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When You Harm Others Intentionally

This document tells you the following:

• What is a crime?
• What is a tort?
• In what kind of court is a criminal case heard?
• In what kind of court is a tort case heard?
• What two things must a plaintiff prove in order to win a tort case?
• Can the same act be both a crime and a tort?
• What are the two major categories of tort law?
• What is an intentional tort?
• What are the seven basic intentional torts?
• What are the four basic intentional torts which relate to injury to property?
• What are the defenses to intentional torts claims?

TORTS AND CRIMES

Consider these three events:

1. Mary sells heroin to Jack.

2. Steve, not looking where he is going, knocks Mrs. Frayle down.

3. During an argument, Linda slaps Beth in the face.

Which do you think would be a crime? Which a tort? Understanding the difference between crimes and torts is important because the law treats them in different ways.

TORTS:  A tort is a wrongful act that injures or interferes with another's person or property.  A tort case is a civil court proceeding.  The accused is the "defendant" and the victim is a "plaintiff."  The charges are brought by the plaintiff. If the defendant loses, the defendant has to pay damages to the plaintiff.

CRIMES:  A crime is a wrongful act that the state or federal government has identified as a crime.  A criminal case is a criminal proceeding.  The accused is also called a 'defendant".  The victim is the person who ahs been hurt or the state of Georgia or other governmental entity.  The charges are brought by the government.  If the defendant loses, the defendant must serve a sentence.  A fine is paid to the government and there is possible restitution to the victim.

The state has made selling heroin (event 1) a crime. Mary would be prosecuted for this crime in a criminal proceeding by a district attorney representing the people of the state. If found guilty, Mary could be fined and sent to jail. The victim of a crime is not a party to the legal action. Jack would not be suing Mary. Rather, he would be one of several witnesses for the state in the case against her in court.

Tort cases are heard in civil proceedings. The legal process is quite different from criminal proceedings. The civil process provides a legal means for victims of harmful acts to be compensated for the harm done to them. Event 2 is a tort. Mrs. Frayle has been injured by Steve's act. In order to recover money for the harm or damage she has suffered, the civil process requires that Mrs. Frayle sue Steve. Furthermore, she must bear the cost in terms of time, energy, and money for doing so.

In such a legal action, the victim of the tort is usually called the plaintiff. The plaintiff begins a court action against the alleged (or supposed) wrongdoer, usually called the defendant or tortfeasor. In event 2, Mrs. Frayle would be the plaintiff. Steve would be the defendant.

To win a tort case, the plaintiff must prove two things: (1) the defendant committed the tort and (2) as a result of the tort, the plaintiff or the plaintiff's property was injured. If a plaintiff (like Mrs. Frayle) can prove both, she is entitled to recover money damages from the defendant to compensate for the injury. The defendant (Steve) is liable, which means he is responsible for paying the damages.

The same act may be both a crime and a tort. Event 3 is an example of an act that is both a crime and a tort. Linda may face a criminal action by the state and a civil action by Beth, the individual who was injured.

Why are two different legal actions against one wrongful act possible? In effect, criminal law provides a way of punishing people who commit crimes. It acts to protect all citizens from such wrongdoing. Criminal law is not concerned with the individual victim. The law of torts, on the other hand, provides a way to compensate victims of wrongful acts.

In reality, victims of crimes like burglary, rape, and armed robbery rarely sue the wrongdoers, primarily for practical reasons. For instance, if the wrongdoer has no money or property from which to collect, a lawsuit would accomplish nothing.

INTENTIONAL TORTS

An intentional tort is a deliberate act of a person that causes injury to another's person or property. It is this type of conduct that may be a crime and a tort. As you read, consider what legal rights and duties are defined by these intentional torts. For example, in the first tort discussed, you have a legal duty not to harm another through assault. Similarly, you have a legal right to protection from assault. You also have a legal right to payment for damages from the person who harms you.

Intentional Torts: The Person

There are seven basic intentional torts that relate to injury to the person: assault, battery, wrongful death, false imprisonment, defamation, malicious prosecution, and intentional infliction of emotional distress.

