The Ultimate Guide to Intentional Tort Personal Injury Actions

 

Understanding Your Legal Rights When Someone Injures Your Body, Reputation, or Property on Purpose

 

When a person or business injures you, harms your reputation, or damages your property, you can seek a monetary recovery from the person or company to blame.

 

To get a successful recovery, you must determine your best cause of action under tort law. This task requires an understanding of the three standards of care to prove liability: (1) intent to harm, (2) negligence, and (3) strict liability.

 

This article discusses the first standard of care – intent to harm – and the causes of action available under this liability theory.

 

There are seven types of intentional torts for personal injury and property damage: assault, battery, false imprisonment, intentional infliction of emotional distress, conversion, trespass to land, and trespass to chattels. And there are several more intentional torts available if you suffer an injury to your reputation, dignity, or business and finances. You will know which of these intentional tort claims applies to your injury or property damage case after reading the article. Many may apply to the facts of your case.

 

If you have questions about your situation, call me: (804) 251-1620 or (757) 810-5614. See why other attorneys have voted me one of the best personal injury and auto accident lawyers in Virginia.

 

 

Intent vs. Negligence in Personal Injury Actions

 

There are critical differences between negligence and intent under tort law.

 

When a person injures you through carelessness, inattention, forgetfulness, clumsiness, or recklessness, you have a negligence claim.

 

By contrast, when a person injures you deliberately, you have a legal cause of action known as an intentional tort.

 

Intentional Torts vs. Criminal Intent

 

In all intentional tort claims, you must prove that the defendant had intent. But intent in tort law is not the same as intent in criminal law. 

 

Under criminal law, the term “intent” refers to the defendant’s state of mind when committing the crime. The prosecution must show mens rea – the defendant’s “guilty mind” – to get a conviction. 

 

By contrast, tort law doesn’t require you to show that the defendant had a guilty mind. Instead, it focuses on the defendant’s actions. 

 

I discuss how to prove intent under tort law in the next section. 

 

Proving Intent in Personal Injury Actions

 

There are two ways to show intent to cause harm in personal injury claims. 

 

First, an injury is intentional if the defendant acted to cause harm. 

 

Second, an injury is intentional if the defendant acted with knowledge that the harm would likely occur. 

 

To recover monies under an intentional tort claim, you don’t have to show that the defendant wanted to hurt you. The motive doesn’t matter. You only need to show that the defendant acted deliberately and that the act caused you harm. 

 

The Doctrine of Transferred Intent in Personal Injury Actions

 

Sometimes a defendant intends to harm one person but ends up hurting you. For example, a man throws a punch at the person standing next to you but misses and strikes you. 

 

You have an intentional tort claim against the defendant under the legal doctrine of transferred intent in this situation. 

 

Under personal injury law in Virginia, a person is responsible for your damages when that person:

 

• Intended harm to a person other than you;

 

• Meant to harm you in a way different than what occurred; or,

 

• Intended another kind of harm to a person other than you

 

The Four Types of Intentional Torts for Personal Injury

 

There are four intentional torts involving personal injury: assault, battery, false imprisonment, and intentional infliction of emotional distress.

 

Elements of Tort of Assault

 

You prove the tort of assault by showing that the defendant intentionally threatened you with an act that put you in reasonable fear of imminent physical injury (battery). Assault does not require actual physical contact.

 

Words alone are not enough. You must prove the defendant acted in a threatening manner – and that you knew about the defendant’s conduct.

 

A conditional threat of future harm is not enough to prove an assault, either. The defendant’s act must put you in fear of immediate harm.

 

Elements of Tort of Battery

 

You have likely heard of the crime of battery. There is also a tort called battery.

 

You prove the tort of battery when you show:

 

• That the defendant touched you;

 

• That the defendant meant to touch you;

 

• That the contact was offensive; and,

 

• That you did not consent to the contact, and there was no excuse or justification for the defendant touching you. 

 

To win a battery claim, you need only show a physical contact that offends a reasonable person’s sense of dignity. The contact doesn’t need to be violent. It can be the “slightest touch” to your body, your clothes, or something you are holding. 

