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Intentional Wrongs
Is a civil lawsuit based on liability
for an intentional tort different from a lawsuit based on negligence
or strict liability?
Not really. You may claim the same types of damages, but you must
prove different elements. A person who is found liable for an intentional
tort does more than just act carelessly, which might make him or
her liable for negligence. The person committing the former tort
is said to intend the consequences of his or her action. If you
pick up a realistic model of an AK-47 and point it at another person
out of the window of your car, you are going to scare that person.
Under the law of intentional torts, you may be liable for an assault.
You do not have to intend to harm that person to be
liable for an intentional tort, either; you even may be attempting
to help that person. In one reported case, for example, a defendant
was found liable for an intentional tort when, despite her protests,
he proceeded to set the broken arm of a woman who had fallen. Unlike
a negligence action, a plaintiff alleging an intentional tort does
not need to show actual damages to recover.
I got a black eye in a fistfight with a man
whose car accidentally bumped into mine while we sat at a red light.
I would love to get even with him. Can I recover if I sue him?
Normally you could recover damages in a civil battery case against
someone who hits you. But a court might hold that two people who
get into a fistfight in effect agree to being hit by one another.
If so, a battery case probably would fail. A lot would depend on
the facts of the case. Who started the fight? Were you simply trying
to defend yourself from his aggression? Were there witnesses? What
would their testimony be?
Isn't battery a crime?
Yes, battery can be a crime but as a personal injury action it is
a civil claim, as are all tort actions. The law considers torts
to be wrongs against an individual, allowing the individual to sue
for money damages. (For more on criminal assaults and batteries
see the "Criminal Justice" chapter.) As a tort, a battery
is a harmful or offensive touching of one person by another. Anyone
who touches you or comes into contact with some part of you-even
your purse-when you do not agree to it may be liable to you for
battery. The law does not require any harm or damage. You do not
even have to know a battery is occurring at the time in order to
bring a battery claim. The person committing the battery may have
meant no hatred or ill will. In one case, for example, a plaintiff
successfully recovered damages for an unwanted kiss. In another
case, a court found a defendant liable for spitting at someone's
face. Also, a court found a battery when a person forcibly removed
a women's hat. However, damages for technical batteries are small.
After all, you were not actually hurt, so how much should you get?
What is the tort of assault?
An assault is a reasonable apprehension (expectation) of some harm
that may come to you. Unlike a battery, you must know that an assault
is occurring at the time it takes place. A court will look at what
happened. A great deal will depend on the reasonableness of your
own feelings when threatened. The court will consider whether the
closeness of the physical threat should have subjectively upset,
frightened, or humiliated you. Words alone usually are not enough
to bring a case for assault.
My neighbor fired his shotgun to scare a solicitor
whom he did not want coming to his door. The bullet grazed a passerby.
Will my neighbor be liable?
Under a legal doctrine known as transferred intent, your neighbor
could be liable for a battery to the passerby. This is true even
though the passerby was an unexpected victim whom your neighbor
did not intend to harm. The solicitor also is likely to win an assault
case against your neighbor. The firing of the gun placed the solicitor
in reasonable apprehension of a battery, which is the legal definition
of an assault.
A security guard in a store suspected me of
shoplifting and detained me. I have heard about something called
false imprisonment. Do I have an action for that?
If the security guard was acting in good faith, most courts will
allow the guard to detain you briefly on the store premises. A number
of states by law have given shopkeepers a limited privilege to stop
suspected shoplifters for a reasonable amount of time to investigate.
Nonetheless, you may be able to recover damages for false imprisonment.
Suppose the security guard genuinely restrained you against your
will, intending to confine you. Damages for such an action generally
include compensation for loss of time and any inconvenience, physical
discomfort or injuries. If the guard acted maliciously, you also
may be able to receive punitive damages.
Someone broke into my house in the middle
of the night and attacked me. It was dark and I could not see the
intruder well. I chased and knocked down a teenager running down
the street because I thought he was the culprit, but I was wrong.
Will I be liable to him?
If you reasonably believe someone broke into your house and attacked
you, you have the right to defend yourself by injuring him, even
though it turns out that the one you injured is not the same person
who broke into your house. If you believe someone is about to inflict
bodily harm, you may use non-deadly force to defend yourself. In
this particular case, if the teenager already was running down the
street, courts may say that there no longer was danger to you or
your property. Then, outrageous as it sounds, you might well be
liable. In situations where you believe an intruder is about to
inflict death or serious bodily harm, courts allow you to use deadly
force. The question then becomes whether the force you used was
reasonable under the circumstances.
We got behind on our bills and a bill collector
has been stopping by and calling us day and night. The bill collector
intimidates us, calls us names and threatens to destroy our credit
record. We are nervous wrecks. What may we do?
You may be able to make a case that the collector's conduct is a
tort, the intentional infliction of mental distress. Courts recently
have begun to recognize such actions as extreme and outrageous conduct
that someone else intentionally inflicts on you. For you to recover
damages, you must show more than hurt feelings. Without aggravating
(intensifying) circumstances, most courts have not allowed recovery
if the collector was merely profane, obscene, abusive, threatening
or insulting. The collector would need to have used outrageous and
extreme high-pressure methods for a period of time. If the collector
touched you offensively without your consent, you might even want
to consider adding claims for two other intentional torts-assault
and battery. You also might want to consider a case against the
collector's employer. Just as employers are vicariously (indirectly)
liable for the negligent acts of an employee, employers can be liable
for the intentional acts of an employee. (See "Consumer Credit"
chapter for other legal protection against debt collectors.) A court
would need to determine whether the collector's particular conduct
fell within the scope of his or her job.
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