. (4) Cases involving damage to the land itself, as by flooding. The cases, with the exception of those falling in the first class, bear no resemblance to the one at bar, and require no further comment.

As falling within the first class, we find the following Oregon cases: Fleischner v. Citizens’ Real Estate Investment Co., 25 Or. 119, 35 P. 174, (filth and sewage seepage on adjacent property); Portland v. Cook, 48 Or. 550, 87 P. 772, (slaughter house); Ulmen v. Town of Mt. Angel, 57 Or. 547, 112 P. 529, (pollution of adjacent surface water); Borne v. Wilson-Case Lumber Co., 58 Or. 48, 113 P. 52, (ashes and cinders); Templeton v. Williams, 59 Or. 160, 116 P. 1062, (noxious odors and'-flies from barn); Smith v. Silverton, 71 Or. 379, 142 P. 609, (stream pollution); Dibert v. Giebisch, 74 Or. 64, 144 P. 1184, (dynamite); Porges v. Jacobs, 75 Or. 488, 147 P. 396, (livery stable); Phipps v. Rogue River Canal Co., 80 Or. 175, 156 P. 794, (stagnant water dangerous to health); Adams v. Clover Hill Farms, 86 Or. 140, 167 P. 1015, (noxious odors); Wilson v. City of Portland, 153 Or. 679, 58 P. (2d) 257, (foul odors); Adams v. City of Toledo, 163 Or. 185, 96 P. (2d) 1078, (fire); Lindley v. Hyland et al., 173 Or. 93, 144 P. (2d) 295, (smoke and cinders) ; Arneil v. Schnitzer, 173 Or. 179, 144 P. (2d) 707, (fire); Kramer v. Sweet, 179 Or. 324, 169 P. (2d) 892, (slaughter house).

The cases listed in the first class are the only ones which bear any faint resemblance to the case at bar. Examination of those cases will disclose that no Oregon decision has ever held that the casting of light in- any quantity or form upon the land of another gives rise to a cause of action upon any legal theory. If. the cases *347involving smoke, noxious odors, flies and disease germs are claimed to be analogous to the case at bar, it must be answered that in every case the activity or thing which has been held to be a nuisance has been something which was, 1, inherently harmful, and 2, an unreasonable and substantial interference with the ordinary use or enjoyment of property. No one can contend that light is inherently harmful to persons in the ordinary enjoyment of property.

Since there is no Oregon precedent to support plaintiff’s contention, we must go back to fundamental principles. Plaintiff relies upon the general definition of a nuisance as set forth in Adams v. City of Toledo, supra, and State ex rel Rudd v. Ringold, 102 Or. 401, 202 P. 734. A private nuisance is defined as “anything done to the hurt, annoyance or detriment of the lands or hereditaments of another, and not amounting to a trespass”. Definitions in such general terms are of no practical assistance to the court.

“It has been said that the term ‘nuisance’ is incapable of an exact and exhaustive definition which will fit all cases, because the controlling facts are seldom alike, and each case stands on its own footing. * * * ” 39 Am. Jur., § 2, p. 281.

This court has repeatedly quoted the ancient maxim, Sic utere tuo ut alienum non laedas. Templeton v. Williams; Bourne v. Wilson-Case Lumber Co.; Portland v. Cook, all supra. In this connection we quote the words of Lord Esher in Yarmouth v. France, 19 Q. B. D. 647, 653, 17 E. R. C. 217, as follows:

“I need hardly repeat that I detest the attempt to fetter the law by maxims. They are almost invariably misleading; they are for the most part so large and general in their language that they *348always include something which really is not intended to be included in them.”

And to this we add the crisp comment of Justice Holmes:

“Decisions * * * often are presented as hollow deductions from empty general propositions like sic utere tuo ut alienum non laedas, which teaches nothing but a benevolent yearning.” 8 Harv. L. Rev. 3.

See also, Jeremiah Smith, Reasonable Use of One’s Own Property As a Justification for Damage to a Neighbor, 17 Col. L. Rev. 383.

The statement of Addison, Torts, 8th Ed. 66, that “The due regulation and subordination of conflicting rights constitute the chief part of the science of law” is peculiarly applicable in the field of private nuisance, for the rights of neither party in the use and enjoyment of their respective properties are absolute.

“What is a reasonable use and whether a particular use is a nuisance cannot be determined by any fixed general rules, but depend upon the facts of each particular case, such as location, character of the neighborhood, nature of the use, extent and frequency of the injury, the effect upon the enjoyment of life, health, and property, and the like.” 39 Am. Jur. 298, § 16.

