Intentional Torts and Personal Injury
By Aaron Larson
March, 2005
Contents
What Are "Intentional Torts"?
An "intentional tort" occurs where the defendant intentionally causes the plaintiff to suffer an injury. By way of example, assault and battery are common intentional torts - the defendant intends to cause harm to the victim, as opposed to causing the harm by accident or oversight. Similarly, defamation of character is an intentional tort. Many criminal acts also constitute intentional torts.
Insurance Policy Exclusions
Lawyers generally do not like to bring causes of action for intentional torts, unless they are relatively confident that the defendant has sufficient resources to pay a verdict or settlement at the conclusion of the litigation. Most insurance policies specifically exclude intentional torts from coverage, so it is often difficult to collect a judgment from an intentional tort case. A notable exception to this general rule is for defamation cases - many homeowner's insurance policies provide coverage for defamation lawsuits.
Finding Negligence Actions
Where a defendant appears to have intentionally caused harm to a plaintiff, sometimes the plaintiff's attorney will plead theories of the case based upon negligence, without raising the allegation that the injury was intended. This reflects an effort to get around insurance policy exclusions, and to present instead a claim that an insurance company will defend and for which insurance coverage will be available to the defendant.
Whether or not it is possible to compose a theory of negligence against the defendant, at times the plaintiff's lawyer will be able to create a viable action for negligence against a third party. For example, where an injury is caused by a minor, there may be a viable action for negligent supervision against the minor's parents or custodians. Similarly, where an injury is suffered by a minor, it may be possible to bring a negligence action against an adult who was supposed to have been providing child care. Similarly, where an employer ignores unlawful or intentionally hazardous conduct by an employee, it may be possible to bring a negligent hiring or negligent retention suit against the employer for similar subsequent misconduct by that employee. The proprietor of a bar or tavern may face "dram shop" liability if they knowingly serve a drunken patron who subsequently causes injury to another patron. Even within the context of criminal acts, it may be possible to create a viable negligence case against a third party who shares responsibility for the victim's injury.