Assault

An assault may be defined as a threat of bodily harm. The person who is threatening must appear able to carry out that threat. An assault may also be an attempt at bodily harm; no physical touching or injury need occur. There need only be an act that creates a reasonable apprehension (or expectation of harm) in the victim.

Which of the following situations, then, would be an assault?

SITUATION 1 Waiting for the school bus, Cal says to Paul, "I am going to shoot you right now." Paul does not see a weapon.

SITUATION 2 Mel pulls a knife from his pocket. He says to Bill, "I'm going to cut you."

In situation 1, no assault has taken place, even though there was a threat of bodily harm. There is nothing to indicate that Cal had the ability at that time to carry out the threat. However, an assault has occurred in situation 2. There, both the threat of harm and the apparent ability to carry out the threat are present.

Battery

Battery is the intentional touching of one person by another without consent (or permission). The law assumes that every person has a right to be free from unwanted, intentional physical contact by other people. For the purpose of this tort, the law also considers that any clothing a person wears or objects that person holds are part of the person.

Every touching of a person, however, is not necessarily battery. In our sometimes crowded world, a certain amount of physical contact between people can't be avoided. Consent is presumed in many situations.

Which of the following would be an example of battery?

SITUATION 3 Susie suddenly grabs a pencil out of Tom's hand. She does not touch Tom.

SITUATION 4 Tom is angry. He throws a heavy book at Susie. It hits her arm.

SITUATION 5 Jack is standing in front of Alice on an elevator when it stops on Alice's floor. While getting out of the elevator, Alice pushes Jack slightly.

Battery has been committed by Susie in situation 3 because the pencil is considered to be part of the "person" of Tom. In situation 4, Tom has committed battery. He touched the person of Susie with the book without consent. However, there is no battery in situation 5. Jack is presumed to have consented to some degree of physical contact by standing in an elevator. Such consent is presumed in most places where physical contact is likely. Examples would be football stadiums, public buses, and movie theaters.

Wrongful Death

Wrongful death, as used in the law of intentional torts, may be defined as the death of a human caused by an intentional act of another. A surviving relative of a wrongful death victim has a right to sue the person who committed the tort. The suit would be to recover money equal to the value of the victim's life. Survivors can sue even if the person responsible for the crime has not been prosecuted and found guilty in a criminal case.

SITUATION 6 Hilda works at a hospital. She feels sorry for Sam, who has a terminal condition and is being kept alive on a respirator. She deliberately unplugs Sam's lifesupport system, knowing that her action will kill Sam.

Would this act be the intentional tort of homicide?

Not only is the act the intentional tort of homicide, it is also a crime. Therefore, Sam's widow could sue Hilda to recover the value of Sam's life, and Hilda could be tried in a criminal proceeding.
What if Sam asked Hilda to "pull the plug" because he did not want to live the rest of his life on a respirator? The Georgia Supreme Court has held that a patient who was rational and competent to make that decision could choose to end his own life State v. McAfee, 259 Ga. 579, 385 S.E.2d 657 (1989).  In this situation, Hilda would not be liable to the family if she pulled the plug. However, she must have acted under the authority of Sam's primary treatment physician (See O.C.G.A. §§31321-313212.)

How can the value of a life be calculated for a lawsuit? A special scale, called an actuarial table, is used. This table predicts how long a particular person would normally live. Another scale is used to predict how much money the person would have earned.
Lawsuits based on the intentional tort of wrongful death are rare.

Remedies are usually sought through the criminal justice system. Lawsuits based on "wrongful deaths" resulting from unintended actions (or negligence) are more common. An example would be a suit based on a death resulting from an auto accident. Another example would be a malpractice suit in which the careless act of a physician was said to have caused a death.

False Imprisonment

False imprisonment is the unlawful confinement to a bounded area of one person by another for any length of time whereby he or she is deprived of his or her liberty. Actual physical restraint is not necessary for the tort to occur. If the person reasonably believes that he or she is not free to leave, then a false imprisonment has occurred.

Generally, the injury resulting from false imprisonment is emotional (resulting in, for example, humiliation, fear, or embarrassment). However, physical injuries can occur from the restraint itself or when the person attempts to escape. In either case, the wrongdoer would be liable for all such injuries.

