(See Exodus Ch. 21, 22)
A tort is a wrong arising from the violation of a natural duty. It is an unwarranted injury to a natural, as contrasted with an acquired, right. The law imposes upon each individual the duty to refrain from damaging others either intentionally or negligently. A tort is committed when this duty is breached.
A tort may arise from either an act or an omission. While the great majority of them are caused by affirmative conduct, a few result from a failure to act when a duty exists to do so.
The coverage of the tort law is extremely broad in that it provides restitution for injuries which are intended as well as for those resulting from negligence. However, it does not extend to injuries arising from breach of agreements. This is the province of the law of contracts and family relations. But except for these, the law of torts covers essentially every injury which one person may inflict upon another which is considered compensable.
While the tort and criminal laws both serve the broad purpose of protecting our natural rights, the tort law does so by permitting the injured party to obtain restitution for injuries, whereas the criminal law does so by punishing those who undertake to inflict injuries.
A tort action is brought by the injured party, whereas a criminal case is prosecuted by the state. In a tort case, the plaintiff must prove his case merely by a preponderance of the evidence. In other words, proof of his injuries and the defendant’s responsibility for them must [p. 84] preponderate over any evidence to the contrary. However, in the criminal case the state must prove its case with sufficient evidence to convince the jury beyond a reasonable doubt. The rules of evidence used in a criminal case are much more strict and limiting than those used in the tort case.
Nearly all crimes are also torts because when a crime is committed, the result is usually to inflict harm on a victim who then has a right to obtain restitution from the criminal. However, all torts are not crimes. The great majority of them are caused by negligence and thus a criminal intent is lacking.
Broadly speaking, tort laws permit one who has suffered harm at the hands of another to go into court, prove the extent and cause of his injuries and collect damages from the one who caused them. Thus, they provide for enforcing that universally accepted principle of justice which demands that a person who has either intentionally or negligently injured another make restitution. By enforcing tort laws, governments partially fulfill that natural law discussed in Chapter III which requires them to be available to compel the performance of duties.
In another view, tort laws are for the purpose of protecting man’s unalienable rights to the elements of freedom by providing that one who has suffered a loss through the fault of another can recover for that loss.
Tort laws are also enforced to prevent those breaches of the peace which would otherwise occur. So strong is the feeling that one who causes an injury should pay for it, that if the law did not provide a means of recovery, some would doubtless take matters into their own hands and use violence to obtain that which they believed to be rightfully theirs. Only by having available an impartial arbitrator with the power to enforce its decrees can this be avoided.
The enforcement of tort laws has another beneficial effect: it causes people to be more careful than they otherwise would be, thus reducing the number and severity of injuries. When one knows that he must pay for any damages he causes, he will tend to exercise greater caution. [p. 85]
Some may favor the enforcement of tort laws for the same reason they might favor the punishment of crime: the Bible commands it be done. The Mosaic Code specifically instructed the judges to permit one who had been either intentionally or negligently injured by another to recover from the wrongdoer. The amount of the damages to be awarded was also given in many instances. It is of peculiar interest that when an intentional tort had been committed and a crime was also involved, the criminal and tort aspects of the matter were handled in the same judicial proceeding rather than separately as is the custom today. Furthermore, the fine imposed for the crime was given to the victim rather than to the judges. (See Ex. Ch. 22)
Three elements are necessary to fix legal responsibility under tort law: (1) A voluntary act or omission by the defendant; (2) Injury to the plaintiff; and (3) The act or omission must be the legal cause of the injury.
Conduct is voluntary only when it arises from the will of the actor. Acts which are committed or omitted by one acting under duress are not voluntary, and, therefore, the one being compelled would not be liable for any resulting harm. Also, when a person who is faced with a sudden peril causes a lesser injury while trying to avoid one even greater, he may not be held liable.
Unless the plaintiff has sustained injury or harm, he cannot recover under tort law. This does not mean, however, that he must always prove that physical harm was inflicted or even that he sustained an economic loss. The terms injury and harm cover such things as mental distress, invasion of privacy and interference with family relationships. [p. 86]
In most tort cases, the injury sustained is so immediately and directly related to the defendant’s conduct that there is little difficulty in establishing the element of legal cause. In others, however, where the harm is so far removed from the act complained of, or where the defendant’s conduct was only one of several causative factors, it becomes difficult to determine whether this particular defendant should be held responsible.
