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The plaintiff must know of the confinement or be harmed by it. Contemporaneous awareness of unlawful restraint or confinement is not an essential element. 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 ...
