Intentional Torts vs. Negligence in Personal Injury Cases

Almost without exception, a personal injury claim involves allegations of negligence. Negligence is a legal theory that allows one party to hold another responsible for the consequences of unintentional actions (or failures to act). It may seem counterintuitive at first glance, but the reality is, you can be held accountable for even your unintentional actions and for inaction.

To recover in Nevada for the losses resulting from someone else’s negligence, you must prove each of the following four elements:

  • The defendant owed you a duty;
  • The defendant breached his or her duty;
  • The defendant’s breach was the cause of
  • Your damages.

A duty can arise from any of a number of sources, but most commonly arises from one of three: (1) a statute requiring certain behavior (like statutes governing the rules of the road); (2) a special relationship (like teacher/student, parent/child, hotel/guest); or (3) the general duty of care that everyone owes everyone else to act reasonably.

Most negligence cases either result from car accidentspremises liability (getting injured from a dangerous condition while on someone else’s property), or animal attacks, like dog bites. A driver may be held responsible for injuries resulting from vehicle-to-vehicle contact that could have been avoided had the other driver been following a safe distance. A landowner may be liable for failure to maintain sufficient security or keep the premises free from other dangerous conditions, like a foreign substance on the floor. Or a dog owner may be responsible for not having his dog on a leash.

In a negligence case, the injured party is entitled to be compensated for loss, but no more. These are called compensatory damages and include medical bills, lost wages, loss in earning capacity, loss of enjoyment of life, pain and suffering, and more.

To recover from someone else’s negligence means to be placed in as close to a position as you would have been in had the accident never occurred. Since that is often impossible, the law allows us to find a financial equivalent to your losses that may not make the pain go away, but at least compensates you for your losses.

With intentional torts, however, you can recover more than just what you lost.

Intentional Torts

If you have suffered personal injuries related to an intentional tort, chances are that tort is battery.

To recover for battery, you have to prove the following:

  • Defendant acted intending to come into physical contact with you (or with someone else);
  • Defendant actually did come into physical contact with you;
  • The physical contact was offensive and/or harmful; and
  • The physical contact was made without consent.

A battery can be anything from a slap in the face to an attack in a blind alley. Whereas with negligence you can recover for unintended behavior, battery requires that the act be intentional (although under the doctrine of transferred intent, it is enough that the contact was meant for someone else but ended up being with you).

Another big difference between battery and negligence is that for negligence, you have to prove damages, or in other words, you have to prove that you suffered some form of loss. The award you get from a judge or jury in negligence cases should approximate the actual losses you incurred.

With battery, on the other hand, you don’t have to prove any loss to recover. It is enough that someone intentionally made offensive or harmful contact with you without your consent.

In fact, in Nevada, in a battery case, the plaintiff is entitled to punitive damages. NRS 42.005 says that where “the defendant has been guilty of oppression, fraud or malice, express or implied, the plaintiff, in addition to the compensatory damages, may recover damages for the sake of example and by way of punishing the defendant.”

“Malice, express or implied,” is defined in the statute as “conduct which is intended to injure a person or despicable conduct which is engaged in with a conscious disregard of the rights or safety of others.” Thus, in a battery case, where harmful physical contact is intended, malice would be inferred, and punitive damages would be available.

Because punitive damages are designed to punish the defendant, rather than compensate the plaintiff, the amount awarded is commensurate with the degree of harm, the nature of the act, and the ability of the defendant to pay. Punitive damages are capped at $300,000 for cases where the compensatory damages are less than $100,000, and three times the compensatory damages for cases where the compensatory damages are worth $100,000 or more.

If you have been injured by someone else, whether through their intentional or negligence acts (or failure to act), you have options. Speak to a competent attorney to discuss what those options are.


Zachariah B. Parry is an attorney and founding partner at the law firm Parry & Pfau and is an adjunct professor who teaches torts, contracts, and Nevada practice and procedure for UNLV’s paralegal program. He can be reached at 702-912-4451 or zach@p2lawyers.com.

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