Copyright 1965, American Law Institute
§ 35 FALSE IMPRISONMENT
(1) An actor is subject to liability to another for false imprisonment if
(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and
(b) his act directly or indirectly results in such a confinement of the other, and
(c) the other is conscious of the confinement or is harmed by
(2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm.
The Institute expresses no opinion as to whether the actor may not be
subject to liability for conduct which involves an unreasonable risk of
causing a confinement of such duration or character as to make the other's
loss of freedom a matter of material value.
COMMENTS & ILLUSTRATIONS: Comment on Subsection (1):
a. Common-law action of trespass for false imprisonment. At common law, the appropriate form of action for imposing a confinement was trespass for false imprisonment except where the confinement was by arrest under a valid process issued by a court having jurisdiction, in which case the damages for the confinement were recoverable, if at all, as part of the damages in an action of trespass on the case for malicious prosecution or abuse of process. Therefore, an act which makes the actor liable under this Section for a confinement otherwise than by arrest under a valid process is customarily called a false imprisonment.
b. As to the meaning of the words "subject to liability," see § 5.
c. As to confinement caused indirectly by the institution of criminal proceedings against another, see § 37, Comment b.
Comment on Clause (a) of Subsection (1):
d. The actor is liable under this Section if his act was done for the purpose of imposing confinement upon the other or with knowledge that such confinement would, to a substantial certainty, result from it. As to the effect of an intention to confine a third party, see § 43.
1. A, knowing that B, a customer, is in his shop, locks its only door in order to prevent a third person from entering. This is a confinement of B, and A is subject to liability to him unless, under the circumstances, he is privileged.
e. As to the necessity for the other's knowledge of his confinement, see § 42.
f. As to what constitutes consent to a confinement, see §§ 892-892 D.
g. As to the circumstances which create a privilege to confine another irrespective of the other's consent, see §§ 63-156.
Comment on Subsection (2):
h. Extent of protection of interest in freedom from confinement. Under this Section the actor is not liable unless his act is done for the purpose of imposing confinement upon the other, or with knowledge that such a confinement will, to a substantial certainty, result from it. 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.
The mere dignitary interest in feeling free to choose one's own location and, therefore, in freedom from the realization that one's will to choose one's location is subordinated to the will of another is given legal protection only against invasion by acts done with the intention stated in Subsection (1, a). It is not protected against acts which threaten to cause such an invasion even though the likelihood is so great that if a more perfectly protected interest, such as that in bodily security, were imperiled, the actor's conduct would be negligent or even reckless. Therefore, if the actor's conduct threatens nothing more than this, it is not tortious toward the other, and thus, cannot make the actor liable irrespective of whether it causes only a transitory confinement or some material harm. So too, the actor whose conduct is negligent or reckless because of the risk which it involves to the other's bodily security or some more perfectly protected interest, is not subject to liability if his conduct causes nothing more than the imposition of a transitory and harmless confinement. However, the circumstances which the actor knows or should know may be such that he should realize that to confine another in a particular area even for a very short space of time may involve an unreasonable risk of invading interests such as that in bodily security which are protected against negligent conduct. In such case, the fact that the harm is threatened and accomplished by the other's transitory confinement does not prevent the actor's conduct from being negligent toward the other and, therefore, subjecting him to liability.
2. Just before closing time, A, a shopkeeper, sends B into a cold storage
vault to take inventory of the articles therein. Forgetting that he has
done so, he locks the door of the vault on leaving the premises. If in
a few moments thereafter, he remembers that B is in the vault and immediately
goes back and releases B, he is not liable to B for the momentary confinement
to which B has been subjected. On the other hand, if he does not remember
that B is in the vault until he reaches home and, therefore, although he
acts immediately, he cannot release B until B has been confined in the
cold vault for so long a time as to bring on a heavy cold which develops
into pneumonia, he is subject to liability to B for the illness so caused.
REPORTERS NOTES: This Section has been changed from the first Restatement, in order to conform to the style of later Sections, in which the actor is stated to be "subject to liability," without spelling out in each Section the necessity of legal cause or the possibilities of defenses. In Subsection (1) (c) the words "or is harmed by it" have been added in accordance with the change in § 42. No other change in substance is intended.
Illustration 1 is based on Wood v. Cummings, 197 Mass. 80, 83 N.E. 318 (1908). Cf. Spoor v. Spooner, 12 Met. (Mass.) 281 (1847); Moses v. Dubois, Dud. (S. C.) 209 (1838). In all of these cases it seems clear that there would have been false imprisonment if the defendant had not been privileged.
Illustration 2: As to negligence causing imprisonment, see Mouse v. Central Savings & Trust Co., 120 Ohio St. 599, 167 N.E. 868 (1929).