An Overview Of The Law Of Torts


 
Personal injury claims are governed by the law of torts. The word "tort" is derived from the Latin word "tortus" which means "twisted". Developing a precise definition for the word "tort" has been elusive. However, within the law, the word "tort" generally means a civil wrong, that is not a breach of contract, for which the courts will award monetary compensation for an injury suffered that was a result of the intentional or negligent wrongful conduct of another party. One who commits a tort, i.e. injures another person or that person's property, is known as a "tort-feasor".
 
Although not all torts are crimes, most crimes are torts if they cause an injury to a person or property. For instance, an injury caused by professional negligence, such as medical malpractice, would be a tort but would not be a crime.
 
Generally, the law of torts is a product of the "common law" of our states, that is the body of law that has developed through the decisions of our state courts. Both Federal and state statutes and regulations have also contributed to the law of torts. (Statutes are laws passed by legislative bodies such as Congress and the state legislatures. Regulations are rules adopted by governmental agencies in the performance of their governmental function.) As a result, tort law may vary from state to state. With new cases being decided and statutes being enacted, the law of torts is continually evolving in order to address the needs of a society that is constantly increasing in its complexity. [Because of the common law nature of tort law, as a practical result, the courts can create new laws that have a retroactive effect.]
 
Within the category of "torts" are a number of different and seemingly unrelated types of civil wrongs. These may include:

  • The interference with one's person such as assault, battery or wrongful imprisonment;
  • The interference with one's property such as conversion or trespass;
  • An injury to one's intangible interests, such as one's reputation, the torts of defamation or libel and slander;
  • The wrongful interference with one's business interests;
  • The intentional or negligent infliction of emotional suffering; and
  • The invasion of one's privacy.

Whether a tort has been committed is a factual determination which depends upon whether the injury was a result of a wrongful act or omission. By way of illustration, if an individual is injured by a gun shot, it may or may not be a tort. It would depend upon whether the shooter fired the gun wrongfully or not. For instance, if the injured party was shot by an off-duty police officer who was acting within the scope of his duties and responsibilities as a police officer, then the shooting may not be wrongful, thus a tort may not have occurred. However, if the gun shot occurred as a result of the police officer carelessly playing with his gun, then this would most likely be a tort.
 
Torts can occur through intentional acts and through negligence. An intentional tort, i.e. one committed with the intent to cause injury, is generally easier to prove than a tort that occurs through negligence. For instance, if Tom punches Bill, without any legal justification and with the intent to injure Bill and does injure Bill, Tom has committed a tort. (He has probably committed a criminal act also.) However, if Tom punched Bill with the intent to injure Bill but did so with legal justification, then Tom may not have committed a tort. (And may not have committed a crime.) What would legally justify Tom hitting Bill? Perhaps, Tom is a police officer acting within the scope of the duties of his employment as a police officer and he is attempting the subdue Bill who is then in the process of committing a serious crime.
 
Although not all, most SCC members will be dealing with injury claims that are a result of the negligence of another party. Negligence, in a nut shell, is conduct falling below a standard established by law for the protection of others against unreasonable risk of harm. The legal elements that must be proven to establish a claim of negligence are:

  1. A legal duty to conform to a standard of conduct that is deemed legally necessary in order to protect others against unreasonable risk of injury to their person or property;
  2. A breach of that duty, that is a failure to conform to that standard of conduct;
  3. A reasonably close causal connection, that is "proximate cause", between the breach of that duty, i.e. a failure to conform to that standard of conduct, and the resulting injury; and
  4. An actual injury, loss or damage suffered by the other party.

In determining whether a party was negligent, a threshold question that a court must answer is whether a legal duty to conform to a standard of conduct existed. [This is where tort law can have, as a practical result, the creation of new law that has a retroactive effect. Although this does not occur often, a court can find that, in a particular case, a legal duty existed when no court had previously declared that any such duty had existed before.]
 
In determining the existence of a duty, the court will look to see if the risk of injury was reasonably foreseeable. If the risk of injury was reasonably foreseeable, the courts will be more likely to find that the existence of a duty.
 
In the law of torts as well as throughout the law in general, you will continually see reference to a standard as to what is "reasonable". In the law, this standard of "reasonableness" is often referred to as the "objective" standard. Who determines what is "reasonable"? In any lawsuit, what is "reasonable" is a factual determination made by the "trier of fact" on a case by case basis. Who is the "trier of fact"? In a jury trial, it is the jury. In a "bench" trial where there is no jury and the case is tried to the judge, the judge is the "trier of fact".
 
In tort law, there is the concept of "negligence per se". This concept of "negligence per se" provides that, if the tort feasor has violated some law (such as a statute, ordinance or regulation) that was created in order to protect people from the type of accident that the tort feasor's victim has suffered, then the existence of the duty and the breach of that duty are presumed. This is a rebuttable presumption. It shifts the burden of proof from the victim to the tort feasor. The tort feasor has to prove that, even if he had obeyed the law, the accident would have occurred. Satisfying this burden of proof would be very difficult for the tort feasor. Most juries or judges are going to be skeptical that the accident would have occurred even if the tort feasor had obeyed the law. Essentially, the tort feasor goes into this situation with two strikes against him.
 
In situations where you may be able to use this concept of "negligence per se", you will be required to prove:

  1. The tort feasor violated a law that was intended to protect people from the type of accident that occurred;
  2. The violation of that law was the proximate cause of your injury; and
  3. You have suffered damages and how much those damages are.