Which of the following would be false imprisonment?

SITUATION 7 Sid and Ralph decide that it would be fun to scare Jim by pretending to lock him in a room. They send Jim into the room to get a football. When he goes in, they slam the door behind him. They tell him the door is locked, but it isn't. An hour later they release him.

SITUATION 8 Frieda is locked in a ground floor room by Arnold. There is a large window in the room. Frieda opens the window and escapes safely.

SITUATION 9 Officer Jones of the city police department arrests Maria with an arrest warrant for a crime. Maria is found to be not guilty of the crime.

In situation 7, Sid and Ralph have committed the tort of false imprisonment. Jim thought he wasn't free to leave. It doesn't matter if the door wasn't locked. In situation 8, the fact that Frieda found an easy and safe manner of escape does not relieve Arnold of responsibility for imprisoning her. If she had been injured when escaping, he would be liable for the physical injury.

In situation 9, there has not been false imprisonment. The arrest and detention were lawful. What if the arrest had been unlawful—due, for example, to an invalid arrest warrant? The officer still would not be liable for the tort of false imprisonment. Unless their actions are purposefully unlawful, police officers generally have immunity from lawsuits when acting officially.

Defamation

Defamation may be defined as an untruthful statement made by one person to another about a third person that damages the reputation of the third person. Defamation may be written or spoken. Defamation would occur if Carol told her teacher that Larry had copied answers from her tests but he had not. It would occur if a newspaper reported to its readers that an actor was usually drunk at public occasions when the newspaper knew this statement was a lie.

Slander is spoken or oral defamation. Libel is printed defamation. In a case of slander, the victim must be able to show actual damage as a result of the false statement. There are certain situations, however, in which damages from slander are presumed. Consider, for example, statements that a person is dishonest in his profession or that a person has a socially feared disease. These statements create the presumption of emotional harm or harm to the reputation of that person.

In a case of libel, damage is presumed merely from the publication of the false statement. This distinction is based on the theory that the printed word is more harmful than the spoken word. People in the public eye have less protection against defamation than do private persons.

Truth is an absolute defense in cases involving the torts of slander and libel. In other words, if what is said is true, the person claiming that slander or libel has been committed will not prevail.

Common defamatory statements can be statements that

• another person has committed a crime. ("Lucy stole my lunch money.")
• another person has committed an act that would make him or her a social outcast. ("Winston lies about everything.")
• would cause a person to suffer public ridicule in his or her business or profession. ("Dr. James is a quack.")
• would cause a person to suffer public ridicule or scorn. ("Abigail has a venereal disease.")

Based on what you have read, which of the following would be defamation?

SITUATION 10 Warren sends a note to Grace. In it he says, "You cheated on the quiz." Warren knows that what he said is not true.

SITUATION 11 Tony says to Cora, "Eric is a kleptomaniac." Tony believes what he said is true, but it is not.

SITUATION 12 Cora writes the school newspaper column. She puts what Tony said about Eric in the next issue of the paper.

SITUATION 13 Linda sees Jane steal Gloria's notebook. Linda tells Gloria in front of the whole class, "Jane is the thief; she stole your notebook." The school's reporter prints the quotation.

There has been no libel in situation 10. The statement is false and would injure Grace's reputation, but it was not published or communicated to another person. In situation 11, Eric has been slandered by Tony. He may recover damages if he can show some actual injury resulting from the slander, such as being excluded from a fraternity. Tony's lack of malice or bad intention may reduce the damages Eric would recover. However, it does not excuse the harm done to Eric.

In situation 12, Eric has been libeled by the publication of the defamatory statement. He would not have to show actual damage as he did in situation 11. The damage is presumed as a matter of law. In situation 13, Jane has neither been slandered nor libeled, even though her character and reputation have been injured. Certainly, the statement was communicated, orally and in writing, to a large number of people. However, the statement was true. Truth is an absolute defense.

