Liable But Not Culpable, Part 3: Lexplaining The Reasonable Person and Civil Justice

Welcome to the third part of our interesting investigation of intent here on Lawyers & Liquor, where we strive to provide baby lawyers and law students with a profane purview of the legal profession.  I’m your host with little to say and 1,500+ words to say it in, the Boozy Barrister.

So, like we’ve covered every other time, this guide isn’t really aimed at lawyers.  I mean, at least not good lawyers who paid attention during their first year of law school and therefore have a semi-firm grasp on these basic fucking concepts.  I mean, these are concepts so basic they get a latte from the same Starbucks every damn day.  You should know this shit well before now if you’re an attorney and any where the day-to-day practice of lot and not busy being some in-house asshole who forms their furniture solely out of frightened interns and sales representatives.  It’s basic and fundamental to the practice of law to understand the question of states of mind and intent in the civil and criminal law system, that’s what we’re getting at here.

And we’ve gone through it now.  Last time and the time before that we looked at the basic differences between the criminal and civil justice system and the standards of proof used, and then at the question and definition of what “intent” and “mens rea” mean in regards to the criminal justice system alone.  And that was some dense shit, man. This time, though, we’re going to go into the sort of law that most of the people out there are going to be experienced with at some point in their life, and that’s civil justice.  Because life isn’t a fucking Law & Order episode where a random celebrity is going to show up and commit some horrible crime against us, no matter how many times Kevin Spacey tries to break into your bedroom at night.

So, without taking up any more of my precious intro space, let’s lead ourselves down the garden path of civil intent and its meaning in this, our penultimate installment in our multi-part series.

Civil Law Doesn’t Have Mens Rea.

Alright, so I want to be really fucking clear when I say this, because I spend some time on the Twitter-sphere and I know that some mouth-breathing asshole out there will poke their head up from their pile of Brietbart pages and start mumbling some shit about mens rea in the civil world.  They’ll insist that it’s the right term and shit, and it’s a minor thing but it totally isn’t the right goddamn term for the civil world at all.  Last time I literally gave you the legal definition of the term “mens rea” and it was made very fucking clear that term applies only to criminal prosecution when talking about the question of intent.  The “criminal mind” has absolutely nothing to do with civil law, and that shit applies, as we’ll see in a minute or two even when the civil claim is based on a criminal claim.

You may think I’m being pedantic, but people misusing legal terms in an attempt to sound educated and urbane boils every bit of my whiskey-soaked blood.  It turns me into what is essentially a walking goddamn still.  No, you don’t want to know where the whiskey comes out.

We clear on that?  Great, then let’s talk about what does fucking matter, and depending on the area of civil law, that answer is going to matter a lot.

Torts, not Tarts.

Probably the area of civil law that most looks at “intent” and the state of mind of a party is going to be the tort.  While this area of law is the one most frequently flogged by the personal injury attorneys, making it the lipstick painted prostitute of the legal world, I assure you the pronunciation is, indeed, “tort” and not “tart.”  Put your pants back on, Marty “The Hammer” Lowell, you can’t make love to a personal injury claim no matter how hard you try to fuck people with it.

“Tort” is defined by Black’s Law Dictionary as:

A civil wrong for which a remedy may be obtained, usually in the form of damages; a breach of a duty that the law imposes on everyone in the same relation to one another as those involved in a given transaction.

Black’s Law Dictionary, 712-713 (2d. Pocket Edition, 2001).

Essentially, and mainly, what we’re talking about in this situation is the personal injury claim.  I mean, yeah, there are other types of claims, like a property tort (an injury to the interest in property) or a constitutional tort (injury to someone’s constitutional rights), but very rarely when we talk about torts exclusively as an area of law are we going to be talking about that shit.  We tend to lump, for instance, “trespass” into the “property law” category when we talk about them and such…but we need to recognize that they are torts, and therefore would likely fall under this shit as well.

We then need to turn the fuck around and realize that, unlike criminal law where we had those four different states of mind someone would need to be in to commit a criminal offense, when it comes to torts there’s only one question that determines the state of mind necessary to figure out how we determine if someone is liable civilly for the shit they do, and that is “Was it intentional or not?”  If so, it’s an intentional tort, and if not we’re getting into the realm of negligence…which have two completely fucking different standards on how they’re determined and applied.

