Injuries that result from intentional action are litigated quite differently from those involving negligent conduct. Assaults (threats or uses of force that cause fear of harm) and batteries (using physical force to cause harm) are the most common intentional injuries. Auto accidents sometimes result from intentional conduct. The most important differences between negligence actions and lawsuits arising out of intentional injuries involve the assessment of punitive damages and the collectability of the judgment.
Damages Intentional injuries can inflame a jury’s passion such that it is moved to award punitive damages against the defendant. Punitive damages are assessed as a means of punishing the defendant for outrageous conduct. Punitive damages can be huge. Juries sometimes award punitive damages that that bear no relation to the actual damages suffered. You will read about these verdicts, as newspapers love to report large awards. But under the law, punitive damages must bear a reasonable relationship to the actual damages. You usually will not read about when the court reduces the award because the punitive damages were excessive. For example, recall the case involving McDonald’s and the lady who spilled their coffee in her lap. I discuss this case at the end of Chapter 11.
Uncollectible Claims Jury verdicts for intentional injuries are often uncollectible. Most insurance policies provide exclusions of coverage for intentional injuries. The courts uphold these exclusions as it is considered bad for society for individuals to insure themselves against intentional acts that injure others. The reason is that if you are permitted to insure yourself against assaulting others, the threat of a financially ruinous lawsuit is reduced. You might be tempted to carry out your secret desire to assault the object of your disaffection. That is considered contrary to public policy and against the common good. Thus, the insurance company will not have to pay the judgment. Therefore, unless the individual defendant is wealthy, you should seriously consider the wisdom of trying to prove that the injury was intentional. If there is no insurance coverage, you would have to try to collect from the individual. This can be difficult, if not impossible, as well as time consuming and expensive. Even if you wish to try to enforce a judgment by compelling the sale of the defendant’s assets, you may be surprised to learn that the defendant has divested him- or herself of all such assets, or never had any in the first place. Or you may find that the defendant has filed for personal bankruptcy to avoid your collection efforts. This is another example of “winning the battle, but losing the war.” Never declare victory in a personal injury case until the check clears the bank.
Burden of Proof Intentional injuries can result in both civil and criminal litigation. The burden of proof in civil and criminal cases is different. In civil cases, the plaintiff must prove the case by a preponderance of the evidence. In criminal cases, the prosecution must show that the defendant is guilty beyond a reasonable doubt. That is a much stricter standard. If a criminal prosecution arises out of a matter in which your client is injured, do everything you can to assist the prosecution. If there is a conviction, it is admissible in the civil case because of the stricter standard of proof in criminal cases. In other words, if it is proven beyond a reasonable doubt that the defendant injured your client, it is indisputable that the preponderance of the evidence standard is met.
