A tort is an act or omission that gives rise to injury or harm to another and amounts to a civilwrong for which courts impose liability. In the context of torts, "injury"describesthe invasion of any legal right, whereas "harm"describesaloss ordetriment in fact that an individual suffers.1
Overview
The primary aimsof tort law areto provide relief to injured parties for harms caused by others, toimpose liability on parties responsible for the harm, andtodeter others from committingharmful acts. Torts canshiftthe burden of loss from the injured party to the party who is at fault or better suited to bear the burden of the loss. Typically, a party seeking redress through tort law will ask for damages in the form of monetary compensation. Less common remedies include injunctionand restitution.
Theboundaries of tortlaw are defined by common law and state statutory law. Judges, in interpreting the language ofstatutes, have wide latitude in determining which actions qualify as legally cognizable wrongs,whichdefenses may override any given claim, andthe appropriate measure of damages. Although tort law varies by state, many courts utilize theRestatement of Torts (2nd)as an influential guide.
Torts fall into three general categories: intentional torts (e.g., intentionally hitting a person); negligent torts (e.g.,causing an accident by failing to obey traffic rules); and strict liabilitytorts (e.g., liability for making and selling defective products - see Products Liability).Intentional torts arewrongs thatthe defendant knew or should have known would result through his or her actions or omissions. Negligent torts occur when the defendant's actions were unreasonably unsafe.Unlike intentional and negligent torts, strict liability torts do not depend on the degree of care that the defendant used. Rather, in strict liability cases, courts focus onwhether a particular result or harm manifested.
There are numerous specific torts includingtrespass,assault,battery,negligence,products liability, andintentional infliction of emotional distress.There are also separate areas of tort law including nuisance, defamation, invasion of privacy, and a category of economic torts.
Remedies
The law recognizes torts ascivil wrongs and allows injured parties to recover for their losses. Injured parties may bring suit torecoverdamagesin the form of monetary compensation or for aninjunction, which compels a party to cease an activity. In certain cases, courts will award punitive damages in addition to compensatory damages to deter further misconduct.
In the vast majority of tort cases, the court will award compensatory damages to an injured partythat hassuccessfully proven his or her case.10 Compensatory damages are typically equal to themonetary value ofthe injured party's loss of earnings, loss of future earningcapacity, pain and suffering, and reasonable medical expenses. Thus, courts may awarddamages forincurred as well as expected losses.
When the court has an interest in deterring future misconduct, the court may awardpunitive damages in addition to compensatory damages. For example, in acase against a manufacturerfor a defectively manufactured product, a court mayaward punitive damagesto compel themanufacturer to ensuremore careful productiongoing forward.
In some cases, injured parties may bring suit to obtain an injunctionrather than monetary relief. The party seeking an injunction typically must prove that it would suffer considerable or irreparable harm without the court's intervention.
Distinguishing Torts from Other Bases of Liability
Torts are distinguishable from crimes, which are wrongs against the state or society at large.The main purpose of criminal liability is to enforce publicjustice.In contrast,tort law addressesprivate wrongs and has acentral purpose of compensating the victim rather than punishing the wrongdoer.2Some actsmay provide a basis for both tort and criminal liability. For example, gross negligence that endangers the lives of others may simultaneously be a tort and a crime.3
Some actions are punishable under both criminal law and tort law, such as battery. In that case, ideally tort law would provide a monetary remedy to the plaintiff, while criminal law would provide rehabilitation for the defendant, while also providing a benefit to society by reforming the defendant who committed assault.
Tort law is also distinctfrom contract law. Although aparty may have a strongbreach of contract caseunder contract law, a breach of contract is not typically considered atortiousact.4
Incomplete List of Torts and their Prima Facie Cases (D=defendant; P=plaintiff)
- D had the intent to invade the land
- D invaded land
- P possessed the land and did not give consent to D
- D acts
- D intends to cause a contact with P via D’s touch
- D’s touch is harmful or offensive (objective test)
- Causation b/w intentional touch & harm (2b & 2c)
- P does not consent to the touch
- D acts
- D intentionally acts so as to cause P to apprehend (not fear) imminent harmful or offensive contact with P
- D’s act causes P reasonably to apprehend (not necessarily fear) such a contact
- D willfully acts . .
- . . . intending to confine P w/o P’s consent & w/o authority of law
- D’s act causes P’s confinement
- P is aware of P’s confinement
Intentional Infliction of Emotional Distress
- D acts
- D’s conduct is outrageous
- D acts for the purpose of causing the victim emotional distress so severe that it could be expected to adversely affect mental health
- D’s conduct causes such distress
- D owed P a duty of reasonable care
- D breached that duty
- P suffers an injury
- D’s breach caused P’s injury
- Statute or administrative createda duty
- P is in class of people protected by the duty statutorily imposed on D
- D violated that statute or administrative regulation
- The Statute was intended to prevent the type of injury suffered
Res ipsa loquitur negligence: P must prove 3 things:
- The incident was of a type that does not generally happen w/o negligence
- It was caused by an instrumentality solely in D’s control
- P did not contribute to the cause
- D's action is an intentional non-trespassory activity
- D's action is a recurring activity
- D's action unreasonably interferes w/P’s right to use & enjoy his land
- Injury resulting from intentional, unreasonable interference w/right common to the public
- The injury singles out P from the rest of the public
- D sells a product that P uses
- D is the commercial seller of such a product
- P suffers an injury
- When D sold the item, the item was defective
- The defect was an actual and proximate cause of P’s injury
Inducement of contract
- Valid contract b/w P & third party (a contract that is not currently voided)
- D has knowledge of a valid contract
- D induces third party to disrupt the contract with P
- D’s inducement causes harm to P
- P must show that the inducement was not justified
- Restatement (Second) of Torts § 7
- Dobbs' Law of Torts § 1
- See Dobbs' Law of Torts § 1
