Tort

Torts and crimes at common law originate in the Germanic system of compensatory fines for wrongs (OE unriht), with no clear distinction between crimes and other wrongs.[3] In Anglo-Saxon law, most wrongs required payment in money or in kind (bōt, literally 'remedy') to the wronged person or their clan.[4] Wīte (literally 'blame, fault') was paid to the king or holder of a court for disturbances of public order. Weregild, which was a murder fine based on a victim's worth, was intended to prevent blood feuds.[3] Some wrongs in later law codes were botleas 'without remedy' (e.g. theft, open murder, arson, treason against one's lord), that is, unable to be compensated, and those convicted of a botleas crime were at the king's mercy.[5] Items or creatures which caused death were also destroyed as deodands. Assessing intention was a matter for the court, but Alfred the Great's Doom Book did distinguish unintentional injuries from intentional ones, whereas culpability depended on status, age, and gender.

After the Norman Conquest, fines were paid only to courts or the king, and quickly became a revenue source. A wrong became known as a tort or trespass, and there arose a division between civil pleas and pleas of the crown.[6] The petty assizes (i.e. of novel disseisin, of mort d'ancestor, and of darrein presentment) were established in 1166 as a remedy for interference with possession of freehold land. The trespass action was an early civil plea in which damages were paid to the victim; if no payment was made, the defendant was imprisoned. The plea arose in local courts for slander, breach of contract, or interference with land, goods, or persons. Although the details of its exact origin are unclear, it became popular in royal courts so that in the 1250s the writ of trespass was created and made de cursu (available by right, not fee); however, it was restricted to interference with land and forcible breaches of the king's peace. It may have arisen either out of the "appeal of felony", or assize of novel disseisin, or replevin. Later, after the Statute of Westminster 1285, in the 1360s, the "trespass on the case" action arose for when the defendant did not direct force.[3] As its scope increased, it became simply "action on the case". The English Judicature Act passed 1873 through 1875 abolished the separate actions of trespass and trespass on the case.[3]

In 1401, the English case Beaulieu v Finglam imposed strict liability for the escape of fire; additionally, strict liability was imposed for the release of cattle.[3] Negligently handling fire was of particular importance in these societies given capacity for destruction and relatively limited firefighting resources. Liability for common carrier, which arose around 1400, was also emphasized in the medieval period.[3] Unintentional injuries were relatively infrequent in the medieval period. As transportation improved and carriages became popular in the 18th and 19th centuries, however, collisions and carelessness became more prominent in court records.[3] In general, scholars of England such as William Blackstone took a hostile view to litigation, and rules against champerty and maintenance and vexatious litigation existed.[7] The restriction on assignment of a cause of action is a related rule based on public policy.

The right of victims to receive redress was regarded by later English scholars as one of the rights of Englishmen.[8] Blackstone's Commentaries on the Laws of England, which was published in the late 18th century, contained a volume on "private wrongs" as torts and even used the word tort in a few places.[8]

United States tort law was influenced by English law and Blackstone's Commentaries, with several state constitutions specifically providing for redress for torts[8] in addition to reception statutes which adopted English law. However, tort law was viewed as relatively undeveloped by the mid-19th century; the first American treatise on torts was published in the 1860s but the subject became particularly established when Oliver Wendell Holmes, Jr wrote on the subject in the 1880s.[8] Holmes' writings have been described as the "first serious attempt in the common law world to give torts both a coherent structure and a distinctive substantive domain",[9] although Holmes' summary of the history of torts has been critically reviewed.[10] The 1928 US case of Palsgraf v. Long Island Railroad Co. heavily influenced the British judges in the 1932 House of Lords case of Donoghue v Stevenson.