Courts are not in complete agreement regarding what constitutes legal cause; however, they usually require that the defendant’s act be a “substantial factor.” Some courts hold that the defendant is not liable unless the injury is the natural and probable consequence of his acts and thus foreseeable. The question of legal cause is one of fact to be determined by the fact-finding body in the court which is usually the jury.
Since tort law has for its purpose the protection of the elements of freedom, it seems logical that we should classify torts according to the element injured. However, a broader system of classification based upon the nature of the liability of the wrongdoer has been developed by the courts over the years. Under this system torts are divided into these three divisions: (1) Intentional, (2) Negligent, and (3) Strict liability. Liability is imposed under the first type because the actor intended harm; under the second because of his negligence or carelessness; and under the third, it is imposed arbitrarily even though there is no blameworthy conduct. Recovery for injuries to the four elements of freedom is possible under each of these three types.
The most common types of torts against the body are assault and battery. Assault consists of intentionally putting another in immediate [p. 87] apprehension of harmful or offensive physical contact. Actual physical harm or even contact is unnecessary to constitute an assault. The essence of the tort is intentionally causing apprehension.
Battery does require harmful or offensive physical contact. Obviously under crowded conditions today there are innumerable physical contacts which do not constitute battery either because they are harmless, inoffensive or unintended.
Closely related to the tort of assault is that of inflicting emotional distress. One who by extreme or outrageous conduct causes severe emotional disturbance in another may be liable for any bodily harm resulting from such distress. Before permitting recovery for this tort, the courts ordinarily require evidence that the conduct complained of was outrageous, intentional (or at least reckless) and that actual physical harm resulted.
The tort against a person’s liberty is called false imprisonment. This consists of intentionally confining another for an appreciable length of time within boundaries fixed by the wrongdoer. It is the restricting of the freedom of another through fear or force.
The two intentional torts against property are trespass and conversion. Trespass may be either against land or personal property. In the former case, it consists of any unpermitted or unprivileged entry on land or wrongfully causing an object to enter thereon. Physical damage to the premises is not an essential element of the tort. However, in the absence of injury, only nominal damages may be recovered. If a defendant persists in committing trespass, the plaintiff may secure a court injunction against such, violation of which may be punishable by fine or imprisonment.
Trespass to personal property consists of an intentional and [p. 88] unprivileged interference with the possession or use of property rightfully in the hands of another. If no harm is caused to the property and if the possessor suffers no loss or inconvenience, recovery will be denied.
Conversion is the wrongful dominion over, or the unlawful appropriation of the personal property of another. Obviously, the crime of theft is also the tort of conversion. However, the tort is broader than the crime since it covers those cases where there is no criminal intent. If the wrongdoer takes the property of another, sells, leases or otherwise deals with it under the mistaken impression that he owns it, he is still liable for damages to the true owner under the tort law even though he is not subject to criminal prosecution.
The essence of the tort of deceit is the intentional perversion of the truth for the purpose of causing harm. In order for a plaintiff to recover for the tort of deceit, he must prove the following five elements: (1) A false misrepresentation of a material fact; (2) Made with the intent to deceive; (3) Made with the intention to induce the plaintiff to rely upon the false statement; (4) Justifiable reliance by the plaintiff; (5) Damage to the plaintiff.
The misrepresentation must be of a fact which is past or existing. The prediction of a future event or the mere expression of an opinion is insufficient in the ordinary case. Furthermore, the fact must be material. It must be of sufficient importance that if known the plaintiff would not have taken the action which caused him injury.
Proof of an intent to deceive is essential. However, if it be shown that the defendant acted with a reckless disregard for the truth and under the realization that he lacked sufficient knowledge to make a positive statement, this is usually sufficient.
The plaintiff must have reasonably relied on the misrepresentation. If, from all the surrounding circumstances he either knew or should have known the statement to be false, he cannot recover. [p. 89] And, finally, the plaintiff must prove that he suffered a loss and that the loss was caused by his reliance.
The tort of defamation consists of wrongfully subjecting another to public ridicule, contempt or shame. It is a false statement which injures a reputation. There are two forms of defamation. The written, printed or caricature form is called libel. That which is oral is called slander. One of the natural rights of a person is that false defamatory information not be published against him. When this right is invaded, the injured party may recover from the one responsible.
