Tort

Tort law
Part of the common law series
Intentional torts
Assault · Battery False imprisonment Intentional infliction of emotional distress (IIED) Transferred intent
Property torts
Trespass (land · chattels) Conversion · Detinue Replevin · Trover
Defenses
Assumption of risk Comparative negligence Contributory negligence Consent · Necessity Statute of limitations Self-defense Defense of others Defense of property Shopkeeper's privilege
Negligence
Duty of care · Standard of care Proximate cause · Res ipsa loquitur Calculus of negligence Rescue doctrine · Duty to rescue
Specific types Negligent infliction of emotional distress (NIED) Employment-related · Entrustment Malpractice (legal · medical)
Liability torts
Product liability  · Quasi-tort Ultrahazardous activity
Nuisance
Public nuisance Rylands v. Fletcher
Dignitary torts
Defamation · Invasion of privacy False light · Breach of confidence Abuse of process Malicious prosecution Alienation of affections · Seduction
Economic torts
Fraud · Tortious interference Conspiracy · Restraint of trade
Liability, remedies
Last clear chance · Eggshell skull Vicarious liability · Volenti non fit injuria Ex turpi causa non oritur actio Neutral reportage · Damages Injunction · Torts and conflict of laws Joint and several liability Comparative responsibility Market share liability
Duty to visitors
Trespassers · Licensees · Invitees Attractive nuisance
Other common law areas
Contracts · Criminal law · Evidence Property · Wills, trusts and estates
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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 Latin tortum, from Latin, neuter of tortus twisted, from past participle of torquēre First Known Use: 1586

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.

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.

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.

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 Australian jurisdictions can make an order for specific performance to ensure that the defendant carries out their legal obligations, especially in relation to nuisance matters.^[3]

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 of murder; 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 evidence required 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]

Tort by legal jurisdiction

Legal jurisdictions whose legal system developed from the English common law have the concept of tortious liability. There are technical differences from one jurisdiction to the next in proving the various torts. 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).

See also

• Outline of tort law
• Index of tort articles

Notes

1. ^ Glanville Williams. Learning the Law. Eleventh Edition. Stevens. 1982. p. 9
2. ^ Miller v. Jackson [1975]
3. ^ Currie, S., & Cameron, D. (2000), "Your Law", Nelson Thomson Learning, Melbourne, p. 225
4. ^ Williams, G. [1951] "The Aims of the Law of Tort", Current Legal Problems 137
5. ^ Coase, R. H. (1960). "The Problem of Social Cost". The Journal of Law and Economics 3: 1–44. doi:10.1086/466560. , reprinted in Coase, R. H. (1990). The Firm, the Market and the Law. Chicago: Chicago University Press. pp. pp95–156. ISBN 0-226-11101-6. , online version
6. ^ Atiyah, P. S. (1997) The Damages Lottery
7. ^ see especially, Bork, R. (1971) The Antitrust Paradox
8. ^ Rufo v. Simpson, 86 Cal. App. 4th 573 (2001).
9. ^ See also Ronen Perry, The Role of Retributive Justice in the Common Law of Torts: A Descriptive Theory, 73 Tenn. L. Rev. 177 (2006).

Bibliography

• Deakin, Johnston and Markesinis (2008). Markesinis & Deakin's Tort Law. Oxford: Oxford University Press. ISBN 978-0-19-928246-3. 
• Mark Lunney, Ken Oliphant, Tort Law - Texts, Cases (2003) 2nd Ed. Oxford University Press, ISBN 0-19-926055-9
• van Gerven, W. et al. (eds) (2001). Cases, Materials and Text on National, Supranational and International Tort Law. Oxford: Hart Publishing. ISBN 1841131393.