The law of torts for various jurisdictions has developed independently. In the case of the United States, a survey of trial lawyers pointed to several modern developments, including strict liability for products based on Greenman v. Yuba Power Products, the limitation of various immunities (e.g. sovereign immunity, charitable immunity), comparative negligence, broader rules for admitting evidence, increased damages for emotional distress, and toxic torts and class action lawsuits. However, there has also been a reaction in terms of tort reform, which in some cases have been struck down as violating state constitutions, and federal preemption of state laws.[11]

Modern torts are heavily affected by insurance and insurance law, as most cases are settled through claims adjustment rather than by trial, and are defended by insurance lawyers, with the insurance policy, a deep pocket limit, setting a ceiling on the possible payment.[12]

Negligence is a tort which arises from the breach of the duty of care owed by one person to another from the perspective of a reasonable person. Although credited as appearing in the United States in Brown v. Kendall, the later Scottish case of Donoghue v Stevenson [1932] AC 562, followed in England, brought England into line with the United States and established the 'tort of negligence' as opposed to negligence as a component in specific actions.[17] In Donoghue, Mrs. Donoghue drank from an opaque bottle containing a decomposed snail and claimed that it had made her ill. She could not sue Mr. Stevenson for damages for breach of contract and instead sued for negligence. The majority determined that the definition of negligence can be divided into four component parts that the plaintiff must prove to establish negligence. The elements in determining the liability for negligence are:

• The plaintiff was owed a duty of care through a special relationship (e.g. doctor-patient) or some other principle
• There was a dereliction or breach of that duty
• The tortfeasor directly caused the injury [but for the defendant's actions, the plaintiff would not have suffered an injury].
• The plaintiff suffered damage as a result of that breach
• The damage was not too remote; there was proximate cause to show the breach caused the damage

In certain cases, negligence can be assumed under the doctrine of res ipsa loquitur (Latin for "the thing itself speaks"); particularly in the United States, a related concept is negligence per se.[18]

For example, in the business realm, the auditor has a duty of care to the company they are auditing - that the documents created are a true and reliable representation of the company's financial position. However, as per Esanda Finance Corporation Ltd v. Peat Marwick Hungerfords, such auditors do NOT provide a duty of care to third parties who rely on their reports. An exception is where the auditor provides the third party with a privity letter, explicitly stating the third party can rely on the report for a specific purpose. In such cases, the privity letter establishes a duty of care.[19]

The case Chapman v Hearse added to the precedent of negligence where in previous cases reasonable foreseeability was applied narrowly to include all predictable actions, Chapman v Hearse extended this to include all damages of the same nature which could be reasonably foreseen.[20]

Proximate cause means that you must be able to show that the harm was caused by the tort you are suing for.[21][22] The defense may argue that there was a prior cause or a superseding intervening cause. A common situation where a prior cause becomes an issue is the personal injury car accident, where the person re-injures an old injury. For example, someone who has a bad back is injured in the back in a car accident. Years later, he is still in pain. He must prove the pain is caused by the car accident, and not the natural progression of the previous problem with the back. A superseding intervening cause happens shortly after the injury. For example, if, after the accident, the doctor who works on you commits malpractice and injures you further, the defense can argue that it was not the accident, but the incompetent doctor who caused your injury.

Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories:

• Torts against the person include assault, battery, false imprisonment, intentional infliction of emotional distress, and fraud, although the latter is also an economic tort.
• Property torts involve any intentional interference with the property rights of the claimant (plaintiff). Those commonly recognized include trespass to land, trespass to chattels (personal property), and conversion.

An intentional tort requires an overt act, some form of intent, and causation. In most cases, transferred intent, which occurs when the defendant intends to injure an individual but actually ends up injuring another individual, will satisfy the intent requirement.[23] Causation can be satisfied as long as the defendant was a substantial factor in causing the harm.

A statutory tort is like any other, in that it imposes duties on private or public parties, however they are created by the legislature, not the courts. For example, the European Union's Product Liability Directive imposes strict liability for defective products that harm people; such strict liability is not uncommon although not necessarily statutory.

As another example, in England common law liability of a landowner to guests or trespassers was replaced by the Occupiers' Liability Act 1957; a similar situation occurred in the U.S. State of California in which a judicial common law rule established in Rowland v. Christian was amended through a 1985 statute.[24] Statutory torts also spread across workplace health and safety laws and health and safety in food. In some cases federal or state statutes may preempt tort actions, which is particularly discussed in terms of the U.S. FDA Preemption;[25] although actions in the United States for medical devices are preempted due to Riegel v. Medtronic, Inc. (2008), actions for medical drugs are not due to Wyeth v. Levine (2009).

