Unit 23 Torts

Before you read

Discuss this quotation.

In his book, An Introduction to the Legal System of the United States, Professor Allan Famsworth described the field of torts distinguished from criminal law and contract law. He wrote:

“The field of torts embraces a group of civil wrongs, other than breach of contract, that interfere with person, property reputation, or commercial or social advantage. While such an act, such as an assault, may sometimes be both a crime punishable by the state in a criminal prosecution and also a tort actionable by the victim in a suit for damages, the criminal prosecution and the damage action are quite separate and unrelated proccedings. The essential purpose of the law of torts is compensatory and, though punitive damages may occasionally be awarded, its function is distinct from that of criminal law. Criminal law is essentially punitive and an injured party is not awarded compensation in the criminal proceeding.”

• What is the difference between law of torts and criminal law?

Text a Classification of Torts

A tort is a private wrong, a trespass against a person or his/her property for which a damages award or other judicial remedy may be sought. Most torts arise from either an intentional, wrongful action or from a negligent action. Many torts are also crimes, and most crimes involve tortious acts. Thus a single action may result in two trials: a criminal trial and a tort (civil) trial.

Suppose a workman accidentally drops a brick on my head when I am walking past a construction site, or suppose a neighbour's bonfire gets out of control and damages my house. In either case, there is no contract between me and the other party and it is unlikely anyone will be prosecuted for a crime unless intention or recklessness can be shown. In order to get compensation for such injury or damage, my best course will probably be an action in the law of torts.

The concept of tort – a wrongful act among private individuals – exists in most modern systems of law. The word itself means "wrongful" in French, but is used in the mostly English-speaking common law traditions.

The law of torts is essentially the law of injuries and remedies for those injuries. Torts can thus include assault, battery, false imprisonment, intentional infliction of emotional distress, negligence, invasion of privacy, defamation, fraud or mispresentation, wrongful conversion, trespass, and other wrong, such as product liability. Some of these wrongs can be both civil and criminal in nature. A battery, for example, may be prosecuted by the state as a violation of the criminal statutes. The offender may be sentenced to prison and be ordered to pay a fine to the state. In some cases, he may also be ordered to pay restitution to the victim. However, the battery may also be a civil tort as well. The victim (the plaintiff) may sue in civil court for the tort of battery (and any other torts that may be alleged, such as intentional infliction of emotional distress). If the plaintiff is successful, the defendant will be ordered to pay compensatory damages (to "compensate" for the injury) and punitive damages (to "punish" the defendant for having caused the act). In the United States, it is commonly believed that courts will enter punitive damages in an amount that is roughly three times the size of the compensatory damages (which are sometimes called the "special damages" by plaintiff’s lawyers).

There are two chief categoies of torts: intentional torts and torts resulting from negligence.

● Intentional torts

To constitute an intentional tort, the defendant’s act must be expressly or implicitly intended; the resulting harm need not be intended, but must have been reasonably foreseeable. Examples of intentional torts are assault and battery, false imprisonment, slander, and invasion of privacy.

Intentional torts fall info two categories: torts against a person and torts against property.

• Negligence

Negligence refers to the failure of a person to exercise sufficient care in his or her conduct. When a person’s conduct falls below the reasonable expectation of society and causes foreseeable harm to another, the person has acted negligently. Society’s expect known in torts based on negligence as the legal duty of care – is that an individual reasonably prudent and careful person would act in similar circumstances. A person can act negligently by doing something that a reasonable person would not do or by failing something that a reasonable person would do. The law does not require that the person has an intent to cause harm.

In a tort case arising out of negligence, the plaintiff must show four things: (a) there was a duty imposed on the defendant in favour of the plaintiff, (b) the defendant breach (violated) that duty, (c) the breach was the proximate (natural and foreseeable) cause of the harm, and (d) plaintiff suffered damages.

Suppose that a building collapses, and X thus wants to sue architect Y for negligence. To win, X must prove that (a) Y designed or was responsible for the design of the building; (b) Y had a duty to design, or review the designs of, the building in accordance with reasonable standards of her profession; (c) this duty, owed to present and future passerby, people in the building, and persons with property in or near the building, covered X; (d) the duty was breached by Y; (e) if Y had exercised due care, the building would not have collapsed; and (f) the collapse damaged X or his property.