Notwithstanding the fact that the existence vel non of a nuisance is generally a question of fact, there have arisen several rules of law which guide and sometimes control decision. It is established law that an intentional interference with the use and enjoyment of land is not actionable unless that interference be both substantial and unreasonable. Restatement of the Law of Torts, Vol. 4, § 822, Comment g, and § 826, comment a.

*349Again it is held that whether a particular annoyance or inconvenience is sufficient to constitute a nuisance depends upon its effect upon an ordinarily reasonable man, that is, a normal person of ordinary habits and sensibilities, Stoddard v. Snodgrass, 117 Or. 262, 241 P. 73; 39 Am. Jur., Nuisances, § 31, citing many cases; Kellogg v. Mertens, (La. App.), 30 So. (2d) 777; Kimball v. Thompson, 70 F. Supp. 803; Columbian Carbon Co. v. Tholen, (Tex. Civ. App.), 199 S. W. 825; Metropoulos v. MacPherson, 241 Mass. 491, 135 N. E. 693; Price v. Grantz, 118 Pa. St. 402, 4 Am. St. Rep. 601; Walker v. Wearb, 6 N. Y. S. (2d) 548; Kentucky & West Virginia Power Co. v. Anderson, 288 Ky. 501, 156 S. W. (2d) 857. The doctrine upheld in the above cited cases appears to have had its origin in Aldred’s Case, (1601) 9 Coke 57b, 77 Eng. Reprint 816. The rule announced in that case, “Lex non fa vet delicatorum votis”, was quoted with approval by this court in Kramer v. Sweet, supra. This doctrine has been applied in many cases involving smoke, dust, noxious odors, vibration and the like, in which the injury was not to the land itself but to the personal comfort of dwellers on the land.

It is highly significant that an identical principle has been applied where the uses to which a plaintiff puts his land are abnormally sensitive to the type of interference caused by the defendant.

“No action will lie for a nuisance in respect of damage which, even though substantial, is due solely to the fact that the plaintiff is abnormally sensitive to deleterious influences, or uses his land for some purpose which requires exceptional freedom from any such influences * * *

“So if I carry on a manufacture or other business which is so sensitive to adverse influences that it suffers damage from smoke, fumes, vibrations, or heat, which would in no way interfere with the *350ordinary occupation of land, the law of nuisance will not confer upon me any such special and extraordinary protection. I must acquire immunity from damage of this sort by special contract with my neighbours. Thus, in Eastern & South African Telegraph Co. v. Cape Town Tramways Co., (q) an action was brought by the telegraph company for interference with its telegraphic operations through induced currents caused by the working of the defendants’ electric cars. The Judicial Committee of the Privy Council held the defendants not liable on the ground that such a cause would do no harm to the ordinary occupation of land, and that the damage done was solely due to the exceptionally delicate nature of the operations conducted by the plaintiffs. ‘A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure’ (r). The same principle was acted on by the Court of Appeal in Robinson v. Kilvert (s), where the nuisance complained of was one of heat causing damage to the exceptionally delicate manufacture of the plaintiff.” Salmond on the Law of Torts, 9th Ed., pp. 238, 239.

The same rule has been laid down by another author:

“It has been shown that the interference with property or personal comfort must be substantial. But even if the interference is substantial, no action will lie where it can be shown that, but for the infirmity of the person or property, there would have been no substantial interference * * * Nor again can damage to sensitive property be complained of if the act causing the damage would not have harmed more ordinary things * * Pearce and Meston, Ch. 1, p. 19.

The same doctrine is followed by Joyce, Law of Nuisances, § 26:

“ * * * But the doing of something not in itself noxious does not become a nuisance merely because *351it does harm to some particular trade of a delicate nature in the adjoining property where it does not affect any ordinary trade carried on there nor interfere with the ordinary enjoyment of life. A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbor doing something lawful on his property, if it is something which would not injure an ordinary trade or anything but an exceptionally delicate trade.”

To the same effect see Prosser on Torts, p. 559, and note p. 67. See 39 Am. Jur. 424; 46 C. J. 682.