 

Examples of conduct that result in the tort of battery include:

 

• Punching

 

• Kicking

 

• Pushing/Shoving

 

• Sexual contact 

 

• Workplace violence

 

• Certain types of medical malpractice 

 

Whether a touching is offensive usually depends on several factors, including the parties’ genders and personality traits.

 

Elements of Tort of False Imprisonment

 

You prove the tort of false imprisonment, sometimes called false arrest, if you show that the defendant restricted your freedom of movement through force, words, and acts.

 

The confinement must be complete, meaning you had no reasonable possibility of escape. However, you may prove false imprisonment if there was a way to escape, but you felt psychologically trapped and unable to leave.

 

You must also have had a reasonable belief that harm would occur if you ignored the defendant’s words or acts.

 

Elements of Tort of Intentional Infliction of Emotional Distress

 

Virginia recognizes a right of action for the intentional infliction of mental distress.

 

You prove the tort of intentional infliction of emotional distress if you show that the defendant:

 

• Wanted to inflict emotional pain on you – as shown through conduct and words;

 

• Acted outrageously and in a way that offends society’s accepted standards of decency and morality; and,

 

• Caused you severe emotional distress

 

You could recover under the tort of intentional infliction of emotional distress even if you suffered no physical injury.

 

Proving intentional infliction of emotional distress is challenging in Virginia. Courts typically disfavor this cause of action.

 

The Three Types of Intentional Torts for Damage to Property

 

There are three intentional torts involving injury or damage to property: trespass to land, trespass to chattels, and conversion.

 

Elements of Tort of Trespass to Land

 

A defendant is liable for trespass to land if you show:

 

• That the defendant entered your property, whether by walking on it, putting objects on it, or flooding it with water and

 

• That the defendant had no right, authority, or invitation to enter your property

 

You don’t have to show harm to the land or injury to yourself to prove trespass. The damage is the violation of your right to possess the land. 

 

Elements of Tort of Trespass to Chattels

 

You prove trespass to chattels if you show that the defendant intentionally took or used or intermeddled with personal property.

 

By contrast to trespass to land, you must show actual harm resulting from the defendant’s conduct to prove trespass to chattels. The injury can include loss of use of the property for a significant period or real damage to its condition.

 

Elements of Tort of Conversion

 

The tort of conversion is similar to the tort of trespass to chattels in that they both involve intentional torts against personal property.

 

The primary difference between the two is that conversion is based on the defendant’s interference with your ownership rights and control over the property. In contrast, trespass to chattels is based on the defendant’s interference with your rights to possess the property. The law distinguishes between ownership and the right to possession.

 

Another difference between the two torts is that you can recover damages under conversion if there is no actual harm.

 

Other Types of Intentional Tort Actions

 

There are other types of intentional tort actions that don’t necessarily involve physical injury or property damage. These actions include:

 

Revenge Porn Actions

 

Revenge porn is illegal in Virginia. It also serves as the basis for a civil action.

 

Virginia Code Section 8.01-40.4, entitled Civil Action for Unlawful Creation of Image of Another or Unlawful Dissemination or Sale of Images of Another, states that you can sue and recover damages from any person engaged in conduct that is unlawful under Virginia Code Sections 18.2-386.1 or 18.2-386.2. This legal action is available even if the person hasn’t been charged or convicted.

 

Under Virginia Code Section 18.2-386.1, it is a crime to create nude or semi-nude pictures or videos without a person’s consent.

 

Under Virginia Code Section 18.2-386.2, it is a crime for a person, “with the intent to coerce, harass, or intimidate,” to maliciously share or sell any nude or semi-nude picture or video of another

 

Tort of Malicious Prosecution

 

You have an action for malicious prosecution when another person or entity uses the legal system to bring an action against you, even though that person knows there is no basis for the claim.

 

To prove the tort of malicious prosecution, you must show that:

 

• The defendant acted maliciously and that the decision to pursue legal action against you was not a simple mistake

 

• The defendant filed the lawsuit or cooperated in bringing criminal charges.

 

• The defendant had no probable cause to bring the legal action.

 

• You won the underlying case or the defendant, or the defendant voluntarily dismissed it with prejudice before a decision on the merits.

