Definition of Torts
Copyright 1999 by Ronald B. Standler
The word torts is rarely used by nonattorneys and the definitions
in dictionaries are not particularly enlightening.
The venerable legal treatise, Torts, by Prosser and Keeton
attempts to define tort, largely unsuccessfully:
- Broadly speaking, a tort is a civil wrong, other than a breach
of contract, for which the court will provide a remedy in the form of
an action for damages.
- Prosser and Keeton then criticize as "inaccurate" what they just said,
by noting that other remedies, such as injunctions, restitution, and
self-help are available. In desperation, Prosser and Keeton try again
to define tort:
- It might be possible to define a tort by enumerating the things that it
is not. It is not a crime, it is not a breach of contract, it is
not necessarily concerned with property rights or problems of government,
but is the occupant of a large residuary field remaining if these are
taken out of the law.
Part of the problem in making a precise definition of torts
is that this area of law has expanded in an ad hoc fashion
by judges (i.e., common law) and legislatures.
Torts is a large subject area in litigation, in which a victim
(e.g., plaintiff) generally seeks money from some person,
or some corporation, who harmed the victim.
The easiest way to get a sense of torts is to list the major
areas of tort litigation:
- personal injury (e.g., automobile accident, slip and fall, dog bite)
- medical malpractice
- products liability (e.g., defect in either manufacturing
or design of product, failure to warn)
- wrongful death: survivor recovers economic value of remainder of decedent's life
- patent infringement; copyright infringement
- defamation (i.e., libel or slander)
- intentional wrongs against a person: assault, battery, false imprisonment,
intentional infliction of emotional distress.
(N.B., assault and battery can also be crimes, see my essay that compares
civil and criminal law)
- wrongs involving tangible property: conversion, "trespass to chattels"
(N.B., same occurrence could also result in criminal prosecution for theft)
- wrongs involving real property: nuisance against nearby landowner, trespass on land
- wrongs against a business, such as "unfair competition" or trademark infringement
- dignitary harms against a person, such as
- invasion of privacy: intrusion on seclusion, unreasonable publicity
given to private life, publicity placing person in false light
- civil rights violations, e.g., 42 USC § 1983
four elements
There are four elements to a tort, all of which must be present
before the court can order a remedy:
- Duty. The defendant must owe a legal duty to the victim.
A duty is a legally enforceable obligation to conform to a particular
standard of conduct. Except in malpractice and strict liability cases,
the duty is set by what a "reasonable man of ordinary prudence"
would have done. There is a general duty to prevent foreseeable
injury to a victim.
- Breach of the duty. The defendant breached that duty.
- Causation. The breach was the cause of an injury to the victim.
The causation does not need to be direct: defendant's act
(or failure to act) could begin a continuous sequence of events that
ended in plaintiff's injury, a so-called "proximate cause".
- Injury. There must be an injury. In most cases, there must be
a physical or financial injury to the victim, but sometimes emotional
distress, embarrassment, or dignitary harms are adequate for recovery.
In most torts the defendant's actions were an accident (e.g., defendant was
negligent), but torts also cover wrongs where the defendant intended
to harm the victim.
Sometimes one sees the statement that the central idea in [most] torts
is the concept of fault. Fault is the departure of defendant's
conduct a minimum acceptable standard of conduct.
In other words, fault is the breach of the duty mentioned above.
I say "most torts", because there are a few, but important,
torts in which liability is imposed without finding fault
with the defendant's conduct. These so-called strict liability torts
include:
- products liability
- keeping of wild or ferocious animals
- abnormally dangerous activities (e.g., storing, transporting, or using
explosives in a populated area)
duty
Justice Oliver Wendell Holmes, in
Texas & Pacific Railway v. Behymer, 189 U.S. 468, 470 (1903)
said:
- What usually is done may be evidence of what ought to be done,
but what ought to be done is fixed by a standard of reasonable
prudence, whether it usually is complied with or not.
In U.S. v. Carroll Towing Co., 159 F.2d 169 (2dCir. 1947),
Judge Learned Hand considered a case in which a tugboat had broken
away from a barge, the barge later sank:
- ... the owner's duty, as in other similar situations,
to provide against resulting injuries is a function of three
variables: (1) The probability that she will break away;
(2) the gravity of the resulting injury, if she does;
(3) the burden of adequate precautions.
Possibly it serves to bring this notion into relief to state it in
algebraic terms: if the probability be called P;
the injury, L;
and the burden, B;
liability depends upon whether B is less than L multiplied by P:
i.e., whether
B < P × L
This is one of the few reported judicial decisions in the USA that contains
an equation. When I first read this case, I was bothered by the
retrospective application of the analysis. After the loss, L,
has occurred, it is easy to identify the specific measure(s) that allegedly
should have been taken to prevent the loss and focus on just
one or two loss-prevention measures.
But, before the loss, there are N possible losses,
L1, L2, L3, L4, ...
LN, each of which can be prevented by measures that
cost less than the probability of injury times the amount of loss.
But, the manufacturer or service provider might have an uneconomical
product or service if all N loss-prevention measures were taken.
this document is at http://www.rbs2.com/torts.htm
created 29 March 1999, revised 30 Oct 2002
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