ABOUT TORT LAW

A tort, in common law jurisdictions, is a wrong[1] that involves a breach of a civil duty (other than a contractual duty) owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general. Though many acts are both torts and crimes, prosecutions for crime are mostly the responsibility of the state, private prosecutions being rarely used; whereas any party who has been injured may bring a lawsuit for tort. It is also differentiated from equity, in which a petitioner complains of a violation of some right. One who commits a tortious act is called a tortfeasor. The equivalent of tort in civil law jurisdictions is delict.

Tort may be defined as a personal injury; or as "a civil action other than a breach of contract."[citation needed]

A person who suffers a tortious injury is entitled to receive "damages", usually monetary compensation, from the person or people responsible — or liable — for those injuries. Tort law defines what is a legal injury and, therefore, whether a person may be held liable for an injury they have caused. Legal injuries are not limited to physical injuries. They may also include emotional, economic, or reputational injuries as well as violations of privacy, property, or constitutional rights. Tort cases therefore comprise such varied topics as auto accidents, false imprisonment, defamation, product liability (for defective consumer products), copyright infringement, and environmental pollution (toxic torts), among many others.

In much of the common law world, the most prominent tort liability is negligence. If the injured party can prove that the person believed to have caused the injury acted negligently – that is, without taking reasonable care to avoid injuring others – tort law will allow compensation.

However, tort law also recognizes intentional torts, where a person has intentionally acted in a way that harms another, and "strict liability" or quasi-tort, which allows recovery under certain circumstances without the need to demonstrate negligence.

Etymology

According to Webster, the word's origin is Middle English, injury, from Anglo-French, from Medieval Latintortum, from Latin, neuter of tortus twisted, from past participle of torquēre First Known Use: 1586

[edit]Categories of torts

Torts may be categorized in a number of ways: one such way is to divide them into Negligence, Intentional Torts, and Quasi-Torts.

The standard action in tort is negligence. The tort of negligence provides a cause of action leading to damages, or to relief, in each case designed to protect legal rights, including those of personal safety, property, and, in some cases, intangible economic interests. Negligence actions include claims coming primarily from car accidents and personal injury accidents of many kinds, including clinical negligence, worker's negligence and so forth. Product liability cases, such as those involving warranties, may also be considered negligence actions, but there is frequently a significant overlay of additional lawful content.

Intentional torts include, among others, certain torts arising from the occupation or use of land. The tort of nuisance, for example, involves strict liability for a neighbor who interferes with another's enjoyment of his real property. Trespass allows owners to sue for entrances by a person (or his structure, such as an overhanging building) on their land. Several intentional torts do not involve land. Examples include false imprisonment, the tort of unlawfully arresting or detaining someone, and defamation (in some jurisdictions split into libel and slander), where false information is broadcast and damages the plaintiff's reputation.

In some cases, the development of tort law has spurred lawmakers to create alternative solutions to disputes. For example, in some areas, workers' compensation laws arose as a legislative response to court rulings restricting the extent to which employees could sue their employers in respect of injuries sustained during employment. In other cases, legal commentary has led to the development of new causes of action outside of the traditional common law torts. These are loosely grouped into quasi-torts or liability torts.

Negligence

Negligence is a tort which depends on the existence of a breaking of the duty of care owed by one person to another. One well-known case is Donoghue v Stevenson where Mrs. Donoghue consumed part of a drink containing a decomposed snail while in a public bar in Paisley, Scotland and claimed that it had made her ill. The snail had not been visible, as the bottle of beer in which it was contained was opaque. Neither the friend who bought the bottle for her, nor the shopkeeper who sold it, were aware of the snail's presence. The manufacturer was Mr. Stevenson, whom Mrs. Donoghue sued for damages for negligence. She could not sue Mr. Stevenson for damages for breach of contract because there was no contract between them. The majority of the members of the House of Lords agreed (3:2 ratio) that Mrs. Donoghue had a valid claim, but disagreed as to why such a claim should exist. Lord MacMillan thought this should be treated as a new product liability case. Lord Atkin argued that the law should recognise a unifying principle that we owe a duty of reasonable care to our neighbors. He quoted the Bible in support of his argument, specifically the general principle that "thou shalt love thy neighbor." Negligence is a breach of legal duty to take care resulting in damage to the plaintiff. This definition of negligence can be divided into four component parts that the plaintiff must prove to establish negligence. The legal burden of proving these elements falls upon the plaintiff. The elements in determining the liability for negligence are:

 The plaintiff was owed a Duty of care

 There was a Dereliction or breach of that duty

 The tortfeasor Directly caused the injury.

 The plaintiff suffered Damage as a result of that breach

 The damage was not too remote; there was proximate cause.

Duty of Care

The first element of negligence is the legal duty of care. This concerns the relationship between the defendant and the plaintiff, which must be such that there is an obligation upon the defendant to take proper care to avoid causing injury to the plaintiff in all the circumstances of the case. There are two ways in which a duty of care may be established:

 the defendant and plaintiff are within one of the 'special relationship'; or

 outside of these relationships, according to the principles developed by case law.

There are a number of situations in which the courts recognise the existence of a duty of care. These usually arise as a result of some sort of special relationship between the parties. Examples include one road-user to another, employer to employee, manufacturer to consumer, doctor to patient and solicitor to client.

Statutory torts

A statutory tort is like any other, in that it imposes duties on private or public parties, however they are created by the legislature, not the courts. One example is in consumer protection, with the Product Liability Directive in the European Union, where businesses making defective products that harm people must pay for any damage resulting. Liability for bad or not working products is strict in most jurisdictions. The theory of risk spreading provides support for this approach. Since manufacturers are the 'cheapest cost avoiders', because they have a greater chance to seek out problems, it makes sense to give them the incentive to guard against product defects. Another example is occupier's liability, which was seen as overly complex and illogical, so many jurisdictions replaced the common law rules for occupiers' liability with statutory torts. Statutory torts also spread across workplace health and safety laws and health and safety in food produce.

Such torts as often grouped in with quasi-torts.

Nuisance

Legally, the term “nuisance” is traditionally used in three ways: (1) to describe an activity or condition that is harmful or annoying to others (example- indecent conduct, a rubbish heap or a smoking chimney); (2) to describe the harm caused by the before-mentioned activity or condition (example- loud noises or objectionable odors); and (3) to describe a legal liability (responsibility) that arises from the combination of the two. The law of nuisance was created to stop such bothersome activities or conduct when they unreasonably interfered either with the rights of other private landowners (example- private nuisance) or with the rights of the general public (example-public nuisance).

The tort of nuisance allows a claimant (formerly plaintiff) to sue for most acts that interfere with their use and enjoyment of their land. A good example of this is in the case of Jones v Powell. A brewery made stinking vapors which wafted onto a neighbor's property, damaging his papers. As he was a landowner, the neighbor sued in nuisance for this damage. But Whitelocke J, speaking for the Court of the King's Bench, said that because the water supply was contaminated, it was better that the neighbor's documents were risked. He said "it is better that they should be spoiled than that the common wealth stand in need of good liquor." Nowadays, interfering with neighbors' property is not looked upon so kindly. Nuisance deals with all kinds of things that spoil a landowner's enjoyment of his property.

A subset of nuisance is known as the rule in Rylands v. Fletcher, where a dam burst into a coal mine shaft. So a dangerous escape of some hazard, including water, fire, or animals means strict liability in nuisance. This is subject only to a remoteness cap, familiar from negligence when the event is unusual and unpredictable. This was the case where chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's water reservoirs.

Free market environmentalists would like to expand tort damage claims into pollution (example-toxic torts) and environmental protection.

Defamation

Defamation is tarnishing the reputation of someone; it has two varieties, slander and libel. Slander is spoken defamation and libel is printed or broadcast defamation. The two otherwise share the same features: making a factual assertion for which evidence does not exist. Defamation does not affect or hinder the voicing of opinions, but does occupy the same fields as rights to free speech in the First Amendment to the Constitution of the United States, or Article 10 of the European Convention of Human Rights. Related to defamation in the U.S. are the actions for misappropriation of publicity, invasion of privacy, and disclosure. Abuse of process and malicious prosecution are often classified as dignitary torts as well.

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, including assault, battery, false imprisonment, intentional infliction of emotional distress, and fraud. Property torts involve any intentional interference with the property rights of the claimant (plaintiff). Those commonly recognized include trespass to land, trespass to chattels (personal property), and conversion.

