Common Intentional Torts – Part 1
Intentional torts are a central area of civil law, and they deal with the basic problem of harm in society. A tort is when an individual suffers harm or loss because of someone else’s wrongful conduct. An intentional tort occurs when someone deliberately intends the action which leads to the harm or loss of another.[i] To see how intent is a necessary element of any intentional tort, take the example of a handyman installing an air conditioning unit in a third-floor window. If the unit accidentally slips from his hands, and crushes the arm of a woman passing below, that would not be considered an intentional tort. The handyman may still be held liable for the injuries because he should have exercised more care, but this would be on the grounds of negligence, which is a separate area of tort law. If, however, the handyman sees a lawyer that he knows walking down the street, and gives the air conditioning unit a shove so it lands on and paralyzes the lawyer, this would be an intentional tort.
The reason the law distinguishes between intentional and unintentional torts is due to public policy considerations. One of the primary goals of the law is to deter socially harmful behavior. The law generally imposes more severe punishment in cases of intentional torts because the harm is more directly related to someone’s actions than in cases of negligence. For example, in cases of intentional torts, the courts are likely to order the defendant to pay punitive damages to the plaintiff, in addition to compensating the plaintiff for his or her harm or loss, in order to punish the defendant for his wrongful act. The goal is to deter people in similar situations, so they will think twice before they act.
A few things to keep in mind. First, the intent to cause an intentional tort does not require an intent to harm.[ii] The intent that the law is interested in is simply the intent to commit the act. To return to the air conditioning example, it does not matter from a legal perspective whether the handyman dropped the unit because he wanted to hurt the lawyer, or if he just wanted the unit to come crashing down in front of the lawyer as a joke to frighten him. Since dropping the unit was not an accident, the law considers it to be an intentional tort, even if no harm was intended.
Another important point to understand is that torts are civil wrongs, that can be redressed in civil courts and remedied by monetary compensation. The criminal justice system is a separate and distinct system, and being found liable in civil court does not free a defendant from criminal prosecution. Torts such as assault and battery are criminal offenses in addition to intentional torts, and a defendant can face both civil liability and criminal punishment for the same act.
Let’s discuss the elements of some of most common intentional torts. To win a case, the plaintiff has to show that each element in the definition has been met. The court uses the standard of preponderance of the evidence, which means it determines if the plaintiff has succeeded by asking whether it is more likely than not that the defendant is liable for the plaintiff’s injuries.[iii]
The common-law definition of battery is intentional, harmful or offensive contact. Intent is an element of battery, but as we mentioned earlier, the intention we are speaking about is intent to cause contact, not the intention to harm.[iv]
For contact to be considered battery, it has to be harmful or offensive. Harmful contact is relatively straightforward. It means any contact that results in physical impairment or pain, or any kind of bodily harm. With offensive contact, people may have different ideas as to what should qualify, so the law appeals to a standard of reasonableness. In tort law, contact is considered offensive if it offends a reasonable person’s sense of dignity. Of course, this can be a subjective judgment. However, reasonableness is important because it excludes cases of hyper-sensitivity to certain types of contact from the definition of battery.
For example, tapping another person on the shoulder to gain his or her attention is generally not considered offensive contact in our society. So, even if someone is particularly sensitive to any bodily contact by a stranger, it would not be considered battery to tap that person on the shoulder, even if he or she considers it offensive contact.
Assault is sometimes used interchangeably with battery in everyday language. In tort law, however, assault is distinguished from battery in that it does not require any actual contact. Instead, assault is defined as intentionally causing someone to reasonably fear harmful or offensive contact. Assault can be thought of as an attempted battery, when one believes he or she will be the subject of battery.
In order to be considered assault, the harm must be imminent, and the defendant must be in a position to carry out the threatened violence. In addition, the harm that is threatened must be physical harm. Mere words, without a physical act, is not considered assault.
[iv] See Prosser and Keeton on the Law of Torts § 8