Chapter 3: Intentional Tort Damages

I.   General Principles

§3.1   As with other personal injury actions, victims of most intentional torts may recover both economic and noneconomic damages. Noneconomic damages are generally not recoverable in matters involving business or commercial torts. See Peacock v Landquest, Ltd, No 1:91-CV-980 (WD Mich Feb 5, 1993). Exemplary damages may often be awarded if the intentional conduct is determined to be malicious or willful and wanton, showing disregard for the plaintiff’s rights. For more on the types of damages available in intentional tort matters, see chapters 1, 4, and 5.

Be aware that claiming or providing proof of intentional misconduct can impact an alleged tortfeasor’s right to indemnification, whether through available insurance coverage (intentional, criminal, or sexual acts exclusion) or rights the tortfeasor may have under theories of respondeat superior (if the intentional misconduct is outside the scope of the tortfeasor’s employment or agency). When advising clients in intentional tort cases, it is critical to manage expectations from the outset by explaining which types of damages may apply to their specific case, whether the proposed defendant is collectible (i.e., has nonexempt assets from which a judgment could be satisfied), whether there may be insurance coverage that might provide indemnification for the claimed injury, or whether there is an employer or principal who might be vicariously liable for the conduct at issue.

Collectibility based on indemnification rights may be a problem when damages arise from an assault and battery, sexual misconduct, or other intentional or criminal acts and the source of recovery is a homeowners or other liability insurance policy. These policies typically contain exclusions for damages caused by the criminal and intentional acts of the insured. The language of the policy in question is the key to determining coverage issues and is governed by principles of contract law. Therefore it is important to promptly obtain and read a copy of the insured’s policy.

Most insurance policies contain exclusions for acts that are either intentional or criminal, but sometimes clauses combine the two. Some policies contain sexual acts exclusions. Most of the precedent has dealt with acts that, when criminal, have also been intentional. The supreme court ruled on the situation in which an act was criminal, but not intentional, in Allstate Ins Co v McCarn, 471 Mich 283, 683 NW2d 656 (2004) (McCarn II). In McCarn II, the insured pointed a shotgun at the head of a friend and pulled the trigger, believing the gun to be unloaded. The gun fired, killing the friend. The matter first went to the supreme court, which ruled that this incident constituted an “occurrence” under the policy language. Allstate Ins Co v McCarn, 466 Mich 277, 645 NW2d 20 (2002) (McCarn I). The next issue was whether the fact that the act of the insured constituted manslaughter under MCL 750.329 triggered the criminal acts exclusion in the policy. A divided supreme court held in McCarn II that under the language of the policy, the act had to be both criminal and intended for the exclusion to apply. The majority took pains to ground its decision in the policy language rather than public policy; it is possible that a differently worded criminal acts exclusion could lead to different results.

When bringing or defending a claim, note that a jury demand must be filed as a separate document, not as part of another pleading. See MCR 2.508(B)(1). See SCAO form MC 22.

For examples of intentional acts exclusions that can limit recovery, see §§3.27–3.29.

II.   Assault and Battery

A. Elements and Damages Recoverable

§3.2   Assault is “any intentional unlawful offer of corporal injury to another person by force, or force unlawfully directed toward the person of another, under circumstances which create a well-founded apprehension of imminent contact, coupled with the apparent present ability to accomplish the contact.” Smith v Stolberg, 231 Mich App 256, 260, 586 NW2d 103 (1998) (quoting Espinoza v Thomas, 189 Mich App 110, 119, 472 NW2d 16 (1991)). Battery is “the wilful and harmful or offensive touching of another person which results from an act intended to cause such contact.” Id.

The victim of an assault and battery is entitled to compensation for necessary expenses incurred because of the assault and battery, lost wages, and pain and suffering. McFadden v Tate, 350 Mich 84, 85 NW2d 181 (1957). Damages for pain and suffering include damages for mental suffering resulting from the personal insult and injury inflicted in the assault, Robertson v Hulbert, 226 Mich 219, 197 NW 505 (1924), and damages for hurt feelings, Goucher v Jamieson, 124 Mich 21, 82 NW 663 (1900). It is not necessary for the plaintiff to sustain a personal injury to recover for wounded feelings, humiliation, and disgrace if the assault was committed under circumstances of peculiar indignity and humiliation. Henderson v Agon, 148 Mich 252, 253, 111 NW 778 (1907). The aggravation of an existing disease or injury is as proper an element of damages as the infliction of a new one. Elliott v Van Buren, 33 Mich 49, 52 (1875).

Although in general one who intentionally injures another is not entitled to mitigation of damages based on comparative fault, when both parties engage in arguably intentional conduct, the amount of damages may be reduced by the plaintiff’s share of fault. Brown v Swartz Creek Mem’l Post 3720–Veterans of Foreign Wars, Inc, 214 Mich App 15, 22–23, 542 NW2d 588 (1995) (citing Hickey v Zezulka, 439 Mich 408, 442, 487 NW2d 106 (1992)).

If the plaintiff seeks to prove lost profits incurred as the result of an assault and battery, it is reasonable to give the jury detailed information about the plaintiff’s business. The plaintiff may introduce any available information, including evidence of actual engagements and earnings, to establish the probable profits and losses of the business. If it is impossible to compute this element of pecuniary damages accurately, the wrongdoer must bear the risk, if any, of not reaching an exact result. Welch v Ware, 32 Mich 77, 80 (1875).

