A common point of confusion is the difference between intentional torts, like assault and battery, and negligent torts, like in an automobile accident. Intentional torts occur when the defendant intentionally causes harm or injury to the plaintiff. Assault and battery are two well-known examples of intentional torts, but they are commonly confused with one another. The main difference between the two is that assault is putting someone in fear of a future battery, and there is not any actual physical contact involved. Battery is actually causing physical bodily contact or harm to another. Assault is typically intended to threaten the victim, while battery is intended to cause harm to the victim. Although the two often go hand-in-hand, that is not always the case. You can have a battery claim without having an assault claim, and you can have an assault claim without a battery claim.
For example, you can have a battery without an assault if you did not see the battery coming, like if you were asleep, or if the person came up from behind you. In either of those instances, you would have a claim for battery, but you would not have a claim for assault because there was no “fear” of the future battery. Similarly, you can also have an assault without a battery; for example, if the person does not actually carry out the contact, but still causes you to be in “fear” that you were going to be harmed.
The opposite of an intentional tort is a negligent tort. Negligent torts are not committed on purpose, but rather they are committed when a person fails to use “reasonable care” and causes harm to another. The elements needed to prove a negligent tort are: duty, breach of that duty, proximate cause, and harm. The duty is the requirement to use “reasonable care” to avoid injuring you, the plaintiff. The harm is the actual loss or damage that results from the defendant’s breach of duty. Although it may seem that you have a better chance at collecting damages if someone did something intentionally against you; in fact the opposite can oftentimes be true.
You can bring a cause of action against a defendant for both intentional torts and negligent torts. Both types are actionable, and both types are compensable. However, an important distinction between litigating an intentional tort claim and a negligent tort claim is that generally, insurance companies do not include coverage in their policies for damages awarded in connection to intentional torts. That means that if you are the victim of an intentional tort, you may not be able to collect any damages through the defendant’s insurance policy, so you will only be able to collect damages if the defendant has sufficient assets to cover the amount awarded in damages. Although insurance policies do allow coverage for some intentional torts, they are not those that are associated with an auto accident. Some intentional torts typically included in insurance policy coverage are: defamation, trademark infringement, unfair competition, copyright infringement, false imprisonment, employment discrimination, and wrongful termination.
In contrast, for negligent torts, defendants generally have insurance that you would be able to collect damages through; it can be automobile insurance or homeowners insurance, or in the case of a business, general liability insurance. Being able to collect damages from a defendant through his insurance policy is a good way to ensure that you will get the money that you have been awarded, the money you deserve. Although it can be more difficult to collect the damages that you were awarded for intentional torts because of the lack of the “deep pockets” of an insurance company, intentional tort claims are still actionable.
If you have been the victim of an intentional or a negligent tort, Chester County attorney John P. Winicov can help you. We will provide aggressive representation and we will handle your case with the care it deserves.