Typical cases of "negligence per se" are instances when motor vehicle drivers violate driving laws or regulations such as a speed limits or traffic lights. Often, in these situations, as part of the work that they perform in preparing their accident report, the police will conduct an accident reconstruction analysis. This analysis made lead to conclusions stated in the police accident report that the driver had a violated some law and thus was negligent per se. Study the police report, see if the argument can be made in your case.
 
"Res ipsa loquitor" is another concept in tort law that allows the court to draw a reasonable inference that the event causing the injury or damage could not have occurred absent someone's negligence. "Res ipsa loquitor", a Latin term, means the "thing speaks for itself".
 

Defenses


 
It is not uncommon for a tort feasor, often through his insurance company, to assert defenses to an injury claim in order to avoid liability. These defenses might challenge the victim's claim that the tort feasor was negligent. In attacking the victim's claim that the tort feasor was negligent, the tort feasor may assert that:

  1. No duty existed thus the tort feasor did not breach any duty; or
  2. Even if a duty existed, the tort feasor did not breach that duty; or
  3. Even if the tort feasor breached a duty, that breach was not the proximate cause of the victim's injury; or
  4. Even if the tort feasor breached a duty and that breach was the proximate cause of the victim's injury; the victim suffered no real injury or harm.

In addition to these basic defenses, the tort feasor and his insurance company may assert that, even if the tort feasor was negligent, the victim was also negligent and, thus, it was the victim's negligence that was the cause, or partial cause, of the victim's own injury and damages. By alleging that the victim's injury and damages were caused by the victim's own negligence, the tort feasor, and his insurance company, raise the issue of either contributory negligence or comparative negligence. In this area of contributory negligence or comparative negligence, our state laws vary. A limited number of states adhere to the old law of contributory negligence. Most states have adopted the law of comparative negligence or modified comparative negligence.
 
The old rule of contributory negligence provides that, if the victim contributed at all to his own injury no matter how slight his fault, his contribution bars any recovery from the tort feasor. Under the rule of contributory negligence, if the tort feasor was 90% responsible for the victim's injury and the victim was 10% responsible, the victim is barred from recovering any compensation from the tort feasor.
 
Under the law of comparative negligence or modified comparative negligence, that most states have adopted, the victim's own negligence does not serve as an absolute bar against the victim receiving some compensation from the tort feasor. Under the law of comparative negligence, the victim is entitled to be compensated by the tort feasor to extent that the tort feasor was responsible for the victim's injury. Accordingly, if the total damages that the victim suffered were $10,000.00 and the tort feasor was 90% responsible for the victim's injury and the victim was 10% responsible, the victim is entitled to recover $9,000.00 from the tort feasor. Under the rule of modified comparative negligence, the victim loses the right to recover any compensation from the tort feasor, if the victim's own negligence was 50% or more of the cause of the victim's injury and damages.
 
Who determines who was responsible for what percentage of the victim's injury? Under the law, that determination is the exclusive responsibility of the "trier of fact" in a trial. In a jury trial, it is is the exclusive responsibility of the jury. In a bench trial where the judge sits as the "trier of fact", it is the exclusive responsibility of the judge. This is important to remember in all of your settlement negotiations. Until the "trier of fact", the jury or the judge, makes a decision, who was responsible for what percentage of the victim's injury is pure speculation on the part of all parties. Additionally, this is a defense, thus the tort feasor generally has the burden of proving that the victim was negligent and to what extent that negligence was the cause of the victim's injuries. Accordingly, although this issue of contributory or comparative negligence is one that you should consider in your settlement negotiations, you should not let the tort feasor's insurance company convince you that your claim has no value.
 

Defenses - Assumption Of Risk


 
Another defense that is used is the doctrine of "assumption of risk". Essentially, this "assumption of risk" doctrine provides that the potential tort feasor is relieved, in advance, by the potential victim from any possible liability. This occurs when the potential victim agrees to assume the risk inherent in the activity that may lead to the potential victim's injury. A classic example is the boy who plays high school football. Both the boy and his parents understand that football is an inherently dangerous game in which injuries can occur. Typically, in order to ensure that this defense is available to them, the school district, school and school leaders, e.g. as the coaches, will have the boy and his parents sign a waiver that states that they understand the inherent risk in playing football, they assume that risk and release the school district, school and school leaders from any liability for injuries and damages that might arise out of the boy playing football. However, a potential victim may assume the risk without actually signing any formal agreement. A typical example would be attending a baseball game. When one attends a baseball game, one may assume the risk that they might be hit by a baseball that is hit into the stands. By virtue of common knowledge that baseballs are hit into the stands and by attending the game, the baseball fan implicitly agrees to subject him self to the risk. Of course, for the potential victim to assume the risk, the potential victim must be aware of the risk or, through a reasonable inquiry, become aware of the risk. Accordingly, in the baseball game scenario, the fan may assume the risk of injury from being hit by a foul ball but does not assume the risk of injury from the stands collapsing or the pitcher going insane and throwing fast balls directly at fans. The "assumption of risk" defense may be defeated by demonstrating that the victim was unaware of the risk and could not have been aware of the risk from a reasonable inquiry. In the event that your case involves a question regarding the assumption of the risk doctrine that is not answered here, you may want to consult with an attorney.