In recent months, you cannot pick up a newspaper, or turn on the TV or radio without hearing about “tort reform.” Many people that I know have asked me “what is a tort?” Fair question. Unfortunately, as with most matters in the law, there is no black-and-white answer.
According to Black’s Law Dictionary, a tort is a legal wrong committed upon person or property. Sounds simple enough, doesn’t it? Regrettably, there really isn’t a complete definition that distinguishes “right” conduct from “wrong” conduct. Unlike contract law, where two parties agree to be bound by an agreement between them, every person in this country is obligated “in tort” for damages if they misbehave in a certain way. In other words, if your actions harm someone else, then you are potentially on the hook for damages (in other words, money) to the person harmed.
There is an easier way to think about this. There are only 14 torts. Every time you hear the word “tort”, think 14. Therefore, we can define a wrong as a tort if it fits in one of the 14 categories. Seven of the 14 are intentional torts. In other words, the bad guy intends to do harm to the good guy.
The seven intentional torts are assault, battery, false imprisonment, intentional infliction of emotional distress, trespass to land, trespass to personal property and conversion. Some of these are also crimes. This means, for example, that a bad guy can be sued civilly for battery (pay money to the good guy), and also criminally prosecuted for it at the same time (do time or be fined).
The remaining seven torts are defamation, invasion of right to property, misrepresentation (commonly known as fraud), interference with business relationships, negligence, liability without fault (commonly known as strict liability—a total duty to make something safe), and nuisance. Don’t you feel better now knowing that you didn’t have to memorize these for a bar exam?
Of all of those listed above, negligence is by far the most common basis for a tort lawsuit. The easiest example of negligence occurs in a car wreck, but other common examples are professional malpractice, negligent misrepresentation, slip-and-fall, and design defects in products.
Using a car wreck as an example, say that one driver is careless and at fault. Granted, there are situations where both drivers can have some fault, but we’ll talk about that complicated subject in another column. When the careless driver (bad guy) causes injury to the other driver (good guy), then the bad guy must put the good guy in the same position he was in prior to the wreck. Makes sense, doesn’t it?
This brings us to the subject of damages, which has always been controversial. We’ll use an extreme example. Say the good guy is paralyzed from the neck down in our car wreck. In civil lawsuits, you can’t put the bad guy in jail. Also, obviously, the bad guy can’t make the good guy walk or use his arms again.
Under tort law, therefore, the remedy for the wrong is for the bad guy to get out his checkbook. The paralyzed man can then recover money for medical bills, pain and suffering, emotional distress, and loss of ability to work and earn wages, among other things. Since it is literally impossible for the good guy to be put in the same position he occupied prior to the wreck, the bad guy’s money is used to bridge the gap. In most situations, a jury, not a judge, makes the determination of how much money to pay to the good guy.
As we’ve seen, although there is no cut-and-dried answer, when you hear the word “tort”, think “wrong” and you will be on the right track. Most importantly, remember that the best way to avoid a personal experience with a tort is to be as careful as possible.