Intentional Torts Don’t Mean You Want the Result, Just That You Did The Act.

Alright, first things first, we saw how in criminal law we looked at shit subjectively and from there we determined whether or not the specific person wanted the resulting crime to occur when they acted.  That’s the basic necessity of criminal law, that the intent or knowledge of the outcome is the reason we punish the act in a number of cases.  Accordingly, while there is a criminal act, the law, when we’re at the higher level of offenses, only finds someone criminally culpable when they intend the criminal result to a certain degree and then engage in an act to bring it about.  

So what is an “intentional tort” though?  Well, when we talk about intentional torts we’re talking about torts where you engaged in an act intentionally, although the part of the act that you had to do intentionally is going to vary based on where the element is.  For example, the common-law tort of battery is intentionally touching or causing something to touch someone else nonconsensually and in a manner that causes some form of harm.

In criminal law we would say “Oh, they intended the harm that resulted, therefore they have the intent, and the touching is the actus reus.”  We don’t do that shit in civil law, though, because the intent is found in the act, not in the result of the act.

Confused? So are a lot of fucking 1L’s. You’re in slightly less idiotic company. Don’t feel too bad.

The easiest way to break down your confusion is to put it like this:

You may not have intended to cause harm, but you did intend to touch them, and therefore you have intent.  See what I’m getting at?  The act was intentional, even if the result was not why the person acted.

The same could be said for something like false imprisonment.  It is not necessary to show that a person intended to actually trap someone to hold them liable, merely that they meant to do the act that led to the imprisonment.

It’s still not that simple, though, because you need to want to cause the harm in some way.

Well, okay, let’s cover that real quick.  See, I misspoke a little a second ago, and that’s because you sort of do need to want the result to happen in order to have intent in the civil sense, but it’s not the same as criminal intent.  Because, you’ll remember, criminal intent is all about what the person actually wanted to happen.

In civil law, though, we don’t use a subjective test, that is actual knowledge of the harm that would result, but rather an objective test in determining intent.  And that’s important because it means that we can say “would a person, similarly situated, have known that their act was likely to cause the harm that resulted?” If so, we say the harm was substantially certain to result, and therefore say that the person acting actually intended the result, regardless of their subjective thoughts when they acted.

For instance, and this is a real case example, yanking a chair out from under an old lady sitting down.  Maybe you personally didn’t mean for her to break her bones, but another person (and likely a great number of people) would be able to guess she would break her bones as a result of yanking that chair out.  And that’s enough to hold the monster that makes old ladies pratfall liable.

This is what we call constructive intent, and it’s more than enough to meet the standard there.

By the way, the objective test here? This is what I was talking about last time when I kept using the words “reasonable person,” because we’re looking at the question of substantial certainty of the end result from the view of a similarly situated reasonable person, not one person in particular, in determining if they caused the act.

And that’s important, because…

Remember, there’s a lower burden of proof.

Civil law does not require people to prove something like intent beyond a reasonable doubt.  Go back to the very first post in the series and you’ll see that, as we talking about there, the burden of proof is “more likely than not.”  So all a plaintiff has to show is that it’s more likely than not a similarly situated person would have been aware flinging a concrete dildo would hurt someone, and yet the actor still did it.  That’s a huge difference than having to show this particular person was definitely aware of the harm that would result.

Objectivity: the liability maker.


So, to sum it up, in civil law the question of intent is “what would another person in a similar situation expect to happen when they acted in a certain way,” and if the answer is “they would expect some shit to go down,” then we can find the objective intent from the very fact that the defendant acted in the manner they did, without ever looking into the defendant’s subjective state of mind.

That’s not that hard, right?

Good, because we’re going to make it harder next time when we get into the whole area of negligence, property, and contract laws and the question of intent.

Because, seriously, fuck you guys.




One thought on “Liable But Not Culpable, Part 3: Lexplaining The Reasonable Person and Civil Justice”

  1. It frightens me how often law uses the “reasonable person” standard, given that people are anything but reasonable in my experience. Or as one of my instructors once said, “You’ve got to explain this to the twelve people who were too dumb to get out of jury duty.”

Comments are closed.