Economic torts

Economic torts protect people from interference with their trade or business. The area includes the doctrine of restraint of trade and has largely been submerged in the twentieth century by statutory interventions on collective labour law and modern antitrust or competition law. The "absence of any unifying principle drawing together the different heads of economic tort liability has often been remarked upon."

Through a recent development in common law, beginning with Hedley Byrne v Heller in 1964, a victim of negligent misstatement may recover damages for pure economic loss caused by detrimental reliance on the statement. Misrepresentation is a tort as confirmed by Bridge LJ in Howard Marine and Dredging Co. Ltd. v A Ogden & Sons

Modern competition law is an important method for regulating the conduct of businesses in a market economy. A major subset of statutory torts, it is also called 'anti-trust' law, especially in the United States, articles 101 and 102 of the Treaty on the Functioning of the European Union, as well as the Clayton and Sherman Acts in the U.S., which create duties for undertakings, corporations and businesses not to distort competition in the marketplace. Cartels are forbidden on both sides of the Atlantic Ocean. So is the abuse of market power by monopolies (sole producers in a market) or the substantial lessening of competition through a merger, takeover, acquisition or concentration of enterprises. A huge issue in the EU is whether to follow the U.S. approach of private damages actions to prevent anti-competitive conduct.

Liability, defenses, and remedies

Vicarious liability

The word 'vicarious' derives from the Latin word for 'change' or 'alternation' or 'stead' and in tort law refers to the idea of one person being liable for the harm caused by another, because of some legally relevant relationship. An example might be a parent and a child, or an employer and an employee. You can sue an employer for the damage to you by their employee, which was caused "within the scope of employment." This is called respondeat superior. For example, if a shop employee spilled cleaning liquid on the supermarket floor, and you slipped and fell, suffering injuries, you could sue the employee who actually spilled the liquid, or sue the employers. In the aforementioned case, the latter option is more practical as they are more likely to have more money. The law replies "since your employee harmed the claimant in the course of his employment, you bear responsibility for it, because you have the control to hire and fire him, and reduce the risk of it happening again." There is considerable academic debate about whether vicarious liability is justified on no better basis than the search for a solvent defendant, or whether it is well founded on the theory of efficient risk allocation.

Defenses

A successful defense absolves the defendant from full or partial liability for damages.

Apart from proof that there was no breach of duty, there are three principal defenses to tortious liability.

Consent

Main article: Consent

Typically, one cannot hold another liable in tort for actions to which one has consented. This is frequently summarized by the phrase "volenti non fit injuria" (Latin: "to a willing person, no injury is done" or "no injury is done to a person who consents"). It operates when the claimant either expressly or implicitly consents to the risk of loss or damage. For example, if a spectator at an ice hockey match is injured when a player strikes the puck in the ordinary course of play, causing it to fly out of the rink and hit him or her, this is a foreseeable event and spectators are assumed to accept that risk of injury when buying a ticket. A slightly more limited defence may arise where the defendant has been given a warning, whether expressly to the claimant or by a public notice, sign or otherwise, that there is a danger of injury. The extent to which defendants can rely on notices to exclude or limit liability varies from country to country. This is an issue of policy as to whether (prospective) defendants should not only warn of a known danger, but also take active steps to fence the site and take other reasonable precautions to prevent the known danger from befalling those foreseen to be at risk.

[edit]Contributory negligence

This is either a mitigatory defence or, in the United States, it may be an absolute defence. When used as a mitigatory defence, it is often known in the U.S. as comparative negligence. Under comparative negligence a plaintiff/claimant's award is reduced by the percentage of contribution made by the plaintiff to the loss or damage suffered. Thus, in evaluating a collision between two vehicles, the court must not only make a finding that both drivers were negligent, but it must also apportion the contribution made by each driver as a percentage, e.g. that the blame between the drivers is 20% attributable to the plaintiff/claimant: 80% to the defendant. The court will then quantify the damages for the actual loss or damage sustained, and then reduce the amount paid to the plaintiff/claimant by 20%. While contributory negligence retains a significant role, an increasing number of jurisdictions, particularly within the United States, are evolving toward a regime of comparative negligence. All but four US states now follow a statutorily created regime of comparative negligence.

Contributory negligence has been widely criticised as being too draconian, in that a plaintiff whose fault was comparatively minor might recover nothing from a more egregiously irresponsible defendant. Comparative negligence has also been criticised, since it would allow a plaintiff who is recklessly 95% negligent to recover 5% of the damages from the defendant, and often more when a jury is feeling sympathetic. Economists have further criticised comparative negligence, since under the Learned Hand Rule it will not yield optimal precaution levels. In response, many places now have a 50% rule where the plaintiff recovers nothing if the plaintiff is more than 50% responsible.

[edit]Illegality

Ex turpi causa non oritur actio is the illegality defence, the Latin for "no right of action arises from a despicable cause." If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish or reduce the defendant's liability. Thus, if a burglar is verbally challenged by the property owner and sustains injury when jumping from a second story window to escape apprehension, there is no cause of action against the property owner even though that injury would not have been sustained but for the property owner's intervention.

[edit]Remedies

The main remedy against tortious loss is compensation in 'damages' or money. In a limited range of cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defence against the tort of battery. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction. This means a command, for something other than money by the court, such as restraining the continuance or threat of harm.[2] Usually injunctions will not impose positive obligations on tortfeasors, but some Australianjurisdictions can make an order for specific performance to ensure that the defendant carries out their legal obligations, especially in relation to nuisance matters.[3]

[edit]Theory and reform

Main article: Tort reform

Scholars and lawyers have identified conflicting aims for the law of tort, to some extent reflected in the different types of damages awarded by the courts: compensatory, aggravated and punitive. In The Aims of the Law of Tort (1951),[4] Glanville Williams saw four possible bases on which different torts rested: appeasement, justice, deterrence and compensation.

From the late 1950s a group of legally oriented economists and economically oriented lawyers emphasized incentives and deterrence, and identified the aim of tort as being the efficient distribution of risk. They are often described as the law and economics movement. Ronald Coase, one of the movement's principal proponents, submitted, in his article The Problem of Social Cost (1960),[5] that the aim of tort should be to reflect as closely as possible liability where transaction costs should be minimized.

Calls for reform of tort law come from diverse standpoints reflecting diverse theories of the objectives of the law. Some calls for reform stress the difficulties encountered by potential claimants. Because of all people who have accidents, only some can find solvent defendants from which to recover damages in the courts, P. S. Atiyah has called the situation a "damages lottery."[6] Consequently, in New Zealand, the government in the 1960s established a no-fault system of state compensation for accidents. Similar proposals have been the subject of Command Papers in the UK and much academic debate.

However, in the U.S. calls for reform have tended to be for drastic limitation on the scope of tort law, a minimisation process on the lines of economic analysis. Anti-trust damages have come under special scrutiny,[7] and many people believe the availability of punitive damages generally are a strain on the legal system.

Theoretical and policy considerations are central to fixing liability for pure economic loss and of public bodies.

Overlap with criminal law

There is some overlap between criminal law and tort, since tort, a private action, used to be used more than criminal laws in the past. For example, in English law an assault is both a crime and a tort (a form of trespass to the person). A tort allows a person, usually the victim, to obtain a remedy that serves their own purposes (for example by the payment of damages to a person injured in a car accident, or the obtaining of injunctive relief to stop a person interfering with their business). Criminal actions on the other hand are pursued not to obtain remedies to assist a person – although often criminal courts do have power to grant such remedies – but to remove their liberty on the state's behalf. That explains why incarceration is usually available as a penalty for serious crimes, but not usually for torts.

The more severe penalties available in criminal law also means that it requires a higher burden of proof to be discharged than the related tort. For example, in the O. J. Simpson murder trial, the jury was not convinced beyond reasonable doubt that O. J. Simpson had committed the crime ofmurder; but in a later civil trial, the jury in that case felt that there was sufficient evidence to meet the standard of preponderance of the evidencerequired to prove the tort of wrongful death.[8]

Many jurisdictions, especially the US, retain punitive elements in tort damages, for example in anti-trust and consumer-related torts, making tort blur the line with criminal acts. Also there are situations where, particularly if the defendant ignores the orders of the court, a plaintiff can obtain a punitive remedy against the defendant, including imprisonment. Some torts may have a public element – for example, public nuisance – and sometimes actions in tort will be brought 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.[9]

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. For the issue of foreign elements in tort see Tort and conflict of laws.

