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[Middle English, injury, from Old French, from Medieval Latin tortum, from Latin, neuter past participle of torquēre, to twist.]
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Britannica Concise Encyclopedia:
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A harmful wrong (other than a breach of contract) for which courts will provide a remedy, usually damages, to a private party. Torts include injuries to persons, such as injuries caused by negligent automobile accidents, medical malpractice, or product defects; injuries to property, such as nuisances and trespasses; and injuries to reputation. Courts allow recovery when a defendant breaches a legal duty to a plaintiff and this breach proximately causes an injury recognized under the law.
Under the federal system, state courts and legislatures are primarily responsible for developing the law of torts. The Supreme Court sometimes finds that state law conflicts with the Constitution or is preempted by federal statutes. For example, since 1964 the Supreme Court has substantially altered the torts of defamation and invasion of privacy, holding that state tort law may violate constitutional protections of free speech. Moreover, the Court has considered several attempts to establish constitutional limits on the award of punitive damages. In another area, the Supreme Court frequently concludes that federal environmental statutes preempt state common‐law actions for nuisance (see Environment).
The Court also applies state tort law in federal cases. For example, state tort law is followed in diversity of citizenship cases and in suits brought against the United States under the Federal Tort Claims Act.
In a few cases, the Supreme Court finds the creation of a federal tort authorized, expressly or implicitly, by statute or under the Constitution. Civil damage remedies for violations of constitutional rights are recognized both under section 1983 of the Civil Rights Act of 1964 and under a cause of action implied in the Constitution.1983
— Donald G. Gifford
Oxford Guide to the US Government:
tort |
A tort is a civil wrong, other than contract violaton, done by one party to another party. By contrast, a crime is a violation of a government's laws; these are the statutes that pertain to wrongs against society, which the government has authority to punish through its law enforcement powers.
Torts involve volations of civil law, not criminal law. They usually are the responsibility of state courts, but the U.S. Supreme Court sometimes becomes involved when the tort law of a state conflicts with the Constitution or federal laws.
Columbia Encyclopedia:
tort |
The history of Anglo-American tort law can be traced back to the action for trespass to property or to the person. Not until the late 18th cent. was the currently observed distinction made between injury willfully inflicted and that which is unintentional. In the early 19th cent., negligence was distinguished as a separate tort, and it has come to supply a large portion of tortious litigation.
The general tendency today is to rule that the breach of any duty constitutes a tort, rather than to rule that an alleged tort must fit into some previously recognized variety, such as assault, false imprisonment, or libel. Some courts treat any willful unjustified injury as tortious, while others hold that the act must be defined as tortious by law, regardless of the perpetrator's motive. Torts that injure reputation or feelings are personal torts; those violating statutory rights are constitutional torts; those involving real or personal property are property torts. Property torts include several classes of torts, such as automobile accidents, negligence, product liability, and medical malpractice.
In some areas, tort liability can be assigned without a finding of fault, as in no-fault automobile insurance. In areas where the finding of fault remains crucial, and the awards of compensatory or punitive damages can be substantial, tort litigation can be time-consuming and costly. Its defenders claim tort litigation promotes safety and economic efficiency, while critics argue the process does little but raise insurance premiums while providing windfalls to a handful of lawyers. Efforts to reform tort law hope to set limits to damage settlements and to broaden no-fault statutes for use in alternative forms of litigation. In the 1990s many U.S. states, pressed chiefly by conservatives and business interests, passed laws limiting damages, but state courts have repeatedly voided these limits as violations of "open courts" guarantees in state constitutions.
West's Encyclopedia of American Law:
Tort Law |
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 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 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 her 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 foreseeability. 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 her or his 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.
See: Consumer Protection; Environmental Law; Federal Tort Claims Act; Feres Doctrine; MacPherson v. Buick Motor Co.; Product Liability; Rylands v. Fletcher.
Mosby's Dental Dictionary:
tort |
A legal wrong perpetrated on a person or property, independent of contract.
