Introduction to Tort Law

A tort is a violation of rights of an individual or business that has been wronged intentionally or by negligence. Common torts include defamation, nuisance, conversion, and negligence. Tort cases are often called personal injury cases, even though they may involve harm to property. Torts are brought in civil court, with a plaintiff suing a defendant. In contrast, a crime is a criminal action for which the state or federal government prosecutes the defendant for committing a wrong that is against society as a whole, not just against an individual. There can also be cases where a person could commit an action that would be a tort and a crime at the same time.

For example, consider three scenarios: Adam sells illegal drugs to Becky; Carla accidentally bumps into David, knocks him down, and injures him; and Ethan argues with Frank and slaps him in the face.

Under state and federal law, the possession and trafficking of illegal drugs is a crime, so the government would prosecute Adam and Becky for their respective roles in the drug transaction. It is not illegal to accidentally bump into someone, so Carla will not be prosecuted by the government; however, David may bring a tort lawsuit against her for negligence in knocking him down and causing him to be injured. The government also outlaws assault and battery, so Ethan can be prosecuted by the government for slapping Frank. Ethan could also be sued in civil court for committing a tort against Frank by choosing to hit him.

The primary distinction between torts and crimes is that torts are wrongs perpetrated against an individual and crimes are wrongs that are against the law and harmful to society at large.

A successful tort claim requires the plaintiff to prove these elements:

• The defendant owed the plaintiff a duty.
• The defendant breached that duty.
• There was causation—in other words, the breach caused the harm.
• The plaintiff suffered harm.

The defendant has a duty of care (an obligation to act in the best interest of individuals and not cause harm) to act as a reasonable person would act under the circumstances. From a legal standpoint, a reasonable person is someone with an ordinary degree of reason and intelligence. If the plaintiff and defendant have a special relationship, then a different duty of care applies. For example, a hotel operator has a special relationship with paid guests—who are considered invitees—and owes the greatest level of duty to them. If the hotel knows there are bedbugs in some rooms and a guest stays in a room and is bitten by bedbugs, the hotel is liable for harms caused by reasonable risks the hotel is aware of or risks that they would be aware of after engaging in a reasonable inspection of the property. The next level of care is owed to a licensee. A licensee is a social guest. For a hotel operator, this might be someone coming to the front desk to inquire about vacancy in order to rent a room but who has not yet become a paying guest. Still, if that person slips on a wet floor entering the hotel, the hotel would be liable, as there is a duty to maintain the hotel property in a safe condition. The lowest duty of care is owed to trespassers. A trespasser is someone upon another's property without consent. A trespasser might be someone a hotel has banned from the property for causing problems. However, even trespassers are owed some level and duty of care. A hotel could not place an electrified fence around the property in order to keep a trespasser out. This would be considered excessive and a dangerous condition, and the hotel would be liable for injuries caused even to a trespasser in this situation.

For a tort claim, the plaintiff must prove that the defendant breached that duty. This usually requires the plaintiff to demonstrate that the defendant did not act as a reasonable person would under the circumstances. The plaintiff must prove that they suffered harm. Last, the plaintiff must prove that the defendant's breach caused the plaintiff's harm.

There are two ways to prove causation. Cause in fact, also referred to as actual cause, is when the plaintiff proves that the defendant caused the injury in a direct way. Proximate cause is when the plaintiff proves that the defendant should have reasonably foreseen that their actions would cause the plaintiff harm. The plaintiff must prove their tort case by a preponderance of the evidence. This burden of proof, also called a balance of probabilities, is the obligation to prove one's position, and it is satisfied if more than 50 percent of the evidence supports the plaintiff's claim. The burden of proof in civil cases is much less than in criminal cases. In criminal cases, the government must prove that the defendant committed the charged offense beyond a reasonable doubt. Expressed in numerical percentage, proving something beyond a reasonable doubt is a situation wherein the certainty of conviction is in the range of 98 or 99 percent. A reasonable doubt can also be defined as something that is not frivolous or imaginary and not based on sympathy or prejudice but instead is based on reason and common sense from the evidence presented to the jury or from the absence of evidence. The disparity between the burden of proof in criminal and civil cases is caused by the purpose of the action. Civil actions are brought to resolve a dispute between two or more parties. Criminal actions are concerned with the accused's protected rights and ensuring that the convicted person actually committed the crime.

Tort law has three main goals: to provide a means of relief for parties injured by others; to impose liability, or responsibility, on parties who cause harm; and to discourage others from engaging in harmful conduct. Tort law compensates innocent persons who are injured or whose property was damaged as the result of another person's actions. It is also designed to prevent the injury from happening again.

Tort law plays an important role in society. It allows injured persons to be remedied through the court system rather than through retaliation, the act of harming a person because they have harmed you. Also, it provides society with a sense of justice by providing means for responsible parties to pay for the harm they have caused. This deters others from engaging in civil wrongs because it shows that wrongdoers will be held responsible. Tort law has three primary categories. Negligence is a civil wrong that happens when the defendant owes a duty and fails to act as a reasonable person would under the circumstances and, because of that failure, harm to another person results. For example, if a driver of a car is speeding or driving in an unsafe manner and causes a car accident, they would be negligent in that action and subject to civil liability and responsibility for any resulting injury, harm, and damages.

A strict liability tort is a civil wrong that often involves an inherently dangerous action, and based on the surrounding circumstances, no amount of due care can make the action safe. However, some of these activities have social utility, so it would not be beneficial to prohibit the activity. Instead, categorizing these activities as strict liability communicates the high risks associated with the activity and the fact that those engaging in strict liability activities should exercise the highest of care. Examples of dangerous activities include using explosives to build roads, cleaning up harmful chemicals, exhibiting fireworks, and performing controlled burns to prevent forest fires.

An intentional tort is a civil wrong wherein the defendant's deliberate action causes harm. Examples of intentional torts include assault, battery, false imprisonment, trespass, fraud, and misrepresentation. Whether conduct is a tort is determined by common law and statute, which is influenced by the Restatement of Torts. The Restatement of Torts is a treatise from the American Law Institute that outlines common-law principles representing tort law in most U.S. jurisdictions. Common law, in contrast to statutory law, comes from judicial precedent and is also called judge-made law. Statutory laws come from legislative bodies, such as the laws that make it illegal to rob a bank. In common law, a previous court has ruled on that area of law and future courts are expected to follow that precedent in similar situations. Thus, most common-law precedents come from the Supreme Court, which then becomes the definitive law of the land unless the law or the Constitution is later amended by a legislative body or a future Supreme Court overrules the prior precedent. In the United States, for example, the Supreme Court case Brown v. Board of Education from the 1950s declared that it was unconstitutional to have schools that were segregated by race. This decision overturned prior court precedent and statutory laws that allowed for racially separate schools, and it forced states to integrate their public school systems. Future court cases in this area would rely on the precedent set in that case and would not allow for any future racially segregated schools to open.