In Bradbury Marble Co. v. Laclede Gas Light Co., 128 Mo. App. 96, 106 S. W. 594, the court said:

“ * * * Plaintiff had the legal right to stack its marble on its yard, and to leave it uncovered. Defendant had the legal right to operate its gas machines in a careful and skillful manner, and to discharge such substances therefrom as were not injurious to the neighboring property when used in the usual way. Therefore, if plaintiff is making an unusual use of its yard, in view of the fact that it is located in a district largely devoted to manufacturing purposes, or if the marble it stacks in its yard is of such a delicate nature as to become stained and injured from substances discharged from the smokestacks of factories by which it is surrounded, it ought not to recover. * * *”

And see Pennsylvania Co. v. Sun Co., 290 Pa. 404, 138 Atl. 909; Lake Shore & M. S. Ry. Co. v. Chicago, L. S. & S. B. Ry. Co., 48 Ind. App. 584, 92 N. E. 989; Postal Telegraph Cable Co. v. Pacific Gas & Electric Co., 202 Cal. 382, 260 P. 1101; and Cremidas v. Fenton, 223 Mass. 249, 111 N. E. 855.

In Cooke v. Forbes, 37 L. J., Ch. (N. S.) 178, it was held that the plaintiff’s rights to have his property protected from injury could not be enlarged by the fact *352that in his manufactory he used a peculiar process of great delicacy.

In Eastern and South African Telegraph Company v. Cape Town Tramways Companies, L. R., A. C., (1902) 381, the court said:

“ * * * if apparatus of such concerns requires special protection against the operations of their neighbours, that must be found in legislation ; the remedy at present invoked is an appeal to a common law principle which applies to much more usual and less special conditions. A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure. * * *”

In Kine v. Jolly, L. R., 1 Ch. D. (1905) 480, the court said:

“I think we must bear in mind that in these cases, which are conveniently grouped together as cases in which the proper form of action is an action of nuisance, citizens are not to be allowed to enforce rights which limit the user by others of property, unless the facts relied upon as constituting a nuisance are such as interfere with the ordinary rights which according to the ordinary notions of mankind they are entitled to exercise in relation to one another and in relation to their property. ’ ’

See also Robinson v. Kilvert, 41 Ch. D. 88, and Hoare & Co. v. McAlpine, 1 L. R., Ch. D. (1923) 167.

The plaintiff is not the owner of the real property on which its outdoor theater is located. Its only right in the property which has any bearing on this case is the right to operate a moving picture theater thereon. We adopt the following rule as stated in Restatement of Torts, § 822, p. 229:

“ * * * One having ‘property rights and privileges ’ in land can maintain an action under the *353rule here stated, only when the conduct of the actor interferes with the exercise of the particular rights and privileges which he owns. * * *”

It follows from the application of this rule that the plaintiff’s only basis of complaint is the fact that it is attempting to show upon the screen moving pictures, and that the operation is such a delicate one that it has been necessary for the plaintiff to build high fences to prevent the light of automobiles upon the public highway from invading the property and to build a shadow box over the screen to protect it from the ordinary light of moon and stars, and that it now claims damage because the lights from the defendant’s property, which it has not excluded by high fences, shine with the approximate intensity of full moonlight upon the screen and interfere thereby with the showing of the pictures. We think that this is a clear ease coming within the doctrine of the English and American cases, and that a man cannot increase the liabilities of his neighbor by applying his own property to special and delicate uses, whether for business or pleasure.

Finding no case in this jurisdiction in which the casting of light upon the premises of another has been judged as a nuisance, we turn to the cases from other jurisdictions in which that question has been discussed. We call attention first to the fundamental distinction between cases involving light and those involving smoke, gas, noxious odors and the like. The fact that the plaintiff in this case loves darkness rather than light does not mean that light can be classed as a noxious or generally injurious instrumentality.

In Shepler v. Kansas Milling Co., 128 Kan. 554, 278 P. 757, the plaintiff sued the defendant milling company for damages because it had erected a number of *354grain tanks 60 feet high across the street from plaintiff’s residence. He alleged that the tanks were painted white and reflected the afternoon sun on his front porch “to his great annoyance and discomfort, and that his house was thereby rendered unsalable and no longer fit for residential purposes whereby its value was reduced some $1800”. The court quoted the ancient maxim, Sic utere tuo, but stated that it has its limitations.

