Intentional Torts vs. Negligence in Personal Injury Cases

Different liability rules exist for injuries ("torts" in legalese) that are committed intentionally versus accidentally.

Updated by , J.D. · University of San Francisco School of Law

The course of an injury-related insurance claim or civil lawsuit will depend in part on what kind of harm is being alleged. Personal injury cases come in all shapes and sizes, but almost all claims are based on one of two underlying arguments:

  • the plaintiff (the injured person) suffered harm because of carelessness on the part of the defendant, or
  • the plaintiff's injuries were caused by a purposeful act committed by the defendant.

The first scenario described above encompasses negligence-based torts, while the second captures intentional torts. In this article, we'll take a closer look at how negligent torts and intentional torts are defined, offer some examples of each, and more. (Note: In personal injury law, a "tort" is a legal wrong committed by one person against another.)

Negligence-Based Torts

Almost all accident-based injury cases—those arising from car accidents and slip and fall incidents, for example—fall under the umbrella of negligence-based torts. There are usually four basic elements of a negligence-based case:

Duty. In general, we all have a legal obligation to exercise the type and level of care that a reasonably prudent person would exercise in any particular situation, in order to prevent foreseeable harm to others. In the context of a car accident case, all drivers have a legal duty to act with reasonable care in the operation of their vehicles. That means obeying traffic laws, driving with extra caution in bad weather, and keeping a vehicle in good repair. Learn more about the duty of care in personal injury law.

Breach of Duty and Causation. Conduct that is unreasonable or irresponsible under the circumstances amounts to a breach of the legal duty of care discussed above. So, sticking with the car accident example, a driver who runs a red light and hits another car has failed to drive in a reasonably responsible manner, and has breached his or her legal duty of care. As for causation, it's pretty clear in most cases. Basically, the defendant's conduct must have led directly to the harm suffered by the plaintiff. Learn more causation and fault for an accident.

Damages. In any negligence-based tort case, the plaintiff must actually have suffered some harm as a result of the accident or incident. Some examples of compensable damages include:

Get more details on proving negligence in a personal injury case.

Intentional Torts

Intentional torts, as the name suggests, are legal wrongs that are committed on purpose. Most intentional tort cases arise when the defendant acts with the intent to cause actual harm or offense to another person (or at least the threat of harm or offense), as opposed to causing harm by accident or through carelessness.

Intentional tort claims include:

  • Battery. Almost any kind of harmful or offensive contact can amount to a battery, even when no actual injury occurs.
  • Assault. While the definition varies by state, assault usually includes any intentional act that places the victim in reasonable fear of imminent harm (i.e. pointing a loaded gun at someone).
  • False Imprisonment. This type of claim can arise when one person intentionally restrains the movement of another (actually or constructively) without the legal right to do so; i.e. when a security guard wrongfully detains a shoplifting suspect.
  • Trespassing. One person's unlawful entry onto someone else's property can form the basis of an intentional tort.

Defenses to Intentional Tort Claims

The most common defenses to an intentional tort claim are:

  • the defendant was acting in self-defense or in defense of a third person, and
  • the defendant acted with the plaintiff's consent (i.e. the defendant touched the plaintiff with the plaintiff's permission, or entered the plaintiff's property with consent).

Intentional Torts and Criminal Liability

Many intentional torts can also result in criminal charges. For example, if an assault and/or battery incident results in injuries to the plaintiff, then the victim might file a personal injury lawsuit against the perpetrator (seeking money damages), and the local prosecutor might file criminal charges against the attacker as well—under state criminal statutes that define "assault and battery" as a crime. Similarly, in some states false imprisonment is considered both a crime and a civil wrong, or the same incident might give rise to a personal injury lawsuit for false imprisonment, and a criminal charge of kidnapping.

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