Tort Liability Considerations in Domestic Violence Cases - Attorney Checklist

Tort liability is often an issue in cases of intimate partner violence (domestic violence).  A civil suit offers an abused person the opportunity to redress the injury and hold the abuser accountable by seeking compensatory and punitive damages.  A civil claim requires proof that it is “more probable than not” that the tortious injury occurred.  A lawyer should consider whether a tort action is warranted in a domestic violence case in addition to any divorce or other financial proceeding.

Vinelink is a free public service provided by the Governor's Office of Crime Control & Prevention that allows victims, law enforcement, etc., to register to recieve updates on the case status of an offender.

A criminal first-degree assault is committed when a person intentionally causes or attempts to cause serious physical injury to another.  MD Code, Criminal Law article, §3-202(a)(1)A civil complaint for assault may also be raised by the intimate partner or spouse. There is no interspousal immunity for an outrageous, intentional tort. Lusby v. Lusby, 283 Md. 334; 390 A.2d 77 (1978). Bozman v. Bozman, 376 Md. 461 (2003)

A battery is the intentional, harmful or offensive contact with the person of another. Saba v. Darling 320 Md. 45, 575 A.2d 1240 (1990); The offensive touching does not have to be direct. RESTATEMENT (SECOND) OF TORTS §§ 13,18,21 (1965). 

            The elements for intentional infliction of emotional distress are:

1.      conduct must be intentional or reckless;

2.      conduct must be extreme and outrageous;

3.      there must be a causal connection between the wrongful conduct and the emotional distress.

4.      emotional distress must be severe.

Harris v. Jones 281 Md 560, 380 A.2d 611(1977).

“To sustain an action for intentional infliction of emotional distress, one must suffer emotional response so acute that no reasonable person could be expected to endure it.” Hamilton v. Ford Motor Co. 66 Md. App. 46, 61, 502 A.2d 1057, 1064 (1986).

Maryland does not allow recovery for negligent infliction of emotional distress, however, “recovery may be had in a tort action for emotional distress arising out of negligent conduct.  In such case, the emotional distress is an element of damage, not an independent tort.” Id. at 63, 1066.

False imprisonment is the unlawful confinement of a person.  The essential elements being, (1).  Detention of the person, and (2). unlawfulness of the detention. Hunt v. State 12 Md. App. 286, 309, 278 A.2d 637, 650 (1971).  To establish false imprisonment, the plaintiff must prove that liberty was deprived without consent and without legal justification.  Herrington v. Red Run Corp., 811 A.2d 894, 896, 148 Md. App. 357, 361(2002). See also: Heron v. Strader, 761A.2d 56, 59, 361 Md. 258, 264. (2000); Okwa v. Harper, A.2d 118, 133; 360 Md. 161, 189 (2000).

Implicit threat of force may constitute the basis for a legally sufficient claim of false imprisonment. Manikhi v. Mass Transit Admin., 758 A.2d 95, 113, 360 Md. 333, 365-6 (2000).

The tort of false imprisonment does not lie where there was no detention prior to issuance of arrest warrant and warrant was facially valid. Montgomery Ward v. Wilson, 339 Md. 701, 723, 664 A.2d 916, 927 (1995); reconsideration denied.

“False imprisonment can be committed when the detention or confinement is achieved solely by deception, and not by actual force or threat of force.” Watkins v. State 59 Md. App. 705, 478 A.2d 326 (1984)

            The Maryland wrongful death claim is codified at Sections 3-901 to 3-904 of the Courts and Judicial Proceedings Article of the Maryland Code.  The statute provides that a wrongful death action may be brought against a person whose act, neglect, or default--including a felonious act that would have entitled the party injured to maintain an action and recover damages if death had not ensued--causes the death of another. The action may be brought for the benefit of the spouse, parent, and child of the deceased person, except under certain circumstances, or for a person related to the decedent by blood or marriage who was substantially dependent upon the deceased person. Md. Cts and Jud. Pro. Code Ann., §3-904.