While reading about defamation, you may have wondered about the First Amendment right to free speech. Doesn't this right conflict with the tort principle of defamation? If so, how is this conflict resolved? Legal scholars have debated these questions for years and continue to do so. In general, it is believed that the two principles do not conflict. Consider the reasons for both principles. On the one hand, freedom of speech is absolutely essential to maintaining a democratic society. On the other hand, a person's good name and reputation are valuable. In fact, these principles coexist by balancing a person's right to free speech against another person's right not to have his or her reputation wrongfully harmed. As such, one can say or write whatever he or she wishes about another, but not if it is false and harmful.

Malicious Prosecution

Malicious prosecution is the tort that results when law enforcement officers or prosecutors misuse the criminal justice system to falsely accuse and try an individual on charges that are fabricated. Several elements must be proved to show that this tort has occurred. Someone must have been charged and prosecuted for a crime. The prosecution must have been initiated maliciously (that is, with intent to harm). There must not be any probable cause for the charge. (Probable cause is defined as enough evidence to cause a reasonable person to believe that the accused probably committed the act charged.) The accused must have suffered injuries, and he or she also must have been found not guilty.

Inflicting Emotional Distress

This tort may be defined as emotional distress deliberately inflicted on one person by another. The acts by the defendant must be extreme and outrageous. Also, they must be intended to cause emotional distress, and the plaintiff must actually suffer severe emotional distress. However, courts and juries have generally been unsympathetic to plaintiffs seeking to recover damages for this tort because it is difficult to prove the damage or injury claimed.

Do you think such damages could be proved in cases like the following?

SITUATION 14 Mary is in labor and calls an ambulance to take her to the hospital to deliver her child. The ambulance arrives one hour later. The ambulance attendants refuse to take her to the hospital where her personal physician is waiting. Instead, they take her to a nearby county hospital, ignoring her protests and telling her to be quiet. Mary is so agitated, she has a very difficult delivery.

SITUATION 15 Mike and Bob think it would be funny to scare their elderly neighbor, Mrs. Jones. While she is asleep in her bedroom, they sneak to the back door and rattle the doorknob. They tap on her window shutters and make a general disturbance outside her house. Mrs. Jones is awakened and is badly frightened. When she gets up to see about the noises, she is trembling so badly that she slips and falls on the stairs.

Both situations are examples of claims of this tort that have been successful in Georgia courts. The ambulance attendants are liable for money damages to Mary. Mike and Bob are liable to Mrs. Jones for her injuries and distress.

Intentional Torts: Property

There are four basic intentional torts that relate to injury to property. They are trespass to real property, trespass to personal property, conversion of personal property, and nuisance. You will recall that real property is land and whatever is attached to or growing on it, such as houses or crops. Personal property consists of everything else, tangible or intangible.

Trespass to Real Property

This tort may be defined as the unauthorized entry onto the real property of another. An example of trespass to real property would be if you deliberately rode your motorcycle through Mr. Johnson's flower beds and damaged valuable roses. You would be liable for the damages. Because such a trespass is also a crime, you could face criminal prosecution.

In every case involving civil trespass to real property, it is presumed that the trespass caused damage. In other words, the owner of the real property need not prove there was actual damage to win a lawsuit against the trespasser. In the example, Mr. Johnson would not have to prove damages. He would simply have to prove that you came onto his property without permission.

A person can be liable for trespass to another person's real property without even setting foot on it. For example, a man builds a dam on his own land, and it causes surface water to back up onto a neighbor's property. In this situation, the man who built the dam may be liable for the damages suffered by the neighbor.
In this area of torts, money for damages is sometimes not the real object of a  lawsuit. The issue is more often who owns the land.

Consider situation 16:

SITUATION 16 Abner and Gene are neighboring landowners. Abner puts up a fence on what he thinks is the boundary line between the two pieces of land, but the fence overlaps Gene's property by three feet.

Is this infringement a trespass to real property? What is the issue: ownership or damages?

In this kind of dispute, both the trespasser (the defendant, Abner) and the plaintiff (his neighbor, Gene) claim to own the land. The law provides a means of peaceful settlement of these types of disputes. Without such means, people might try to solve problems inappropriately (for example, by destroying the fence). To resolve the case, the court must first determine who owns the disputed land. It must then determine whether a trespass has taken place.

