US Tort Law

11 Key excerpts on "US Tort Law"

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  Law and the Built Environment

  • Douglas Wood, Paul Chynoweth, Julie Adshead, Jim Mason(Authors)
  • 2021(Publication Date)
  • Wiley-Blackwell

    (Publisher)

  3 The Law of Tort 3.1 The nature of tort A tort is a civil wrong. The law of tort is part of the civil side of English law and is developed from common law principles. Unlike the law of contract there is no complete body of rules, which apply to all torts, in the way that all contracts are governed by the same general principles which remain fairly static. This is the reason why the subject is sometimes referred to as the law of torts. In civil legal systems (virtually all the other countries in Europe), contract and tort tend to be grouped together as the law of obligations. Tort is a more modern branch of the law than contract. Although a number of torts were established by the end of the nineteenth century, the twentieth century witnessed major developments, which are continuing at a rapid pace in the new century. The expansion of tort has been much in fl uenced by the rise of capitalism and manufacturing together with advances in transport, technology and construction activities. A claim in tort is concerned with the adjustment of losses between the relevant parties. These are the claimant(s) and the defendant(s). The principal remedy sought is damages (money). The claimant is seeking compensation for loss to property, reputation, money, physical injury or some other interest protected by the law. This may be in the form of an act, omission, or the giving of advice. There can be an overlap between tortious liability and other areas of law while certain factual situations may result in a civil action in tort and also in criminal proceedings. Common examples include road traf fi c accidents and accidents at work. In such circumstances each set of proceedings is dealt with differently. One aims at compensating the victim while the other aims to punish the wrongdoer. Tortious claims, like contractual claims, are subject to the civil burden of proof where the claimant must prove the case on the balance of probabilities.

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  Forensic Science and Law

  Investigative Applications in Criminal, Civil and Family Justice

  • Cyril H. Wecht, John T. Rago, Cyril H. Wecht, John T. Rago(Authors)
  • 2005(Publication Date)
  • CRC Press

    (Publisher)

  9 Fundamental Principles of Tort Law KELLEN M C CLENDON Introduction What Is a Tort? In one of the leading works on torts, Prosser and Keeton on Torts , 1 the authors begin their answer to this question by observing that “a really satisfactory definition of a tort is yet to be found.” 1 (§1, p. 1) Torts have been around long enough, however, such that the same authors are able to “broadly” define a tort as “a civil wrong, other than breach of contract, for which the court will provide a remedy in the form of an action for damages.” 1 (§1, p. 2) This definition is one that is pretty much accepted and is similar to the definitions that many other scholars and courts have ascribed to the word. 2 The author of an early 1900 treatise on torts defined a tort as “a breach of a duty (other than a contractual or quasi-contractual duty) which gives rise to an action for damages.” 3 Most courts have defined the word tort in a similar fashion. The U.S. Supreme Court, referring to the Prosser and Keeton definition, has adopted the same definition. 4 The Interests Protected by Tort Law Tort law protects various tangible and intangible human interests. The 1965 version of the Restatement (Second) of Torts (hereinafter referred to as “the Restatement ”) defines “interest” as “the object of any human desire.” 5 The tangible interests can be divided into personal physical interests and certain property interests. Examples of these types of inter-ests include the interests in being free from bodily injury (a personal physical interest) and the interest in being free from damage to property (a property interest). The intangible interests are those such as freedom from injury to reputation misrepresentation. Three General Categories of Tort Liability In the effort to protect these interests, the tort law imposes liability on the person or the entity that causes damages to these interests.

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  The Journalist's Guide to American Law

  • John Nockleby, John T. Nockleby, John Nockleby, John T. Nockleby(Authors)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  5Torts

  John T. Nockleby

  Professor of Law and Director of the Civil

  Justice Program, Loyola Law School

  The civil justice system involves many different types of claims, including cases as diverse as divorce, contracts, and zoning. Cases might be profoundly important, such as constitutional disputes between states, or involve local small claims between two strangers, such as routine fender benders. One type of civil suit involves tort claims. Because tort suits are often covered in the media, and regulate a wide range of conduct, this chapter will outline some of the most common tort disputes that arise.

  What is a Tort? General Definition

  Tort is a French word meaning “wrong.” Torts consist of injuries to person or property usually not involving enforcement of a contract. Tort law is enforced through lawsuits brought by individuals or entities who believe they’ve suffered injury. In contrast to crimes, which are brought by government prosecutors, the rights protected by tort law must be enforced by the individual person or entity. Ordinarily the state is not a party except when the state itself brings a lawsuit to enforce tort rights.

