Tort- Latin word ‘tortus’, meaning twisted, French word ‘tort’ meaning injury or wrong.
§ Civil wrong, other than breach of contract, for which the law provides a remedy.
Tort law has principally been a part of the common law, developed by the courts through the opinions of the judges in the cases before them.
Some areas of tort law have been common in statutes:
§ Trespass to real property
§ Limitation of actions
§ Wrongful death actions
Legislature is beginning to play a more significant role.
Major purposes of tort law:
§ To provide a peaceful means for adjusting the rights of parties who might otherwise take the law into their own hands.
§ To deter wrongful conduct.
§ To encourage socially responsible behavior.
§ To restore injured parties to their original condition, by compensating them for their injury.
§ To vindicate individual rights of redress.
v Most generally accepted theory for historical origins of tort law, is that the law began by imposing liability on those who caused physical harm, and gradually developed toward the acceptance of moral standards as the basis of liability.
v Certainly at one time the law was not very much concerned with the moral responsibility of the defendant.
v The courts were interested primarily in keeping the peace between individuals by providing a substitute for private vengeance, as the injured party was just as likely to take the law into his own hands when the injury was an innocent one.
v In early English law, Writs were issued to bring the defendant into court.
Ø The number of Writs that could be issued by the King was limited, and their forms were strictly prescribed.
§ Unless the plaintiffs claim could be fitted into the form of some established and recognized Writ, the plaintiff could not seek damages in the King’s court.
v Two common law Writs are the genesis of tort law:
Ø Writ of Trespass
Ø Writ of Trespass on the Case/Action on the Case.
§ Writ of Trespass originally had a criminal character, it would lie only in cases of forcible breaches of the King’s peace, and it was only on this basis that the royal courts assumed jurisdiction over the wrong.
§ The purpose of the remedy as at first primarily that of punishment of the crime; but to this there was added a later satisfaction of the injured party’s claim for redress
§ If the defendant was found guilty, damages were awarded to the successful plaintiff, and the defendant was imprisoned, and allowed to purchase his release by payment of a fine.
Ø Writ of Trespass on the Case
§ Developed out of the practice of applying to the Chancellor, in cases in which no Writ could be found in the Register, for a special Writ, in the nature of trespass, drawn to fit the particular case.
v It was through this Action on the Case, rather than through Trespass, that most of the modern tort and contract law developed:
Ø Malicious prosecution
Ø Interference with economic relations
v Distinction between Trespass and Case was in the direct and immediate application of force to the person or property of the plaintiff.
Ø Trespass would lie only for direct and forcible injuries.
Ø Case for other tangible injuries to person or property.
· The classic illustration of this distinction is that of a log thrown into the highway. A person struck by the rolling log could maintain trespass against the thrower, because the injury was direct and immediate.
· One who came along later and was hurt by stumbling over the stationary log could maintain only an Action on the Case.
§ The distinction WAS NOT one between intentional and negligent conduct.
§ The emphasis was upon the casual sequence, rather than the character of the defendant’s wrong.
· Trespass would lie for all forcible, direct injuries whether or not they were intended.
· Action on case might be maintained for injuries intended, but not forcible or direct.
§ Trespass, because of its Quasi-criminal nature, required no proof of any actual damage, since the invasion of the plaintiff’s rights by the criminal conduct was regarded as a tort in itself.
§ Action on the Case, which developed purely as a civil remedy, there could ordinarily be no liability unless actual damage was proved.
§ Trespass was identified with the view that liability might be imposed without regard to the defendant’s fault.
§ Case always required proof of culpability, either a wrongful intent or wrongful conduct.
Ø In modern law there is a requirement of proving actual damages except in cases of assault, offensive but harmless battery, false imprisonment, and trespass to land.
§ If harm was done, the injured party could still sue in Case and recover, even though the defendants wrong did not amount to a trespass.
v Case of Thorns- The plaintiff has a claim against the defendant regardless of defendant’s lawful conduct, or his intent.
v Weaver v. Ward- Earliest case in which it was clearly recognized that a defendant might not be liable, even in a trespass action, for a purely accidental injury occurring entirely without his fault.
Ø Burden fell upon the Defendant to plead and prove his freedom from all fault.
v With certain exceptions , actions for injuries to the person, or to tangible property, now require proof of an intent to inflict them, or failure to exercise proper care to avoid them
v Brown v. Kendall
Ø If the act of hitting the plaintiff was unintentional, on the part of the defendant, and done in the doing of a lawful act, then the defendant was not liable, unless it was done in the want and exercise of due care, adapted to specifics of the case, and therefore such want of due care became part of the plaintiff’s case, and the burden of proof was on the plaintiff to establish it.
Ø If it appears
Ø The settled law is that defendant becomes liable for reasonably foreseeable consequences, though the exact results and damages were not contemplated.
Ø Negligence is a relative term and its existence must depend in each case upon the particular circumstances which surrounded the parties at the time and place on the events upon with the controversy is based.
Ø The intent to bring about a specific hard (eg: broken leg) is sufficient to establish intent, but not necessary.
Ø The intent to do an act wit actual knowledge on the part of the actor that the consequences (eg: touching that is harmful or offensive) are substantially certain to follow is sufficient to establish intent.
Ø The intent to do an act with knowledge on the part of the actor that he is risking particular consequences, is not sufficient to establish intent, although it may be negligence if the risk is an unreasonable one under the circumstances.
Ø The defendant does not act, he is carried onto plaintiff’s land. There is no liability here.
Ø Defendant acts intentionally, but under fear or threats, of twelve armed men who compel him to enter plaintiff’s land and steal a horse. There is liability here.
Ø Defendant acts intentionally, but without any desire to affect the plaintiff, or any certainty that he will do so. He is riding a horse, which runs away from him and runs the plaintiff down. There is no liability here if someone else struck the horse, however if it was the defendants spurring that caused the run away liability will be found.
Ø Defendant acts with the desire to affect the plaintiff, but for an entirely permissible or laudable purpose. He shoots the plaintiff in self-defense, or while a soldier defending his country. These will satisfy the intent requirement, but may result in no liability if the conduct was privileged
Ø Court notes that, “the intentional tort of battery required only acting with intent to cause contact that was harmful or offensive, not acting with intent to cause harm.”
v Ranson v. Kitner
Ø Defendants were hunting for wolves, saw plaintiffs dog, and shot it in good-faith believing it to be a Wolfe. Defendants are clearly liable for the damages caused by their mistake, it doesn’t matter that they were acting in good faith.
v Generally mistake as to the identity of the person or animal does not negate intent.