 Australian tort law

 Canadian tort law

 English tort law

 Scots Law of Delict (broadly equivalent, deals more with principle rather than specific wrongs)

 United States tort law

 Irish tort law (see Irish Citizens Information Board)

In addition, other legal systems have concepts comparable to torts. See, for instance, the rabbinic category of Damages (Jewish law) (note though that while a few aspects of this law are incorporated into Israeli law, tort law in Israel is technically similar to English tort law - as enacted by British Mandate of Palestine authorities in 1944 and taking effect in 1947, a year before Israel became a state).

A body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. The person who sustains injury or suffers pecuniary damage as the result of tortious conduct is known as the plaintiff, and the person who is responsible for inflicting the injury and incurs liability for the damage is known as the defendant or tortfeasor.

Three elements must be established in every tort action. First, the plaintiff must establish that the defendant was under a legal duty to act in a particular fashion. Second, the plaintiff must demonstrate that the defendant breached this duty by failing to conform his or her behavior accordingly. Third, the plaintiff must prove that he suffered injury or loss as a direct result of the defendant's breach.

The law of torts is derived from a combination of common-law principles and legislative enactments. Unlike actions for breach of contract, tort actions are not dependent upon an agreement between the parties to a lawsuit. Unlike criminal prosecutions, which are brought by the government, tort actions are brought by private citizens. Remedies for tortious acts include money damages and injunctions (court orders compelling or forbidding particular conduct). Tortfeasors are subject to neither fine nor incarceration in civil court.

The word tort comes from the Latin term torquere, which means "twisted or wrong." The English Common Law recognized no separate legal action in tort. Instead, the British legal system afforded litigants two central avenues of redress: Trespass for direct injuries, and actions "on the case" for indirect injuries. Gradually, the common law recognized other civil actions, including Defamation, LIBEL, and slander. Most of the American colonies adopted the English common law in the eighteenth century. During the nineteenth century, the first U.S. legal treatises were published in which a portion of the common law was synthesized under the heading of torts.

Over the last century, tort law has touched on nearly every aspect of life in the United States. In economic affairs, tort law provides remedies for businesses that are harmed by the unfair and deceptive trade practices of a competitor. In the workplace, tort law protects employees from the intentional or negligent infliction of emotional distress. Tort law also helps regulate the environment, providing remedies against both individuals and businesses that pollute the air, land, and water to such an extent that it amounts to a Nuisance.

Sometimes tort law governs life's most intimate relations, as when individuals are held liable for knowingly transmitting communicable diseases to their sexual partners. When a loved one is killed by a tortious act, surviving family members may bring a Wrongful Death action to recover pecuniary loss. Tort law also governs a wide array of behavior in less intimate settings, including the operation of motor vehicles on public roadways.

The law of torts serves four objectives. First, it seeks to compensate victims for injuries suffered by the culpable action or inaction of others. Second, it seeks to shift the cost of such injuries to the person or persons who are legally responsible for inflicting them. Third, it seeks to discourage injurious, careless, and risky behavior in the future. Fourth, it seeks to vindicate legal rights and interests that have been compromised, diminished, or emasculated. In theory these objectives are served when tort liability is imposed on tortfeasors for intentional wrongdoing, Negligence, and ultrahazardous activities.

Intentional Torts

An intentional tort is any deliberate interference with a legally recognized interest, such as the rights to bodily integrity, emotional tranquility, dominion over property, seclusion from public scrutiny, and freedom from confinement or deception. These interests are violated by the intentional torts of assault, Battery, trespass, False Imprisonment, invasion of privacy, conversion, Misrepresentation, and Fraud. The intent element of these torts is satisfied when the tortfeasor acts with the desire to bring about harmful consequences and is substantially certain that such consequences will follow. Mere reckless behavior, sometimes called willful and wanton behavior, does not rise to the level of an intentional tort.

Under certain circumstances the law permits individuals to intentionally pursue a course of conduct that will necessarily result in harm to others. The harm that results from such conduct is said to be outweighed by more important interests. Self-preservation is one such interest and is embodied in the right of Self-Defense. Individuals may exert sufficient force in self-defense

Breast Implant Lawsuits

When a company produces a dangerous or defective product that injures an individual, the injured person may sue the company in a products-liability tort action, demanding compensation for the injuries. To prevail in a products-liability action, the plaintiff must demonstrate that the injury-causing product was defective, that the defect existed at the time the product left the control of the defendant, and that such defect was the proximate cause of the plaintiff's injury. If many individuals have been injured by the same product, the court may permit the filing of a Class Action lawsuit, in which a small number of plaintiffs represent the entire group of injured victims.

One of the more controversial class actions involved the silicone breast-implant litigation. Notwithstanding a class totaling more than 400,000 plaintiffs, a settlement that offered more than $3 billion in compensation for their alleged injuries, and a federal government ban on the product, no evidence was ever provided that conclusively linked silicone breast implants with any form of serious disease. In fact, following the settlement at least two scientific studies affirmatively concluded that no such link exists. In the wake of those studies, manufacturers have sought government approval to resume selling silicone breast implants to the public.

In 1962 Dow Corning became the first company to manufacture and market silicone breast implants. The implants consisted of a rubbery silicone envelope containing silicone gel. Plastic surgeons soon discovered that a certain (and as yet undetermined) percentage of implants rupture on their own, either because of trauma to the breast or because the implant simply tears. In many cases, the gel stays either in the implants or in the immediate vicinity. In rare cases, the gel may migrate through the body. Moreover, the implants themselves are permeable, and minute amounts of silicone gel can seep through the implants and remain in nearby tissue or migrate throughout the body.

For many years, breast implants were essentially unregulated by the government. The Food and Drug Administration (FDA) did not have jurisdiction over medical devices, including breast implants, until the 1976 Medical Devices Amendment to the Food, Drug and Cosmetic Act (MDA) became law. The MDA "grandfathered-in" existing devices, such as breast implants, allowing them to remain on the market until the FDA could classify and regulate them. In 1982 the FDA proposed classifying silicone-gel breast implants as Class III devices, the most stringently regulated category. The FDA expressed concern about the scar tissue that forms around the implant, about potential long-term toxic effects of silicone that might leak from the implants, and about possible health effects from the silicone polymers from which the implant shells were made.

That same year Maria Stern filed the first silicone-breast-implant-related Product Liability suit against Dow Corning, Inc., after her implants ruptured. Testifying before a jury sitting in the U.S. District Court for the Northern District of California, Stern said that she suffered from chronic fatigue and joint pains before and after the implants were removed. Although her doctors speculated that Stern's problems had been caused by the silicone migrating throughout her body, they offered no valid scientific proof of causation. However, Stern did demonstrate that the company had acted irresponsibly by failing to conduct any research into the possible ill effects of silicone on the human body despite evidence that Dow Corning knew that implants could leak and rupture. A jury found for the plaintiff and awarded Stern $200,000 in damages. The jury also awarded her $1.2 million in Punitive Damages. After the trial judge upheld the awards, the case was settled before appeal for an undisclosed sum, and the record was sealed.

The media did not immediately pick up on the Stern settlement or the smattering of similar lawsuits that were pending in state and federal courts around the country. After several relatively uneventful years following a series FDA hearings in the late 1980s, however, NBC aired an episode of Face to Face with Connie Chung which focused on the dangers of breast implants. The December 1990 show frightened and outraged thousands of implant recipients. Chung referred to silicone gel as "an ooze of slimy gelatin that could be poisoning women." She interviewed several women who blamed implants for causing their auto-immune diseases, but Chung never questioned the presumed link. Chung concluded the segment by showing viewers pictures of Sybil Goldrich, whose chest had been disfigured by operations to remove her implants.

On July 9, 1991, a deadline expired for implant manufacturers to prove the safety of their product to the FDA, and no manufacturer offered any convincing proof on the matter. A year later the FDA ordered that silicone breast implants be removed from the market. Thereafter, the number of breast-implant lawsuits filed against manufacturers rose dramatically. By 1992 plaintiffs had filed 3,558 individual lawsuits against Dow Corning alone. In June 1992, the federal Judicial Panel on Multidistrict Litigation certified a multi-district class-action lawsuit against the major implant manufacturers, including Dow Corning, Bristol-Myers Squibb, Baxter International, and Minnesota Mining & Manufacturing Co.

In September 1993 the parties tentatively agreed to settle the class-action products liability lawsuit for $4.75 billion. But settlement ultimately collapsed after 440,000 women registered for the settlement, forcing Dow Corning, the largest contributor to the settlement, to file for Bankruptcy in 1995. On November 30, 1998, U.S. Bankruptcy Judge Arthur Spector approved Dow Corning's $4.5 billion plan to emerge from bankruptcy, which included $3.2 billion to settle implant claims with more than 170,000 women. Eventually, the other implant manufacturers entered similar settlement agreements with most of the remaining plaintiffs. More than 90 percent of the eligible class-action plaintiffs accepted the defendants' settlement offers. The remaining plaintiffs opted-out of the class settlement, which allowed them to sue the defendants individually.