  Tort law arose as judge-made law. As described in the introduction (chapter 1 ), tort law is part of the common law system in which judges make the law. Judges have historically determined what behaviors constitute those wrongs that are subject to redress. Apart from a few special situations, tort law is also a matter of state law, not federal law. State legislatures of course may change the common law consistent with individual state constitutions, or adopt new torts or modify ancient ones, but in the United States, state courts continue to modify their state’s tort law in accordance with judicial judgment.

  Many torts have ancient roots in the English common law, going back hundreds of years. However, judges have historically been willing to transform tort law—sometimes dramatically—as they are persuaded that changed conditions or a different policy judgment requires it.

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  Law

  Made Simple

  • D. L. A. Barker, C. F. Padfield(Authors)
  • 2014(Publication Date)
  • Made Simple

    (Publisher)

  Such is the area of the law with which we are concerned. A tort has been defined as 'a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively The Law of Torts 193 the breach of a contract or the breach of trust or other merely equitable obligation' (Salmond: Law of Torts). Prof. P. H. Winfield, another important authority in this field, asserts that 'tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally, and its breach is redressible by an action for unliquidated damages'. {Law of Tort) What is the essential difference between these two writers? One school maintains there is a general principle of liability in tort, and that all harm is actionable in the absence of just cause or excuse: i.e. there is a law of tort (not torts). The other school maintains that there are a number of specific torts, and that unless the damage or injury suffered can be brought within the scope of one or more of these torts there is no remedy. Damage and Liability As a general rule, where one person suffers unlawful harm or damage at the hands of another, an action in tort for that damage or injury arises. An action in tort lies, for example, in the situation where A negligently collides with 2Ts stationary car on a road and causes damage to it. Sometimes we find instances where harm is done by one person to another yet the law does not provide a remedy: this is described as damnum sine injuria ('damage without legal wrong'). Ordinary trade competition is the most common example. Let us suppose that a giant supermarket sets up adjacent to, and in competition with, a small family grocer, selling all goods cheaper and thereby commanding the custom of the housewives. The result could well be that the family grocer, unable to compete, is forced out of business. Harm is done to him in that he loses his livelihood, yet the law offers no remedy to him.

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  Law and Economics

  An Introductory Analysis

  • Werner Z. Hirsch(Author)
  • 2014(Publication Date)
  • Academic Press

    (Publisher)

  6 TORT LAW'S BASIC LEGAL PREMISES INTRODUCTION Though tort law has a long and distinguished history, it is today a most dynamic branch of the law, dealing with situations where an initial enti-tlement has been unintentionally destroyed. In this chapter, some major legal concepts and premises are explored, starting with the nature of a tort. The concepts of negligence, duty, and proximate cause are exam-ined, and tort defenses are reviewed. Thereafter, major liability rules are presented and compared, before an examination of damages is un-dertaken. Trends in tort law are reviewed last. WHAT IS A TORT? Broadly speaking, a tort is a civil (seldom a criminal) wrong. Such a wrong occurs when one party, usually unintentionally, destroys another party's initial entitlement by imposing a negative externality on him. The courts can then provide a remedy in the form of damages. When exter-nalities result in the forcible taking of initial entitlements—for example, when a slaughterhouse pollutes the air of the surrounding neighbor-hood—liability rules can be invoked. Concomitantly, government as-sumes responsibility for the imposition of objectivity determined com-pensation and its prompt payment to the party harmed. 165 166 6 TORT LAW'S BASIC LEGAL PREMISES This issue can be related to transaction cost. Although property rules assume that voluntary transactions can be carried out at relatively low transaction costs, in many circumstances they cannot. When market eval-uation of entitlements involves high transaction costs (i.e., market evalu-ation is either unavailable or very costly compared to collective valua-tion), and therefore is inefficient, a property rule can be replaced by a liability rule. Thus, for example, accidental damages are a special case of externalities with very high transaction costs, and such damages are covered by liability rules under tort law.

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  Getting Started in Business Law

  • Paul Bates(Author)
  • 2021(Publication Date)
  • Goodfellow Publishers

    (Publisher)

