General Tort Law Concepts

A tort is some sort of wrongful act or harm that injures a person. A person who is injured by a tort may sue the wrongdoer for damages. The word tort is from the Latin word tortus, which means wrong or twisted.

In the United States, tort law has evolved from English common law. Many states give either common law or statutory recognition to most torts. When states enact tort laws, they typically are trying to expand or limit common law tort liability. Common law tort principles are similar among the states. The American Law Institute has prepared a review of tort law. The Restatement (Second) of the Law of Torts summarizes the common law tort rules.

Tort law is based on the premise that people should go about their daily business in a way that does not harm other people or their property. So long as people are acting reasonably, this is easy to accomplish. Tort law allows people a way to recover for their injuries if another person does not act reasonably.

Tort law uses the reasonable person standard to determine whether a person acts appropriately. Courts use this standard to determine if a person acts reasonably in response to a particular situation. This standard determines whether conduct is tortious.

There are three types of torts. They are:

• Strict liability torts
• Negligent torts
• Intentional torts

This section will briefly describe all three types of torts. However, you should keep in mind that most torts involving computers probably will fall under the intentional torts category.

Strict Liability Torts

Strict liability is a legal concept that means that people can be held responsible for their actions even if they did not intend to cause harm to another person. Several areas of law apply this concept.

In tort law, a person is held liable for strict liability torts regardless of intent or negligence. Courts usually impose strict liability theories in unreasonably dangerous situations. These are situations where even a reasonable person cannot prevent risk. The main reason for imposing strict liability is to discourage unreasonably risky behavior.

The classic example of a strict liability tort is when a person keeps wild animals as pets. Wild animals are inherently dangerous. Even if the owner of the animal takes reasonable precautions, there is still a risk to the public if the animal escapes. If an animal were to escape and injure a person, courts would hold the owner liable for any damages that the animal caused. Courts hold the owner liable even if the owner takes every precaution available to ensure safety.

In a tort based on strict liability, the plaintiff must show that the defendant engaged in unreasonably dangerous activities. The plaintiff also must show that he or she was harmed. The defendant bears the burden of proving that the activities were not unreasonably dangerous.

Negligence Torts

Negligence torts are based on the premise that a person is liable for any injuries or harm that are the foreseeable consequences of his or her actions. To prove a negligence-based tort, a plaintiff must show that:

• The defendant owed the plaintiff a duty of due care.
• The defendant breached his or her duty.
• The breach of duty caused the plaintiff’s foreseeable injuries.
• The plaintiff was damaged.

Plaintiffs must prove that the defendant owed them a duty of due care. A duty of due care is a person’s obligation to avoid acts or omissions that can harm others. The level of duty that one person owes to another is based on the reasonable person standard, a legal concept used to describe how an ordinary person would think and act. The plaintiff will present evidence on what a reasonable person in a similar circumstance would have done. This evidence shows the level of care that the defendant owes the plaintiff.

There are special duty of due care rules for people in learned occupations, professions where special training and skill are required. Under the law, people in these occupations are held to a higher standard of care that is reasonable for members of that profession. For example, a lawyer’s duty of due care toward his or her clients is based on a reasonable lawyer standard. Doctors, architects, engineers, and airplane pilots are held to reasonableness standards based on their professions.

The plaintiff also must show that the defendant breached a duty of due care. That is, the plaintiff must prove that the defendant’s behavior fell below what a reasonable person would have done in the same situation. The plaintiff will compare the defendant’s behavior against the evidence that was used to show that the defendant had a duty of due care. The plaintiff can show that the defendant breached his or her duty by showing that the defendant acted in a way that was unreasonable given the situation and the defendant’s duty.

For example, a plaintiff may be able to establish that people have a duty to keep their sidewalks free from ice in the wintertime. To prove that the defendant breached this duty, the plaintiff would present evidence that the defendant did not shovel his or her sidewalks. The plaintiff also would have to show that the defendant’s failure to keep the sidewalks clear injured the plaintiff.

The plaintiff also must show that the defendant’s breach caused the plaintiff’s foreseeable injuries. Often courts use the “but for” test to meet this requirement. Would the plaintiff’s injuries have occurred “but for” the defendant’s actions? Once it is established that the defendant caused the plaintiff’s injuries, courts review whether those injuries are compensable.

The law recognizes that there are some instances where the defendant is no longer responsible for the plaintiff’s injuries. This happens when the plaintiff’s injuries are not foreseeable. The famous case that explored this concept is Palsgraf v. Long Island Railroad (1928).⁴⁵

In the Palsgraf case, a passenger was running toward a moving train. Train employees tried to help the passenger board the train. As they helped him, they bumped a package from his arms that contained fireworks. The fireworks exploded on the train tracks and caused a scale on the train platform to topple over. When it fell, it injured Mrs. Palsgraf. She sued the railroad for her injuries.

The New York Court of Appeals decided the case. The court held that the plaintiff’s injuries were not a foreseeable result of the actions of the railroad’s employees. The court also held that the defendant had no duty to the plaintiff. The duty was owed to the passenger that the train employees were trying to help onto the train. Because there was no duty owed to the plaintiff, there could be no liability.

The Palsgraf case has come to stand for the rule that a defendant has no duty of due care to an unforeseen plaintiff for unforeseeable injuries. If there is no duty to an unforeseen plaintiff, then there is no negligence. This means that the relationship between the defendant’s act or omissions and the plaintiff’s injuries must have proximate or legal cause; that is, that the plaintiff’s injuries must be the natural and foreseeable results of the defendant’s negligence.