If Gene is found to own the land, a trespass has occurred. Gene could recover money for the loss resulting from the trespass. However, his real objective most probably is to secure the correct boundary line in order to preserve his real property. In such a case, the court could order the reestablishment of the boundary line between Gene and Abner.

Trespass to and Conversion of Personal Property

Trespass to personal property occurs when there is a temporary interference with the custody or possession of the personal property of another. For example, say Judson's neighbor "borrows" his car without Judson's knowledge. That would basically be a trespass to personal property, even if Judson didn't know the car was taken until its return. If the car was damaged, then the neighbor, the person who committed the tort, called the tortfeasor, would be liable for the damages. The amount of damages requested would be affected by inconvenience, loss of use, and loss of income to Judson.

When the interference in custody or possession is of a permanent nature, then conversion of personal property occurs. This tort depends a great deal on the intent of the defendant. Did the defendant intend to return the property? It also depends on the ability of the plaintiff to recover the property and, often, the amount of time the defendant has had the item. This tort is similar to the crime of theft by taking.

Which of the following situations do you think is a trespass to personal property? Which is a conversion of property?

SITUATION 17 Gail takes Linda's bicycle without Linda knowing it. She uses it for several hours. Then Linda sees her and takes the bicycle back. One wheel is badly damaged.

SITUATION 18 Bob "borrows" Jim's car without permission while Jim is out of town. He drives it for 2,000 miles before returning it.

In situation 17, a trespass to personal property has occurred. Gail would be liable for the damage. If there were no damage, she would be liable for use and wear and tear. In situation 18, Bob's interference with Jim's possession may have been so great that it would be a conversion of personal property. Bob might be liable to Jim for the full value of the car.

Nuisance

SITUATION 19 LMN Corporation dumps its chemical wastes into the Blue River. The wastes are not harmful, but they give off a bad smell. The smell particularly bothers the residents of Riverview Subdivision. Frequently, the smell makes it unpleasant to use their yards and enjoy their property.

SITUATION 20 Fritz and Drew are neighbors. Fritz works during the day. Drew works from 4 p.m. to midnight. When Drew gets home, he likes to work in his shop, where he designs and builds furniture. The noise from Drew' sawing and hammering night after night prevents Fritz from sleeping.

Can anything be done about these problems? These situations come under the tort of nuisance. Nuisance may be defined as anything that causes harm or inconvenience to another. It usually affects others' use or enjoyment of their property. Nuisances frequently concern noises, smells, or lights.

There are two basic types of nuisance: public and private. A public nuisance causes inconvenience or damage to the public as a whole. Situation 19 is a public nuisance. When there is a public nuisance, citizens can ask the district attorney to file a petition in the superior court to stop it, and the court can issue an injunction (an order to stop the activity).

Those who are specially damaged by the nuisance can initiate a lawsuit to recover damages as well as stop the nuisance. Rather than one person bearing the costs of a lawsuit, all those who are especially affected by the nuisance could join together in a "class action" suit against the people or group causing the nuisance. Government agencies, like the Environmental Protection Agency, can also initiate actions against public nuisances harmful to the environment.

On the other hand, a private nuisance usually damages or inconveniences a limited number of individuals. One or all of the persons affected by a private nuisance may file a petition to stop it. They can also sue for the actual damages incurred. Further, most cities have ordinances under which citizens can ask local authorities to halt nuisances. In fact, Georgia law states that this request should be made before court action is sought.

Determining what is or isn't a private nuisance is not always easy because everyone has different tastes and tolerances for inconvenience. For example, some people might be inconvenienced by the nighttime rehearsals of a neighbor's rock band. Others might enjoy the music. To decide whether an act is a nuisance, a court uses this standard: would such an act inconvenience, offend, or damage a reasonable person? Consider situation 21:

SITUATION 21 Denise, who is a very nervous person, lives on a quiet street. The owner of the neighboring lot decides to build a house. The construction noise upsets Denise so much that she has to be hospitalized.

Would the noise be a private nuisance?

Probably not because the noise would not harm an ordinary, reasonable person.

* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004).  The Vinson Institute is not responsible for errors in the online text.  Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications.  Any such matter should be specifically addressed with an attorney. The book is available for purchase at or by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.