A little more than a year after the class action was settled, a scientific panel appointed by the court overseeing the settlement released the results of its breast-implant study, finding that there was no sufficient scientific basis to link silicone implants to cancer, connective tissue diseases, immune system dysfunctions, or any other disease. On June 21, 1999, the Institute of Medicine of the National Academy of Sciences issued a congressionally funded report that reached the same conclusion.

In March of 2003 two California-based companies announced their desire to re-introduce silicone breast implants into the stream of commerce, and the FDA agreed to hold safety hearings and reconsider its ban on the product. The potential return of silicone gel-filled implants came at a time when more women were looking to increase their breast size: the American Society of Plastic Surgeons reported more than 206,300 breast augmentations in 2001, up from about 32,600 in 1992.

Further readings

Angell, Marcia. 1997. Science on Trial: The Clash of Medical Evidence and the Law in the Breast Implant Case. New York: W. W. Norton.

Crane, Misti. 2003. "FDA Might Reconsider 10-Year Silicone Ban." Columbus Dispatch (March 16).

Stewart, Mary White. 1998. Silicone Spills: Breast Implants on Trial. Westport, Conn.: Praeger.

Cross-references

Class Action.

to repel an imminent threat of bodily harm. Deadly Force may only be used by persons who reasonably believe that their lives are endangered and for whom there are no reasonable means of escape. Reasonable force, but not deadly force, may be employed in defense of property.

Consent is a defense to virtually every intentional tort. The law will not compensate persons who knowingly allow someone to injure them. However, consent must be given freely and voluntarily to be effective. Consent induced by coercion, duress, Undue Influence, or chicanery is not legally effective. Nor is consent legally effective when given by an incompetent person. Consent to intentional torts involving grievous bodily harm is also deemed ineffective in a number of jurisdictions.

Negligence

Most injuries that result from tortious behavior are the product of negligence, not intentional wrongdoing. Negligence is the term used by tort law to characterize behavior that creates unreasonable risks of harm to persons and property. A person acts negligently when his behavior departs from the conduct ordinarily expected of a reasonably prudent person under the circumstances. In general, the law requires jurors to use their common sense and life experience in determining the proper degree of care and vigilance with which people must lead their lives to avoid imperiling the safety of others.

Not every accident producing injury gives rise to liability for negligence. Some accidents cannot be avoided even with the exercise of reasonable care. An accident that results from a defendant's sudden and unexpected physical ailment, such as a seizure or a blackout, generally relieves the defendant of liability for harm caused during his period of unconsciousness. However, defendants who have reason to know of such medical problems are expected to take reasonable precautions against the risks the problems create. In some jurisdictions unavoidable accidents are called ACTS OF GOD.

Assumption of Risk is another defense to negligence actions. This defense prevents plaintiffs from recovering for injuries sustained as a result of a relationship or transaction they entered with full knowledge and acceptance of the risks commonly associated with such undertakings. Assumed risks include most of those encountered by spectators attending sporting events. However, the law will not assume that individuals accept the risk of intentionally inflicted harm or damage, such as injuries resulting from Assault and Battery.

Strict Liability

In some cases tort law imposes liability on defendants who are neither negligent nor guilty of intentional wrongdoing. Known as Strict Liability, or liability without fault, this branch of torts seeks to regulate those activities that are useful and necessary but that create abnormally dangerous risks to society. These activities include blasting, transporting hazardous materials, storing dangerous substances, and keeping certain wild animals in captivity.

A distinction is sometimes drawn between moral fault and legal fault. Persons who negligently or intentionally cause injury to others are often considered morally blameworthy for having failed to live up to a minimal threshold of human conduct. On the other hand, legal fault is more of an artificial standard of conduct that is created by government for the protection of society.

Persons who engage in ultrahazardous activities may be morally blameless because no amount of care or diligence can make their activities safe for society. However, such persons will nonetheless be held legally responsible for harm that results from their activities as a means of shifting the costs of injury from potential victims to tortfeasors. As a matter of social policy, then, individuals and entities that engage in abnormally dangerous activities for profit must be willing to ensure the safety of others as a price of doing business.

Consumers who have been injured by defectively manufactured products also rely on strict liability. Under the doctrine of strict Product Liability, a manufacturer must guarantee that its goods are suitable for their intended use when they are placed on the market for public consumption. The law of torts will hold manufacturers strictly liable for any injuries that result from placing unreasonably dangerous products into the stream of commerce, without regard to the amount of care exercised in preparing the product for sale and distribution and without regard to whether the consumer purchased the product from, or entered into a contractual relationship with, the manufacturer.

Causation

Causation is an element common to all three branches of torts: strict liability, negligence, and intentional wrongs. Causation has two prongs. First, a tort must be the cause in fact of a particular injury, which means that a specific act must actually have resulted in injury to another. In its simplest form, cause in fact is established by evidence that shows that a tortfeasor's act or omission was a necessary antecedent to the plaintiff's injury. Courts analyze this issue by determining whether the plaintiff's injury would have occurred "but for" the defendant's conduct. If an injury would have occurred independent of the defendant's conduct, cause in fact has not been established, and no tort has been committed. When multiple factors have led to a particular injury, the plaintiff must demonstrate that the tortfeasor's action played a substantial role in causing the injury.

Second, plaintiffs must establish that a particular tort was the proximate cause of an injury before liability will be imposed. The term proximate cause is somewhat misleading because it has little to do with proximity or causation. Proximate cause limits the scope of liability to those injuries that bear some reasonable relationship to the risk created by the defendant. Proximate cause is evaluated in terms of foresee-ability. If the defendant should have foreseen the tortious injury, he or she will be held liable for the resulting loss. If a given risk could not have been reasonably anticipated, proximate cause has not been established, and liability will not be imposed.

When duty, breach, and proximate cause have been established in a tort action, the plaintiff may recover damages for the pecuniary losses sustained. The measure of damages is determined by the nature of the tort committed and the type of injury suffered. Damages for tortious acts generally fall into one of four categories: damages for injury to person, damages for injury to Personal Property, damages for injury to real property, and Punitive Damages.

Damages

Personal injury tort victims must normally recover all their damages—past, present, and future—during a single lawsuit. Damages may be recovered for physical, psychological, and emotional injury. Specifically, these injuries may include permanent disability, pain and suffering, disfigurement, humiliation, embarrassment, distress, impairment of earning capacity, lost wages or profits, medical costs, and out-of-pocket expenses. Courts typically rely on Expert Testimony to translate such losses into dollar figures.

Plaintiffs suffering damage to personal property must elect between two methods of recovery. First, plaintiffs may elect to recover the difference between the value of the property before the tort and the value of the property after it. Second, plaintiffs may elect to recover the reasonable costs of repair for damaged personal property. However, if the property is destroyed, irreparable, or economically infeasible to repair, damages are measured by the replacement value of the property. Persons who are temporarily deprived of personalty may sue to recover the rental value of the property for the period of deprivation.

Damages for injury to real property may be measured by the difference in the realty's value before and after the tort. Alternatively, plaintiffs may elect to recover the reasonable costs of restoring the property to its original condition. In either case plaintiffs may also recover the rental value of their property if its use and enjoyment has been interrupted by tortious behavior. Mental, emotional, and physical harm that is sustained in the process of a tortious injury to real property is compensable as well.

Punitive damages, called exemplary damages in some jurisdictions, are recoverable against tortfeasors whose injurious conduct is sufficiently egregious. Although punitive damages are typically awarded for injuries suffered from intentional torts, they can also be awarded against tortfeasors who act with reckless indifference to the safety of others. Because one purpose of punitive damages is to punish the defendant, plaintiffs may introduce evidence regarding a tortfeasor's wealth to allow the jury to better assess the amount of damages necessary for punishment. Such evidence is normally deemed irrelevant or prejudicial in almost every other type of damage claim.

In addition to damages for past tortious conduct, plaintiffs may seek injunctive relief to prevent future harm. Manufacturing plants that billow smoke that pollutes the air, companies that discharge chemicals that poison the water, and factories that store chemicals that migrate through the soil create risks of injury that are likely to recur over time. In tort law, operations that produce recurring injuries like these are called nuisances. If the harmfulness of such operations outweighs their usefulness, plaintiffs may successfully obtain a court order enjoining or restraining them.

