6.2: Introduction to Tort Law

The vast majority of civil litigation lawsuits are based on torts. There are many different kinds of torts. Some are based on unintentional (or accidental) acts. Others are based on intentional acts. Still others are based on acts that aren’t necessarily defined as unintentional or intentional but are seen as being especially dangerous. Finally, some torts are based on a person’s failure to properly perform as professionals, such as doctors, accountants and attorneys.

Definition: Terms Relating to Tort Law

Tort: a person’s wrongful actions that caused harm to another person.

Tortfeasor: a person who commits a tort.

Elements: the essential components that a plaintiff must prove to establish their case and win a lawsuit. Each type of legal claim has its own specific elements that need to be demonstrated. The elements form the foundation of the claim, and the plaintiff must provide sufficient evidence (based on the required burden of proof) for each one.

Liable/liability: being legally responsible for something in a civil claim. When a person or entity is found liable, they are obligated to do something, stop doing something, or pay for damages caused by their actions. “Guilty” is a term used only in criminal law and not in civil law.

Damages: an award (nearly always money) to the plaintiff in a civil claim that the defendant is required to pay after being found liable. In tort law, there are two types of damages that might be imposed, depending on the nature of the plaintiff’s claim.

Compensatory damages: money intended to compensate the plaintiff for actual injuries or other damage caused by the defendant’s tortious conduct. Examples include lost wages, medical expenses, and pain and suffering.

Punitive damages: money intended to punish the defendant for particularly “bad” tortious conduct and deter others from similar tortious conduct. They are also sometimes called exemplary damages (as in, making an example of what happens to defendants who engage in that conduct). One of the most well-known examples of punitive damages was awarded in the “McDonald’s hot coffee case” in which McDonald’s was ordered to pay the plaintiff $2.7 million in addition to the $160,000 in compensatory damages to a plaintiff who suffered severe burns caused by overly hot coffee.

Tort Law vs. Criminal Law

Although some torts, especially some intentional torts, have the same or similar names to crimes, they are not the same! The primary purpose of tort law is to “make the plaintiff whole” by compensating the plaintiff for injuries suffered as a result of the defendant’s wrongful (or tortious) conduct. In contrast, the primary purpose of criminal law is to punish defendants for wrongful acts against society (though there are most often individual victims), and to deter others from committing those same wrongful acts. This difference in purpose is reflected in the consequences imposed. A tortfeasor is usually required to pay money to the plaintiff or may be ordered to stop engaging in certain types of conduct. A convict (a person found guilty of committing a crime) may be sentenced to jail or prison and may have to pay fines and/or restitution.

Another important difference between tort law and criminal law is how strong the plaintiff’s (or prosecutor’s) case must be.

Definition: Terms Relating to Proof

Burden of Proof: The obligation to prove assertions or claims – and how well they must be proven.

• Preponderance of the evidence: Burden of proof In ordinary unintentional tort cases. It is “more likely than not” that the claims are true. This is the lowest burden of proof.
• Clear and convincing evidence: Burden of proof In intentional tort cases. It is “highly or substantially likely” that the claims are true. This is sometimes known as the “middle” burden of proof
• Beyond a reasonable doubt: Burden of proof In criminal cases. It is “nearly certain” that the claims are true. This is the highest burden of proof.

The table below further compares tort law and criminal law.

Table \(\PageIndex{1}\): A comparison of tort law and criminal law.

	TORT LAW	CRIMINAL LAW
Parties (individuals, companies, the State)	Individuals vs. Individuals Companies vs. Companies Companies vs. Individuals Individuals vs. Companies	“The State” or “The People” vs. Individuals
Purpose	Recovery of damages ($) “Make the plaintiff whole”	Punish and deter crimes
Burden of Proof (the legal term)	Plaintiff (or counterclaimant) must prove: Ordinary torts (for example, negligence): preponderance of the evidence Intentional torts: clear & convincing evidence	Plaintiff (prosecutor) must prove: Beyond a Reasonable Doubt
Define the Burden of Proof in plain English	Preponderance of the evidence = more likely than not or 51% likely that a fact is true or something occurred Clear & convincing evidence = 70-75% likely that a fact is true or something occurred	Beyond a Reasonable Doubt = 90-95% likely that a fact is true or something occurred

Basic Introduction to Unintentional (Accidental) Torts

Sometimes people cause harm to other people as a result of careless or unintentional actions. Such actions could result in liability if the person failed to exercise average care, skill, and judgment that we would ordinarily expect in the particular situation. In tort law, this is referred to as the “reasonable person” standard. In other words, how would an ordinary, typical person have acted? For example, a reasonable person would stop at a red light. It is an objective standard that isn’t impacted by the particular alleged tortfeasor’s personal beliefs or intentions.

Definition: Terms Relating to Unintentional Torts

"Reasonable person” standard: An expectation that persons will exercise average are, skill, and judgment that we would ordinarily expect in the particular situation.

Negligence: a tort based in part on a person's failure to exercise reasonable care.

Contributory Negligence: a person's failure to exercise reasonable care that results in damages to that person.