 

You are more likely to win a malicious prosecution claim if you have already won the underlying lawsuit.

 

Tort of Abuse of Process

 

You have a claim for abuse of process when another person or governmental entity starts legal proceedings for a purpose other than what the law is meant to do.

 

Actions that may result in abuse of process claims include:

 

• Filing a lawsuit

 

• Filing an administrative complaint or grievance

 

• Filing a false police report

 

• Abusing the discovery process to harass the other litigant

 

Tort of Defamation

 

Defamation – either by libel (written) or slander (oral) – is an injury to your reputation. 

 

To prove defamation, you must show:

 

• That the defendant made a statement about you;

 

• That someone other than you saw or heard the statement;

 

• That the statement was false; 

 

• That the defendant knew the statement was false or, believing the statement correct, lacked a reasonable basis to believe that or acted negligently in failing to determine the statement’s truth; and,

 

• That you suffered actual damages because of the statement. 

 

For more information on this topic, read my article: Defamation Law in Virginia.

 

Tort of Nuisance

 

A nuisance is any activity or use of the property that endangers another person’s life or health or interferes with another person’s reasonable and comfortable use of the property. Though generally considered a cause of action in property law, nuisance sometimes results in bodily injury.

 

There are two types of nuisance claims: private nuisance and public nuisance. Both nuisance torts are based on the principle that a person should not use their property in a way that harms others.

 

In Virginia, the tort of private nuisance is defined as:

 

… the using, or authorizing the use of, one’s property, or of anything under one’s control, so as to injuriously affect an owner or occupier of property (1) by diminishing the value of that property; (2) by continuously interfering with his power of control or enjoyment of that property; (3) by causing material disturbance or annoyance to him in his use or occupation of that property.

 

A public nuisance is an unreasonable interference with a right common to the public. An act may be considered unreasonable if it affects the general public’s safety, health, or peace.

 

Though nuisance and negligence are different torts, courts often blur the two – especially if the disturbance results from negligent conduct.

 

Tort of Fraud

 

To prove a fraud claim under Virginia law, you must show each of the following elements by clear and convincing evidence:

 

• A false representation or statement

 

• Of a material fact

 

• Made intentionally and knowingly

 

• With intent to mislead

 

• Reliance on the misleading statement or representation

 

• Actual loss

 

Clear and convincing evidence is proof that creates a firm belief or conviction about the allegations.

 

Tort of Interference with Contractual Relations or Business Expectancy

 

In Virginia, there is a right of action for tortious interference with a contract or business expectancy.

 

To prove tortious interference with a contract or business expectancy, you must show:

 

• That a valid contract or business expectancy exists;

 

• That the defendant knew about the contract or expectancy;

 

• That the defendant interfered with the contract or expectancy, resulting in a breach of contract or termination of the business relationship; and,

 

• Actual financial loss

 

If the contract is terminable at will or involves only an expectation of business, you must also prove that the defendant used improper methods. Courts have stated that improper methods include violence, intimidation, bribery, fraud, defamation, unfounded litigation, and the breach of a fiduciary relationship.

 

Tort of Assault vs. Tort of Battery

 

Though closely associated, the tort of assault and the tort of battery are separate claims. However, many people, including courts, often use the term interchangeably. For example, courts sometimes state that the defendant assaulted the plaintiff when the appropriate legal term is “battery” or “battered.”

 

There are two primary differences between the tort of battery and the tort of assault.

 

First, you can bring an assault claim if the defendant didn’t touch you. But you can’t win a battery claim without contact.

 

Second, it is possible to have a battery claim without an assault claim if you did not see the defendant’s contact before it happened. In this situation, you had no fear of touching because you didn’t know it would happen. Therefore, you have no assault claim.

 

What are the Common Defenses to Intentional Torts? 

 

Even if you prove each of the intentional tort elements, the defendant is not liable if the action was justified or excused by law.

 

The defendant has the burden to assert and prove these defenses.

 

Let’s examine each potential defense.

 

Consent

 

The general rule is that you cannot recover damages from the defendant if you agreed to and participated in the defendant’s action that resulted in the injury.

 

Your consent may be express, such as when a written or oral contract exists. Or you might give implied consent through your conduct.

