What is a Tort?
Tort law is the body of law that provides remedies to individuals who have suffered harm by the wrongful acts of others. In general, tort law addresses civil lawsuits for injuries or damages. A plaintiff files a lawsuit in a state or federal court against the defendant to seek compensation for his or her injuries. Any person may file a tort claim against another person or business, which have caused him/her to be injured or damaged. Torts are divided into three types: intentional torts, negligence and strict liability. Most torts fall into the category of negligence, which is a failure to act with the level of care that a reasonable person would in similar circumstances. Other examples of torts include battery, assault, trespass, conversion, false imprisonment, fraud, nuisance, negligent infliction of emotional distress and supervening impossibility. An essential element of most torts, except for intentional or strict liability torts , is fault. Most torts require that the plaintiff establish at a minimum some level of fault on the part of the tortfeasor (tortfeasor being the individual who commits a tort), which may be defined as negligence, gross negligence or willful and wanton conduct depending on the type of tort. Negligence requires that plaintiff prove that the defendant failed to act reasonably to prevent the injury, gross negligence is more than the failure to use ordinary care; it is the "wanton and reckless" conduct so as to show total indifference to the rights of others, and willful and wanton conduct is a deliberate act in reckless disregard of the consequences to the safety and welfare of others. Intentional torts are torts, which are necessarily plus fault, such as assault and battery, trespass, conversion and fraudulent misrepresentation. In all these cases, except for negligence, the tort claimant must prove fault in some fashion, which is absent, or not taken into account, for the strict liability torts, such as the case of strict liability for defective product cases.
Tort Law Fundamentals
At the heart of tort law are four fundamental concepts: duty of care, breach of duty, causation, and damages. Underlying these is the overarching premise that tort law seeks to examine and find a remedy for civil wrongs that do not arise from a contractual obligation.
Duty of care refers to the legal obligation we owe to others to act in a manner that does not cause harm. A duty of care exists when the injury or damage that occurs was foreseeable by the tortfeasor, and, where the risk of harm is easily avoided. Duty of care connects the tortfeasor to their victim and establishes the reasonableness of the actions that brought about the claim.
Next, the breach of duty is where the action of the tortfeasor failed to meet their level of obligation to others. A breach of duty will not necessarily be present if a tortfeasor got into an accident but had taken all reasonable steps to insure the safety of others as he/she was required to do. It is a failure to comply with this requirement that is the basis for the causation of damages.
Causation is derived from the actions taken by the tortfeasor and leads into damages. To breach duty is to have caused the damage. There is a standard test used in the legal community to establish causation: but for the actions of the tortfeasor, would the damages have still occurred? If the answer is no, then the analysis stops – the plaintiff may proceed with their claim. However, if the answer is yes, then further examination is necessary to determine what specific action caused the loss.
A plaintiff may proceed with a tort claim if their case satisfies the test of but for causation and the plaintiff experiences damages as a result of the actions of the tortfeasor. Damages are the final concept in tort law. Damages provide for what the plaintiff may receive in compensation for their injury and loss. The aim of damages is to return the injured parties to the position they were in before the tort occurred. These damages may include compensation for physical injury, psychological injuries, property damage, and economic loss.
Categories of Torts
Tort Law encompasses a wide range of harmful actions and omissions, classified primarily into three categories: intentional torts, negligence, and strict liability torts.
Intentional torts: These require proof that the defendant intentionally acted in a way that caused harm to the plaintiff. For example, if Peter hits his neighbor Paul in the face for no reason, Paul can sue him for assault. Intentional torts can also include trespassing (going onto someone’s property without permission), defamation (saying or publishing untrue things about someone else), and conversion (keeping someone else’s property without their permission). Some intentional torts are also considered crimes, such as assault and battery.
Negligence: A tort claim based on negligence claims that the defendant acted carelessly, and that their failure to act with reasonable care caused some harm to the plaintiff. A "reasonable" action depends on the situation: for example, a careful, safe driver would never "reasonably" speed through an intersection, but a reasonably cautious driver might drive slightly over the speed limit to pass someone else, or might speed through a flash yellow signal. Generally, to win a lawsuit based on negligence, the injured person must prove that the defendant’s action (or failure to act) was sufficiently different from what a "reasonable person" would have done that the difference counts as careless. For example, the truck driver who was headed north in our earlier example probably was not negligent in trying to go around the yellow light, but if he were speeding, obviously that would have been careless. No one could argue that the pedestrian, who claims that the truck driver should have seen him and stopped for him, would have been very careful in deciding to ignore the traffic and walk at a green light into traffic going in the same direction.