“The law does not in every instance provide directly for compensation or financial redress for every damnum a man may sustain as a member of an organized community. In White v. Kinkaid, 149 N. C. 415, 419, 63 S. E. 109, 111, 23 L. R. A. (N. S.) 1177, 1179, 128 Am. St. Rep. 663, Mr. Justice Hoke said:

‘It is a principle well established, that where a person, corporation, or individual is doing a lawful thing in a lawful way, his conduct is not actionable; though it may result in damage to another; for, though the damage done is undoubted, no legal right of another is invaded, and hence it is said to be damnum absque injuria. ’ ”

The court said further:

“Appellee cites various cases .where the freedom of an owner to devote his property to a use of his own' choosing has been judicially interfered with as a nuisance. Of course, there are many such eases, as where gases from a brick plant destroyed vegetation.(Fogarty v. Pressed Brick Co., 50 Kan. 478, 31 P. 1052, 18 L. R. A. 756);. where smoke, dust and cinders caused substantial injury to neighboring property (Phillips v. Brick Co., 72 Kan. 643, 82 P. 787, 2 L. R. A [N. S.] 92; and where poisonous fumes from an oil refinery passed over neighboring lands (Helms v. Eastern Kansas Oil Co., 102 Kan. 164, 169 P. 208, L. R. A. 1918C, 227). But there is-*355no substantial analogy between such cases anddhe action sought to be maintained in the instant case; Plaintiff has no cause of action against defendant,- and judgment to that effect must be directed.”

The case was decided as a pure question of law oh demurrer to plaintiff’s complaint. ::-

In Village of Wadena v. Folkestad, 194 Minn. 146, 260 N. W. 221, the plaintiff sued to abate an alleged nuisance maintained by the defendant. The defendant maintained upon his property a truck terminal, warehouse and depot. The building was in a semi-residential district. Plaintiff alleged that the operation of the property constituted a nuisance because of the noise involved and the flashing of truck headlights. The lower court was reversed and the decree was entered in favor of the defendant. ,

The following cases seem to support the proposition that light cast upon plaintiffs’ premises may, under some. circumstances, constitute a nuisance,, .or . coil-tribute with other factors to the creation thereof; Greene v. Spinning, Mo. App., 48 S. W. (2d) Kellogg v. Mertens, supra; Nugent v. Melville Shoe Corporation, 280 Mass. 469, 182 N. E. 825; Hansen v. Independent School Dist. No. 1, 61 Ida. 109, 98 P. (2d) 959; Russell v. Nostrand Athletic Club, 212 App. Div. 543, 209 N. Y. Supp. 76; National Refining Co. v. Batte, supra. In Greene v. Spinning, supra, the-plaintiff-and his family had resided for many years in- á house located in a residential district. The defendant constructed, and was operating his service station, grease rack and store on- adjoining property within 50: feet of plaintiff’s house. Gasoline from the defendant’s pipe line leaked into and polluted plaintiff’s well. The evidence indicated that plaintiff suffered annoyance *356from ears stopping at the service station and from the noise of horns, the grinding of brakes, etc., incident thereto. Plaintiff also complained that the work done on the grease rack caused smoke and odors to invade his premises and that the lights from the cars shone into the plaintiff’s house and sleeping quarters, destroying sleep and privacy. It also appeared that the defendant caused gasoline explosions on his property. Relying on National Refining Co. v. Batte, supra, the court held that the light of cars shining into plaintiff’s home constituted a nuisance. The defendant had indicated a willingness to erect a screen to shut off the rays of light from plaintiff’s property. Thereupon an injunction was issued requiring the plaintiff to establish the screen, restraining the defendant from causing explosions on his property and requiring the removal of the grease rack from its then location. The court rejected the doctrine of Rylands v. Fletcher, L. R. 3 H. L. 330, and held that the leakage of gasoline was not actionable. The defendant was permitted to continue operations, subject to the limited provisions of the injunction. .

In Kellogg v. Mertens, supra, the court enjoined the defendants from conducting rodeos in a residential and farming community. The nuisance consisted- in excessive traffic, the quartering of livestock, dust, noise, unsanitary conditions, trespass by the public on plaintiffs ’ land and the use of flood lights. The court said:

“ * * * it was further .clearly established that these several grounds of complaint were not mere inconveniences but were positive and existing nuisances which would unquestionably offend the sensibilities of any ordinary person, and which would without question seriously interfere with the rea*357sonable and proper use and enjoyment of plaintiffs’ premises. ”

