>> "What is Torts?
"And what Torts is not."
A tort is a wrongful act, other than a breach of contract,
that results in injury to another party's person,
property, dignity, or reputation,
and which is recognized by statute or common law
as a legitimate basis for liability.
In other words, torts is the law of civil wrongs.
Now, this definition raises some important distinctions
that are worth addressing before we move on.
Civil or criminal cases,
common law or statutory law,
tort or contract.
Let's go through these one by one.
Civil or criminal cases.
Like contracts and property,
tort law provides for civil rather than criminal liability.
There are some crucial distinctions here
having to do with, one, who the parties are--
plaintiff as opposed to prosecutor.
Two, what the possible outcomes are--
liable as opposed to guilty.
Three, the applicable standard of proof--
preponderance as opposed to beyond a reasonable doubt.
Four, the consequences for the defendant--
civil damages as opposed to criminal penalties.
And five, the procedural rules that apply--
civil procedure as opposed to criminal procedure.
First, torts are disputes between private parties.
In a tort action, the injured plaintiff brings suit
against the defendant for damages,
whereas in a criminal action, the prosecutor,
acting on behalf of the government,
charges the defendant with a crime.
The injuries on which a claim of tort liability is based
might also form the basis of a criminal action.
But the two cases would be initiated
by different parties, and would proceed separately.
For example, O.J. Simpson
was tried by a prosecutor on two counts of murder--
People of the State of California v. Simpson--
and acquitted... AKA, found not guilty.
He was also sued by the families of Nicole Brown Simpson
and Ron Goldman for wrongful death--
Goldman v. Simpson-- and found liable.
In some, criminal cases are the people
represented by the prosecutor v. defendant,
and tort suits are plaintiff v. defendant.
Second, notice that the possible outcomes
are also different.
In criminal cases, the defendant
is found guilty or not guilty.
In tort suits, the defendant is liable or not liable.
Third, the standard of proof is different.
In a criminal case, the standard of proof
is beyond a reasonable doubt,
but in a civil case,
the standard of proof, with a few narrow exceptions,
is a preponderance of the evidence.
The preponderance standard has been interpreted
to mean that the finder of fact must be convinced
that the plaintiff's assertions
are more likely than not accurate.
Some courts have quantified this as more than 50% likely.
The difference between the civil and criminal
standard of proof might explain the divergence
between the criminal and civil Simpson cases.
Fourth, the consequences for the defendant are different.
If a criminal defendant is found guilty,
the penalties might include death,
imprisonment, or criminal fines.
In a tort suit, if the defendant is found liable,
the most common remedy is that the court
will order the defendant to pay damages.
Though, in some cases, equitable relief may be available,
meaning that the court can issue an injunction,
ordering the defendant to take or refrain from certain actions.
Typically, criminal fines are paid
by the dependent to the government.
Civil damages are paid by the defendant to the plaintiff.
Finally, the procedural rules are also different
for civil as opposed to criminal cases,
meaning civil procedure as opposed to criminal procedure.
There are two types of law that can form the basis
of civil liability-- common law or statutory law.
When you think of law, you probably think
of statutes passed by legislatures--
the U.S. Congress,
the State Legislature, or the City Council--
and signed into law by executives--
the President, Governor, or Mayor.
Sometimes, these statues include private causes of action,
meaning that the statute includes a provision
allowing private parties to sue each other
to enforce the rights recognized in that statute.
For example, employment discrimination law
is now dictated largely by statutes.
Those statutes typically create private causes of action,
allowing employees who believe
that they have been discriminated against
to sue their employers for violating the law.
The rules and standards that a court would use
to adjudicate such a dispute
are derived from the statute itself.
Like contracts and property, tort law is primarily
a common law subject,
meaning that it is primarily judge-made
rather than legislature-made.
Most of tort law has evolved
through thousands upon thousands of court decisions
arising out of individual disputes.
The holdings of these individual court decisions
are treated as precedents, which are then applied
to future disputes that arise within the same jurisdiction.
It's worth noting that, particularly in torts,
the common law and statutory law
interact with each other in a few important ways.
First, in many jurisdictions,
at least part of the common law of torts-- created by judges--
has been codified into statutory law
at some point by the legislature.
Often the legislature effectively ratifies the rules
that judges have developed over time.
In the absence of this kind of ratification,
judge-made rules are still valid...
but when the legislature has codified an area
of common law, attorneys and judges must look
to the relevant statute first,
not merely to the applicable precedents
or restatement sections.
Second, the legislature has authority,
pursuant to constitutional restraints,
to reject the rules and standards
adopted by the judiciary.
You can think of the judiciary and the legislature
as being in conversation with each other.
If the judiciary recognizes a common law rule
that the legislature doesn't like,
the legislature is free to pass a statute
adopting a different rule,
and judges are then bound by that legislative pronouncement
in future cases.
The common law cause of action, or rule,
is said to have been "preempted by the legislature."
Third, if the legislature has passed a statute
that is relevant to a tort dispute,
but does not actually preempt the common law cause of action,
the courts might take that legislative pronouncement
into account, particularly when applying common law rules
that implicate policy considerations.
Tort or contract.
Within civil common law liability,
there is also an important distinction
between tort liability and contract liability.
Remember, the definition of tort excludes breaches of contract.
One useful way of thinking about the distinction
between torts and contracts is that contract law
governs the creation and enforcement of agreements,
where as tort law dictates the relationships
between parties who have not previously agreed
to a set of rules that will govern
their dealings with each other.
For example, I bump into you on the sidewalk,
knocking you into oncoming traffic
causing you various injuries.
We've never met before, so we haven't had an opportunity
to agree to the rules that will dictate
whether I must compensate you for those injuries.
Tort law provides a set of default rules
which govern our interactions.
In other situations, two parties have had the opportunity
to agree to a set of obligations between them
that will govern their dealings,
or at least some aspect of those dealings.
If I fail to fulfill an obligation
that I have agreed to,
then I might be liable for breach of contract.
For example, imagine you and I have entered
into a contract whereby I agree to transport
a shipment of laptop computers from your manufacturing plant
to your distributor across the country.
If those laptops are damaged during shipping,
you might sue me for breach of contract.
In adjudicating our dispute,
the court would look first to the contract between us.
In our contract, we might have agreed
to a set of rules that differ from the default rules
found in the law of torts.
This is known as "contracting around
"the tort law default rule."
Alternatively, our contract might be silent
as to whether I am liable for damage
that occurs during shipping.
In that case, the tort law default rules will apply.
Note that a plaintiff can combine tort and contract
causes of action in a single civil suit.
This often happens with regard to harms caused
by defective consumer products, for example.
If I am injured by a defective blender
that you sold me, I might bring suit
for breach of warranty, a contract cause of action,
and for negligence, a tort cause of action.
And you might be found liable
for neither, both, or either basis.
So, a tort is a wrongful act,
other than a breach of contract,
that results in injury to another party's person,
property, dignity, or reputation,
and which is recognized by statute or common law
as a legitimate basis for liability.