In addition to criminal charges, victims can sometimes sue abusers for damages caused by the abuser. The area of civil law dealing with the intentional or negligent harming of another person is known as tort law. Tort cases are not usually suitable for pro se litigants, so it is recommended that people wishing to bring a case to court seek the assistance of an attorney. The information below provides some background on some of the causes of action that may be available.
Civil suits offers abused people the opportunity to redress the injury and hold abusers accountable by seeking compensatory and punitive damages. A civil claim requires proof that it is “more probable than not” that the tortious injury occurred. Tort claims often rely upon common (judge made) law, and so require research into past legal cases. A lawyer should consider whether a tort action is warranted in a domestic violence case in addition to any divorce or other financial proceeding.
Interspousal Tort Immunity
In the past, the courts held that a husband and wife could not sue each other because legally they were one person. This doctrine was called interspousal tort immunity. In a series of cases, the courts in Maryland have mostly abandoned the interspousal immunity doctrine. Two cases that give the history of interspousal tort immunity are: Lusby v. Lusby, 283 Md. 334; 390 A.2d 77 (1978) and Bozman v. Bozman, 376 Md. 461 (2003).
Has the abuser assaulted or battered his or her intimate partner or spouse?
If an abuser is found to have committed a criminal first-degree assault, then it is possible that the victim could also sue to recover damages in civil court. First Degree Assault is committed when a person intentionally causes or attempts to cause serious physical injury to another. Read the Law: MD Crim. Law §3-202(a)(1)
Likewise, if an abuser is convicted of first or second degree rape, the victim could file a battery suit to recover damages.
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.” Read the Law: MD Crim. Law §3-303
The provision defines second degree rape as when “a person engages in vaginal intercourse with another person:
- By force or threat of force without the consent of the other or
- The victim is mentally or physically incapacitated or helpless, or
- Who is under 14 years of age while the person performing the act is at least four years older than the victim." Read the Law: MD Crim. Law §3-304
The tort of assault is committed when:
- Someone threatens another person;
- Putting the person in fear of being physically hurt.
A battery is:
- The intentional, harmful or offensive contact;
- Of another person
See 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).
Has the abuser intentionally, recklessly, or negligently caused the intimate partner or the parties’ children to suffer from emotional distress?
Intentional Infliction of Emotional Distress
The elements for intentional infliction of emotional distress are:
- Conduct must be intentional or reckless;
- Conduct must be extreme and outrageous;
- There must be a causal connection between the wrongful conduct and the emotional distress.
- Emotional distress must be severe.
See Harris v. Jones 281 Md 560, 380 A.2d 611(1977).
To be successful in a suit for intentional infliction of emotional distress, the emotional stress must be so great that no reasonable person could take it. Hamilton v. Ford Motor Co. 66 Md. App. 46, 61, 502 A.2d 1057, 1064 (1986).
Has the batterer confined or falsely imprisoned the intimate partner?
False imprisonment is the unlawful confinement of a person.
The essential elements are:
- Detention of the person
- Without consent.
See Hunt v. State 12 Md. App. 286, 309, 278 A.2d 637, 650 (1971). Also 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).
False imprisonment often goes along with assault or battery. A threat (assault) or use (battery) of physical force may cause the person to be detained. Also, a false imprisonment may be committed when one person tricks another person into staying somewhere. Watkins v. State 59 Md. App. 705, 478 A.2d 326 (1984).
Do the battered person’s survivors have a cause of action against the batterer for wrongful death?
- A wrongful or neglectful act
- Causes the death pf another person
The suit can be brought by a spouse, parent, child, or person related to the decedent by blood or marriage who was substantially dependent upon the deceased person. Read the Law: MD Cts and Jud. Pro. Code Ann. §§3-901 to 3-904
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.Read the Law: MD Cts and Jud. Pro. Code Ann. §3-904
Has the batterer transmitted a sexual disease to the intimate partner or spouse?
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).
Has the batterer destroyed, taken, or sold any of the intimate partner’s or spouse’s property?
Conversion is the civil equivalent of the crime of theft. If an intimate partner or spouse’s property is taken or sold a claim for conversion may arise. In a suit for conversion, the person sues to retrieve the value of the property taken. To make a case for conversion, the suing person must show
- Legal title to property;
- Possession or right to possession
- When property was taken
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).
Detinue and Replevin
Detinue and Replevin are used to get property that has been taken back. Detinue and replevin are covered in Maryland Rules 12-601 and 12-602. Replevin is used to get property back before final judgment. To make a case for replevin, the suing person must show that he/she has an immediate right to possession to the property. Detinue is used to get property or its value back after judgment.
The rules list what must be included in a complaint for detinue:
- A description of the property claimed and an allegation of its value,
- An allegation that the defendant unjustly detains the property,
- A claim for return of the property or payment of its value, and
- Any claim for damages to the property or for its detention.
Read the Rules: MD Rules 12-601 and 12-602
Has the batterer interfered with the intimate partner’s job, bank accounts, or investments?
Intentional Interference with Economic Relations
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:
- Intentional and willful acts;
- Calculated to cause damage to the plaintiff in a loss of business;
- Committed with the unlawful or improper purpose to cause such damage, without justification;
- 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).
Is the intimate partner or spouse seeking all possible damages?
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:
- Punitive damages are not recoverable at all in actions for breach of contract.
- 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.
- 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. § 3-904(d);Barrett v. Charlson 18 Md. App. 80, 305 A.2d 166 (1973).
Has the right to sue a former spouse in tort been expressly reserved in any divorce decree or separation agreement?
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.
Have the issues or claims in this tort suit been litigated before?
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 estoppel 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.