Strict liability torts: Tort law sometimes allows injured people to sue other people for merely having done something that causes harm, even if the harm was not done intentionally or negligently. In most cases, strict liability is reserved for people who manufacture or distribute products. In these situations, the law holds that the manufacturer or distributor is in the best position to warn consumers about risks or dangers associated with using their products. For instance, if a person buys a toaster that explodes in their face when they plug it in, they may have a strict liability claim against the company that made the toaster. The law in this regard gives consumers a lot of leeway, to encourage companies to be particularly careful when designing, building, and distributing products.
Notable Tort Litigation
Many infamous and notable cases have helped to mold the current tort landscape. Below are some landmark tort cases.
Palsgraf v. Long Island Railroad Company, 248 N.Y. 339 (N.Y. 1928): You may be surprised to learn that the facts of this case involve a woman who was struck and injured by a scale falling on her after a set of fireworks caused a disturbance on a train platform. May-be not the type of fact pattern one expects from the foundation of negligence tort law. This tort case established the standard of foreseeability for proximate cause. In essence, the court held that it could not be expected that a result was possible because the result was too far removed from the act of negligence to be foreseeable. In this case, it was the fall of a scale after the accident, far outside of the realm of possible reaction, that did not constitute negligent conduct since no damage was done to decrease the potential for future injury. The court stated: "If no risk is created and the plaintiff relies solely upon the negligence in doing some act other than the injuring act, there is no cause of action. . . . Liability under this doctrine is for risking and not for injury; more precisely, it is for risking injury, since injury is only an injury. Unforeseen consequential injury resulting from a risk means no risk of that injury at all. We cannot speak of compensating a tort for a non-offending condition." (Palsgraf v. Long Island R.R. Co., 248 N.Y. 339 [N.Y. 1928].)
Donoghue v. Stevenson (UKHL 100), [1932] A.C. 562 H.L. (Scotland) (UK), [1932] A.C. 562 (H.L.): Perhaps the most quoted and cited case for negligence law is Donoghue v. Stevenson, [1932]. In this case Mrs. Donoghue had a friend purchase her a soft drink at a local bar. On her way home, she drank the soft drink and noticed the mouth of the bottle had a faint discoloration. She also noticed something floating in the drink. She retired to a nearby (yes that’s right, a nearby bar, not pub) and had her friend inspect the drink and Christian Dior Women’s Allure Home Eau De Toilette Spray. He identified the float and later identified it as snail. The bar tender reluctantly agreed to return the drink and produce a change while the drink was returned. It was then that the full and grotesque picture was confirmed, a decomposed remains of a snail had been steeping in the beer. As you might have guessed, Mrs. Donoghue fell ill, contracted gastroenteritis and was bedridden for several weeks. She filed suit against the manufacturer, Mr. Stevenson, and alleged negligence. During suit, the Scottish court expanded liability to those who manufacture and create dangerous products or "anyone with knowledge and skill." By extension, the drink manufacturer was responsible to ensure that the product reaching the end user did not possess any level of fault, however minute. Thus, the first element of negligence, henceforth known as the "neighbour principle," would become that for every positive action there was a positive reaction. In simpler terms, everyone is responsible for their action towards an object and not just those between the immediate actor and the offending object. But, the greater impact came in relation to liability and assumption of liability; in that, those who assume a liability for a product, that they either had a part in creating or did not, are responsible for any defects that remain outside of the creator’s control without contractual bounds.
Selecting the Best Tort Law Guide
With so many options available, it is not easy to choose the right tort law book. A good starting point is clarity. Be on the look out for books that tend to read like a legal treatise or sat like a law journal. A little complexity is okay, and often inevitable, because the subject matter itself is quite complex. It should not, however, be your only choice. What you want is an author who writes well, on a subject that demands clarity. At the same time, you must question yourself about your objectives – are you trying to pass a test, or are you trying to state your case clearly to someone who does not understand the law? The answer to this question will help you determine what is clear and what is not. One person’s complex sentence may well be another’s best prose. Do your research, and find reviews of the book from multiple perspectives.