            The plaintiff beneficiary must show that the defendant was negligent and that the negligence was the proximate cause of the decedent’s death.

See Weimer v. Hetrick, 525 A.2d 643 Md.(1987)

An action for wrongful death other than death as a result of an occupational disease must be commenced within three years after the death of the individual. Md. Cts. & Jud. Proc. Code Ann. § 3-904(g)(1)

Maryland statute prohibits stalking, which is currently defined as: “a malicious course of conduct that includes approaching or pursuing another with the intent to place that individual in reasonable fear:

(1)Of serious bodily injury or death; or

(2) That a third person likely will suffer serious bodily injury or death.” Md. Crim. Law Code Ann., §3-802(a)

Effective Oct. 1, 2003,  stalking will be defined as: “a malicious course of conduct that includes approaching or pursuing another where the person intends to place or knows or reasonably should have known the conduct would place another in reasonable fear of:

(1)(i) Serious bodily injury;
(ii) An assault in any degree;
(iii) Rape or sexual offense as defined by §§ 3-303 through 3-308 of this article or attempted rape or sexual offense in any degree;
(iv) False imprisonment; or
(v) Death; or
(2) That a third person likely will suffer any of the acts listed in paragraph (1) of this subsection.” Md. Crim. Law Code Ann., §3-802(a)

            Stalking is a misdemeanor subjecting a violator to a fine of not more than $5000 and/or imprisonment for not more than 5 years.  Md. Crim. Law Code Ann., §3-802.

First degree rape, as defined by statute, prohibits a person from:  “. . .vaginal intercourse with another by force, or the threat of force, without the consent of the other; and (2)(i) employ or display a dangerous weapon, or a physical object that the victim reasonably believes is a dangerous weapon; (ii) suffocate, strangle, disfigure or inflict serious injury on the victim or another in the course of committing the crime; (iii) threaten, or place the victim in fear, that the victim or an individual known to the victim, imminently will be subject  to death, suffocation, strangulation, disfigurement, serious physical injury or kidnapping. (iv) commit the crime while aided and abetted by another; or (v) commit the crime in connection with a burglary in the first, second or third degree.” Md. Crim. Law Code Ann., §3-303.

            The provision defines second degree rape as when “a person engages in vaginal intercourse with another person:

1.  By force or threat of force without the consent of the other or

2. the victim is mentally or physically incapacitated or helpless, or

3.  who is under 14 years of age while the person performing the act is at least four years older than the victim." Md. Crim. Law Code Ann., §3-304.

            If the intimate partner or spouse finds that the batterer has infected him or her with a sexually transmitted disease, the injured person may have claims arising under battery, negligence, intentional infliction of emotional distress, or fraud.. See B.N. v. B.K 312 Md. 135, 538 A.2d 1175 (1988).

            If an intimate partner or spouse’s property is taken or sold a claim for conversion may arise.  “Conversion is any distinct act of ownership or dominion exerted by one person over the personal property of another in denial of his right or inconsistent with it.” Interstate Insurance Co. v. Logan 205 Md. 583, 588-9, 109 A.2d 904, 907 (1954).

“To sustain trover or to recover for conversion, the plaintiff must have a legal title, actual possession or the right to immediate possession at the time of the conversion.”  Dungan v. Mutual Benefit Life Insurance Co. of New Jersey 38 Md. 242, 248 (1873); Lawrence v. Graham, 29 Md. App. 422, 349 A.2d 271 (1975).  The measure of damages for converted property is the fair market value of the property converted. Kirby v. Porter, 144 Md. 261, 125 A. 41 (1923).

               If the batterer interferes with another’s job, bank account or investments, there may be a claim for an economic tort.  An economic tort can include interference with economic relations or prospective advantage.

            The elements of intentional interference with economic relations or prospective advantage:  1. intentional and willful acts; 2. Calculated to cause damage to the plaintiff in a loss of business; 3. Committed with the unlawful or improper purpose to cause such damage, without justification, and actual damage resulting. Natural Design, Inc. v. The Rouse Co., 302 Md. 47,  71, 675, 485 A.2d 663 (1984); See also, Ellet v. Giant Food, Inc. 66 Md. App. 695, 505 A.2d 888 (1986).

