Lawyers Manual - Unified Court System

Domestic Violence and Tort Remedies 299
reached in a Second Department case. 10 Married as well as unmarried victims of
abuse in New York have been able to bring tort actions other than suits for the
intentional infliction of emotional distress. For example, the negligent infliction of
a venereal disease by a spouse has been recognized as an actionable tort, 11 and a
cause of action was sustained in a case brought by a woman against her exhusband
who made harassing phone calls, came to her home uninvited, and tried
to force or pay her to have sex with him. 12
Statutory Torts
In New York City battered women have the benefit of a law creating a
cause of action for gender-motivated violence. When the federal Violence
Against Women Act’s private right of action provisions were declared
unconstitutional, 13 New York City passed legislation permitting victims of
violent crimes rooted in gender to sue for damages. 14 This law has been used
to sustain a cause of action in at least one New York case. 15
Valuing the Tort
Damages arising from a tort inflicted by a domestic partner are essentially
the same as any other damages: emotional and physical pain and suffering; loss
of earnings; and the cost of medical, psychological and other services required
for treatment of the injury. Ballpark dollar values for physical injury can be
ascertained by reading the cases and from reviewing jury verdict reporters such
as Jury Verdicts Weekly.
In maximizing recovery for a battered woman, the effective trial attorney
will succeed in persuading the trial judge or jury that a premium in damages is
appropriate because the injury was inflicted by a domestic partner, the person
who was supposed to love, not hurt, his partner. This is also the basis upon
which punitive damages should be sought. The monetary value of psychological
injuries is more difficult to establish because it is based upon a subjective
description of emotional pain and suffering. However, many survivors of
domestic violence report that emotional scars persist long after physical injuries
have healed. Having an expert who understands the psychological dynamics of
battering, including the complex nature of a battered woman’s attachment to her
abuser, as well as the literature pertaining to the subject, is critical. Expert
testimony should not only clarify and describe the emotional sequelae, which
are typical for victims of domestic violence, but should also address the