Kinds of Torts
Tort law encompasses a spectrum of legal principles, with three distinct categories standing out: intentional torts, negligent torts, and strict liability torts. These classifications are essential in understanding the nature of harm and liability in civil litigation. Intentional torts arise from deliberate actions, highlighting the defendant's intent to cause harm or injury. Conversely, negligent torts stem from acts of carelessness or oversight, such as medical malpractice scenarios where a surgical team unintentionally leaves a surgical instrument inside a patient. Both intentional and negligent torts suggest some level of fault on the defendant's part, whether through intent or negligence.
However, tort law takes a unique turn with strict liability torts, where fault or intent may not be prerequisites for liability. In these cases, the law can hold a defendant accountable for a victim's losses, even when there is no evidence of carelessness or malicious intent. This concept challenges the traditional notions of fault and blame, emphasizing the principle that certain activities or products inherently carry risks, and those who engage in them must bear responsibility for any resulting harm, regardless of their intentions. This nuanced framework of tort law showcases the multifaceted nature of civil litigation, where justice aims to compensate victims and deter harmful actions, irrespective of the defendant's state of mind or intent.
Dimensions of Tort Liability
The moral underpinning of seeking redress through the legal system becomes evident in cases where the defendant's actions exhibit negligence or intentional harm. This moral foundation finds its roots in the belief that individuals are inherently free and autonomous, possessing fundamental rights that should be safeguarded. When others infringe upon these rights, particularly our freedom or autonomy, it is only natural to respond with a sense of violation. The age-old adage, "Your right to swing your arm ends at the tip of my nose," encapsulates this principle succinctly. It signifies the idea that personal freedoms should not encroach upon the boundaries of others' rights or safety.
In the realm of law, this concept extends even further, especially within intentional tort law. For instance, if one were to create a situation where they instill fear or apprehension in another person by making threatening gestures or actions directed towards them, they might be liable for the tort of assault, even in the absence of actual physical contact (battery). This legal perspective reinforces the significance of respecting the boundaries of others' autonomy and freedom, illustrating how the law functions as a protector of these fundamental principles and a means of seeking recourse when they are violated, regardless of the absence of physical harm.
In a capitalist market system, the principles of rational economics extend to the idea of preventing negative externalities. This means that individuals, whether acting independently or collectively, should ideally conduct their actions in a way that does not bring harm or adverse consequences to third parties. The legal system acknowledges the importance of this principle and strives to provide remedies for those third parties who may be adversely affected by the actions of others. While the law recognizes that a monetary judgment cannot fully heal a grievously injured victim, it serves as a means of compensation and accountability, ensuring that those who have suffered harm due to the actions of others receive some form of redress for their losses. This concept embodies the belief that individuals should be responsible for the consequences of their actions, even in the complex landscape of economic interactions.
Dimensions of Tort: Fault
Tort principles encompass various dimensions, one of which is the fault dimension. In tort law, akin to criminal law, a wrongful act committed by the defendant is a prerequisite for the plaintiff to seek recovery. However, unlike criminal law, specific intent is not always required in tort cases. Tort law primarily centers on the harm suffered by the plaintiff, being less concerned about the motives behind the defendant's actions. This means that even an action considered innocent or relatively benign can serve as the foundation for liability in tort law. Nevertheless, with the exception of strict liability, tort law predominantly relies on establishing standards of fault or blameworthiness to determine liability and assess damages.
The most straightforward standard in tort law is willful conduct. When the defendant, often referred to as the tortfeasor, intentionally causes harm to another individual, there is minimal dispute regarding tort liability. Consequently, all criminal offenses that result in harm to a person or property, such as murder, assault, arson, and others, also qualify as torts. In such cases, the plaintiff retains the option to initiate a separate lawsuit aimed at recovering damages for injuries sustained by themselves, their family, or their property. This dual nature of certain actions, as both criminal offenses and torts, underscores the principle that individuals may be held accountable in both criminal and civil courts for their wrongful actions.