Immunity

Certain individuals and entities are granted Immunity from both damage awards and assessments of liability in tort. An immunity is a defense to a legal action where public policy demands special protection for an entity or a class of persons participating in a particular field or activity. Historically, immunity from tort litigation has been granted to government units, public officials, charities, educational institutions, spouses, parents, and children.

Government immunity, also known as Sovereign Immunity, insulates federal, state, and local governments from liability for torts that an employee commits within the scope of his or her official duties. Public policy, as reflected by legislation, common-law precedent, and popular opinion, has required courts to protect the government from unnecessary disruptions that invariably result from civil litigation. Similarly, educational institutions generally have been immunized from tort actions to protect students and faculty from distraction.

In a number of states, tortfeasors have been given immunity from liability if they are related to the victim as husband or wife, or parent or child. These states concluded that family harmony should not be traumatized by the adversarial nature of tort litigation. Charities and other philanthropic organizations have been given qualified immunity from tort liability as well. This immunity is based on the fear that donors would stop giving money to charities if the funds were used to pay tort claims.

Over the last quarter century, nearly every jurisdiction has curtailed tort immunity in some fashion. Several jurisdictions have abolished tort immunity for entire groups and entities. The movement to restrict tort immunity has been based in part on the Rule of Law, which requires all persons, organizations, and government officials to be treated equally under the law. Despite the efforts of this movement, tort immunity persists in various forms at the federal, state, and local levels.

Tort Reform Initiatives

The damages recovered by those injured as a result of a tortious act of another are often paid for by insurance companies. This is particularly true in Medical Malpractice cases. Doctors must pay significant medical liability insurance premiums in order to stay in business. When a doctor commits Malpractice, the patient may receive an award of hundreds of thousands of dollars to millions of dollars. As insurance companies continue to pay these hefty awards, the rates for insurance premiums often rise sharply.

The medical profession and medical liability insurance companies have engaged in a nationwide campaign to place limitations on the amount of damages that a patient who has been subject to medical malpractice can recover. Under the guise of "tort reform," supporters advocate placing limitations on the recovery of noneconomic damages, including pain and suffering and loss of consortium. In 1975, California enacted the Medical Injury Compensation Reform Act, which limits recovery of noneconomic damages at $250,000 and restricts the amount of fees that may be recovered by lawyers. California's law has served as a model for six other states that have adopted similar tort-reform bills. Other state legislatures have considered similar tort-reform initiatives.

President GEORGE W. BUSH has advocated federal legislation that would place a $250,000 cap on noneconomic damages at the national level. According to Bush, the federal government spends $28 billion per year on medical liability insurance costs and defensive medical costs. Opponents of such a measure claim that many of the problems associated with insurance costs are the result of poor business practices by insurance companies. Opponents also maintain that capping damages for pain and suffering restricts the ability of patients to recover only an Arbitrary amount from a negligent doctor. Supporters of the initiative claim that capping damages will lower medical costs to the general population

Theories of Tort Law

First published Mon Sep 22, 2003; substantive revision Thu Aug 26, 2010

Tort is a branch of private law. The other main branches are contract, property, and restitution (sometimes known as unjust enrichment).

Section 1 offers a brief overview of tort law and tort theory. Section 2 discusses economic analysis, which is the historically dominant tort theory and the primary foil for philosophical perspectives on tort law. Section 3 discusses the most influential non-economic tort theories, theories that emphasize such normative concepts as justice, rights, and duties.

• 1. Overview of Tort Law and Tort Theory

o 1.1 Tort Law: Basic Features

o 1.2 The Difference between Strict Liability and Fault Liability

o 1.3 Theoretical Perspectives on Tort Law

• 2. Theories of Tort Law: Economic Analysis

o 2.1 The Economic Interpretation of Fault Liability

o 2.2 The Economic Interpretation of Strict Liability

o 2.3 Objections to Economic Analysis

• 3. Theories of Tort Law: Justice, Rights, and Duties

o 3.1 Corrective Justice

o 3.2 Civil Recourse Theory

• Bibliography

• Other Internet Resources

• Related Entries

________________________________________

1. Overview of Tort Law and Tort Theory

1.1 Tort Law: Basic Features

A tort suit enables the victim of some injury to make her problem someone else's problem. Unlike a criminal case, which is initiated and managed by the state, a tort suit is prosecuted by the victim or the victim's survivors. Moreover, a successful tort suit results not in a sentence of punishment but in a judgment of liability. Such a judgment normally requires the defendant to compensate the plaintiff financially. In principle, an award of compensatory damages shifts all of the plaintiff's legally cognizable costs to the defendant. (It is controversial whether tort really lives up to this principle in practice; see Ross 1970.) On rare occasions, a plaintiff may also be awarded punitivedamages, defined as damages in excess of compensatory relief. In other cases, a plaintiff may obtain an injunction: a court order preventing the defendant from injuring her or from invading one of her property rights (perhaps harmlessly).

The law does not recognize just any injury as the basis of a claim in tort. If you beat me in tennis or in competition for the affections of another, I may well be injured. Yet I have no claim in tort to repair my bruised ego or broken heart. Since you lack a legal duty not to beat me in tennis or in competition for the affections of another, you do not act tortiously when you succeed at my expense.

Tort distinguishes between two general classes of duties: (i) duties not to injure ‘full stop’ and (ii) duties not to injure negligently, recklessly, or intentionally. When you engage in an activity the law regards as extremely hazardous (e.g., blasting with dynamite), you are subject to a duty of the first sort — a duty not to injure ‘full stop.’ When you engage in an activity of ordinary riskiness (e.g., driving), you are subject to a duty of the second sort — a duty not to injure negligently, recklessly, or intentionally. Your conduct is governed by strict liability when it flouts a duty not to injure ‘full stop.’ Your conduct is governed by fault liability when it flouts a duty not to injure negligently, recklessly, or intentionally.

1.2 The Difference between Strict Liability and Fault Liability

Strict liability. Suppose I make a mess on my property and present you with the bill for cleaning it up. Absent some prior agreement, this would seem rather odd. It is my mess, after all, not yours. Now suppose that instead of making a mess on my property and presenting you with the bill, I simply move the mess to your property and walk away, claiming that the mess is your problem. If it was inappropriate of me to present you with the bill for the mess I made on my property, it hardly seems that I have improved matters by placing my mess on your property. I have a duty to clean up my messes and the existence of this duty does not appear to depend on how hard I have tried not to make a mess in the first place. This is the underlying intuition expressed by the rule of strict liability.

Fault liability. Unless we stay home all day, we are each bound to make the occasional mess in another's life. This being so, it would be unreasonable of me to demand that you never make any kind of mess in my life. What I can reasonably demand is that you take my interests into account and moderate your behavior accordingly. In particular, I can reasonably demand that you take precautions not to injure me — that you avoid being careless with respect to my interests and, all the more so, that you not injure me intentionally. This is the underlying intuition expressed by the rule of fault liability.

People sometimes misunderstand the nature of fault liability because they equate strict liability in tort with strict liability in the criminal law. Strict liability in the criminal law is a form of responsibility without culpability. If you are strictly liable for a criminal offense, you are punishable for the offense even if your conduct is not morally blameworthy. The standard way to express this is to say that strict liability in criminal law is not defeasible by excuse. If we conceived similarly of strict liability in tort, we would then understand fault liability, incorrectly, as liability that is defeasible by excuse, in other words, as liability (only) for one's culpable conduct. But you can be at fault in tort even if you are morally faultless, that is, even if your conduct is not morally blameworthy. Under a regime of fault liability, you are liable for injuries you cause while failing to comport yourself as a reasonable person of ordinary prudence. It won't get you off the hook that you are not a reasonable person of ordinary prudence. Nor will it matter that your failure to comport yourself as a reasonable person of ordinary prudence is a failure for which you are utterly blameless. Fault liability is simply not defeasible by excuse.

Strict liability is not defeasible by excuse, either. Under neither regime does your liability for a loss depend on your degree of culpability. What distinguishes the two regimes is this: you can avoid fault liability if you comport yourself as a reasonable person of ordinary prudence — in other words, if you act reasonably or justifiably — whereas you remain subject to strict liability even if you act impeccably. Thus, fault liability alone can be undermined by justification.