To successfully assert a negligence claim, the plaintiff must prove four elements by a preponderance of the evidence:

• Legal duty/duty of care. The tortfeasor must have owed a legal duty of care to the plaintiff that required the tortfeasor to act (or not act) in a certain manner. For example, everyone driving a vehicle on a public roadway has a legal duty to obey all traffic laws, and to operate their vehicle in a safe manner.
• Breach of duty. The tortfeasor failed to act as a reasonable person would have acted. For example, exceeding the posted speed limit (an act of commission) or failing to stop at a red light (an act of omission).
• Causation. The tortfeasor’s breach of duty must have caused the plaintiff to suffer damages. There are two types of causation:
  • Direct/actual. The injury would not have happened without the breach of duty. For example, if the tortfeasor had stopped at the red light, the collision between the plaintiff’s vehicle and the tortfeasor’s vehicle would not have happened, and the plaintiff would not have been injured.
  • Indirect/proximate. It was predictable (or reasonably foreseeable) that the tortfeasor’s conduct would result in the injury. For example, the tortfeasor runs a red light and collides with another vehicle. As a result of the collision, the second vehicle is pushed onto the sidewalk and hits a pedestrian. The pedestrian’s injury was a foreseeable consequence of the tortfeasor running a red light.
• Compensable Damages. The plaintiff must have suffered actual harm, such as physical injury, property damage, or financial loss. The harm also must be a type that is recognized in tort law. For example, while it would be natural for a bystander to the accident described above to be frightened and suffer from anxiety, this is not a type of harm that tort law recognizes as compensable.

Of course, sometimes the plaintiff’s damages are caused by the plaintiff’s own failure to exercise reasonable care; this is called contributory negligence. When that happens, the amount of damages the plaintiff is able to recover from the tortfeasor is reduced by the percentage of “fault” attributable to the plaintiff. For example, if a jury decides that the plaintiff is 10% at fault for causing a car accident, the plaintiff can only recover 90% of the compensatory damages awarded by the jury. In Wisconsin, if the plaintiff’s contributory negligence is greater than the tortfeasor’s negligence, the plaintiff cannot recover any damages from the tortfeasor.

Negligence can arise in many types of scenarios, including motor vehicle accidents, “slip and fall” incidents (where someone fails to clean up a slippery substance from the floor), or failing to secure a potentially dangerous area (for example a swimming pool), to name a few.

Basic Introduction to Intentional Torts

Unlike torts that form the basis of a negligence claim, intentional torts arise when people cause harm to other people as a result of intentional actions. The important aspect of intentional torts is that it is the act that must be intentional. It does not matter if the tortfeasor did not intend that any injuries or damage should result from those acts. As long as the injuries, or damage that actually happen were reasonably expected or foreseeable consequences of the intentional act, the tortfeasor might be liable for an intentional tort. For example, shoving someone is an intentional act. If someone shoves another person near the top of a staircase, it’s quite likely the person will fall down the stairs and suffer serious injuries. The act of shoving is an intentional tort, even if the shover did not intend for the other person to fall down the stairs and did not intend for that person to be injured.

There are two categories of intentional torts: intentional torts against persons and intentional torts against property. Each intentional tort has its own elements that must be proven, as discussed below. One thing intentional torts have in common, however, is that the tortfeasor might be required to pay punitive damages in addition to compensatory damages. Because of the possibility for punitive damages to be imposed, some states require clear and convincing evidence of the elements of intentional torts.

Definition: Intentional Torts Against Persons

Assault. Any word or action intended to make another person fearful of immediate harm. All that is required is a reasonably believable threat that causes immediate apprehension of injurious, offensive, or unwanted contact. It does not matter if the threat is not carried out.

Battery. Any intentional, offensive or unwanted contact to another person without lawful justification. Sometimes battery occurs after an assault – the threatened action is completed. Other times, the battery occurs without threat or warning. The contact must be a type that a reasonable person would consider to be offensive or unwanted and unjustified.

Defamation. Publicly making a false statement about another person that causes harm to the person’s good name, reputation, or character. One key element is that the statement must be false; if the statement is true, there is no defamation, no matter how nasty the statement may be. Thus, truth is an absolute defense to defamation. Additionally, if the victim is a public figure or a celebrity, the victim must prove the speaker had actual malice (real and demonstrated evil intent) as a motive for making the statement.

Libel: Written defamation, including on the Internet.

Slander: Spoken defamation.

False imprisonment. Intentionally confining or restraining another person’s activities without justification. The confinement/restraint can result from actions (tying someone up, locking a door), or words (threatening harm as a means of restraint).

Intentional infliction of emotional distress. Engaging in intentional, extreme, and outrageous conduct that results in severe emotional distress to another person. Many times, courts require physical symptoms of the distress that can be documented by a medical or mental health professional.

Misrepresentation/Fraud. Knowingly misstating or failing to mention an important/material fact with the intent to deceive the other person, resulting in the other person justifiably taking or not taking action to his or her detriment. One example would be if a seller claims to be selling an authentic, original Picasso painting even though the seller knows it is a very clever fake. If the buyer reasonably believes the painting is authentic and pays the seller $1 million, a misrepresentation/fraud has occurred.

