Unintentional and Intentional Torts

jurors in witness stand of court houseA tort is an injurious act (other than a breach of contract) for which a plaintiff may seek compensation and relief in the form of damages, or in some cases, an injunction. In pursuing a tort claim, a plaintiff is attempting to be put back in the position he was in before the wrongful conduct occurred, which is why plaintiffs typically ask for compensation for things like money to pay past and future medical bills, loss of enjoyment with one’s family members, loss of earnings from work due to the injury, and loss of business earnings and reputation in the community. One of the major factors that will determine the kinds of damages a plaintiff may be awarded is whether the tort was unintentional or intentional.

Negligence is the most commonly pled of unintentional torts, and there are subcategories of negligence, such as:

  • Vicarious liability,
  • Comparative negligence,
  • Contributory negligence, and
  • Gross negligence.

In contrast, there is a wide variety of distinct intentional torts, some of which are shown below:

  • Fraud
  • Battery
  • Assault
  • False Imprisonment
  • Intentional infliction of emotional distress
  • Trespass to Land
  • Trespass to Chattels and Conversion
  • Libel
  • Slander
  • Invasion of Privacy

As can easily be assumed, a distinction between negligence and the many intentional torts listed above is that intentional torts are pled when there’s an argument that the defendant acted in an intentional, knowing, or reckless manner and violated the plaintiff’s interest, such as bodily integrity, good standing and reputation in the community, or the possession and use of their land or personal property. For example, the elements of assault by infliction of bodily injury are:

  1. The defendant acted intentionally, knowingly, or recklessly,
  2. The defendant made contact with the plaintiff’s person,
  3. The defendant’s contact caused bodily injury to the plaintiff.

Negligence, on the other hand, can arise by mistake, oversight, or in more serious cases, what may be considered willful blindness and inaction, that is, not adequately addressing a potential harm when obvious and appropriate. Thus, there is a difference between negligence and gross negligence. In a typical case of negligence, one has to prove that

  1. The defendant owed the plaintiff a legal duty,
  2. The defendant breached the duty,
  3. The breach proximately caused the plaintiff’s injury.

Gross negligence, on the other hand, is a much more serious negligence claim with a higher standard of proof that requires awareness on the part of an actor of the extreme risk that created the harm at issue.

What did the defendant want to happen?

As can already be seen in this short summary, there are several different levels of the kinds of deliberation or volition that will result in a defendant’s culpability, and these levels determine in part whether an intentional or unintentional tort action will be pursued. These mental states are:

Intentional – Defendant is said to have acted intentionally when he has a conscious desire to cause a certain outcome and acts accordingly.

Knowing – Defendant engages in knowing conduct when he is aware that his conduct is reasonably certain to cause a certain result.

Reckless – A defendant is reckless in his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that harm will result from his conduct.

Negligent – The breach of an existing duty (rather than intention) is a core issue of negligence litigation, since, if a greater level of intent could be shown, an intentional tort would be at issue instead. However, as alluded to above, in the case of gross negligence, a plaintiff must show the defendant was aware of the extreme risk created by his conduct and that the defendant proceeded with his conduct “with conscious indifference to the rights, safety, or welfare of others.”

Punitive damages are available for unintentional and intentional tort causes of action.

One thing both categories of torts has in common is that if the tortious conduct is serious enough, a plaintiff may recover punitive damages. Under Texas’s Civil Practice and Remedies Code, typically, a plaintiff can be awarded exemplary damages “only if the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from:

  1. fraud;
  2. malice;
  3. gross negligence.”

Punitive, or exemplary, damages, if sought, are awarded when a defendant’s conduct is so egregious that the jury or judge at trial believes the defendant must be penalized in an amount beyond simply awarding the plaintiff’s compensatory damages (those damages meant to make the plaintiff whole). Often, the goal is not only to punish the defendant. Rather, the additional damages are awarded to serve as a deterrent so the defendant (and others) will not engage in similar conduct in the future.


Athena Ponce and the attorneys at De Leon & Washburn, P.C. are available to assist clients with business tort issues, specifically in the area of commercial litigation. For more information regarding the firm’s practice areas, please visit our Practice Areas page, and please feel free to contact the attorneys at any time.

© De Leon & Washburn, P.C. This article is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between De Leon & Washburn, P.C. and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Articles are not continuously updated, so information may become out-of-date. Reproduction in whole or in part is prohibited without the express written consent of De Leon & Washburn, P.C.