Intentional Torts vs Negligence: Key Differences Every Paralegal Must Know

Intentional Torts vs Negligence: A Complete CP Exam Guide

Tort law is one of the most heavily tested subjects on the NALA Certified Paralegal exam. Understanding the distinction between intentional torts and negligence is fundamental to answering tort questions correctly. This guide breaks down the elements, defenses, and damages for each category and explains how the CP exam tests these concepts.

What Are Intentional Torts?

An intentional tort occurs when a person deliberately acts in a way that causes harm to another. The key element is intent: the defendant must have acted with the purpose of causing a specific result or with substantial certainty that the result would occur. The defendant does not need to intend harm specifically; they only need to intend the act that causes harm.

Common Intentional Torts

Battery

Battery is the intentional, harmful, or offensive touching of another person without their consent. The touching does not need to cause physical injury; an offensive contact, such as spitting on someone, qualifies. The contact can be direct or through an object. The elements are: (1) intent to cause contact, (2) harmful or offensive contact, and (3) lack of consent.

Assault

Assault is the intentional creation of a reasonable apprehension of imminent harmful or offensive contact. Unlike battery, no actual contact is required. The plaintiff must have been aware of the threat and must have reasonably believed that contact was about to occur. Words alone are generally insufficient without an accompanying act.

False Imprisonment

False imprisonment is the intentional confinement of a person within fixed boundaries without lawful justification. The plaintiff must be aware of the confinement or harmed by it. Confinement can be accomplished through physical barriers, physical force, threats, or invalid assertion of legal authority.

Intentional Infliction of Emotional Distress (IIED)

IIED requires extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress. The conduct must go beyond all bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. Mere insults, annoyances, or indignities are not enough.

Trespass to Land

Trespass to land is the intentional, unauthorized entry onto or interference with another person's real property. The defendant need not know they are trespassing; they only need to intend the physical act that constitutes the entry. The property owner does not need to prove actual damages.

Conversion

Conversion is the intentional exercise of dominion or control over another person's personal property that so seriously interferes with the owner's right to control it that the defendant may justly be required to pay the full value of the property.

What Is Negligence?

Negligence is an unintentional tort based on the defendant's failure to exercise reasonable care. Unlike intentional torts, negligence does not require the defendant to have intended the harmful result. Instead, the focus is on whether the defendant's conduct fell below the standard of care that a reasonable person would exercise under the same circumstances.

Elements of Negligence

Every negligence claim requires the plaintiff to prove four elements:

1. Duty: The defendant owed a duty of care to the plaintiff. The scope of duty depends on the relationship between the parties and the foreseeability of harm.
2. Breach: The defendant's conduct fell below the applicable standard of care. This is measured by what a reasonably prudent person would do under similar circumstances.
3. Causation: The defendant's breach was both the actual cause (but-for cause) and the proximate cause (legally foreseeable consequence) of the plaintiff's injury.
4. Damages: The plaintiff suffered actual, compensable harm. Unlike some intentional torts, negligence always requires proof of actual damages.

Key Differences Between Intentional Torts and Negligence

• Intent: Intentional torts require purpose or substantial certainty; negligence requires only a failure to exercise reasonable care.
• Damages: Many intentional torts are actionable without proof of actual damages (such as trespass); negligence always requires actual damages.
• Defenses: Consent is a complete defense to intentional torts but is generally not relevant to negligence. Contributory or comparative negligence applies to negligence claims but generally not to intentional torts.
• Punitive Damages: Punitive damages are more commonly available for intentional torts than for negligence, though gross negligence may support punitive damages in some jurisdictions.
• Insurance: Many insurance policies exclude coverage for intentional acts, meaning the defendant may be personally liable for the full judgment.

CP Exam Tips for Tort Law

The CP exam tests your ability to identify the type of tort in a given scenario, state the elements, and apply defenses. Use ParalegalPrep flashcards to memorize the elements of each tort and practice distinguishing intentional conduct from negligent conduct. Sign up for free to access tort law practice questions, or check our pricing page for full exam prep access.