In Nugent v. Melville Shoe Corporation, 280 Mass. 469, 182 N. E. 825, the plaintiffs were owners of a dwelling house which immediately adjoined the property of the defendants. The acts complained of occurred in the construction of a building on the defendants’ property within 4 feet of plaintiffs’ house. The defendants, during the course -of construction, maintained windows about 10 feet high and 6 feet wide with steel casings within a few feet of plaintiffs’ bedrooms; the opening and closing of the windows caused a loud, slamming noise and' the windows were frequentlyslammed about one o’clock in.the morning. It further appeared that the defendants’ windows, when, fully opened, actually extended on plaintiffs’ land a distance of 6 to 8 inches. In the course of construction the-dé* fendants also maintained a row of nitrogen, lights, .in their buildings on the side opposite plaintiffs’- bedrooms, which lights were turned on about midnight, and which disturbed' the sleep of .the plaintiffs. Other items of damage were the destruction, of. trees and shrubbery and the splattering of cement on plaintiffs’ property. A decree was affirmed, enjoining the nitro* gen lights and the injury to trees and shrubbery, and awarding damages to the plaintiffs.. This case also was one in which the interference was with the normál and ordinary use of the plaintiffs’ property by persons of ordinary sensibilities.

In Russell v. Nostrand Athletic Club, supra, thé court enjoined the operation of a boxing arena seating 20,000 persons, ‘ and located in á residential district. The elements -constituting the nuisance were crowds, shouting through megaphones, tooting of horns, smoke *358and gasoline fumes, ringing of trolley bells, and brilliant lights outside of, and in the arena. It appeared that the lights were frequently flashing on and off.

A case which somewhat resembles the one at bar is Hansen v. Independent School Dist., supra. In that case, upon school district property which was located in a residential district, an athletic field was equipped and lighted and made ready for night baseball. The plaintiffs were the owners of property immediately adjacent to the ball park, and brought suit for an injunction alleging that the maintenance of the ball park in a residential district constituted a nuisance. The specific charges were that the games were played at night, that large crowds of noisy people attended, that the games continued on some occasions until one o ’clock in the morning and that the plaintiffs were unable to rest because of noise, dust and beacon lights which lighted up the surrounding area, that automobiles were parked in such manner as to interfere with ingress and egress to appellants’ property, and that baseballs were batted into the yards of the plaintiffs ánd that persons trespassed thereon for the purpose of: recovering the balls and have thereby caused damage to- the plaintiffs ’ property. In the first opinion of the court it was held that the flooding of plaintiffs’ homes, with excessive light, preventing sleep and rest, creation of excessive noise, trespass of balls and people and. parking of automobiles resulted in' the creation of a nuisance. The judgment of the trial court for the defendant was reversed. A strong dissent was filed by: Budge, J.. A rehearing was granted. The second opinion acknowledges that night baseball is a wholesome sport, entertaining many who could not enjoy the same in daytime. The court adhered to its former *359decision to the extent of saying that “in the pursuit of this entertainment and pleasure, its devotees have no right to trespass upon the premises or disturb the ordinary use and enjoyment of the homes of law-abiding, industrious citizens ’ ’. The case was sent back to the trial court for additional evidence upon the single issue as to the reasonable hour at which the games should close in order to properly protect the rights of the plaintiffs. The case was again before the Supreme Court upon plaintiffs’ appeal from the decree of the lower court which was issued pursuant to the mandate of the Supreme Court on rehearing. The final injunction which was approved by the Supreme Court merely enjoined the defendants from allowing games to be played, noise incident to said games to exist, and lights used in connection with the games to shine on plaintiffs’ premises so as to interfere with their sleep and with the reasonable and necessary enjoyment of their property after the hour of 10:45 P. M. The injunction also restrained defendants from allowing baseballs to be batted on the plaintiffs’ premises. The final decree appears to have reduced the entire case to a tempest in a teapot.

In National Refining Co. v. Batte, supra, the plaintiff brought, suit for injunction alleging that the operation by defendant of a filling station was a nuisance. The plaintiff’s private residence was directly opposite the point at which two streets intersected at a sharp angle. The triangular tract of land immediately across the avenue from the plaintiff’s house was operated as a filling station. It was alleged that the erection of the station has caused the continuous presence of autos with attendant noise, confusion and annoyances, and that the headlights of the automobiles which entered *360the filling station shown directly upon plaintiff’s property “to the extent that he is unable to sit or rest upon the front porch of his house with any comfort or pleasure”, and that lights also penetrated the interior of the house, rendering it difficult to sleep or maintain privacy therein. The court held that:

“ * * if the statements of the bill are true, it would be impossible to sit upon complainant’s front porch, and use the porch as a place of rest or pleasure, while such lights were being constantly thrown directly thereon. * * *”

It was held that the demurrer to the complaint was properly overruled. This case arose in Jackson, Mississippi in the year 1924. We doubt if the case would be followed in any state under conditions prevailing at the present time.