  So, that’s what we’ll do. 101 5 The law of tort The basic principles As is the case with contract law, torts are civil wrongs. For our purposes, we can say that a tort is any civil offence which is not covered by contract law. I’m aware that sounds like a cop out but it really isn’t. So, a tort is a civil wrong that has been normally performed by one person against another person. It doesn’t amount to a criminal offence against the other person. It involves a breach of a duty which you owe to another person or some unlawful intrusion of the rights of another person. Tort cover a vast area of law. Just to give you an idea of how far reaching tort is, it covers amongst other things: † Trespass: See example below. † Negligence: This where someone owes a duty of care to other people, are careless as to their actions and cause damage to others which is directly due to their careless actions. An obvious example here is that a driver of a vehicle has a duty of care not to injure other road users. If a driver is careless when driving a vehicle and causes damage to other road users, then he is likely to be sued by anyone damaged by his actions. † Occupier’s liability: A duty to protect the safety that an occupier of ‘prem-ises’ has to visitors to their premises. This duty of care to others, which all occupiers have, operates in your own home or any offices, shops or buildings that might be used by your business including outbuildings and any land occupied by you or your business. † Nuisance: There are two types of these – private and public nuisance. An example of private nuisance might be you playing the Rolling Stones at full volume every night for eight hours at a time, disturbing the old lady who lives in the flat above you. This is a tort. A public nuisance is where you disturb a great many people all in one go.

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  Recognizing Wrongs

  • John C. P. Goldberg, Benjamin C. Zipursky(Authors)
  • 2020(Publication Date)
  • Belknap Press

    (Publisher)

  1 Introduction A nxious law students are often pleasantly surprised to discover that the required first-year course with the odd name—“Torts”—is in many ways down to earth. True, the assigned judicial opinions often feature memorably exotic facts. But even these convey an idea so familiar and compelling that it is easily taken for granted: One who wrongfully injures another can be held accountable by the victim. The various torts—negligence, trespass, and products liability, to name just three—all partake of this idea. A physician who commits malpractice (professional negligence) faces the prospect of paying compensatory dam-ages to her patient. A homeowner who builds a shed that extends onto his neighbor’s land, if sued by his neighbor, might be ordered by a court to tear it down. A manufacturer that sells a defectively designed drug with devas-tating side effects faces liability to consumers who suffer them. This is the stuff of Torts courses and tort law, and it is hardly exotic. Ironically, it is those who spend their time studying tort law who often are least in tune with its commonsensical aspects. For more than a century, in law school classes and in books and articles, leading torts scholars, particularly in the United States, have been prone to insist that tort law is not what it appears to be. If there is any rhyme or reason to the subject, they say, it can only be grasped by locating its hidden economic, historical, philosophical, or political logic. To get a hold on tort requires mastery of microeconomics, of Weber’s rationalization thesis, of Aristotle’s ethics, or of public choice or critical theory. No R E C O G N I Z I N G W R O N G S 2 wonder the timorous have stayed at home, safely away from the daunting thickets of tort theory. We are theorists, and this book will present readers with some termi-nology and concepts that may try their patience.

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  The Legal Rights and Responsibilities of Teachers

  Issues of Employment and Instruction

  • Allan G. Osborne, Jr., Charles J. Russo(Authors)
  • 2011(Publication Date)
  • Corwin

    (Publisher)

  This chapter reviews the different types of torts and the standard of care that teachers must exercise to avoid liability. The chapter begins with the definition of a tort and descriptions of the various types of torts before examining the intentional torts of assault, battery, false imprisonment, and defamation. The chapter proceeds with discussions of negligence, the standard of care expected of educators, the elements of negligence charges, how to avoid negligence, and the various defenses to charges of negligence. The chapter rounds out with information on educational malpractice and civil rights torts. As with previous chapters in this book, it ends with a summary of major points and a list of frequently asked questions.

  DEFINITIONS AND TYPES OF TORTS

  Torts are civil, as opposed to criminal, wrongs or injuries, other than breaches of contracts, for which courts provide remedies, generally in the form of monetary damages. The word tort is derived from the Latin and Old French words for twisted . There are essentially four types of torts: intentional torts, negligence, products liability, and constitutional torts.

  Torts are civil, as opposed to criminal, wrongs or injuries, other than breaches of contracts, for which courts provide remedies, generally in the form of monetary damages.

  Intentional torts, as the term implies, occur when individuals purposefully violate the rights of others and cause them harm. Negligence, on the other hand, involves unintentional behavior, such as when students are injured because those responsible for their care failed to properly fulfill their duties. Educational malpractice takes place when teachers fail to provide proper instruction. Products liability, which is beyond the scope of this book because it has little impact on the professional activities of teachers, deals with injuries that buyers, users, or bystanders suffer as a result of defective products. Finally, constitutional torts arise when those responsible acted to intentionally discriminate, with deliberate indifference, or with gross misjudgment with regards to the civil rights of others.