Next, check for comprehensiveness. Some books are texts for courses and broken down by semester in longstanding law school subjects. Others are meant to explain tort law and tort defense to non-lawyers. Still others are introductory texts written by judges or former judges. Usually, the textbooks are better, though not always. For example, "The Law of Torts" is one of our favorite tort law books for a couple of reasons. First, it is concise. To some, this may mean is lacking by some measure, but that is not at all true . Rather, it covers almost all of the important issues in a very sensible manner, with attention to separating American Federal law from those in other parts of the world with similar law. Second, it is up to date. The comparison to other countries is valuable. Its lack of conversion to Restatement language is also a plus. And it is just plain readable. It holds your interest, and you are rewarded by learning something in the process.
Finally, authorship matters. We have used a number of books that were co-authored with a seasoned pro at the top of his field, and it shows. Yet, even where the author is unknown, the quality of the writing carries the day. We recently reviewed another book for which the author was unknown. And while the book is a very technical read, it too carries the day by being a model of comprehensiveness and organization.
To be sure, when it comes to choosing the right tort law book, there often is no right answer. But any good author should do a couple of things. First, they should at least address the elements of a tortuous act or omission. They should also address what is not included as a tortious act or omission. Last, the author should show awareness of the applicable statute of limitations. If the book does not address those simple elements, you could be wasting your time reading them.
Practical Applications of Tort Law
Tort Cases in practice often require experience and aggressive representation to succeed. With so many different branches of tort law and so much overlap between them, there are countless situations in which a victim of negligence may be able to recover for their injury. However, there are also many situations in which the negligence of the injured party themselves may bar them from recovery.
The most common of these is the course of action which comes into play when a plaintiff apparently assumes the risk of harm to them in some way. One example of such a situation is when one invites an obvious risk upon themselves by performing activities which are known to be dangerous, such as skydiving, swimming with sharks, etc. However, there are less obvious situations in which a court may ultimately determine that a plaintiff has assumed a risk of harm to them. Generally, in determining whether a plaintiff has assumed the risk of harm under any circumstances, the court will focus on whether the plaintiff knew or should have known of the risk and whether the plaintiff acted reasonably in that knowledge. One example of a general situation in which a plaintiff’s actions will likely bar them from tort recovery is when they are in the presence of an "obviously" dangerous condition, such as observing someone handling or manipulating a weapon in a way which seems likely to cause injury.
A point of clarification is that when we say that a plaintiff cannot recover because they have "assumed the risk" of a tort, we do not mean that they have committed a tortfeasor. Rather, the determination that one has "assumed the risk" of injury to them only means that a plaintiff will be unable to recover for a tort committed against them.
The "assumption of the risk" doctrine is a component of many other tort law hurdle determinations, most notably in the "comparative fault" doctrine. An example of the application of the "comparative fault" doctrine to a situation in which "assumption of risk" applies is when a plaintiff knowingly and reasonably engages with a dangerous condition but does so not with the expectation that the condition will harm them. A plaintiff in this situation will be unable to recover damages to them from the dangerous condition only if it would have been unreasonable for such a safety-conscious plaintiff to engage in that situation at all. This is in contrast with a plaintiff who is completely unaware of a dangerous condition and therefore tries to navigate through that condition when it is too late to avoid the resulting injury.
Recent Trends in Tort Law
Recent Developments in Tort Law focuses on the most recent changes or updates in tort law, including new or existing legislation, recent court rulings and emerging trends in the field of tort law. Many states have enacted laws in an effort to reduce personal injury claims in general, such as laws regarding Medicaid or insurance fraud and the use of seatbelts. New legislation concerning certain types of negligence or the reduction of lawsuits against specific groups, like emergency room doctors or other medical professionals, also falls into this section.
Laws involving new methods for finding resolutions to tort-related conflicts, like arbitration services and mediation programs , are also covered under Recent Developments in Tort Law. Other information in this section may include the discovery of new risks inherent in specific products, or the emergence of brand-new classes of burdensome or dangerous products and the potential evolution of the law due to this emergence.
Recent Developments in Tort law is often where new and exciting improvements in the way that tort cases are resolved are highlighted, along with informative articles concerning specific aspects of the law, informative blogs and other media that contribute to the focus on tort law or emerging trends that broadly impact tort law practice in general.