Intentional Torts

A Video Explaining Intentional TortsShow more

Negligence, strict liability, absolute liability, and products liability all are “accidental” by definition: the persons being held liable for injury to the plaintiff had no intent to harm the plaintiff. Intentional torts are harmful or offensive contact, intentionally done. If I attempt to hit you but hit someone else, have I committed a battery? Yes. It was the intent to wrongfully touch someone that establishes the tort. The intent is called “scienter,” which is an evil intent. Intentional torts come in many forms, some of which are described below.

Battery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.

Assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. The investigation and defenses to the tort are identical to that of battery.

A battery occurs when the attempt to commit a violent injury included within the definition of assault is effected and a person is actually injured.

Trespass: A person who comes on the land without privilege or consent commits the tort of trespass. A person who trespasses is presumed to have harmed the land. The extent of the harm is subject to proof.

Defamation is an invasion of the interest in reputation. It includes libel, which is a written defamation, and slander, which is an oral defamation. To prove defamation the plaintiff must show a publication that is false and that has a natural tendency to injure or which causes special damage. The publication must be intended, but no malice or ill will is required.

False imprisonment is “the unlawful violation of the personal liberty of another.” (California Penal Code § 236). The tort requires direct restraint of the person for an appreciable length of time. The plaintiff must have been compelled to stay or go somewhere against his or her will. The physical force may be slight, like an officer putting his hand on a person’s shoulder. Actual force is not essential. The restraint can be by words, gestures, or acts. A false arrest is one way to commit the tort of false imprisonment.

Malicious Prosecution was originally limited to unjustifiable criminal litigation, causing damage to reputation, and the expense of defending proceedings. Initiating or procuring the arrest and prosecution of another under lawful process, but for malicious motives and without probable cause, is tortious. A person who causes a third person to institute a malicious prosecution is liable, as if he or she had personally instituted it. It has often been held that actions for malicious prosecution are, for reasons of public policy, “not favored.” The tort now applies to maliciously prosecuted civil actions as well as criminal.

© 2021 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma;  Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/ Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts; and the last two issues of ZIFL at https://zalma.com/zalmas-insurance-fraud-letter-2/  podcast now available at https://podcasts.apple.com/us/podcast/zalma-on-insurance/id1509583809?uo=4