If the derogatory statements are true, this is a good defense against a tort action. It should be recognized that even though the person publishing the defamatory statements believes them to be true, this does not excuse him from liability if they are indeed false. Also, the statements must be published to a third party. Making false statements to the plaintiff out of the hearing of others, or writing him a personal letter containing defamatory material will not subject one to liability for this tort.
Under certain circumstances the person making the defamatory statements has either an absolute or a conditional privilege to do so and is not subject to liability. For example, Congressmen while speaking before a legislature, judges, attorneys, jurors and witnesses while performing their functions during a court trial, and certain other public officials in the performance of their duties may have an absolute privilege.
A conditional privilege is usually granted to credit bureaus in making credit reports and to corporate officials in making intercompany communications in connection with their jobs. Of course these privileges may be lost if the disclosures are made maliciously or the privilege otherwise abused. It should also be noted that false and defamatory statements made about public figures, or concerning matters of public interest, are usually privileged provided the statements are made without malice. By becoming a public figure, one loses a certain amount of the protection against false statements to which he would otherwise be entitled.
The torts of malicious prosecution and abuse of process are closely related in that they both consist of subjecting a person to unjustifiable litigation. When one maliciously institutes or continues a criminal prosecution against a person without probable cause, which proceeding terminates in favor of the accused, he has committed the tort of malicious prosecution. [p. 90]
Abuse of process exists when a person institutes a civil action or lawsuit with improper motives. While each person who sincerely believes he has a good cause of action against another should feel perfectly free to bring his case before the court, if he files such a suit for the purpose of harassing or injuring the defendant rather than for the relief asked, he may be liable for abuse of process.
Man’s rights to the elements of freedom are protected not only from intentional injuries but from those caused by negligence as well. The basis for liability here is that each person owes a duty to exercise a certain degree of caution in the conduct of his affairs to avoid injuring others and that when he breaches that duty, he is liable for the resulting damages.
To recover damages for negligence the plaintiff must prove that: (1) The defendant owed a duty of due care to the plaintiff which the defendant breached and (2) The breach of the duty caused the plaintiff to suffer.
The duty of due care which each person owes to all others is that he act as a reasonable man of ordinary prudence would do under the circumstances to avoid causing injury. This is called the “reasonable man standard” of conduct. The meaning of this is that if a man of reasonable prudence would have foreseen the injury which occurred and refrained from the action which caused it, then the defendant who failed to do so acted unreasonably and is liable.
Even though a defendant’s negligence may have been a contributing cause of the plaintiff’s injury, if the plaintiff was also negligent, and if this was a partial cause of his injuries, under the doctrine of “contributory negligence” he cannot recover. If both parties have suffered injuries from their combined negligence, neither may recover from the other. The courts adopted this contributory negligence [p. 91] rule because of the difficulty of apportioning damages. To fairly allocate a certain portion of the injury to the negligence of either in such cases seems an almost impossible task. Today, however, there is a growing trend on the part of the courts to undertake this very thing. Under the doctrine of “comparative negligence,” the jury is asked to estimate what portion or percentage of the total fault is attributable to each and to apportion the damages accordingly.
In some instances a party whose negligence has caused injury may not be liable because the injured party had previously agreed not to hold him. If they have entered into an agreement under the terms of which the injured party agreed either expressly or impliedly that he had no right to recover even though the other caused him injury, then he may not do so. As an example of implied assumption of risk, let us consider the case of a person who enters a baseball park and is hit by a ball. He probably cannot recover from those responsible because he assumed the risk of being hit.
Some torts are neither wholly intentional nor wholly the result of negligence, but somewhat a combination of both. Of such a nature is the tort of nuisance. There are two types of nuisances: (1) Private, and (2) Public.
A public nuisance is an act or omission which interferes with the interests of the community at large or some sizeable portion thereof. Activities injurious to public safety, morals or health constitute nuisances and may be abated by the police power. Public nuisances are also crimes and are punishable as such.
Other torts which cannot be properly classified as either intentional or negligent are those which protect certain economic or business relations from improper interference. One of these is called “unfair competition.” This consists of palming off one’s goods onto the public as being those of another. If a merchant packages, labels, or otherwise represents his product in such a way as to deceive the [p. 92] public into believing that it is the same as that sold by a competitor, he may be liable for having committed the tort of unfair competition.
