A tort is an act that causes harm to another and is either intentional or negligent. Tort claims are based on the premise that individuals are liable for the consequences of their conduct if it results in injury to others. The result of a tort is often a civil lawsuit.
Intentional Torts
Intentional torts are those acts which harm another purposefully. Such acts may be a battery or a slander such as hitting someone knowingly or spreading a malicious, harmful rumor aware that it is untrue. Many intentional torts may be prosecuted as crimes as well.
Negligent Torts
Negligent torts are generally not criminal since they are actions or omissions that result in harm, but causing harm was not the actor’s intent. Harm, however, was the result. In the case of either an intentional tort or a negligent tort, the proper manner to seek a remedy is through a civil lawsuit for monetary damages.
Elements of Negligence
For someone to be found guilty of a crime, the prosecutor must prove all elements of the criminal activity. For a defendant in a lawsuit to be awarded damages based upon negligence the plaintiff must prove all elements of negligence. These elements are:
- Existence of a duty
- Breach of that duty
- Harm or damage to the plaintiff
- The damage was caused by the defendant’s breach of duty.
The Duty of Care
There are many types of tortious conduct that have particular names such as products liability or medical malpractice. Even though there are particular names they are all negligence actions.
A consumer goods manufacturer has a duty to make a product that is not dangerous when used properly. A doctor has a duty to use best medical practices in treating his patients. A driver has a duty to operate his vehicle with the safety of others in mind. Starbucks has a duty to not serve coffee that could burn its customers. These are legal duties society imposes upon its members to benefit all.
The duty of care generally only extends to those individuals directly harmed and whose interaction with the conduct of the doctor, manufacturer, driver or barista is reasonably foreseeable.
Breach of Duty
Once it has been established that a duty existed, then it must be determined if that duty was breached. A duty has been breached when a defendant has knowingly exposed another to potential damage. A defendant who did not realize he was exposing another to harm, but should have recognized the probability that any reasonable person would have recognized has breached his duty as well.
“Negligence" is not the same as "carelessness", since a person might employ as much care as they are capable of, yet still fall below society’s standards. It is possible that someone is very careful about their conduct, and yet harm occurs.
Injury, Harm or Damage to the Plaintiff
After establishment of a duty and a breach of that duty, in a negligence case the plaintiff must demonstrate a loss or injury to recover. The prerequisite is important if a defendant is unable to deny his negligence, but the plaintiff suffered no injury as a result. In such a case the defendant will not be found liable. Loss or injury can vary from case to case. It may be a physical injury, it may be damage to the plaintiff’s property, or in some instances it may be the suffering of emotional distress.
The only relief for the loss is the award of money. Loss can be proven by medical bills, repair bills, cost of replacement property, loss of income from missed employment or testimony as to the pain and suffering caused to the plaintiff by the defendant.
Legal or Factual Causation
While there may have been a duty, a breach of that duty and the plaintiff suffered an injury, unless the defendant’s act or omission was the source of the injury there will be no money awarded to the plaintiff.
In United States courts, this is known as “proximate cause”, and draws a difference between legal causation for which there is liability, and factual causation for which there may not be liability.
An act may cause injury to a plaintiff, but it was not reasonably foreseeable that the plaintiff would be injured. When an act sets off a chain of events that ultimately injures the plaintiff, but the plaintiff is very far removed from the original act, the act is the factual cause and not the legal cause needed to impose liability on the defendant. The leading case in the United States to discuss this issue is Palsgraf v. Long Island Rail Road Co.
David J. Shestokas - Mr. Shestokas is a former prosecutor & writes on the Constitution & legal issues for the Save America Foundation & Suite 101.
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