Two Kinds of Fault
| Negligence | Intentional tort | |
|---|---|---|
| State of mind | Carelessness; no intent to harm | Purpose to act, or knowledge the result is substantially certain |
| Example | Texting while driving and causing a crash | Punching someone during an argument |
| Must prove actual damages? | Yes | Not always; nominal damages may be awarded for some torts like battery |
| Punitive damages | Less common; may be allowed for gross negligence | More commonly available |
| Liability insurance | Usually covered | Often excluded |
| Typical deadline | Often 2 to 3 years | Sometimes shorter, such as 1 or 2 years for assault, battery, or defamation |
What "Intent" Means
In tort law, intent does not require a desire to injure. A defendant acts intentionally if they:
- Intend the act and its consequence (for example, intending to make harmful contact), or
- Know with substantial certainty that the consequence will result
Under the doctrine of transferred intent, if someone intends to hit one person but hits another, the intent transfers to the actual victim.
Common Intentional Torts
- Battery: Intentional harmful or offensive contact with another person.
- Assault: Intentionally causing someone to reasonably fear an imminent harmful or offensive contact.
- False imprisonment: Intentionally confining someone without lawful justification.
- Intentional infliction of emotional distress: Extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress.
- Trespass to land and conversion: Intentionally entering another's property, or taking or destroying their personal property.
- Fraud: Knowingly making a false statement of material fact to induce reliance that causes loss.
- Defamation: A false statement of fact that harms reputation; public figures must show actual malice under New York Times Co. v. Sullivan.
Negligence in Brief
Negligence requires proof of duty, breach, causation, and damages. The question is whether the defendant behaved as a reasonably careful person would. Most car accidents, slip-and-fall injuries, and medical malpractice claims are negligence cases.
Recklessness: The Middle Ground
Recklessness (sometimes called willful and wanton conduct) is conscious disregard of a known, substantial risk. It is more blameworthy than negligence but does not require intent. Recklessness or gross negligence can open the door to punitive damages and can defeat some liability waivers.
Why the Difference Matters
Insurance coverage
Homeowner's, auto, and business liability policies typically cover negligence but exclude intentional acts. As a result, injured people sometimes plead claims as negligence, and courts look at the actual facts to decide which category applies.
Damages
Punitive damages are designed to punish and deter. Courts award them more readily for intentional or malicious conduct. The Supreme Court has said punitive damages must be reasonable and proportionate; ratios far above single digits compared with compensatory damages are likely to violate due process (State Farm v. Campbell).
Defenses
- In negligence cases, the plaintiff's own fault reduces or bars recovery under comparative or contributory negligence rules.
- In intentional tort cases, comparative fault often does not apply in the same way. Common defenses include consent, self-defense, defense of others, and defense of property.
Employer liability
Employers are generally liable for employees' negligence on the job. Liability for an employee's intentional torts is narrower and usually requires that the act be within the scope of employment, or that the employer was itself negligent in hiring or supervising.
Civil and Criminal Cases Can Overlap
The same intentional act — such as an assault — can lead to both a criminal prosecution by the government and a civil lawsuit by the victim. The burden of proof differs:
- Criminal case: beyond a reasonable doubt
- Civil case: preponderance of the evidence
A defendant can be found not guilty criminally and still be held liable civilly. Victims can also often receive restitution in the criminal case and pursue additional damages in civil court.
