Torts-Intentional Torts
Aside from the types of claims mentioned previously, there are several intentional torts that can be asserted. Those intentional torts consist of such claims as assault and battery, conversion, defamation, false imprisonment, fraud, malicious prosecution, invasion of privacy, trespass, and the intentional infliction of emotional distress. All these claims have specific elements that must be met and proved in order for a plaintiff to prevail.
A battery is simply an unwanted touching of one person by another. Conversion is the taking of a person’s property without that person’s consent. (Conversion in the civil system is similar to larceny in the criminal system.)
Defamation can come in either written (libel) or oral (slander) form and consists of making injurious statements about a person that are untrue. If the injurious statements involve an imputation of a criminal offense, involve moral turpitude, impute a contagious disease, impute unfitness to perform the duties of office, or include words that prejudice a person in his or her profession or trade, then they may be referred to as being defamatory per se.
If the alleged statement is not defamatory per se, then the plaintiff may have to prove what are called special damages in order to recover against the defendant. Special damages would come in the form of out-of-pocket expenses incurred as a result of those defamatory statements.
Example: If you are a surgeon and David calls you a butcher, that is a statement that is defamatory per se. You could assert a defamation claim against David even though you may not have incurred any special damages (any out-of-pocket expense as a result of the making of that statement).
Keep in mind that truth is always a complete defense to a defamation claim.
If, on the other hand, you are unemployed and Sarah calls you a crook, and as a result of making that comment you incur so much emotional distress that you seek psychiatric help, you may have a basis for a defamation claim against Sarah. Even though the comment made is not defamatory per se, the fact that you have incurred medical expenses as a result of Sarah making the comment about you satisfies the special damages requirement. It gives you the basis for a defamation claim against Sarah.
The truth is always a complete defense to a defamation claim.
Some statements, although defamatory, are protected by a qualified or absolute privilege. For instance, a statement made by an employer about an employee to a new prospective employer may be governed by a qualified privilege. The idea is to allow employers to freely exchange information about employees. What that means is that the employee in a defamation action against the former employer may have to claim and prove that there actually was some malice in the statements that were made.
An absolute privilege would be one that is an absolute bar to a claim for defamation. For instance, comments made in the course of a judicial proceeding are generally governed by such a privilege. The idea is to allow the parties to freely exchange comments during such a proceeding.
Claims of false imprisonment and malicious prosecution arise in the context of a person improperly restraining another person or initiating a criminal prosecution that is subsequently found to be unjustified.
Fraud is the intentional misrepresentation of a material fact made for the purpose of inducing reliance and that does induce reliance to the detriment or damage of the plaintiff. Fraud is a very difficult thing to prove. Unlike most civil claims that must be proven simply by a preponderance of the evidence or what is referred to as the greater weight of the evidence, fraud claims must be proved by clear and convincing evidence, which is a much higher standard and much more difficult to prove. The reason for the higher standard of proof in fraud claims is that the law recognizes fraud as an offense involving surreptitious behavior that may be subject to different interpretations. It is therefore felt that the plaintiff should have a more difficult burden of proof in these types of claims than would apply in the run-of-the-mill tort claims that may be asserted.
Another intentional tort is called the intentional infliction of emotional distress. To pursue such a claim, you must prove that the conduct of the defendant was intentional and outrageous, that the conduct caused emotional distress, and that the emotional distress was severe. It is often difficult to meet all of these elements.