Definition: Intentional Torts Against Property

Conversion. Wrongfully taking and keeping another person’s property. Essentially, this is the civil claim related to the criminal act of theft.

Trespass to land. Any intentional entry onto, above, or below the surface of land owned by another without the owner’s permission. Interestingly, actual harm or damage to the land is not required. This tort is designed to protect a landowner’s right to exclusive enjoyment of his/her land without interference. Common trespasses to land include walking or driving on someone’s land, shooting a gun over the land, flying a drone over the land, or causing water or other debris to back up on someone’s land.

Trespass to personal property. Any intentional use or harm of another person’s personal property without permission. Similar to trespass to land, this tort is designed to protect a landowner’s right to exclusive enjoyment of his/her personal property without interference. An example of trespass to personal property might be using someone’s bicycle without asking permission first – especially if the bicycle is returned in a damaged condition. The difference between trespass to personal property and conversion is that the initial taking of the property without permission is the trespass; keeping it is conversion.

Basic Introduction to Strict Liability Torts

Unlike negligence-based and intentional torts, strict liability torts impose liability for reasons other than fault. Instead, liability is imposed when injuries/damage are caused by activities or things that are “abnormally dangerous” or that create an exceptional amount of risk. Strict liability torts are based on the tortfeasor’s exposure of others to dangerous (or ultrahazardous) activities, animals, or products.

Dangerous Activities

The following factors help determine whether an activity is “ultrahazardous”:

• The activity presents a high degree of risk; existence of a high degree of risk of some harm to the person, land, or personal property of others
• There is a strong likelihood that the harm that results from it will be great
• The exercise of reasonable care does not eliminate the risk
• The activity itself is not a matter of common usage
• The place where the tortfeasor engaged in the activity is inappropriate
• The activity’s value to the community is outweighed by its dangerous attributes.

Examples of ultrahazardous activities include using explosives and transporting, using, or storing dangerous materials (such as chlorine gas or other highly toxic or flammable materials).

Dangerous Animals

Wild animals, even if tamed or interbred with domestic animals (for example wolf-hybrid dogs or serval-hybrid cats), have been categorized as “inherently dangerous,” subjecting their owners to strict liability if they cause injury or damage. Similarly, domestic animals that are trained to be aggressive or that previously have exhibited unprovoked aggression may also be considered “abnormally dangerous.” For example, in Wisconsin, if a dog has previously seriously bitten a person without provocation, strict liability (and double damages) may be imposed against its owner if it bites again.

Dangerous Products

Manufacturers, distributors, and sellers of defective products may also be subject to strict liability pursuant to product liability law. There are three ways in which a product can be deemed “unreasonably dangerous”

• Design defects. Some products are inherently dangerous due to the way they are designed (for example, the way a car model is designed makes it highly likely to roll over during sharp turns due to a high center of gravity). Other times, the design is defective if a reasonable alternative design (in terms of feasibility and cost) would have reduced or eliminated a foreseeable risk of harm (for example, placing a guard over a table saw).
• Manufacturing defects. Sometimes the product’s design isn’t problematic, but the manufacturer didn’t properly follow the design specifications. Examples include cans of soda contaminated with bacteria due to improper sterilization; mistakes made while assembling a car resulting in a faulty brake system; a batch of children’s toys is produced with sharp edges because the molding machine malfunctioned and left sharp edges rather than the required smooth edges.
• Warning defects. Some products pose a higher risk of harm even if they are designed to and manufactured properly. These products must include a conspicuous and understandable warning to consumers about the risks – including risk of harm that would result from foreseeable misuse of the product. This is why some product packaging includes “obvious” warnings, such as “sharp edges” for knives, “do not use in the bathtub” for electric hair dryers, and “caution: hot” for hot coffee. Of course, consumers still must use common sense when a product poses “obvious” risks.

The common thread between these types of strict liability is that the tortfeasor is in the best position to know the dangers of the activity, animal or product, and also is in the best position to take appropriate measures to alleviate or eliminate the risk of harm posed.

Basic Introduction to Malpractice-Based Torts

People who are specially trained, certified, or licensed professionals (such as doctors, accountants and attorneys) can be held liable for negligently performing their professional duties. This negligence claim is known as malpractice. Although malpractice claims are similar to ordinary negligence claims, there are some key differences:

• The “standard of care” for professionals is established by the standards set by their specific profession. These standards can be found in various authoritative sources, depending on the profession. For example, the American Nurses’ Association’s Nursing Scope and Standards of Practice, guidelines and standards published by the American Medical Association, and the American Bar Association’s Model Rules of Professional Conduct.
• Acts of malpractice can be unintentional (leaving a surgical instrument inside a patient) or intentional (a doctor knowingly performs an extremely risky surgical procedure)

Summary

There are many different types of tort claims, but they are all civil claims designed to compensate persons injured or harmed as a result of some type of unreasonable conduct. Some types of torts are very complex, such as product liability and malpractice cases. Others are more straightforward. Each case is unique and offers many opportunities to interact with clients, witnesses and experts, as well as working closely with attorneys to draft legal documents relating to the legal matter.