Some find it helpful to distinguish between strict liability and fault liability in terms of the content of the underlying legal duty. In the case of blasting — an activity traditionally governed by strict liability — the blaster has a duty not-to-injure-by-blasting. In the case of driving — an activity traditionally governed by fault liability — the driver has a duty not-to-injure-by-driving-faultily. No matter how much care he takes, the blaster fails to discharge his duty whenever he injures someone. In contrast, the driver fails to discharge his duty only when he injures someone negligently, recklessly, or intentionally.

Only if we first get clear on the content of a legal duty can we determine an activity's true cost. Suppose a rancher's cows trample a farmer's corn, causing the farmer a financial loss. To what activity should we ascribe this cost? Is it a cost of ranching or a cost of farming? We cannot answer this question just by determining whether crop damage is something that ranching causes. We must first determine whether the rancher owes the farmer a duty. If the rancher has a duty to prevent his cows from trampling the farmer's corn, then the resultant damage is a cost of ranching. But if the rancher has no such duty — if it is the farmer's responsibility to protect his corn crop, say, by building a fence — then, other things being equal, the resultant damage is not a cost of ranching but a cost of farming.

1.3 Theoretical Perspectives on Tort Law

1.3.1 Analytical and Normative

Analytical theories seek to interpret and explain tort law. More specifically, they aim (i) to identify the concepts that figure centrally in tort's substantive norms and structural features (the latter being the procedures and mechanisms by which the institution of tort law enforces its substantive norms) and (ii) to explain how tort's substantive norms and structural features are related. Key substantive norms include the rules of strict liability and fault liability. Key structural features include the fact that tort suits are brought by the victim rather than by the state and the fact that such suits are ‘bilateral’: victims (plaintiffs) sue their putative injurers instead of drawing on a common pool of resources, as in New Zealand (a unique outlier).

Normative theories seek to justify or reform tort law. Justificatory theories aim to provide tort with a normative grounding, often by defending the values tort embodies or the goals it aims to achieve. Reformist theories seek to improve tort law, say, by recommending changes that would bring the institution closer in line with its core values or would help it do a better job of achieving its goals.

The distinction between analytical and normative theories is not exclusive. On the contrary, few analytical theories are altogether devoid of normative elements and no normative theory is ever devoid of analytical elements. Analytical theories frequently invoke concepts that are fundamentally normative, since such theories (following Dworkin) often seek to portray tort's substantive norms and structural features in their ‘best lights.’ All the more so, normative theories are always at least partly analytical, since such theories must either provide or presuppose some account of the institution they seek to justify or reform.

1.3.2 Instrumental and Non-Instrumental

Along another axis, we can distinguish between theories of tort based on whether they are instrumental or non-instrumental. (This distinction cuts across the distinction between the analytical and the normative.) Instrumental theories regard tort's essential features as explicable in terms of an overarching purpose, typically, the remediation of some social problem, such as the problem of allocating the costs of life's misfortunes. These theories do not always agree on the specific principles that govern (or ought to govern) the allocation of costs. This is in part because they disagree about the further purposes that tort serves (or ought to serve) in allocating costs. Some theorists believe that tort aims (or ought to aim) at allocating costs efficiently. Others believe that tort aims (or ought to aim) at allocating costs fairly. Both sorts of theorist treat tort instrumentally, as a tool for solving a social problem. In contrast, non-instrumental theorists do not see tort primarily as responding to a social problem. They believe that tort is better understood as a way of giving expression to certain moral or political principles.

Instrumental theorists typically identify tort's central concepts as accidents, costs, and allocation. Non-instrumental theorists typically identify tort's central concepts as rights, wrongs, and redress.

2. Theories of Tort Law: Economic Analysis

Rather than surveying the range of economic theories, this entry focuses in depth on what is arguably the dominant strain of economic analysis: optimal deterrence theory. Proponents of this approach, like economic analysts more generally, see tort liability primarily as a mode of allocating the costs of accidents. Their principal claim is that tort should be understood as aiming to minimize the sum of the costs of accidents and the costs of avoiding them. Since shifting costs is itself costly, economic analysis begins with the following question: when is it worth incurring costs in order to shift costs?

2.1 The Economic Interpretation of Fault Liability

Taking the relevant social problem to be the problem of costly accidents, economic analysts deem the paradigmatic tort to be that of negligence. The law holds a person to be negligent when she imposes an unreasonable risk of injury on another. Imposing an unreasonable risk of injury is in turn a matter of failing to take precautions that a reasonable person would take. But which precautions would a reasonable person take?

Economists offer the following answer: a precaution is reasonable when it is rational; a precaution is rational when it is cost-justified; and a precaution is cost-justified when the cost of the precaution is less than the expected injury (the latter being the cost of the anticipated injury discounted by the probability of the injury's occurrence). Imagine that you are engaged in an activity that carries a benefit of $100 and an expected injury of $90. Now suppose that the only way to prevent the injury is to stop the activity. Other things being equal, you would be irrational to forego a benefit of $100 in order to avoid a cost of $90. Foregoing the benefit would not be a cost-justified precaution. Now imagine that things are the other way around: the benefit is $90 and the expected injury is $100. Under these circumstances, foregoing the benefit would be a cost-justified precaution. You would be irrational not to forego the benefit.

As economists see things, the same standard of rationality applies when the benefit and the injury befall two separate parties. If I can spare you some injury by taking precautions less costly than your expected injury, my failure to take such precautions is irrational, hence, negligent. By the same token, if I can spare you some injury only by taking precautions costlier than your expected injury, my failure to take these precautions is not irrational, hence, not negligent; if you get hurt, the loss will rightly remain with you.

The rule of fault liability has much to recommend it from an economic point of view. In particular, it induces all rational persons — injurers and victims alike — to take all and only cost-justified precautions. If all potential injurers behave rationally, losses will always lie where they fall: with victims. Rational victims will therefore approach all accidents assuming that they will have to bear the costs. But then they, too, will take all and only cost-justified precautions. So the rule of fault liability is economically efficient: it produces an optimal level of risk-taking.

2.2 The Economic Interpretation of Strict Liability

If fault liability is efficient, what are we to make of strict liability? Can it be efficient as well? Since someone facing strict liability will bear the costs of his conduct whether or not he is at fault, one might think that a potential defendant under a regime of strict liability will have no incentive to invest in precautions. This is wrong. Suppose that I am strictly liable for some costs that I impose on you — costs of $100. Suppose further that by taking $90 worth of precautions I can reduce to zero the probability of my imposing these costs on you. What is it rational for me to do? The answer is obvious. It is rational for me to invest in $90 worth of precautions. So even under a regime of strict liability, potential defendants have an incentive to take precautions.

Indeed, under a regime of strict liability, potential defendants have an incentive to take all cost-justified precautions — just as they do under fault liability. In a crucial respect, the plight of the defendant (injurer) under strict liability is identical to that of the plaintiff (victim) under fault liability. If we assume that the injurer is rational, we can infer that under fault liability he will take precautions that will free him of the burden of liability. As a result, any loss his conduct causes will lie where it falls: with the victim. This means that we can characterize the victim as herself facing a sort of strict liability, namely, strict liability for losses not caused by another's fault. The victim cannot shift these losses to the injurer because the injurer has insulated himself from liability by taking cost-justified precautions. So the rational victim will ask herself the following question: which is lower — the cost of taking precautions or the expected cost of incurring an injury? She will take precautions when (and only when) taking precautions is cheaper than remaining vulnerable to injury. The upshot is that strict liability and fault liability encourage the exact same degree of precaution-taking. They both induce rational persons to take all and only cost-justified precautions. If efficiency requires that individuals take all and only cost-justified precautions, then strict and fault liability can both be efficient.

If both rules can be efficient, why might we prefer one to the other? One reason is that strict liability and fault liability have different distributional consequences. A rule of strict liability makes the costs of the defendant's conduct higher than a rule of fault liability would. A rule of fault liability makes the costs of the plaintiff's conduct higher than a rule of strict liability would. So if we have an independent reason to privilege the plaintiff's activity over the defendant's (or vice versa) — maybe we want less of the first activity to occur or we feel that people should have to pay a steeper price for engaging in it — then we have an independent reason to prefer strict liability to fault liability (or vice versa).

2.3 Objections to Economic Analysis

There is no doubt that economic analysis offers valuable insight into tort law's capacity to increase overall safety and reduce the costs of misfortune or bad luck. For all its insight, however, economic analysis is vulnerable to difficult objections. These objections speak both to tort's substantive norms and to its structural features.