However, copying a competitor’s product is not tortious unless in doing so there is an infringement of the competitor’s rights to patents, copyrights, trademarks or trade secrets. The invasion of these rights is tortious and the injured party may secure both damages as well as an injunction.
The tort laws also protect contract rights from unreasonable interference by outsiders. If an outsider maliciously induces one of two contracting parties not to perform his obligations thereunder, the other party who was thereby deprived of his contract rights may recover damages from the one inducing the breach. Of course, he may have rights against the breaching party also but may prefer not to pursue them.
Closely related to the tort of defamation of the person is that of disparagement of goods. Not only does the tort law permit one to recover damages for false and defamatory statements made concerning himself, but also for those made against the products and services he sells.
Under some circumstances the tort laws of today hold a person liable for injuries suffered by others even though he neither intended them nor did they result from his negligence. This imposition of “strict liability,” or liability without fault may seem unjust, and strong arguments can be made for that point of view. Nonetheless, in a growing number of cases courts and legislatures are making defendants liable for injuries for which they are not to blame.
One instance of this is found in the laws relating to employment relations. Under workmen’s compensation acts and similar legislation, employers are held liable for all injuries suffered by employees except those which are self-inflicted or which result from drunkenness.
Strict liability is imposed upon merchants and manufacturers who sell defective products, upon those who spray crops from aircraft, engage in blasting operations or who keep wild animals on their premises. To recover for injuries sustained as a result of these [p. 93] activities it is unnecessary to prove negligence. Furthermore, contributory negligence is not a defense in cases of strict liability.
Generally speaking, each person is liable for those torts he commits and no others. There are certain exceptions to this rule which we will now consider.
As under the criminal law, infants under the age of seven and people who are totally incompetent mentally, are generally not held liable for injuries they cause. Since they lack the capacity to intend harm or to act negligently, the only basis for holding them would be to impose strict liability, and this is not done. Minors between the ages of seven and fourteen are presumed to have the capacity to commit a tort but this presumption may be rebutted. If it can be shown that a mentally deficient person is capable of negligence, he can be held liable.
At common law, parents were not liable for the torts of their child unless they had failed to exercise proper parental supervision or unless they had placed in the child’s hands an instrumentality which he would likely use to cause harm. Today the statutes of some states impose a limited liability upon parents for property damage caused by their children.
Under common law as well as under the statutory laws today, employers are held liable for torts committed by their employees while acting within the scope of employment. The imposition of this vicarious liability does not relieve the employee from liability. Furthermore, the employer may recover from the employee when the former is compelled to pay for injuries caused by the latter.
Governments have generally held themselves immune from liability for injuries caused by their employees; however, recent court decisions as well as certain statutes, such as the Federal Tort Claims Act, have altered this rule to an undetermined extent. Public officers are generally accorded immunity from liability for torts committed while discharging their duties. [p. 94]
The usual consequence of enforcing a tort law is to compel the wrongdoer to transfer to the other party money or property estimated to have a value equal to the amount of the loss. It is immediately apparent that if the loss sustained is not properly chargeable against the one compelled to pay, or if the amount of damages awarded exceeds the amount of the injury, an injustice has been committed. This then is the natural limit of the power to grant restitution under tort law: the defendant shall not be compelled to pay more than is sufficient to make restitution for the loss he has caused.
This is not to say that the plaintiff should not be able to recover for injuries other than those directly traceable to defendant’s tortious conduct. It may be entirely proper to reimburse him for indirect injuries such as inconvenience, loss of time and expense in enforcing his claim. But whatever the amount which is properly recoverable, if the award exceeds this, the defendant has suffered an injustice. As is the case with inflicting punishment under criminal law, when governments undertake to dispense justice they walk a fine line. They either do justice or commit an injustice in the process.
A brief examination of the torts discussed herein reveals that they cover virtually every conceivable wrong or injury of a non-contractual nature. It is difficult to think of a harm which one person can do to another which is not compensable. Each one of the elements of freedom is quite fully protected. It is admittedly true that there are a great many tortious injuries which go unredressed either because the injured party finds it too expensive to enforce his remedies or because he is otherwise reluctant to file a lawsuit. But for every injury of any consequence, government stands ready to compel the performance of the duty to make restitution if the aggrieved party petitions it to do so. [p. 95]
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