Episode 1.1: What is Torts? And what Torts is not.

Episode 1.1: What is Torts? And what Torts is not.

October 22, 2019 90 By Stanley Isaacs


>>”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.