 

Consent has limits. If the defendant’s conduct goes beyond what you agreed to or what a reasonable person would have expected based on the injury’s facts and circumstances, you can overcome this defense.

 

Further, the defense applies if you give informed consent. If the defendant obtained it through fraud or force, the consent defense doesn’t apply.

 

Self-Defense

 

A person can use physical force to defend against an attack if they reasonably believe you are about to harm them. But there are limits to this defense.

 

The force must be reasonable and proportionate to the threatened harm. Deadly force is allowed only if the defendant believes they will suffer death or severe injury.

 

In Virginia, a defendant cannot use force if the need to use it arose from their misconduct. For example, a person cannot start the attack, then rely on self-defense when sued for an intentional tort.

 

Defense of Others

 

Just as a person may act to protect themselves from harm, a person may also use reasonable force to protect a third party who reasonably appears to be in danger.

 

The general rule is that a defendant who helps another person may do whatever the other person might have done to defend themself lawfully.

 

Defense of Property

 

A defendant can use reasonable force to protect their property.

 

In Virginia, reasonable force is limited to non-deadly force. You cannot use deadly force to protect property.

 

Recovery of Personal Property

 

A defendant can use reasonable, non-deadly force to recover personal property taken by force or fraud.

 

In Virginia, however, a defendant has limited time to act. This defense against an intentional tort claim is limited to “fresh pursuit” situations, meaning it’s only available if the defendant uses reasonable force soon after losing the property or learning you took it.

 

Necessity

 

There are two necessity defenses to intentional tort claims arising from property damage: private necessity and public necessity.

 

Under the doctrine of private necessity, a defendant can use another’s land or property to prevent injury to themself arising from an event unrelated to the plaintiff’s use of the property. However, the defendant must pay the plaintiff for damages caused.

 

Under the doctrine of public necessity, a state or public official may use your property to avoid societal harm. If successful under this doctrine, the state or public official does not owe compensation.

 

Statute of Limitations

 

The defendant may also raise a statute of limitations defense if you do not file a lawsuit within two years of the date of injury.

 

This is why you should act quickly after suffering harm or property damage.

 

Is Provocation a Defense to an Intentional Tort Claim?

 

No, provocation is not a valid defense to an intentional tort claim for battery. However, your attempts to provoke the defendant may be considered when determining what damages to award. 

 

Whether a defendant can present evidence of provocation depends on whether the act of provocation was sufficiently recent to the action giving rise to the intentional tort claim. 

 

What Damages Can I Recover if I Prove an Intentional Tort?

 

The remedies available in tort claims based on another’s negligence are also available in intentional tort personal injury actions. 

 

You may recover compensatory damages for items such as:

 

• Past medical expenses

 

• Future medical expenses

 

• Wage loss

 

• Out-of-pocket expenses

 

• Physical pain and suffering

 

• Loss of quality of life

 

• Permanent impairment

 

• Loss of earning capacity

 

• Shame, humiliation, or embarrassment

 

• And more

 

You may also seek punitive damages, which are monies awarded to deter malicious or reckless conduct.

 

Will the Defendant’s Insurance Coverage Pay for Losses Resulting from an Intentional Tort?

 

Maybe. 

 

Most personal injury claims, including auto accident claims, are brought under the theory of negligence. For example, commercial general liability and auto insurance pays for damages resulting from negligence.

 

That same insurance coverage may not pay for damages resulting from intentional acts. An injury caused intentionally is not an “accident” or an “occurrence” under most insurance policies. 

 

Do not accept the insurer’s position without obtaining a copy of the policy, though. The insurance contract may cover intentional acts. 

 

If there is a dispute about insurance coverage availability, or if you think the available coverage will not cover all your losses, you should identify the defendant’s assets as soon as possible. You might be able to use these assets to satisfy a judgment or negotiate a better personal injury settlement. 

 

Top-Ranked Intentional Tort Attorney in Virginia

 

If someone else caused you injury or harm on purpose, you might have an intentional tort claim.

 

Call me today to discuss your legal options: (804) 251-1620 or (757) 810-5614. My firm will provide you compassionate, skilled legal advice during this challenging time.