"Nuisance" is traditionally used to describe an activity which is harmful or annoying to others such as indecent conduct or a rubbish heap. Nuisances either affect private individuals (private nuisance) or the general public (public nuisance). The claimant can sue for most acts that interfere with their use and enjoyment of their land. In English law, whether activity was an illegal nuisance depended upon the area and whether the activity was "for the benefit of the commonwealth", with richer areas subject to a greater expectation of cleanliness and quiet.[26] The case Jones v Powell (1629) provides an early example, in which a person's professional papers were damaged by the vapors of a neighboring brewery. Although the outcome of this case is unclear,[26] Whitelocke of the Court of the King's Bench is recorded as saying that since the water supply in area was already contaminated, the nuisance was not actionable as it is "better that they should be spoiled than that the commonwealth stand in need of good liquor".

In English law, a related category of tort liability was created in the case of Rylands v Fletcher (1868): strict liability was established for a dangerous escape of some hazard, including water, fire, or animals as long as the cause was not remote. In Cambridge Water Co Ltd v Eastern Counties Leather plc (1994), chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's water reservoirs.[27] The Rylands rule remains in use in England and Wales. In Australian law, it has been merged into negligence.[28]

Defamation is tarnishing the reputation of someone; it has two varieties, slander and libel. Slander is spoken defamation and libel is printed or broadcast defamation. The two otherwise share the same features: making a factual assertion for which evidence does not exist. Defamation does not affect or hinder the voicing of opinions, but does occupy the same fields as rights to free speech in the First Amendment to the Constitution of the United States, or Article 10 of the European Convention of Human Rights. Related to defamation in the U.S. are the actions for misappropriation of publicity, invasion of privacy, and disclosure. Abuse of process and malicious prosecution are often classified as dignitary torts as well.

Business torts (i.e., economic torts) typically involve commercial transactions, and include tortious interference with trade or contract, fraud, injurious falsehood, and negligent misrepresentation. Negligent misrepresentation torts are distinct from contractual cases involving misrepresentation in that there is no privity of contract; these torts are likely to involve pure economic loss which has been less-commonly recoverable in tort. One criterion for determining whether economic loss is recoverable is the "foreseeability" doctrine.[29] The economic loss rule is highly confusing and inconsistently applied[30] and began in 1965 from a California case involving strict liability for product defects; in 1986, the U.S. Supreme Court adopted the doctrine in East River S.S. Corp. v. Transamerica Deleval, Inc.[31] In 2010, the supreme court of the U.S. state of Washington replaced the economic loss doctrine with an "independent duty doctrine".[32]

Economic antitrust torts have been somewhat submerged by modern competition law. However, in the United States, private parties are permitted in certain circumstances to sue for anticompetitive practices, including under federal or state statutes or on the basis of common law tortious interference, which may be based upon the Restatement (Second) of Torts §766.[33] Federal laws include the Sherman Antitrust Act of 1890 followed by the Clayton Antitrust Act which restrict cartels and through Federal Trade Commission regulate mergers and acquisitions. In the European Union, articles 101 and 102 of the Treaty on the Functioning of the European Union apply but allowing private actions to enforce antitrust laws is under discussion.

Negligent misrepresentation as tort where no contractual privity exists was disallowed in England by Derry v Peek [1889]; however, this position was overturned in Hedley Byrne v Heller in 1964 so that such actions were allowed if a "special relationship" existed between the plaintiff and defendant.[34] United States courts and scholars "paid lip-service" to Derry; however, scholars such as William Prosser argued that it was misinterpreted by English courts.[34] The case of Ultramares Corporation v. Touche (1932) limited the liability of an auditor to known identified beneficiaries of the audit and this rule was widely applied in the United States until the 1960s.[34] The Restatement (Second) of Torts expanded liability to "foreseeable" users rather than specifically identified "foreseen" users of the information, dramatically expanding liability and affecting professionals such as accountants, architects, attorneys, and surveyors.[34] As of 1989, most U.S. jurisdictions follow either the Ultramares approach or the Restatement approach.[34]