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  Philosophy of Law

  The Fundamentals

  • Mark C. Murphy(Author)
  • 2013(Publication Date)
  • Wiley-Blackwell

    (Publisher)

  Chapter 5 The Nature and Aims of Tort Law 5.1 Torts and Crimes The previous chapter was concerned with crimes, violations of authori-tative legal standards for which punishment is an authorized response. This chapter is concerned with torts. To commit a tort is also to violate a legal standard, but the authorized response to a tort is (typically) the payment of damages: 1 victims of torts are authorized to seek recom-pense from the violator of the standard (the ‘‘tortfeasor’’) in compen-sation for the injury suffered by the victim. Torts can be distinguished into three types: intentional torts, torts of negligence, and torts of strict liability. The world of torts revolves around torts of negligence, and I will take this type as the paradigm for discussion, returning to intentional torts and torts of strict liability at the end of the chapter. 5.2 Torts and Damages Torts are to damages what crimes are to punishment: just as no violation of an authoritative legal standard counts as a crime unless there is punishment authorized for it, no violation of an authoritative legal standard counts as a tort unless damages are authorized for it. The elements of a tort – of a tort of negligence, that is – are four, and these elements must be related to one another in a very specific way. 2 Torts are always relations between parties: A commits a tort against B. (While one can argue about whether there ought to be victimless crimes, there is no incoherence in the very idea of a victimless crime; 146 a victimless tort, on the other hand, is a contradiction in terms.) The first of the elements that is necessary for a tort, the element of duty , is that A has a duty of care with respect to B: that is, A is under some legal duty to show due care with respect to B’s interests. The second element that is necessary for a tort, the element of breach , is that A did not live up to this duty: A somehow failed to show due care with respect to B’s interests.

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  Rights and Private Law

  • Donal Nolan, Andrew Robertson(Authors)
  • 2011(Publication Date)
  • Hart Publishing

    (Publisher)

  They are duties of conduct—duties not to batter, not to inflict physical injury or property damage carelessly, not to defraud, not to imprison falsely, and so on. 30 See Restatement of the Law, Third: Torts — Products Liability (St Paul MN, Ameri-can Law Institute, 1998) § 2. Rights and Responsibility in the Law of Torts 263 Almost any rights-inclusive theory of tort has the advantage of explain-ing the sense in which tort law is not a law of liability rules. But even within this broad class, a rights-inclusive account that is linked, as is ours, to the concept of relational wrongs offers a particularly valuable juris-prudential and phenomenological lesson. The legal duties of tort law are not just duties to act or refrain from acting, full stop. They are, for the most part, duties to refrain from ‘doing unto others’ in certain ways— they are duties whose structure is such as to involve aspects of others’ well-being. It is not simply that the justification for the imposition of the duty relates to the protection of the welfare of others. The acts enjoined by the relational directives of tort law are acts upon others. To avoid being a tortfeasor is a matter of refraining from interfering with others in certain ways (or, in some cases, a matter of providing certain forms of assistance to others). Put differently, the conception of torts as breaches of relational duties and therefore as rights violations helps to capture the particular notion of obligation that is at the core of tort law. We shall return to this point below. B. Rights and Liability: A Puzzle Assuming that the conditions of tort liability are captured by a notion of rights correlative to relational duties, and assuming that relational duties are aptly understood as outgrowths of directives that enjoin us not to interfere with others in particular ways, there remains an important puzzle.

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  Corporate Duties to the Public

  • Barnali Choudhury, Martin Petrin(Authors)
  • 2019(Publication Date)
  • Cambridge University Press

    (Publisher)

  6 Tort Law This chapter will examine corporations’ tortious liability, an area that is established, yet far more complex than often assumed. The chapter will mainly focus on three questions: (1) the justifications for corporate liability; (2) the principles governing attribution; and (3) how to design corporate liability. Although liability of corpora- tions and other legal entities for torts is now taken for granted and often remains unquestioned, it is not clear precisely through which mechanisms liability is, and should be, attributed to corporations once we go deeper than just the traditional direct/vicarious liability distinction. This is, in part, because tort law has traditionally been geared towards human actors, not corporations. While civil liability of legal entities has been recognized for more than 100 years, the structure and details of such liability have only slowly - and not, in all areas, sufficiently, as we will argue - kept up with economic and social developments since these times. The chapter will begin with a discussion of various justifications for holding corporations liable – including efficiency, equity, and practical reasons – instead of relying solely on a system of individual corporate actors’ personal liability. This is followed by a discussion of how the law on corporate liability is often still based on the real entity (organic) approach. The real entity theory manifests itself in the identification doctrine and ‘directing mind’ theory, according to which a corporation can only act wrongfully and incur liabilities through its senior officials or its governing bodies. Negligence liability is, consequently, generally attributed to the corporation by way of misconduct of its agents, not through any exclusive duties the corporate entity itself may bear.

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