If the batterer, without legal justification, intentionally interferes with the rights of the intimate partner or spouse to a contract or induces a breach thereof, is liable in tort to the injured contracting party. See, Orfanos v. Athenian, Inc., 66 Md. App. 507, 505 A.2d 131 (1986).

             In many instances a battered spouse or intimate partner can recover punitive damages in addition to compensatory damages.  General guidelines relating to recovery of punitive damages are:
        (1) Punitive damages are not recoverable at all in actions for breach of contract.
        (2) Such damages are recoverable in tort actions if malice is shown. The type or degree of malice required              depends upon the nature of the tort.
        (3) Actual or express malice requires an intentional or willful act (or omission). It "has been characterized              as the performance of an act without legal justification or excuse, but with an evil or rancorous motive              influenced by hate, the purpose being to deliberately and willfully injure the plaintiff."  American Laundry              Mach. Indus. v. Horan, 45 Md. App. 97, 111, 412 A.2d 407, 416 (1980). Punitive damages are not              permitted for wrongful death.  Cohen v. Rubin 55 Md. App. 83, 460 A.2d 1046 (1983).  However, a              wrongful death claim may allow damages for mental anguish, emotional pain and suffering, loss of              society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice,              counsel, training, guidance, or education. Md. Cts. & Jud. Proc. Code Ann. § 3-904(d);

                         Barrett v. Charlson 18 Md. App. 80, 305 A.2d 166 (1973).

            In Bozman v. Bozman, 376 Md. 461 (2003), the Court of Appeals had to decide whether the interspousal immunity doctrine should be abrogated. The Court of Appeals held that "we abrogate the interspousal immunity rule, a vestige of the past, whose time has come and gone, as to all cases alleging an intentional tort." Bozman at 496.The Petitioner husband was not barred from proceeding in a malicious prosecution case against his former wife for acts that occurred before the divorce. The husband alleged that the wife had filed charges against him for violating a protective order in retaliation for his initiating divorce proceedings and his unwillingness to make concessions in those proceedings.  Details on the case and previous case law on the issue of interspousal immunity.
 

The interspousal immunity rule is based on common law holdings that by marriage, a husband and wife become one person in law. Boblitz v. Boblitz, 296 Md. 242, 243, 462 A.2d 506, 507 (1983).  The rule has been abrogated in cases sounding in negligence, Id. at 275, 522.  In 1978, the Court of Appeals ruled that under certain circumstances, Maryland law permits interspousal tort claims. Lusby v. Lusby 283 Md. 334 (1978). In 1984, the Court of Special Appeals interpreted the Lusby decision as meaning the following: “that, on a case by case basis, the intentional infliction of a tort, involving property or personal injury, may give rise to a cause of action between spouses.” Bender v. Bender 57 Md. App. 593 (1984).

The Court held that claims of fraud and intentional infliction of emotional distress by one spouse against another are barred when the basis for the claims is the same type of conduct that formerly constituted criminal conversation at common law. That cause of action has been abolished in Maryland. In Doe v. Doe 747 A.2d 617, 621, 358 Md. 113, 121 (2000).

            Tort and divorce claims are not required to be joined in Maryland.

            It is wise to reserve the right to bring a tort action in the divorce decree or separation agreement.  Any agreement or decree that expressly waives such rights should be avoided because it will severely limit or extinguish a spouse's rights if a claim should later arise.   

            If the issues or claims in the tort suit have been litigated previously, the doctrines of collateral estoppel and claim preclusion may be relevant.  Claim preclusion prevents a claim from being relitigated when already litigated and determined in a previous case.  This protects parties from being sued multiple times for the same claims.

            Collateral estoppels prevents an issue from being litigated twice if it either was, or could have been, litigated in a previous suit.  This can be helpful for a battered spouse or intimate partner when issues are determined in criminal proceedings and then are raised again in civil proceedings because the fault of a batterer may already be determined.