The tort of deceit for inducement into a contract is a tort in English law, but in practice has been replaced by actions under Misrepresentation Act 1967.[35] In the United States, similar torts existed but have become superseded to some degree by contract law and the pure economic loss rule.[36] Historically (and to some degree today), fraudulent (but not negligent[36]) misrepresentation involving damages for economic loss may be awarded under the "benefit-of-the-bargain" rule (damages identical to expectation damages in contracts[36]) which awards the plaintiff the difference between the value represented and the actual value.[36] Beginning with Stiles v. White (1846) in Massachusetts, this rule spread across the country as a majority rule with the "out-of-pocket damages" rule as a minority rule.[36] Although the damages under the "benefit-of-the-bargain" are described as compensatory, the plaintiff is left better off than before the transaction.[36] Since the economic loss rule would eliminate these benefits if applied strictly, there is an exception to allow the misrepresentation tort if not related to a contract.[36]

In certain cases, a person might be liable for their employee or child under the law of agency through the doctrine of respondeat superior. For example, if a shop employee spilled cleaning liquid on the supermarket floor and a victim fell and suffered injuries, the plaintiff might be able to sue either the employee or the employer. There is considerable academic debate about whether vicarious liability is justified on no better basis than the search for a solvent defendant, or whether it is well founded on the theory of efficient risk allocation.

A successful defense absolves the defendant from full or partial liability for damages. Apart from proof that there was no breach of duty, there are three principal defenses to tortious liability.

Typically, a victim cannot hold another liable if the victim has implicitly or explicitly consented to engage in a risky activity. This is frequently summarized by the maxim "volenti non-fit injuria" (Latin: "to a willing person, no injury is done" or "no injury is done to a person who consents"). In many cases, those engaging in risky activities will be asked to sign a waiver releasing another party from liability.

For example, spectators to certain sports are assumed to accept a risk of injury, such as a hockey puck or baseball striking a member of the audience. Warnings by the defendant may also provide a defense depending upon the jurisdiction and circumstances. This issue arises, for example, in the duty of care that landowners have for guests or trespasses, known as occupiers' liability.

If the victim has contributed to causing their own harm through negligent or irresponsible actions, the damages may be reduced or eliminated entirely. The English case Butterfield v. Forrester (1809) established this defense. In England, this "contributory negligence" became a partial defense, but in the United States, any fault by the victim completely eliminated any damages.[37] This meant that if the plaintiff was 1% at fault, the victim would lose the entire lawsuit.[37] This was viewed as unnecessarily harsh and therefore amended to a comparative negligence system in many states; as of 2007 contributory negligence exists in only a few states such as North Carolina and Maryland.[37]

In comparative negligence, the victim's damages are reduced according to the degree of fault. Comparative negligence has been criticized as allowing a plaintiff who is recklessly 95% negligent to recover 5% of the damages from the defendant. Economists have further criticized comparative negligence as not encouraging precaution under the calculus of negligence. In response, many states now have a 50% rule where the plaintiff recovers nothing if the plaintiff is more than 50% responsible.

If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish or reduce the defendant's liability. The legal maxim ex turpi causa non-oritur actio, Latin for "no right of action arises from a despicable cause". Thus, if a burglar is verbally challenged by the property owner and sustains injury when jumping from a second story window to escape apprehension, there is no cause of action against the property owner even though that injury would not have been sustained but for the property owner's intervention.

Historically, immunity has been granted to governments under sovereign immunity and to charitable organizations under charitable immunity, although these have eroded in the United States.[11]

Various laws limit liability when giving aid to a person in need; liability can arise from a failure to help due to the duty to rescue.

The main remedy against tortious loss is compensation in damages or money. In a limited range of cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defense against the tort of battery. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction, such as in the English case Miller v Jackson (1977). This means a command, for something other than money by the court, such as restraining the continuance or threat of harm. Usually injunctions will not impose positive obligations on tortfeasors, but some Australian jurisdictions can make an order for specific performance to ensure that the defendant carries out their legal obligations, especially in relation to nuisance matters.[38]