Lapin Law Offices

Assault and Battery

The terms “assault” and “battery” are often used interchangeably. However, they have distinct meanings and one can occur without the other. However, in many instances both may occur. Generally, assault and battery have similar definitions in criminal and civil law. However, as a crime, there are many different degrees and punishments. In injury law, there are no separate degrees. The issue is whether you were assaulted and battered and what damage you sustained.

Assault is a “reasonable apprehension of imminent bodily harm,” which usually occurs when you are about to see someone hit you (battery). Battery is the actual physical conduct. An assault can be committed without a battery and vice versa.

In most instances, there is no insurance coverage for the person committing the assault and battery. However, another person or entity may have been negligent if they knew the at-fault person was likely to commit an assault and battery. In this situation, the negligent party may have insurance coverage.

Back to top

Infliction of Emotional Distress

While emotional distress is an element of damage in personal injury cases, there are separate claims for the infliction of emotional distress by itself. There are two types: intentional and negligent.

Intentional Infliction of Emotional Distress

To recover for intentional infliction of emotional distress you must prove:

1. intentional or reckless conduct;
2. that the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community; and
3. that the conduct caused emotional distress so severe that no reasonable person should be expected to endure it.

A person need not receive medical/ psychological/ psychiatric treatment to recover for intentional infliction of emotional distress.

Negligent Infliction of Emotional Distress

Negligent infliction has separate requirements:

1. that a negligent act proximately caused you to suffer severe emotional distress;
2. the emotional distress must be so severe that no reasonable person could have been expected to endure it; and
3. the emotional anguish or mental harm must be medically diagnosable and must be of sufficient severity that it is medically significant.

In negligent infliction of emotional distress cases the victim must have a medically recognizable “injury” or “damage” to receive money.

One category of negligent infliction cases involve when a parent sees a child severely injured or killed.

Back to top

Defamation

Defamation is the utterance or publication, in any form, of an untrue statement about another. Libel is a written statement while slander is oral. A defamatory statement must be an assertion of a fact, not an opinion.

To recover for defamation you must generally must prove:

1. a false and defamatory statement;
2. an unprivileged publication to a third party;
3. fault amounting to at least negligence on the part of the publisher; and
4. either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

However, these elements may be presumed to exist, if the statement is “per se,” that is, “by itself” defamatory. The areas that are considered defamation per se if they falsely state or impute:

1. the commission of a crime involving moral turpitude;
2. an infectious disease;
3. unfitness to perform the duties of an office or employment;
4. prejudice one in his or her profession or trade; or
5. tend to disinherit you.

For a libelous statement or a statement that places someone in a false light, as discussed below, you are only entitled to special damages unless you properly, and within twenty (20) days of notice of the statement, request a correction. A correction must be published within three (3) weeks after a request that it be corrected. However, if the statement was made with malice, correction is not required to recover both special and general damages.

The law treats private and public persons differently. For a public figure and a statement that is on a matter of public concern, you must prove, by clear and convincing evidence, actual malice on the part of the person or entity making the defamatory statement and that the statement itself is false. “Actual malice” has been defined as knowledge of falsity or a reckless disregard for the truth.

Back to top

Invasion of Privacy

Nebraska recognizes several types of invasion of privacy claims. You may be entitled to both general and special damages for these types of invasions. Some of the invasion of privacy claims, created by Nebraska statutes, include:

Placing Someone in a False Light

You may be entitled to money if someone places you in a “false light” that would be highly offensive to a reasonable person and the other person had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which you would be placed. An example might be if someone imputed that you were a prostitute although they never called you one, which would amount to defamation.

Advertising or Commercial Purposes

You may be entitled to money of you, your name, picture, portrait or personality is used for advertising or commercial purposes without your permission. There are exceptions including: bona fide news report or presentation or noncommercial advertisement having a current or historical public interest and when such name or likeness is not used for commercial advertising purposes; prior consent for a resale; a photograph of you solely as a member of the public when you are not named or otherwise identified in or in connection with the use of the photograph.

Place of Solitude or Seclusion

You may be entitled to money if someone “trespasses or intrudes” upon you in your place of “solitude or seclusion,” if the intrusion would be highly offensive to a reasonable person.

Back to top