The term “accident” gets thrown around a lot when describing injuries no one intentionally set out to cause. However, the reality is most personal injury cases are the direct result of a failure by someone else to use reasonable care when they had a duty to do so. This is referred to as “negligence,” and it’s grounds to obtain compensation if you’re injured.
Negligence however, is not the only tort. A “tort” is the legal term for anything a defendant does to a plaintiff that results in some loss or damages for which plaintiff can seek “remedy” from defendant “tortfeasor,” or person who committed the tort. In addition to negligence and negligence-based torts, there is also an entirely different type of tortious conduct known as intentional torts.
Because we know that negligence essentially involves acting in an unreasonably careless manner so as to harm a plaintiff, intentional torts do not involve carelessness, but rather conduct characterized as intentional harm to plaintiff. So if you’re injured in a robbery or some other type of assault, you can sue your attacker for that too. (You can also, in some cases, sue the property owner where the crime occurred for negligent security, though that will be a negligence-based tort.)
As our Boston personal injury lawyers can explain, Section 10 of Chapter 258 of the Massachusetts General Laws (M.G.L.) deals mainly with cases against government employees, but it also includes a helpful list of some of the intentional tortious conduct recognized under the statutory and common law in our state. This list includes such tots as battery, assault, assault and battery, false imprisonment, intentional infliction of emotional distress (IIED), invasion of privacy, deceit, interference with contracts just to name a few.
A battery, for example, involves a harmful or offensive touching of another without permission. While it easy to understand harm, offensive can be a bit trickier, but it is essentially what not tolerated by a civilized society. Sexual battery is obviously a problem, but much lesser degrees of harmful or offensive contact can be involved. There is actually not degree of harm discussed, but in a civil case, there must be some type of damages suffered by a plaintiff in order for that plaintiff to recover money in the case or reach an acceptable settlement through negotiations. This where many people are quick to say they want sue someone or some company when something bad happens to them, but the first question that often must be addressed is what loss did they suffer as a result of the wrong. In some cases, there are actually damages inferred by statute. This can be a fairly complex issue, so it is best to speak with an attorney during a free initial consolation about the actual situation at hand.
McElhaney v. Thomas
In McElhaney v. Thomas, a case from the Supreme Court of Kansas, the plaintiff was injured when defendant allegedly physically assaulted her with a motor vehicle. The complaint specifically alleged that plaintiff was in her high school parking lot, when defendant purposefully drove over plaintiff’s feet.
Defendant was driving his parent’s full-sized pickup truck when the alleged battery occurred. The plaintiff was a manager of the high school baseball team and the defendant was an older student who played on the team. Plaintiff was walking to the team bus when she realized defendant was behind her with his truck. She jumped out of the way in an attempt to avoid being hit, but the wheels crushed her feet. She could not get up, and another student helped her into the truck which hit her and she was taken to the emergency room for immediate medical attention.
Normally this might seem like a typical car accident involving a pedestrian, which would be filed under a theory of negligence, however, there was testimony that defendant uttered an apology for running her over, but said he only meant to “bump” her.
This type of evidence is essential because it goes to the defendant’s state of mind at the time of the alleged tortious conduct. It is admissible at trial under the Federal Rules of Evidence as it is what is known as an excited utterance, and also a likely an admission by a party opponent. A party opponent is basically the other party. It can be either the defendant or the plaintiff so long as the party who made the statement is not the party attempting to admit the statement. While this was not an issue in this case, this type of hearsay often arises in Boston personal injury lawsuits.
In this case, there was also testimony from an investigating officer that the defendant was messing around at the time of the alleged battery. While it is not uncommon for those on a sports team to inappropriately haze a team manager, bumping someone with a car is even beyond that scope of outrageous conduct. It is hard to imagine how one can bump someone with a truck that weighs over a ton and not risk substantial personal injury. Not surprisingly, defendant denied he ever uttered a statement that he attempted to hit plaintiff and said he was only trying to park his truck.
At trial, the court dismissed the intentional tort claims and allowed the case to proceed on a theory of negligence. Since there was no question it was negligent to hit a pedestrian in a parking lot, defendant stipulated that he was negligent so the jury would only have to decide on the amount of damages.
The jury awarded damages to plaintiff on a theory of negligence, but the plaintiff appealed the dismissal of most other claims. On the claims pertaining to the intentional tort of battery, the state supreme court reversed the dismissal. There was a genuine dispute as to whether defendant said he only meant to bump plaintiff, and with a genuine dispute as to a material fact, it should be left to a jury to determine the veracity of plaintiff’s claims and defendant’s denials of making those statements.
While it might seem like a minor issue, in cases involving intentional torts, the crux of the matter may be whether defendant intended to harm plaintiff or he or she was merely acting negligently. There are some cases where there is no question such as when a defendant punches or kicks a plaintiff, but car accident battery cases in Boston may be a much a closer call. When there is a close call, if the case does not settle, as most do, it is up to a jury to be the decider of facts since a judge is only supposed to be a decider of the law and how it applies at the case at bar.
If you have suffered personal injury in Massachusetts, call Jeffrey Glassman Injury Lawyers for a free and confidential appointment — (617) 777-7777.
McElhaney v. Thomas, December 1, 2017, Kansas Supreme Court
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Pontoon Boat Operator Charged With Criminal Negligence in Boy’s Death, Feb. 16, 2017, Boston Ice Injury Lawyer Blog