Most tort suits do not rely on intentional fault. They are based, rather, on negligent conduct that in the circumstances is careless or poses unreasonable risks of causing damage. Most automobile accident and medical malpractice suits are examples of negligence suits.
The fault dimension is a continuum. At one end is the deliberate desire to do injury. The middle ground is occupied by careless conduct. At the other end is conduct that most would consider entirely blameless, in the moral sense. The defendant may have observed all possible precautions and yet still be held liable. This is called strict liability2. An example is that incurred by the manufacturer of a defective product that is placed on the market despite all possible precautions, including quality-control inspection. In many states, if the product causes injury, the manufacturer will be held liable.
Dimensions of Tort: Nature of Injury
Tort liability varies by the type of injury caused. The most obvious type is physical harm to the person (assault, battery, infliction of emotional distress, negligent exposure to toxic pollutants, wrongful death) or property (trespass, nuisance, arson, interference with contract). Mental suffering can be redressed if it is a result of physical injury (e.g., shock and depression following an automobile accident). A few states now permit recovery for mental distress alone (a mother’s shock at seeing her son injured by a car while both were crossing the street). Other protected interests include a person’s reputation (injured by defamatory statements or writings), privacy (injured by those who divulge secrets of his personal life), and economic interests (misrepresentation to secure an economic advantage, certain forms of unfair competition).
Dimensions of Tort: Excuses
A third element in the law of torts is the excuse for committing an apparent wrong. The law does not condemn every act that ultimately results in injury. One common rule of exculpation is assumption of risk3. A baseball fan who sits along the third base line close to the infield assumes the risk that a line drive foul ball may fly toward him and strike him. He will not be permitted to complain in court that the batter should have been more careful or that management should have either warned him or put up a protective barrier.
Another excuse is negligence of the plaintiff. If two drivers are careless and hit each other on the highway, some states will refuse to permit either to recover from the other. Still another excuse is consent: two boxers in the ring consent to being struck with fists (but not to being bitten on the ear).
Damages
Since the purpose of tort law is to compensate the victim for harm actually done, damages are usually measured by the extent of the injury. Expressed in money terms, these include replacement of property destroyed, compensation for lost wages, reimbursement for medical expenses, and dollars that are supposed to approximate the pain that is suffered. Damages for these injuries are called compensatory damages.
In certain instances, the courts will permit an award of punitive damages5. As the word punitive implies, the purpose is to punish the defendant’s actions. Because a punitive award (sometimes called exemplary damages) is at odds with the general purpose of tort law, it is allowable only in aggravated situations. The law in most states permits recovery of punitive damages only when the defendant has deliberately committed a wrong with malicious intent or has otherwise done something outrageous.
Punitive damages are rarely allowed in negligence cases for that reason. But if someone sets out intentionally and maliciously to hurt another person, punitive damages may well be appropriate. Punitive damages are intended not only to punish the wrongdoer, by exacting an additional and sometimes heavy payment (the exact amount is left to the discretion of jury and judge), but also to deter others from similar conduct. The punitive damage award has been subject to heavy criticism in recent years in cases in which it has been awarded against manufacturers. One fear is that huge damage awards on behalf of a multitude of victims could swiftly bankrupt the defendant. Unlike compensatory damages, punitive damages are taxable.
KEY TAKEAWAY
There are three kinds of torts, and in two of them (negligent torts and strict liability torts), damages are usually limited to making the victim whole through an enforceable judgment for money damages. These compensatory damages awarded by a court accomplish only approximate justice for the injuries or property damage caused by a tortfeasor. Tort laws go a step further toward deterrence, beyond compensation to the plaintiff, in occasionally awarding punitive damages against a defendant. These are almost always in cases where an intentional tort has been committed.
EXERCISES
1. Why is deterrence needed for intentional torts (where punitive damages are awarded) rather than negligent torts?
2. Why are costs imposed on others without their consent problematic for a market economy? What if the law did not try to reimpose the victim’s costs onto the tortfeasor? What would a totally nonlitigious society be like?