The only case which has been brought-to our attenr tion, and in which it has been held that light unaccompanied by any other element of an offensive character, constitutes a nuisance, is the case of The Shelburne, Inc. v. Crossan Corporation, supra. The plaintiff was the owner of a large hotel on the board walk in Atlantic City which had been operated in the same location for many years. Sixty of its bedrooms had a southerly or southwesterly exposure. The defendant corporation was the owner'of property immediately to the southwest, upon which was erected an apartment house. On the roof of the apartment house defendants had erected a sign 66 feet in height and 72 feet in length on which there were 108415-watt lights and 6 100-watt lights and 28 75-watt lights. The sign was parallel to the wing of the hotel and about 110 feet distant therefrom. The evidence disclosed that the sign “lights up'40 or 45 rooms in the new wing of the hotel”, disturbs the guests *361and lowers the value of the rooms. The court held that light “may become a nuisance if it materially interferes with the ordinary comfort physically of human existence”. The trial judge held that the complainant was entitled to a decree restricting the operation of the electric lights during each night after the hour of 12 o’clock midnight. The plaintiff’s hotel was located on the famous board walk at Atlantic City, where the primary activity appears to be the entertainment of luxury-loving people. We suspect that the court was moved by a comparison of the utility of plaintiff’s hotel in that district with the utility of an advertising sign. In any event, the interference was with the normal and ordinary sensibilities of dwellers in the hotel, and with the ordinary use of property.

All of the cases in this group, with the exception of Shelburne v. Crossan, may be distinguished in two respects: In each case the shedding of light upon plaintiffs ’ property was only one, and a minor element among many, which, together, were held to constitute nuisance. In all of the cases, including the Shelburne case, the harm complained of related to the normal and ordinary use of residential property.

By way of summary, we have found no case in which it has been held that light alone constitutes a nuisance merely because it damaged one who was abnormally sensitive or whose use of his land was of a peculiarly delicate and sensitive character.

It is not our intention to decide the case upon authority alone, divorced from reason or public policy. The photographic evidence discloses that the properties of the respective parties are not in a residential district, and in fact are outside the city limits of Portland, and lie adjacent to a considerable amount of *362unimproved land'. Neither party can claim any greater social utility than the other. Both were in process of construction at the same time, and the case should not be decided upon the basis of the priority of occupation. The case differs fundamentally from other cases, all typical cases of nuisance, in that light is not a noxious, but is, in general, a highly beneficial element. The development of parks and playgrounds equipped for the enjoyment of the working public, whose recreation is necessarily taken after working hours,' and frequently after dark, is a significant phenomenon in thousands of urban communities. The court takes judicial knowledge that many lighted parks and fields are located adjacent'to residential'property and must to some extent interfere with the full enjoyment of darkness (if desired) by the residents.

We do hot‘ say that the shedding of light upon another’s property may never under any conditions become a nuisance, but we do say that extreme caution must be employed in applying any such legal theory. The conditions of modern city life impose upon the city dweller and his property many burdens more severe than that of light reflected upon him or it.

In this case, the court directed a verdict for the defendant. We recognize the general rule to be that the. existence or nonexistence of a private nuisance is ordinarily a question of fact for the jury, but the rule is subject to exceptions. In its discussion of the law of private nuisance we find the following from the Restatement of ;Torts:

« * * * jn reSpect to certain types of intentional invasion, however, there has been a crystallization of legal opinion as to gravity and utility, with the result that such invasions are held to be reason*363able or unreasonable as a matter of law. This crystallization may appear in tbe form of a legislative enactment, or it may be the result of a series of judicial decisions. * * *” Eestatement of the Law of Torts, Vol. 4, § 826, comment d.

See also Shepler v. Kansas Milling Co., supra, and McCarty v. Natural Carbonic Gas Co., 189 N. Y. 40, 81 N. E. 549, where it is said that, “What is reasonable is sometimes a question of law and at others a question •of fact”. We limit oúr decision to the specific facts of this' case and hold as a matter of law that the loss sustained by the plaintiff by the spilled light which has been reflected onto the highly sensitized moving picture screen from the defendant’s property 832 feet distant, and which, light, in intensity is approximately that of a full moon, is damnum abseque injuria.

The trial court did not err in directing a verdict. The judgment is affirmed.