Differentiating between intentional and unintentional torts is a common question asked by clients, and it may seem on its face to be a simple determination – did the “bad actor” act with intent or was it unintended.
While it may be very clear cut in many cases, in some cases it is more complicated. To make this determination, one first has to understand the basic differences between these two categories of torts. To better illustrate the difference, lets first take a look at two hypothetical scenarios.
Debby is enjoying a quiet evening on the balcony of her third-story apartment overlooking a busy sidewalk, drinking a bottle of champagne. After pouring a second glass of champagne, she places the large glass bottle on the 2-inch wide railing.
As Debby attempts to place the bottle on the railing, the condensation on the outside of the bottle causes her to lose her grip and the bottle tumbles three stories down and hits a pedestrian, named Pavel, in the head, causing a severe head injury.
Debby is enjoying a quiet evening on the balcony of her third-story apartment overlooking a busy sidewalk, drinking a bottle of champagne. After pouring a second glass of champagne, Debby spots an ex-boyfriend, Pavel, walking on the sidewalk below her.
She immediately remembers how Pavel was not faithful in their relationship and is overcome with rage. She chucks the bottle of champagne in the direction of Pavel and it strikes him in the head, causing a severe head injury.
I am sure you can see the clear cut difference between the two scenarios here. In the first Scenario, Debby does not intend to cause the harm to Pavel.
However, her actions (placing the champagne bottle on a narrow railing three stories above a busy sidewalk) will constitute a negligent act and she will be liable for the damages she caused to Pavel, even though she did not intend the harm.
In the second scenario, Debby clearly intends to hit Pavel with the champagne bottle which would cause harm. Differentiating between the two seems pretty straightforward.
But the facts in these scenarios can quickly make determining intentional vs. unintentional much more tricky.
For example, let’s imagine that in the second Scenario, Debby’s intent is to throw the bottle just in front of Pavel so that the glass shatters and frightens him, but a shard of glass ends up injuring Pavel’s eye. Pavel would likely win on the intentional tort of battery.
One helpful way to differentiate between intentional and unintentional torts when it may seem convoluted, is to determine whether or not the act falls under the umbrella of intentional torts.
Many of these torts can also relate to criminal charges. However, what is pertinent here is how these torts are treated in a civil context rather than a criminal context.
An assault occurs when these three elements are met:
(1) an individual intentionally attempts to inflict injury on another person (2) along with the ability to inflict that harm, and that (3) the intended victim has a reasonable apprehension of imminent bodily harm or offensive contact.
It is important to note that the harm or contact does not need to occur, simply the threat or attempt to harm need to be present. To simplify, an assault can be thought of as an attempted battery. However, a battery and an assault can occur in the same instance.
A battery occurs when an individual commits an intentional touching to the body of another person in a harmful or offensive manner.
A battery is committed whether the actor intends to cause harmful or offensive contact, or to cause the imminent apprehension of an offensive or harmful contact and an offensive or harmful contact occurs.
This occurs when an individual willfully detains an individual without consent, and the detention is unlawful. While physical force is often present in a false imprisonment, it is not always required. Physical barriers or unreasonable duress can also be used and rise to the level of false imprisonment.
For example, forcing someone on a boat and then taking them out to sea will be considered false imprisonment even though there are no “walls” confining that individual. The lack of means to escape will suffice.
In order for a trespass to occur, four elements must be met.
(1) The defendant must enter the land that is subject to the trespass, intentionally or not. (2) A trespass claim must be brought by a person with a legal interest in the property. (3) The entry onto the land must have been without the owner’s consent, and (4) there needs to be some damages suffered by the land owner.
The physical act of intrusion without significant physical damage will likely be enough to support a trespass claim.
The tort of conversion is similar to the criminal theft charge.
Conversion occurs when an individual acting without your consent either (1) takes and fails to return your property, (2) sells your property, (3) substantially changes your property, such as cutting down your trees to use as firewood, or (4) severely damages/misuses your property.
Conversion applies to physical property only, whereas intellectual property (such as trade secrets) is not.
To prove IIED, generally, three elements must be met:
These elements may differ slightly from state to state, but generally the elements are similar. The bad actor is liable for both the severe emotional distress and the bodily harm that results from the stress (e.g vomiting, anxiety disorder, miscarriage, etc.)
