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In the common law, a tort is a civil wrong for which the law provides a remedy. The origins of the modern law of torts lie in the old remedies of trespass and trespass on the case. The term itself comes from Law French and means, literally, 'a wrong' (avoir tort = "to be wrong" or "to have wronged [somebody]"). The equivalent body of law in civil law legal systems is delict.
A tort is a breach of a non-contractual duty potentially owed to the entire world, imposed by law. The majority of legal claims are brought in tort.
In general
Tort law is distinguished from the law of contract, the law of restitution, and the criminal law. Contract law protects expectations arising from promises, restitution prevents unjust enrichment, and criminal law punishes wrongs that are so severe (like murder) that the sovereign has a direct interest in preventing them. Note that many wrongs can result in liability to both the state (as crimes) and to the victim (as torts).
Tort law serves to protect a person's interest in his or her bodily security, tangible property, financial resources, or reputation. Interference with one of these interests is redressable by an action for compensation, usually in the form of unliquidated damages. The law of torts therefore aims to restore the injured person to the position he or she was in before the tort was committed (the expectation or rightful position principle).
In most countries, torts are typically divided into three broad categories: intentional torts, negligence and nuisance. Additional categories or subcategories are recognized in some countries. Some torts are strict liability torts, in that the plaintiff may recover by showing only that they suffered an injury, which caused them damages, and that the defendant was responsible for causing the injury — there is no need to show the defendant's state of mind or that the defendant breached a duty of due care.
Definition of a tort
In his famous treatise, Handbook of the Law of Torts, William Prosser defined "tort" as "a term applied to a miscellaneous and more or less unconnected group of civil wrongs other than breach of contract for which a court of law will afford a remedy in the form of an action for damages."
Besides damages, in a limited range of cases, tort law will tolerate self-help, for example, using reasonable force to expel a trespasser. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction to restrain the continuance or threat of harm.
Purposes of torts
The law of torts determines whether a loss that befalls one person should or should not be shifted to another person. Some of the consequences of injury or death, such as medical expenses incurred, can be made good by payment of damages. Damages may also be paid, for want of a better means of compensation, for non-pecuniary consequences, such as pain.
In "The Aims of the Law of Tort" (1951) Glanville Williams saw four possible bases on which different torts rested: appeasement, justice, deterrence and compensation. The law tends to emphasise different aims in relation to intentional torts from those in relation to negligence or strict liability. After Williams' article, there grew up a school of economic analysts of law who emphasized incentives and deterrence.
Categories of torts
Torts are generally categorized by two factors:
- The level of intent that must be assessed against the tortfeasor, and
- The interest affected by the tort.
Intentional torts
Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories, including torts against the person, property torts, dignitary torts, and economic torts.
Torts against the person
Torts against the person harm or restrict the person of the plaintiff. Torts against the person include assault, battery, false imprisonment, and intentional infliction of emotional distress.
Property torts
Property torts involve any intentional interference with the property rights of the plaintiff. Those commonly recognized include trespass to land, trespass to chattels, and conversion.
Dignitary torts
Dignitary torts are torts that cause no tangible injury to a person or his property, but rather cause intangible harm to his reputation. These may include defamation, slander, libel, misappropriation of publicity, invasion of privacy, and disclosure. In the United States, the First Amendment places special limitations on the defamation of public figures with respect to issues of public importance. Abuse of process and malicious prosecution are often classified as dignitary torts as well.
Economic torts
Economic torts include common law fraud and tortious interference with contractual or business relationships.
Negligence
The tort of negligence is the broadest of the torts and is the basis of most personal injury cases. Its four classic elements are as follows: (1) The defendant owed a duty of due care (that is, he is bound to act as a reasonably prudent person) to the plaintiff; (2) the defendant breached the duty; (3) the defendant's breach was the legal and proximate cause of injury to the plaintiff; and (4) the plaintiff suffered damages as a result of the defendant's actions. These elements are often summarized as the formula of "duty, breach, causation, and damages."
Obviously, whether any given injury can be brought as a negligence claim depends upon whether a lawyer can convince a court that the plaintiff owed the defendant a duty of due care to not inflict the particular injury at issue.
Nuisance
The tort of nuisance allows a plaintiff to sue for most acts that interfere with their use and enjoyment of their land. For example, noise pollution from airports is usually remedied through nuisance claims.
Strict liability
Strict liability is applied in some countries to ultrahazardous activities, which present such grave dangers that parties engaged in those activities are held liable for injuries resulting therefrom even if they were not negligent. This theory is applied to injuries resulting from things such as the keeping of wild animals, use of explosives, or storage or use of radioactive materials.
In some countries, strict liability is the rule in certain product liability cases, on the theory that only strict liability can force manufacturers to always pursue the safest possible design. It is also believed necessary to force all parties in the "chain of commerce" to exercise the highest level of due care to ensure that products are in good condition and are not dangerously defective.
Also, in some jurisdictions, copyright infringement has been made a strict liability tort by statute.
Torts and criminal law
In common law, many torts originated in the criminal law. As noted above, there is still some overlap between crime and tort. For example, in English law an assault is both a crime and a tort (a form of trespass to the person).
The difference that grew up between the two is that in tort it is the victim (or 'claimant' in English law) who will normally initiate any court action and who aims to have a wrong compensated (for example by the payment of damages) or prevented (for example by injunctive relief). Criminal actions are normally for punitive purposes and initiated by a public body or their representative. Another distinction is that incarceration is available as a penalty for crimes, but not for torts.
Regardless, many jurisdictions retain a punitive element as a part of the law of tort via exemplary damages. Some torts may have a public element — for example, public nuisance, — with actions being maintained by a public body. Also, while criminal law is primarily punitive, many jurisdictions have developed forms of monetary compensation or restitution which criminal courts can directly order the defendant to pay to the victim.
Tort by legal jurisdiction
Legal jurisdictions whose legal system developed from the English common law have the concept of tortious liability. There are technical differences from one jurisdiction to the next in proving the various torts.
See also
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