“In Michigan, in order to recover damages on the basis of future consequences, it is necessary for a plaintiff to demonstrate with ‘reasonable certainty’ that the future consequences will occur.” Larson v Johns-Manville Sales Corp, 427 Mich 301, 317, 399 NW2d 1 (1986) (citing Prince v Lott, 369 Mich 606, 120 NW2d 780 (1963)). The key to determining damages for future lost wages is not what the plaintiff would have earned, but what they could have earned but for the injury. Prince, 369 Mich at 610.

Assault and battery cases can also arise out of sexual assault and even human immunodeficiency virus (HIV) transmission during consensual sex if the defendant knew with reasonable certainty that they could transmit HIV. Doe v Johnson, 817 F Supp 1382 (WD Mich 1993); see also Clarke v K-Mart Corp, 197 Mich App 541, 495 NW2d 820 (1992); Kathleen K v Robert B, 198 Cal Rptr 273 (Cal Ct App 1984) (holding that communication of venereal disease can constitute battery). In addition, the Michigan Supreme Court has held that the Revised Judicature Act abrogated interspousal immunity. Hosko v Hosko, 385 Mich 39, 187 NW2d 236 (1971); MCL 600.2001. Thus spouses can sue each other for sexual assault. In MCL 750.520l, the law provides that a person can be charged with sexual assault of a spouse. However, these are difficult cases to win, and collectibility problems remain.

B. Defenses to Claims for Damages

§3.3   When the assault is part of a “mutual affray,” principles of comparative fault and mitigation can be used to reduce the amount of damages awarded. See Brown v Swartz Creek Mem’l Post 3720–Veterans of Foreign Wars, Inc, 214 Mich App 15, 22–25, 542 NW2d 588 (1995). If the plaintiff seeks compensatory damages for vindictive feelings and malice, the defendant may show facts fairly tending to mitigate these damages. Bennett v Fleser, 225 Mich 224, 231, 196 NW 438 (1923).

The plaintiff’s acceptance of the defendant’s signed statement and apology does not furnish valid consideration for a full accord and satisfaction. However, the acceptance may be considered as mitigation of damages by the jury. Robertson v Hulbert, 226 Mich 219, 227, 197 NW 505 (1924).

C. Enhanced Damages

§3.4   Victims of assault and battery cases may recover more than just actual and pecuniary damages. When an assault and battery is committed willfully, wantonly, and maliciously, the injured person is entitled to recover not only actual or pecuniary damages but also exemplary or emotional distress damages for the sense of outrage, mortification, humiliation, and indignity caused by the manner in which the attack was made. McFadden v Tate, 350 Mich 84, 85 NW2d 181 (1957).

The conduct necessary to support an award of exemplary damages must be malicious or so willful and wanton that it demonstrates a reckless disregard of the plaintiff’s rights. Bailey v Graves, 411 Mich 510, 309 NW2d 166 (1981); Janda v Detroit, 175 Mich App 120, 437 NW2d 326 (1989) (upholding jury award of $200,000 in compensatory damages and $400,000 in exemplary damages for assault and battery by police officers). The fact that the defendant committed an act intentionally does not establish that the defendant acted with the malice or reckless disregard necessary for an award of exemplary damages. Bailey.

Exemplary damages are recoverable only for an injury actually sustained, whether that injury is to the feelings or to the body. Ray v Detroit, Dep’t of St Rys, 67 Mich App 702, 242 NW2d 494 (1976). Proof of actual damages is not necessary to recover exemplary damages. Veselenak v Smith, 414 Mich 567, 327 NW2d 261 (1982). Only the person who received the underlying physical injury may recover exemplary damages. Ray, 67 Mich App at 704.

Exemplary damages in Michigan are compensatory in nature and, as such, are never awarded to punish or to make an example of a defendant. These damages are in effect another element of actual damages. Ray. Therefore a plaintiff may not recover both exemplary damages and damages for mental anguish because receiving both types of damages would constitute an impermissible double recovery. Veselenak, 414 Mich at 567. Exemplary damages may be recovered from the corporate employer of a defendant employee under the doctrine of respondent superior, even if the corporate employer is not guilty of malice. Ray, 67 Mich App at 702. However, there is a statutory restriction on exemplary damages in civil suits against merchants or libraries for assault and battery (as well as for false imprisonment, unlawful arrest, and libel and slander). See MCL 600.2917. If the merchant, library, or agent of either suspects an individual of stealing and the store or library is later sued by the alleged wrongdoer, the plaintiff may not recover exemplary damages or damages for mental anguish unless it is proved that the library or merchant used unreasonable force, detained the plaintiff for an unreasonable time, acted with unreasonable disregard for the plaintiff’s rights, or acted with intent to injure. Id.

In cases of sexual assault (i.e., unconsentual sexual touching), finding a source of indemnification or collecting any judgment in the absence of a source of indemnification may be difficult. Sexual assaults are torts for which recovery may be available if the defendant is collectible or has a source of indemnification. An assault and battery victim who has also been stalked or harassed may be awarded exemplary damages in addition to actual damages, costs, and attorney fees under MCL 600.2954.

See chapter 1 for a detailed discussion of exemplary damages.

D. Attorney Fees

§3.5   In general, unless provided for by statute or court rule, attorney fees and costs are not recoverable. An assault and battery victim who has also been stalked or harassed as defined by MCL 750.411h and .411i may be awarded costs and attorney fees under MCL 600.2954.