Elder Abuse Act: Recklessness, Malice, Oppression & Fraud Defined
Elder abuse is a deeply troubling issue, impacting some of the most vulnerable individuals in our society. Despite its seriousness and pervasiveness, elder abuse often goes unreported. Understanding some of the legal provisions set down in the Elder Abuse Act can help us address the problem.
One of the key questions facing elder abuse attorneys in California is whether or not alleged perpetrators have acted in a way that increases potential damages. In order to obtain enhanced damages, plaintiffs in elder abuse litigation - and their lawyers - must show that a defendant acted with fraud, malice, recklessness, or oppression. Let’s look at how these four terms are defined in California law.
Recklessness
A person acts recklessly when they knows their conduct is highly likely to cause harm and they consciously disregard that risk. A defendant acts in reckless disregard of another’s safety when the defendant:
- Does something, or
- Intentionally fails to do something the defendant has a duty to do.
Recklessness reflects a higher degree of culpability than ordinary negligence. It requires more than inadvertence, incompetence, lack of skill, or a simple failure to take appropriate precautions. Recklessness involves a conscious decision to engage in conduct despite being aware of the serious danger it poses to others.
Malice
Malice exists when an individual intends to to cause injury or engages in despicable conduct with willful and knowing disregard for the safety of others. A person acts with knowing disregard when they are aware of the probable consequences of their conduct and deliberately chooses not to avoid them. ‘Despicable conduct’ is conduct so ‘vile, base, or contemptible that reasonable people would despise it,’ according to the Judicial Council of California.
But malice does not necessarily require a specific intent to harm. A conscious disregard for another’s safety may satisfy the malice requirement in cases where the defendant knows the probable dangerous consequences of their actions and willfully fails to prevent them.
Oppression
Oppression refers to despicable conduct that subjects the victim to ‘cruel and unjust hardship in knowing disregard of the plaintiff’s rights.’ It offers a basis for enhanced or punitive damages that is distinct from malice. Although the conduct must still be ‘despicable,’ oppression does not require willful and knowing disregard for the rights or safety of others. It is enough that the despicable conduct imposed cruel and unjust hardship on the victim with knowing disregard of their rights.
Fraud
According to the Judicial Council of California, fraud consists of intentionally misrepresenting, deceiving, or concealing a material fact with the intent to deprive the victim of property or a legal right, ‘or otherwise to cause injury.’
While fraud is frequently alleged in elder abuse litigation, elder abuse lawyers should be cautious about relying on it as a basis from which to obtain enhanced or punitive damages. For the purposes of enhanced damages, ‘fraud’ requires proof of an intentional misrepresentation or concealment of a material fact specifically intended to deprive the victim of property or a legal right, or to otherwise cause injury. Demonstrating this specific intent may be difficult.
To establish fraud for enhanced remedies or punitive damages, the plaintiff must prove:
- The defendant intended to cause the plaintiff harm or intended to deprive the plaintiff of a right or property; and
- The plaintiff relied on the misrepresentation or concealment; and
- The plaintiff suffered harm because of that reliance.
This does not mean fraud can never support enhanced or punitive damages (‘constructive fraud,’ for example, does not require an intent to harm and therefore does not support enhanced remedies or punitive damages). Elder abuse attorneys must clearly identify what fraudulent conduct meets the legal standard and ensure that the proof aligns with the required elements to avoid unnecessary appellate issues.
If you suspect elder abuse in California and want to determine recklessness, malice, oppressions or fraud, consult a dedicated specialist. An elder abuse attorney in Los Angeles can advise you on the best course of action.
