Intentional Torts vs. Negligence (Part 1 of 2)
As a personal injury attorney, I represent clients that are seriously injured by another. These injuries can be caused by either an intentional tort or by negligence. However, there are HUGE differences between these types of cases and the collectability (amount of recovery available) of them.
There are seven recognized intentional torts in Florida. These include battery, assault, false imprisonment, intentional infliction of emotional distress, trespass to land, trespass to chattels and conversion. In order for a plaintiff to prove liability for an intentional tort, it is necessary to have the following:
- An act by the defendant: An “act” refers to a volitional movement by the defendant. For example, a person who strikes another during a seizure would not be liable under an intentional tort because the act was not volitional.
- Intent: “Intent” requires either that the actor’s goal is to bring about the consequences of their action or the actor knows with substantial certainty that their action would bring about certain consequences. For example, a person pulls out a chair from underneath another. While they may not intend the person to hit the ground, they know with substantial certainty that their actions would cause the person to fall.
- Causation: The causation element to an intentional tort is that the action must have caused the injury, or at least have been a substantial factor.
Harmful or offensive contact is gauged from a “reasonable person” with ordinary sensibilities. For a battery to exist, the plaintiff need not even be aware of the contact. A good example of this is unauthorized surgery performed on an unconscious patient.
To establish a case of battery, a plaintiff must prove the following:
- An act by the defendant which brings about harmful or offensive contact to the plaintiff’s body
- Intent on the part of the defendant to bring about harmful or offensive contact to the plaintiff’s body, and
- The act caused injury to the plaintiff.
While often linked with battery, assault has the distinction of requiring knowledge of the act. For example, a person hit from behind would be able to recover for battery but not assault because they had no apprehension. Words alone generally do not constitute assault. There must be some overt act to cause the apprehension. So, words like “I’m going to beat you up” would not be an assault unless the actor cocks back and acts like they are ready to throw a punch.
To prove assault, a plaintiff must show the following:
- An act by the defendant creating a reasonable apprehension in the plaintiff of immediate harmful or offensive contact to the plaintiff’s body
- Intent on the part of the defendant to bring about in the plaintiff apprehension of immediate harmful or offensive contact with the plaintiff’s body, and
- The act caused the plaintiff’s apprehension.
To create an action for false imprisonment, the plaintiff must prove the following:
- An act or omission to act on the part of the defendant that confines or restrains the plaintiff to a bounded area
- Intent on the part of the defendant to confine or restrain the plaintiff to a bounded area, and
- The act or omission caused the plaintiff to be confined or restrained in a bounded area.
Being confined or restrained in a bounded area means either through the use of physical barriers, by physical force directed at the plaintiff or a member of their immediate family or their property, or by direct or indirect threats of force. These types of claims most often occur in retail stores when patrons are suspected of shoplifting. However, shopkeepers have a privilege when they suspect someone of shoplifting and they detain them for investigation for a reasonable period of time. In Florida, this privilege is also available to farmers and mass transit agents.
Intentional Infliction of Emotional Distress (IIED)
The elements needed to prove IIED include the following:
- An act by the defendant amounting to extreme and outrageous conduct. Outrageous conduct is conduct that transcends all bounds of decency tolerated by society. To prove this, the conduct must shock and awe the court. It is extremely factually based. Florida adheres to the majority of other states and does not require physical impact or physical manifestation of psychological trauma to state a claim.
- Intent on part of the defendant to cause the plaintiff to suffer severe emotional distress, or recklessness as the effect of the defendant’s conduct
- The conduct must have caused the severe emotional distress, and
- The plaintiff must suffer severe emotional distress.
Trespass to Land
Trespass to land can be proven by the following:
- An act of physical invasion of the plaintiff’s real property (land) by the defendant
- Intent by the defendant to bring about the physical invasion of the plaintiff’s real property, an
- The defendant’s act must have caused them to enter the plaintiff’s land.
It does not matter if the actual defendant enters the land, they may be held liable for placing objects (such as throwing rocks) on the land. Interestingly, the land constitutes the surface, below the surface, and the air above it. For example, it would be a trespass to hang wires over the land of another.
Trespass to Chattels
To establish a claim for trespass to chattels, one must prove the following:
- An act by the defendant that interferes with the plaintiff’s right of possession in the chattel (personal property, i.e., pets, car, shovel, etc.)
- Intent by the defendant to perform the act bringing about the interference with the plaintiff’s right of possession
- The interference with the plaintiff’s interests in the chattel must have been caused by the defendant’s act, and
- Damages from the loss of use of the chattel.
Generally, acts such as theft, misdelivering, wrongful detention, substantially changing, severely damaging or destroying, refusing to return, or misusing the chattel are acts of conversion. Damages for this cause of action can be either fair market value for the item or replevin (returning the chattel).
To prove a case for conversion, one must show the following:
- An act by the defendant interfering with the plaintiff’s right of possession in the chattel that is serious enough in nature to warrant that the defendant pay the full value of the chattel
- Intent to perform the act that brought about the interference with the plaintiff’s right of possession, and
Are intentional torts collectable?
While all intentional torts are actionable if they can be proven, the question is, are they collectable? Most claims for money damages go against some form of insurance. Unless the defendant is independently wealthy or has large enough assets (other than their house which is protected by Florida’s Homestead Act), collecting a money judgment is usually not worth the effort to the plaintiff. Intentional torts are not covered under insurance contracts. So, while you may be able to get a judgment in court against a defendant for an intentional tort, actually receiving money on that judgment is rare. The same is not true for negligence cases. In my next blog, I will discuss negligence and compare it to intentional torts regarding collectability of judgments.
Images courtesy of freedigitalphotos.net by Digital Art and Suphakit73