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Date Modified: July 3, 2023

Malice under tort law refers to a particular mental state or state of mind in which a person intentionally commits a wrongful act with the intent to cause harm or injury to another person. It is a legal injury, not a bodily injury, required in certain defamation cases. But it could lead to emotional or physical harm nonetheless. It is an unlawful act under criminal law and tort law. Both involve a wrongful intention by those who act malicious with an improper motive, as will be discussed.

This article is not intended to delve too much into malice under such harm caused to a human being under the criminal law system or malicious prosecution (prosecutors can claim qualified privilege to avoid being sued civilly). Its concept in a legal sense is often used in the context of intentional torts, which are civil wrongs where the defendant’s intentional actions or omissions cause harm to the plaintiff. Tort law is often used interchangeably with what we know in California as personal injury law.

Malice can be classified into two main categories:

  1. Actual malice
  2. Implied malice.

Actual malice under tort law typically refers to the essential element of specific intent to cause harm or injury to another person. In this context, “actual” means that the defendant consciously desired to cause harm or knew that harm would occur due to their actions. Actual malice is commonly associated with intentional torts such as assault, battery, defamation, or fraud, where the defendant’s primary objective is to cause harm in such a case. In defamation cases, the fair comment of a prudent man implies can defeat a claim for actual malice in a popular sense under New York Times v. Sullivan. In other words, if the statement were a fair comment made in good faith, it would not stand as a claim for malice aforethought.

Implied malice, also known as malice in law or legal malice, is a legal fiction used in certain tort cases. It arises when the defendant’s actions are inherently dangerous or done with a reckless disregard for the well-being of others. Unlike actual malice, implied malice does not require a specific intent to harm. Instead, it focuses on the defendant’s behavior and the reasonably foreseeable consequences of their actions. For example, suppose someone drives recklessly and causes an accident resulting in injury. In that case, they may be liable for the injuries caused, even if they did not intend to harm anyone.

Jurisdictional Issues

It is important to note that the concept of malice and ill will may vary slightly depending on the jurisdiction and the specific tort involved. Laws and definitions can vary between countries and even between different states within a country. Therefore, it is always advisable to consult the specific laws and legal principles applicable to your jurisdiction for a precise understanding of malice under tort law.

For example, I was shooting a gun off in a loaded room full of kids. It is just so crazy and reckless that it will be deemed malicious. And because of that, the law implies that the person who acted with malice may be forced to pay punitive damages instead of just general damages.

Quick Reference – Unlawful Act of Malice under Criminal Law

This term is typically used in cases of an abused public office, typically by a prosecutor who deals with crime with an evil motive to throw an innocent party in jail. Unlike civil law, it will require proof of “Mens Rea.” We get men’s areas from English criminal law ( Latin for “guilty mind“). R v. Cunningham (1957) 2 AER 412 was the seminal case. It established that the test for “maliciously” was subjective rather than objective and that malice was inevitably linked to recklessness. If so, setting aside a criminal case or a conviction was grounds. It is essential to point out that malice is kept separate and independent of reasonable and probable cause as there could be an honest belief in the just cause accusation based on motives, etc.


There is a distinction between actual and implied malice. Malice is an exciting issue involving civil and criminal law conduct with evidence of an unchaste mind as an essential ingredient for the circumstances. Ehline Law is an award-winning personal injury law firm in California headquartered in Los Angeles and many jurisdictions, including Texas. Satisfied clients know our superior injury attorneys have over a decade of experience winning and maximizing damages compensation awards. Ehline Law firm’s lawyers serve people injured in accidents involving a passenger car, motorcycle, dog bite, bicycle, cruise ship, wrongful death, and physical injuries caused by a defendant’s negligence.


  • Bradford Corporation v. Pickles and Allen V. Flood.


Michael Ehline is an inactive U.S. Marine and world-famous legal historian. Michael helped draft the Cruise Ship Safety Act and has won some of U.S. history’s largest motorcycle accident settlements. Together with his legal team, Michael and the Ehline Law Firm collect damages on behalf of clients.
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Michael Ehline

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