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Wikipedia on Answers.com:
Tort |
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This article may be too technical for most readers to understand. Please help improve this article to make it understandable to non-experts, without removing the technical details. The talk page may contain suggestions. (September 2010) |
A tort, in common law jurisdictions, is a civil wrong.[1] Tort law deals with situations where a person's behaviour has unfairly caused someone else to suffer loss or harm. A tort is not necessarily an illegal act but causes harm and therefore the law allows anyone who is harmed to recover their loss. Tort law is different to criminal law, which deals with situations where a person's actions cause harm to society in general. A claim in tort may be brought by anyone who has suffered loss. Criminal cases tend to be brought by the state, although private prosecutions are possible.
Tort law 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."[2]
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.
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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
The word "torture" shares the same linguistic origin, though its present meaning diverged in a very different direction.
Torts may be categorized in several 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 the traditional common law torts. These are loosely grouped into quasi-torts or liability torts.
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 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:
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.
Dereliction of duty generally refers to a failure to conform to rules of one's job, which will vary by tasks involved. It is a failure or refusal to perform assigned duties in a satisfactory manner. Dereliction of duty on the part of an employee may be cause for disciplinary action, which will vary by employer. It may refer to a failure by an organization member to abide by the standing rules of its constitution or by-laws or perform the duties of the position appointed to.
The negligent act of the tortfeaser must be connected to the injuries suffered.
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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.
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 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 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 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.
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.
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.
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.
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.
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.
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.[3] 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.[4]
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),[5] 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),[6] 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."[7] 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,[8] 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.
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.[9]
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.[10]
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.
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).
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Translations:
Tort |
Dansk (Danish)
n. - erstatningsforpligtende retsbrud
Nederlands (Dutch)
onrechtmatige daad
Français (French)
n. - préjudice
Deutsch (German)
n. - unrechtmäßige Handlung, zur Schadenersatzklage berechtigendes Delikt
Ελληνική (Greek)
n. - (νομ.) αδικοπραγία, αδίκημα, ζημία
Italiano (Italian)
atto illecito
Português (Portuguese)
n. - agravo (m), dano (m), delito de natureza civil (m)
Русский (Russian)
(юр.) гражданское правонарушение
Español (Spanish)
n. - agravio indemnizable en juicio civil
Svenska (Swedish)
n. - kränkning (jur.), åtalbar handling (dock ej kontraktsbrott)
中文（简体）(Chinese (Simplified))
民事侵权行为
中文（繁體）(Chinese (Traditional))
n. - 民事侵權行為
العربيه (Arabic)
(الاسم) أذى مقصود أو غير مقصود يلحق بشخص ألمرء و ممتلكاته أو سمعته, ألضرر
עברית (Hebrew)
n. - אי מילוי תפקיד המביא לחבות לנזקים, נזק, עוול, (דיני) נזיקין
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 | American Heritage Dictionary. The American Heritage® Dictionary of the English Language, Fourth Edition Copyright © 2007, 2000 by Houghton Mifflin Company. Updated in 2009. Published by Houghton Mifflin Company. All rights reserved. Read more |
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| Oxford Companion to the US Supreme Court. The Oxford Companion to the Supreme Court of the United States. Copyright © 1992, 2005 by Oxford University Press. All rights reserved. Read more |
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| Oxford Guide to the US Government. The Oxford Guide to the United States Government. Copyright © 1993, 1994, 1998, 2001, 2002 by John J. Patrick, Richard M. Pious, Donald M. Ritchie. All rights reserved. Read more |
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| Columbia Encyclopedia. The Columbia Electronic Encyclopedia, Sixth Edition Copyright © 2012, Columbia University Press. Licensed from Columbia University Press. All rights reserved. www.cc.columbia.edu/cu/cup/. Read more |
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| West's Encyclopedia of American Law. West's Encyclopedia of American Law. Copyright © 1998 by The Gale Group, Inc. All rights reserved. Read more |
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| Mosby's Dental Dictionary. Mosby's Dental Dictionary. Copyright © 2004 by Elsevier, Inc. All rights reserved. Read more |
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