Written by attorney William Robert Falcone

A Summary of the Law of Torts Part I - Intentional Torts & Criminal and Civil Interplay

Any conduct that is a breach of our duty of care to others is a tort, and can result in civil liability to you or your business. Since no justice system can order someone to give someone back their health, civil law allows for injured parties to be "made whole" for their injuries through monetary damage awards. There are three different degrees of breach of the duty of care that can result in liability to an individual or business. Intentional conduct, reckless conduct and negligent conduct all result in civil liability for the personal injuries that result from that conduct. Intentional conduct causing injury to someone includes things like acts of assault. There are criminal consequences which require proof of guilt beyond a reasonable doubt, and which can result in punishment (fines that are paid to the State or jail) and restitution (which is ordered payment) to the victim for their economic losses. Victims are not parties to Criminal Court cases and the Criminal Courts do not order payment for other damages incurred by the victim such as permanent impairment; permanent scarring; future economic losses; and pain and suffering, past or future. These items of damage are often the largest part of a civil award. Victims seeking awards of these damages to be "made whole" must rely upon the Civil Courts. Since the Defendant's freedom is not at stake in a civil case, the standard of proof required is the lesser civil standard requiring a showing that it is "more likely than not" that the defendant did the conduct. (Recall that O.J. Simpson was not found guilty beyond a reasonable doubt in the criminal case, but was found to be financially responsible to the Goldman's for their civil damages due to this lesser standard of proof.) The problem in these cases is that few criminal defendants can afford to pay the award amounts and there are often practical issues with collection. Even O.J. Simpson has not paid the full damage award as his NFL pension is exempt from garnishment, and he has not co-operated with collection efforts. Another practical issue facing victims of intentional torts is that even if the perpetrator has liability insurance, there are policy exclusions for intentional acts. So, victims seeking to recover their civil damages often find themselves in a catch 22. If they encourage the prosecutor to obtain a criminal conviction for an intentional assault, they seldom recover their full damages from the perpetrator even if they were insured. If they allow a criminal charge to be reduced, there will be less punishment, but they will have a better chance of civil recovery from the perpetrators insurance company. Part II of this series of articles will cover a summary of reckless and negligent conduct.

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