In some instances, the victim may not even be the subject of the extreme and outrageous conduct – usually this comes up when an individual witnesses extreme or outrageous conduct towards a family member.
This tort covers lying and misrepresentation. To prove fraud, four elements are necessary.
(1) The speaker knew what they said was false. (2) The speaker knew the other person would believe them. (3) The other person relied on that information, and (4) the reliance on this information caused harm or damages.
Like many of the above-listed torts, fraud can also be charged in the criminal context.
Generally, there are four types of invasions of privacy.
Unintentional torts are most commonly associated with negligence. That is to say, when an individual does not take the necessary amount of care in performing an action or maintaining a condition, then that individual is negligent.
The most common and applicable real-world examples of unintentional torts are car accidents. If Debby is driving and rear ends Pavel at a red stoplight because she is looking at her phone, she will most likely be found negligent and therefore liable for an unintentional tort. In fact, whether there is a “reason” as to why Debbie failed to stop in time to avoid rear-ending Pavel doesn’t really matter. Debbie has a duty to not hit the car stopped in front of her and absent legally-accepted excuse such as avoiding another already negligent actor and being placed into an “emergency situation,” Debbie is liable for her failure to stop.
The same applies to pedestrian accidents which Wiener&Lambka law group also handles – we have extensive experience defending pedestrians who were hit in and out of crosswalks, parking lots and riding their bicycles.
To recap, if the actor is negligent and did not intend the harm, the tort can most likely be categorized as an unintentional tort. However, if the action falls under the list of common intentional torts listed above, then it is most likely an intentional tort.
Of course, one should consult an attorney before making a significant decision regarding the categorization of a tort in one’s legal case. The next notable difference in these two categories of torts is the damage awards available to plaintiffs.
It is first important to point out that torts are litigated in civil courts, and are therefore different from a criminal trial. Much of the public is used to seeing criminal trials on television shows such as Law & Order, and may expect a civil trial to proceed in the same manner with the same rules. However, in a civil trial, the process is not designed to determine the guilt of a person and the stakes are much less than the deprivation of personal liberty. Therefore, the burden of proof is lower in a civil trial compared to a criminal trial.
Generally, with an intentional tort, the damages available to plaintiffs are much more broad and generous. This is because the law places a significant importance on deterring intentional acts of wrongdoing between citizens. By allowing more damages in an intentional tort civil suit, the law is aiming to discourage individuals from taking these actions. And when you add in the possibility of criminal sanctions, this point is driven home even further.
With an unintentional tort, damages are simply harder to come by. The plaintiff has a higher burden of proof and must show that the defendant’s actions fell below the standard of care in that scenario.
Because negligence can arise out of mistake or oversight, it is generally more difficult to prove than a person’s specific intent. And because negligence is more common than an intentional bad act, and because it can come about by mistake or oversight, there is not as high of an importance placed on the deterrent aspect of sanctions.
This is not to say that it is impossible to recover if you are the victim of an unintentional tort or negligent act. The personal injury industry would not be profitable or even exist if this was the case.
If you feel that you have personally injured and have a viable personal injury claim, making the determination of whether it was an intentional or unintentional tort will be a significant step in your legal journey.
In fact, using the information in this blog post as well as other such online posts will help you make this determination before even consulting with an attorney.
That being said, it is possible that your case contains an especially complicated set of facts which makes the determination of intentional versus unintentional very difficult. If you do choose to consult an attorney, it can be very helpful if you have already made this determination on your own.
Personal injury attorneys appreciate clients who have put serious thought and consideration into their case and have taken the time to do their own research before a consultation. Just keep in mind that the conclusions you may have drawn doing your own research may be different from the conclusion your attorney comes to. Case law is always changing and your attorney will have the best understanding of the law. And even if you do have a case, many times the value of an individual’s case must be high enough for an attorney to take a risk in litigation.
Litigation is a very expensive endeavor, and should only be pursued if there is a clear breach of duty and damages are high.
If you believe that you are a victim of either an intentional or unintentional tort, and have suffered damages as a result, we would love to hear more about your case.
Our firm offers free consultations where you will have the chance to go over the facts and details of your case and we can help you make a determination if litigation is the right route for you.
Please don’t hesitate to give us a call or contact us through our website.