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Introduction: Definition of Tort

The term tort is the French equivalent of the English word wrong. The word tort is also derived from the Latin word tortum, which means twisted or crooked or wrong, in contrast to the word rectum, which means straight (rectitude uses that Latin root). Thus conduct that is twisted or crooked and not straight is a tort. The term was introduced into the English law by the Norman jurists.

Long ago, tort was used in everyday speech; today it is left to the legal system. A judge will instruct a jury that a tort is usually defined as a wrong for which the law will provide a remedy, most often in the form of money damages. The law does not remedy all “wrongs.” The preceding definition of tort does not reveal the underlying principles that divide wrongs in the legal sphere from those in the moral sphere. Hurting someone’s feelings may be more devastating than saying something untrue about him behind his back; yet the law will not provide a remedy for saying something cruel to someone directly, while it may provide a remedy for “defaming” someone, orally or in writing, to others.

Although the word is no longer in general use, tort suits are the stuff of everyday headlines. More and more people injured by exposure to a variety of risks now seek redress (some sort of remedy through the courts). Headlines boast of multimillion-dollar jury awards against doctors who bungled operations, against newspapers that libeled subjects of stories, and against oil companies that devastate entire ecosystems. All are examples of tort suits.

The law of torts developed almost entirely in the common-law courts; that is, statutes passed by legislatures were not the source of law that plaintiffs usually relied on. Usually, plaintiffs would rely on the common law (judicial decisions). Through thousands of cases, the courts have fashioned a series of rules that govern the conduct of individuals in their noncontractual dealings with each other. Through contracts, individuals can craft their own rights and responsibilities toward each other. In the absence of contracts, tort law holds individuals legally accountable for the consequences of their actions. Those who suffer losses at the hands of others can be compensated.

Many acts (like homicide) are both criminal and tortious. But torts and crimes are different, and the difference is worth noting. A crime is an act against the people as a whole. Society punishes the murderer; it does not usually compensate the family of the victim. Tort law, on the other hand, views the death as a private wrong for which damages are owed. In a civil case, the tort victim or his family, not the state, brings the action. The judgment against a defendant in a civil tort suit is usually expressed in monetary terms, not in terms of prison times or fines, and is the legal system’s way of trying to make up for the victim’s loss. (1)

Tort Defending Against Tort Claims

For information about tort claims, click here.

Introduction to Tort Defences

Even if he or she could demonstrate that a tort has been committed, the injured party will not necessarily be compensated. The tortfeasor has the right to assert defenses, based on either law or facts, that reduce or eliminate his or her liability to (responsibility to compensate) the plaintiff.

If the injured party fails to file the claim within the legally required time or against the proper party, this may provide a defense for the tortfeasor. Every state has a statute of limitations that requires an injured party to bring his or her claim within a certain amount of time after the injury or after learning of the relationship between the injury and a tort. In most states this limit ranges from one to three years.

A tortfeasor also may have a defense if he or she shows that the plaintiff’s injury was caused by the conduct of a third person. The law provides that an intervening cause eliminates the defendant’s liability. Thus, in many states, if a person leaves the keys in his or her car and the car is stolen and the thief negligently hits a pedestrian, the car owner’s negligence (leaving the keys in the car) is not viewed as the cause of the injury. The actions of a third party (the thief) break the chain of causation, relieving the owner of liability to the pedestrian. ” (2)

Tort Defences in Negligence

To successfully defend against a negligence suit, the defendant will try to negate one of the elements of the plaintiff’s cause of action.

Resources

Notes and References

“Business and the Legal Environment”, by Don Mayer, Daniel M. Warner and George J. Siedel.
Information about Tort Defending in the Encarta Online Encyclopedia

Tort Defences