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Lawsuits & Litigation

Intentional Tort vs. Negligence in a Personal Injury Case

— October 27, 2021

There are obvious and nuanced differences between intentional torts and negligence. A seasoned attorney will help you understand the different standards.

If you are injured because of another person, company, or entity’s conduct, you have the right to seek financial redress through a civil court proceeding. The legal theory behind these types of claims is categorized as “tort law.” From a legal standpoint, a tort is a wrongful act that interferes with or harms another person or property. Wrongful acts include both accidental conduct and intentional behavior. More specifically, if someone causes harm to another due to their carelessness, it is considered a negligent tort. Conversely, when someone purposefully injuries another individual, it is considered an intentional tort. While you are permitted to seek financial compensation for each type of tort, the process and necessary elements are significantly different.

Understanding Negligence in a Personal Injury Case

The word “negligent” is often defined as acting in a careless or reckless manner. However, in a personal injury case, negligence has a very precise legal meaning. When an individual or party fails to exercise sufficient caution, resulting in an injury, their conduct could constitute legal negligence.

A simplified way to look at negligence is as causing harm because you failed to use reasonable care. However, to demonstrate negligence in a personal injury lawsuit, a plaintiff must establish four very specific elements.

Duty of Care

Often referred to as the legal standard of care, a person must have owed the injured party a duty to have acted in a certain way. For example, if you drive a vehicle, you have an obligation, or legal duty, to operate your vehicle in a manner not to cause an accident or injure another person. To prevail in a personal injury lawsuit, an injured plaintiff must demonstrate that the relationship between themselves and the defendant established a legal duty of care.

Breach of Duty

The second element in a negligence case is proving that the defendant breached their obligation or duty of care. In many personal injury lawsuits, this is the crucial factor. Legally, a breach occurs when a defendant’s conduct deviates from what a reasonable and prudent person would have done under similar circumstances. Determining whether a breach occurred depends on the parties and the circumstances. For instance, a reasonable person would not drive home after drinking two bottles of wine. On the other hand, two similarly trained and reasonable doctors could come to different diagnoses based upon a patient’s symptoms.


The third element is proving that the breach of duty caused the injury.


Finally, to receive financial compensation in a personal injury lawsuit, a plaintiff must have suffered an injury and harm, such as medical expenses or lost wages if they missed work.

Intentional Torts and Personal Injury Lawsuits

As described above, negligence usually arises from accidental, careless, or reckless conduct. When the harmful conduct occurs on purpose, it is an intentional tort. In this situation, the defendant intended to hurt you. For example, battery is categorized as an intentional tort. If someone hits you on purpose, you have the right to sue them for your damages.

Image by Dan Burton, via
Image by Dan Burton, via

Intentional torts typically arise from criminal conduct, such as theft, false imprisonment, trespassing, or sexual assault. While not always criminal in nature, the intentional infliction of emotional distress is also considered an intentional tort. Emotional distress could result in both physical and psychological harm.

Distinguishing Intentional and Negligent Conduct

The primary distinction between intentional torts and negligence is the mental state of the defendant. For an intentional tort to occur, the defendant’s conduct must have been purposeful. While they might not have intended all the resulting damages, they did intend to cause harm. For instance, most car accidents are the result of negligent behavior. However, if a person purposefully ran into your vehicle, it could be considered an intentional tort. Some road rage cases are intentional torts rather than negligent cases.

The underlying reason behind the conduct is crucial in determining if a plaintiff must prove the four required elements of negligence or demonstrate that the defendant intended to cause harm. To illustrate this, imagine two people playing catch. If one person misses the ball and it hits you, you might have a negligence case against the individual who threw the ball or the one who missed it. To do so, you would have to prove all four elements. This could require proving the ball was thrown excessively hard or the defendants were having to catch in an unsafe area. Depending on the exact circumstances, it could be very difficult to prove the conduct was negligent. However, if the ball was purposefully thrown at you, then you would not be required to prove the four elements because the conduct was intentional.

Damages in Negligence and Intentional Tort Cases

One reason people file a personal injury lawsuit is to recover damages. Either through a court judgment or insurance settlement, the injured individual is looking to receive financial compensation. The percentage of total damages a defendant could be required to pay differs if your case is based on negligence or was the result of intentional behavior.

In a negligence case, a plaintiff’s damages could be reduced by their percentage of fault. For example, a car accident victim could have their total compensation reduced if they were speeding at the time of the crash. In other situations, liability could be spread among multiple defendants, such as in a multi-car accident. However, if the defendant’s conduct was intentional, they will be required to pay the full extent of the damages.  It is important to talk to a car accident lawyer to understand your potential liability.

Intentional Torts and Criminal Cases

Many intentional torts also constitute criminal conduct. For example, assault, battery, and theft are crimes and intentional torts. A state prosecutor will determine if there is enough evidence to pursue criminal charges against a defendant. However, you are entitled to pursue a civil claim whether criminal charges have been filed or not. The burden of proof in a criminal proceeding is also significantly greater than in a civil case. Therefore, a conviction is not required to prevail in a personal injury lawsuit.

Work With an Experienced Personal Injury Lawyer

Whether you were the victim of negligent or intentional conduct, you should work with an experienced personal injury attorney. There are obvious and nuanced differences between intentional torts and negligence. A seasoned attorney will help you understand the different standards that apply in each case and what type of evidence will be required to support your position.

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