US Tort Law/Introduction

In this chapter of the Torts Casebook, we will give a general overview of the concept of tort.

Sources

• Neil Wehneman's podcast on this topic: [1]

• Neil Wehneman's notes on this topic (personal communication).

• The Ohio Constitution: [2]

What is a Tort?

A Tort is a civil wrong for which the law provides a remedy. A tortfeasor is considered to be liable for a tort, never guilty; the word guilty is used in criminal law. The word came into English from the latin tortus via French tort, pronounced [tɔʀ].

Someone tripping on a walkway, kids sending a baseball through a window, a new Mercedes chipped by wood chips thrown from a lawnmover, a tire blowing out on your car: they can all be examples of torts. Some torts, such as sexual harassment, are also (in some jurisdictions) criminal actions. (Note: at common law, this usually means you can be hit with two cases, whereas in civil law countries, especially in France, there often exists a preference for attaching the tort suit to the criminal suit.)

What's the point?

Tort law exists to provide a relief for wrongs -- to "make whole" those who are injured. As such it fulfills a moral role. Yet, tort law also has a number of more practical purposes. It arose largely to prevent people from doing what would be the natural thing in a society without courts: revenge, or "vigilante justice". Also, it exists to as a deterrent towards potential tortfeasors from tortious action, and to encourage responsible actions.

Torts and constitutions

Some constitutions, such as the Ohio State constitution, specifically open courts to suits over damages to person, property, or reputation. These rather obvious-sounding constitutional provisions have become relevant lately as they can provide an impediment to tort reform and proposed damage caps.

Example: a car crash

Suppose you end up in a car crash, and it is determined the crash was due to somebody else's negligence. You may now try to lay claim to various sorts of damages. First, there is physical injury. While the question of assigning value to the human body has been contentious at times (think connotations of slavery!), it is generally accepted that monetary compensation can be assessed for physical injury in and of itself. Similarly, you can these days claim emotional and mental damages, which is a relatively new innovation, and to financial injury, say, if you are no longer able to work for your employer. Currently, it is not commonly possible to bring a tort action for a purely financial injury; those are usually considered more fit to be treated under the heading of contract law. Some exceptions to that are malpractice in such professions as law and accounting.

Sources of tort law

US tort law is primarily state-level common law. There is little impact from statutes or from federal law.

The big question

How do we determine who should be compensated and how much? This is the major question on which the study of the law of torts focuses. There is no simple answer to it.

Insurance

You can insure yourself against some form of tortious liability. In many jurisdictions, though, some forms of insurance may be illegal. You cannot insure against, for instance, sexual harassment damages (considered contrary to public policy), or punitive damages.

Crimes and torts

Crimes are a whole different can of worms from torts. Common law crimes are rare these days, and in fact many common law jurisdictions, including Ohio, have made it explicit that all crimes are statutory. Criminal suits are brought by a public prosecutor in the name of the public interest of society at large, and punishment is viewed as the remedy. In a civil action, such as a tort action, both parties are generally private actors, and the remedy comes in the form of damages (payments of money), or occasionally injunctions, that is, instructions by the court to perform or refrain from certain actions. Occasionally, punitive damage are awarded that go beyond the actual damage incurred. Punitive damages can be seen as a fuzzy areas where tort law looks more like criminal law.

Theories of liability

There are three major kinds of liability: intentional acts, unintentional/accidental acts, and acts for which there is strict liability, that is, you are liable for them regardless of whether they are intentional. The latter category includes acts related to some inherently dangerous activities, such as setting of fireworks.

Stages of a tort suit

Initially, the allegedly injured party files a complaint. In a complaint, you set out theories of why you should win, and what your claims are. There is no need initially to be very specific about how exactly you are going argue the case, although you will have to choose a specific recovery later on.

The second stage, a relatively new innovation in the common law, is discovery. It is often the longest phase, and it exists to allow the parties to get to know the other side's case. The key aspects of discovery are depositions and interrogatories. Discovery is also when pre-trial motions, such as motions to dismiss, are filed and decided upon. Discovery prevents surprises during the actual trial.

The trial itself may or may not involve a jury. If neither party requests a jury, both issues of fact and law will be decided by a judge. If a jury is requested, the judge will restrict him/herself to issues of law, and the jury decides on issues of fact. (Note that the fact/law distinction is to some extent a technical and non-intuitive one.)

Next comes the verdict, which may be rendered "from the bench" at trial, or after some time.

After the verdict, there is often an opportunity to appeal in a higher court.

History of torts

The most common view of the history of (common) tort law is that it grew from those duties imposed upon actions that caused physical harm, regardless of fault, and expanded from there to determine more refined moral standards of general liability, but not everyone would agree. Some early quotes are "the thought of man shall not be tried for the devil himself knoweth not the thought of man" (Chief Justice Brian, 1468), and "in all civil acts, the law doth not so much regard the intent of the actor, as the loss and damage of the party suffering" (Lambert v. Bessey, 1681).

Early post-Norman England required writs, which cost money, in order to bring a defendant to court. There were a limited number of very specific writs. Local aristocracy would limit the writs that could be issued to bring people to the King's court, largely because they wanted to increase the power of the local courts.

Two writs of specific historic interest are the writ of trespass, and the writ of action on the case.

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Weaver v. Ward

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Brown v. Kendall

[3]