2.3.1 Substance

Many theorists believe that economic analysis offers a questionable interpretation of the legal duty to behave reasonably. In characterizing negligence as the failure to take cost-justified precautions, economic analysis identifies reasonable risk-taking with rational risk taking. Economic analysis effectively invites us to determine what risks it would be acceptable for a potential defendant to take on the assumption that he owns both the resultant benefits and the resultant injuries. This way of articulating the fault standard treats an activity's costs and benefits as being of the same importance regardless of where they fall. But what I owe you may not be the same as what I owe myself.

Besides offering a questionable interpretation of the legal duty to behave reasonably, economic analysis arguably fails to make good sense of the concept of legal duty more generally. The norms of tort law impose duties not to injure. There are two questions we can ask about these duties: What do they require of us? And to whom do we owe them? Tort consequently distinguishes between a duty's content and its scope. This is a distinction much emphasized by Judge Cardozo in Palsgraf v. Long Island Rail Road, the most famous American tort case. In Cardozo's view, I have a duty to guard against injuring those who fall within the ambit of foreseeable risk associated with my conduct. Others might be injured by what I do, and what I do might be lamentable or mischievous, but those who fall outside the ambit of foreseeable risk have no claim against me in tort. This is not because I do not act badly or carelessly toward them. Ex hypothesi, I do. Nor is it because my careless behavior does not injure them. Ex hypothesi, it does. They have no claim against me because I have no legal duty to take their interests into account. The only individuals who can have a claim against me in tort are those to whom I have a legal duty. The problem for economic analysis is that the duty restriction on liability is arguably incompatible with the goal of inducing individuals to take appropriate precautions. In order for injurers to have an incentive to take appropriate precautions, each must face the costs of his activity in full. But the duty requirement allows injurers to displace at least some of these costs on their victims. Economic analysts have responded to this problem alternately by (i) offering an efficiency rationale for the foreseeability limitation and (ii) arguing that the duty requirement is an imperfection in tort law.

2.3.2 Structure

Economic analysis cares about the relationship between a particular injurer and victim only to the extent that the nature of this relationship provides evidence of the ability of either party to reduce accident costs. As far as economic analysis is concerned, there is no intrinsic reason why a victim should sue the person who injured him. Nor is there any intrinsic reason why a plaintiff should argue in court that the defendant wronged him, rather than that the defendant was in a better position to reduce overall costs.

The most basic relationship in our actual institution of tort law is the relationship between an injurer and his victim — not the relationship between each litigant, taken separately, and the goal of minimizing the sum of the costs of accidents and the costs of avoiding them. If the victim of another's mischief brings an action in tort, he brings it against the person he believes has injured him, not against the person best situated to reduce overall costs.

We will learn the most from economic analysis if we view it as a reformist, normative theory, a theory that asks questions of the following sort: What substantive liability rules have the greatest impact on reducing the incidence of accidents at the lowest cost? What procedural rules at a trial will induce those with relevant information to reveal it? What substantive and procedural rules will lead to optimal investments in safety? These are the questions of a reformer less interested in the actual state of tort law than in how tort law can be improved. Economic analysis is less convincing if its aim is to illuminate the law from the perspective of a judge or a litigant.

3. Theories of Tort Law: Justice, Rights, and Duties

3.1 Corrective Justice

Corrective justice theory — the most influential non-economic perspective on tort law — understands tort law as embodying a system of first- and second-order duties. Duties of the first order are duties not to injure. These duties establish norms of conduct. (Some theorists believe that corrective justice has nothing to say about the character of these norms; others think that it helps define their scope and content.) Duties of the second order are duties of repair. These duties arise upon the breach of first-order duties. That second-order duties so arise follows from the principle of corrective justice, which says that an individual has a duty to repair the wrongful losses that his conduct causes. For a loss to be wrongful in the relevant sense, it need not be one for which the wrongdoer is morally to blame. It need only be a loss incident to the violation of the victim's right not to be injured — a right correlative to the wrongdoer's first-order duty not to injure.

We can bring out what is distinctive about the corrective justice approach to tort law by contrasting it with various alternatives.

3.1.1 Corrective Justice versus Economic Analysis

From the standpoint of economic analysis, all legal liabilities are but costs of one sort or another, there being no normative differences between such things as licensing fees, tort liability, and taxes. In contrast, corrective justice theory maintains that tort liability is not simply a mechanism for shifting costs. A licensing fee imposes a cost, as does a tax, but we would not say that in levying fees or taxes we are holding people responsible. For this reason, corrective justice theory insists that different legal liabilities are not simply interchangeable cost-shifting implements in the reformer's tool box.

3.1.2 Corrective Justice versus Retributive Justice

Many theorists believe that a principle of retributive justice — say, that the blameworthy deserve to suffer — does a good job of interpreting and justifying criminal law. Yet most theorists think that such a principle does a rather poor job of interpreting and justifying tort law (except, perhaps, for the part of tort law concerned with punitive damages). First, the concept of responsibility at play in tort law is that of ‘outcome responsibility,’ not moral responsibility. Tort asks whether a given loss is something that the defendant in some sense owns. It does not ask whether the defendant's action is something for which he is morally to blame. Second, the duty of repair in tort is in essence a debt of repayment. Like other debts of repayment, it can be paid by third parties — and not just when the creditor (the plaintiff) has authorized repayment. By contrast, ‘debts’ incurred as a result of criminal mischief can never be paid by third parties. You cannot serve my prison sentence. Third, a person cannot guard against liability to criminal sanction by purchasing insurance. Yet it is common to purchase insurance to guard against the burdens of tort liability. Indeed, in some areas of life (e.g., driving), purchasing third-party insurance is mandatory.

3.1.3 Corrective Justice versus Distributive Justice

Some theorists are skeptical of the idea that corrective justice is really an independent principle of justice. Their concern is twofold: considerations that make corrective justice seem like a genuine principle of justice also seem to undermine its independence from distributive justice (justice in the distribution of resources); at the same time, considerations that support the principle's independence from distributive justice also seem to undermine its status as a genuine principle of justice. This twofold concern stems from the fact that corrective justice requires the reversal of wrongful changes to an initial distribution of resources. If, on the one hand, some initial distribution of resources is just, then corrective justice seemingly does no more than require that we return individuals to the position to which they are entitled merely as a matter of distributive justice. This suggests that corrective justice is but distributive justice from an ex post perspective rather than an independent principle of justice. If, on the other hand, an initial distribution of resources is unjust, then corrective justice seemingly requires that we sustain, enforce, or entrench what is ex hypothesi an injustice. This suggests that corrective justice is not really a matter of justice at all: independent, yes; a genuine principle of justice, no.

First Response: Corrective Justice as Transactional Justice. Some theorists respond by suggesting that we understand corrective justice as a kind of transactional justice. These theorists identify the domain of distributive justice with the initial distribution of holdings and take corrective justice to be concerned exclusively with norms of transfer, norms that govern whether departures from an initial distribution are legitimate. Whatever the underlying pattern of holdings, we can distinguish legitimate modes of transfer from illegitimate modes. If agreement or gift moves resources from one person to another, then the mode of transfer is legitimate. Never mind whether the resultant allocation of resources is unequal or unfair: that is a concern of distributive, not transactional, justice. If fraud or force moves resources from one person to another, then the mode of transfer is illegitimate. Even if an illegitimate transfer gives rise to an equitable distribution, the transaction is unjust and must therefore be annulled.

Second Response: Justice versus Legitimacy. Other theorists respond by distinguishing between a distribution's justness and its legitimacy. These theorists allow that a legitimate distribution of resources may fall short of being a fully just distribution. But they insist that a (merely) legitimate distribution can suffice to generate duties of repair.

3.2 Civil Recourse Theory

Civil recourse theory agrees with corrective justice theory that tort's normative structure involves a variety of first-order duties, duties that establish norms of conduct. Yet civil recourse theory takes a very different view of the legal consequence of a first-order duty's breach. Whereas corrective justice theory holds that such a breach saddles the would-be defendant with a second-order duty — in particular, a duty of repair — civil recourse theory holds that no such second-order duty results directly from the breach. Rather, the breach of a first-order duty endows the victim with a right of action: a legal power to seek redress from her injurer. That this power so arises follows from what proponents regard as a deeply embedded legal principle — the principle of civil recourse — which says that one who has been wronged is legally entitled to an avenue of recourse against the perpetrator.

Civil recourse theory has substantial explanatory power. Perhaps most obvious, it explains why tort suits have a bilateral structure — why the victim of a tortious wrong seeks redress from the wrongdoer herself instead of drawing on a common pool of resources. It also explains why tort suits are privately prosecuted — why the state does not act of its own accord to impose liability on those who breach first-order duties. According to civil recourse theory, the breach of a first-order duty gives rise not to a legal duty but to a legal power, a power the victim can choose not to exercise.

Furthermore, civil recourse theory accommodates a number of tort's central substantive features, features that arguably elude corrective justice theory. Prominent among these are (i) the fact that tort offers a variety of different remedies, only some of which are designed to restore the plaintiff's antecedent holdings, and (ii) the fact that the defendant incurs a legal duty to pay damages only upon a lawsuit's successful conclusion (either by settlement or by the final judgment of a court), rather than immediately upon the breach of a first-order duty. It remains unresolved whether corrective justice theory has the resources to explain these two substantive features.

Despite its explanatory power, civil recourse theory is vulnerable to a potentially serious objection — or else it seems to leave tort law vulnerable to such an objection. Because civil recourse theory offers little guidance as to what sort of redress is appropriate, the theory depicts tort law primarily as an institution that enables one person to harm another with the aid of the state's coercive power. Tort law may well be such an institution, of course. But if it is, it may be deeply flawed — indeed, it may be unjust. This problem can be posed in the form of a dilemma. Either the principle of civil recourse is grounded in a principle of justice or it is not. If the principle of civil recourse is grounded in a principle of justice, then civil recourse theory threatens to collapse into a kind of a justice-based theory. If the principle of civil recourse is not so grounded, then the principle apparently does no more than license one party to inflict an evil on another. If that is what the principle does, we might reasonably wonder whether it can justify or even make coherent sense of an entire body of law.

end

what is tort

Tort laws are laws that offer remedies to individuals harmed by the unreasonable actions of others. Tort claims usually involve state law and are based on the legal premise that individuals are liable for the consequences of their conduct if it results in injury to others (McCarthy & Cambron-McCabe, 1992). Tort laws involve civil suits, which are actions brought to protect an individual’s private rights. There are two major categories of torts typically seen in education-related cases: intentional and negligence.

Intentional Torts

Intentional torts are usually offenses committed by a person who attempts or intends to do harm. For intent to exist, the individual must be aware that injury will be the result of the act. A common type of intentional tort is assault. Assault refers to an overt attempt to physically injure a person or create a feeling of fear and apprehension of injury. No actual physical contact need take place for an assault to occur. Battery, on the other hand, is an intentional tort that results from physical contact. For example, if a person picks up a chair and threatens to hit another person, assault has occurred; if the person then actually hits the second person, battery has occurred. Both assault and battery can occur if a person threatens another, causing apprehension and fear, and then actually strikes the other, resulting in actual injury.

Teachers accused of assault and battery are typically given considerable leeway by the courts (Alexander & Alexander, 1992). This is because assault and battery cases often result from attempts to discipline a student or stop a student from injuring someone. Courts are generally reluctant to interfere with a teacher’s authority to discipline students (Valente, 1994). Courts have found teachers guilty of assault and battery, however, when a teacher’s discipline has been cruel, brutal, excessive, or administered with malice, anger, or intent to injure.

In determining if a teacher’s discipline constitutes excessive and unreasonable punishment, courts will often examine the age of the student, the instrument, if any, used to administer the discipline, the extent of the discipline, the nature and gravity of the student’s offense, the history of the student’s previous conduct, and the temper and conduct of the teacher. For example, a teacher in Louisiana was sued and lost a case for assault and battery for picking up a student and slamming him against bleachers. The teacher then dropped the student to the floor resulting in the student’s arm being broken (Frank v. New Orleans Parish School Board, 1967). In Connecticut, a student was awarded damages when a teacher slammed the student against a chalkboard and then a wall, breaking the student’s clavicle (Sansone v. Bechtel,1980). Clearly, both of these actions were excessive and indicate that in such situations teachers may be held personally liable for injuries that occur to students because of the teacher’s behavior.

Negligence Torts

The second type of tort seen most frequently in education related cases is negligence. The difference between negligence and an intentional tort is that in negligence the acts leading to injury are neither expected nor intended. Students who bring negligence claims must prove that school personnel should have foreseen and prevented the injury by exercising proper care. Accidents that could not have been prevented by reasonable care do not constitute negligence (McCarthy & Cambron-McCabe, 1992).

There are four elements that must be present for negligence to occur: (1) the teacher must have a duty to protect students from unreasonable risks, (2) the teacher must have failed in that duty by not exercising a reasonable standard of care, (3) there must be a causal connection between the breach of the duty to care and the resulting injury, and (4) there must be an actual physical or mental injury resulting from the negligence. In a court, all four elements must be proven before damages will be awarded for negligence.

what is tort law

Tort law is a branch of the law which covers civil wrongs, such as defamation and trespassing, among many other transgressions. Under tort law, if someone suffers a physical, legal, or economic harm, he or she may be entitled to bring suit. If the suit is deemed valid, damages may be awarded to the victim to compensate for his or her troubles. Most tort laws are found in regional, state, and national civil codes, which often spell out limits on damages and the statute of limitations for tort cases.

Many people divide tort law into three rough categories: negligent torts, intentional torts, and strict liability torts. Torts arising out negligence are civil wrongs caused by negligent behavior or a failure to practice due diligence. For example, if you are playing soccer in the street and you accidentally kick the ball through someone's living room window, this may be a negligence tort. Medical malpractice and other forms of professional negligence are also covered under the umbrella of negligence torts.

Intentional torts are torts which involve a deliberate attempt to harm. Defamation is often viewed as an intentional tort, as is battery, fraud, false imprisonment, and interference with the economic operations of a company. Strict liability torts cover product liability; if a potato peeler takes your finger off when you operate it as directed, the manufacturer could be liable, for example.

Tort law also covers issues like nuisances, such as noise pollution and loose livestock. In some countries, industrial pollution and releases of toxins are covered under tort law as “toxic torts,” allowing organizations and individuals to bring suit against companies which pollute. Nuisance torts can sometimes be challenging to prove, as the definition of a “nuisance” often varies from person to person.

As can be seen from some of the examples above, a tort doesn't have to cause physical injury or distress. It might cause economic damage, by forcing someone to replace something, interfering with someone's business, or causing someone to miss work. Or it may cause damage to someone's reputation or quality of life. In order for a tort case to succeed in court, the lawyers must generally be able to prove that the accused party had committed the wrong in question, and that the client suffered as a result. Damages may be awarded by a jury or a judge, depending on the case.

Incidentally, don't confuse “tort,” a branch of the law, with “torte,” a rich cake which typically includes a high volume of nuts or chocolate and eggs, with little to no flour.

definition of tort

Tort Law

 What Does Tort Law Mean?

The area of law that covers the majority of all civil lawsuits. Essentially, every claim that arises in civil court with the exception of contractual disputes falls under tort law. The concept of tort law is to redress a wrong done to a person, usually by awarding them monetary damages as compensation. 

Investopedia explains Tort Law

Tort law can be split into three categories: negligent torts, intentional torts and strict liability. Negligent torts encompass harm done to people generally through the failure of another to exercise a certain level of care (usually defined as a reasonable standard of care). Accidents are a good example of negligent torts. Intentional torts, on the other hand, refer to harms done to people intentionally by the willful misconduct of another, such as assault, fraud and theft. Strict liability torts, unlike negligence and intentional torts, are not concerned with the culpability of the person doing the harm. Instead, strict liability focuses on the act itself: if someone commits a certain act (say, producing a defective product) then that person is responsible for the damages from that act regardless of the level of care exercised or their intentions.

Example :

Tort law is the name given to a body of law that creates, and provides remedies for, civil wrongs that do not arise out of contractual duties. A person who is legally injured may be able to use tort law to recover damages from someone who is legally responsible, or "liable," for those injuries. Generally speaking, tort law defines what constitutes a legal injury, and establishes the circumstances under which one person may be held liable for another's injury. Torts cover intentional acts and accidents.

For instance, if somebody throws a ball and hits a pedestrian in the eye, the pedestrian may sue the ball thrower for losses occasioned by the accident (for example, costs of medical treatment or lost income during time off work). Whether or not the pedestrian wins will depend on whether he can prove the thrower engaged in tortuous conduct. If the person threw the ball at the pedestrian on purpose, the pedestrian could sue for the intentional tort of battery. If it was an accident, the pedestrian must establish negligence. To do this, the pedestrian must show that his injury was reasonably foreseeable, that the thrower owed him a duty of care, and that the thrower fell below the standard of care required of him. One of the main issues in negligence law is determining the "standard of care" - a legal phrase that means distinguishing between when conduct is or is not negligent.