Once the plaintiff proves that the defendant committed a negligent act, the plaintiff must prove that he or she suffered an injury and is entitled to damages. A court awards damages in a tort case in an attempt to make a plaintiff whole. These are called compensatory damages. Compensatory damages try to place the plaintiff in the same position that he or she would have been in had no tortious act occurred. This is the primary goal of tort lawsuits.

A court does not usually award punitive damages in a negligent tort case. However, it may award punitive damages if the defendant’s actions are grossly negligent. This does not happen often, though. Many states have placed limits on the amount of punitive damages that a court or jury can award in a tort lawsuit.

There are some defenses to negligence torts a defendant can use to help escape or limit liability. A defendant has the burden of proving her or his defenses. The three most common defenses are:

• Assumption of risk—The plaintiff had assumed the risk of the defendant’s actions and any injuries resulting from those actions. If the defendant proves assumption of risk, he or she has no liability to the plaintiff.
• Contributory negligence—The plaintiff should recover nothing because his or her own actions also contributed to his or her own injuries. If the defendant proves contributory negligence, he or she has no liability to the plaintiff. Only a few jurisdictions follow this rule because it is very harsh.
• Comparative negligence—The plaintiff should recover only a pro rata share of damages because his or her own actions also contributed to his or her injuries. In most jurisdictions, a plaintiff less than 50 percent at fault can recover a pro rata share of damages based on the defendant’s level of fault.

Intentional Torts

Intentional torts occur when the defendant intended to commit the tort. Intentional torts often share many common elements with a crime. It helps to remember that civil actions address torts and criminal actions address crimes. The same action can be both a wrong against society (a crime) and a wrong against an individual (a tort).

The classic example of an intentional tort is battery. Battery is harmful or offensive contact with another person. The battery tort occurs when the defendant intentionally causes harmful contact with the plaintiff.

The most common defense to an intentional tort is that the plaintiff consented to the wrongful action. A defendant must prove that the plaintiff consented. A defendant can use the plaintiff’s words or actions as evidence to prove consent.

Civil Procedure

A plaintiff must sue a defendant in a civil lawsuit to recover for tort injuries. Civil procedure is the body of rules that govern how courts conduct civil cases. This section provides more detail on the civil trial process. One thing to keep in mind is that the laws of civil procedure vary from jurisdiction to jurisdiction. The federal and state governments all have different civil procedure rules. The description provided here is intentionally general.

A civil action begins when the plaintiff files a complaint with a court. A plaintiff uses a complaint to tell his or her story. The plaintiff states how he or she was injured and asks the court to make him or her whole. A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”⁴⁶ It also must show that the court has jurisdiction to hear the case. The plaintiff also must specify the relief demanded. In a tort case, the plaintiff typically wishes to receive money damages. The damages compensate the plaintiff for any injuries.

The plaintiff must file a complaint within a certain period, called the statute of limitations, after the claimed injury. For example, in Indiana, the statute of limitations for most tort actions is 2 years.⁴⁷ The plaintiff must sue the defendant within 2 years of being injured by the defendant. Not all states have the same time limits, however. For example, in Montana, the statute of limitations for most tort actions based on negligent conduct is 3 years.⁴⁸

Service of process refers to the procedure that delivers the complaint and a summons to the defendant. This process makes the defendant aware that the plaintiff has filed a lawsuit. Certain formalities must be followed to serve a complaint and summons on a defendant. For the most part, the complaint and summons are delivered physically to the defendant. This is to assure the court that the defendant received proper notice of the lawsuit.

The defendant must respond to the complaint after receiving it. That response is called an answer. All jurisdictions have time limits that a defendant must follow when answering the complaint. Under the Federal Rules of Civil Procedure, a defendant must file his or her answer within 20 days after receiving the complaint.⁴⁹ A court can allow a defendant more time to answer if necessary.

A defendant must respond to each claim in the plaintiff’s complaint. He or she can admit to or deny the claims. The defendant must also state her or his defenses to each claim. The answer is the defendant’s opportunity to tell her or his side of the story.

A defendant also can raise defenses to the plaintiff’s complaint. Some of these defenses are absolute. The court must dismiss the plaintiff’s lawsuit if the defendant proves the defense. For example, the defendant can question the court’s jurisdiction. If the court does not have jurisdiction over the matter, then it must dismiss the lawsuit. A defendant also can argue that the plaintiff does not have a legal basis for the claim. The court must dismiss the lawsuit if there is no legal basis for the plaintiff’s claim.

After the complaint and answer, the plaintiff and defendant’s attorneys will begin the discovery process. This is the period of the civil lawsuit where the parties share information with one another. Unlike the criminal discovery process, there are few affirmative disclosure rules in the civil discovery process. The parties must disclose their witnesses to one another. They also must provide each other with a list of documents that they have in their possession that are related to their claims and defenses. The documents that each party must disclose include a listing of documents stored in an electronic form.

After these general disclosures, it is up to each party to ask for information that is relevant to the case. The parties use various procedural rules to ask each other for information and documents. The process can get very complicated. It also can get very expensive. Sometimes the parties will ask the court to intervene in the discovery process. This happens when the parties dispute whether some types of information must be disclosed.

For example, a defendant may not want to disclose trade secret information through the discovery process, even if it is relevant to the case. This is because documents filed in a court case become public records. This includes documents exchanged during the discovery process and then used as evidence at trial. The defendant does not want to lose trade secret protection. The defendant could lose that protection if the information is available to the public or if it is shared with the other party’s legal team. In this instance, the defendant could ask the court to issue a protective order. This type of order requires the parties to keep certain information secret. It helps protect the defendant’s trade secrets.

After the discovery process ends, the parties either settle their lawsuits or proceed to trial. If a tort case goes to trial, the plaintiff must prove all the elements of his or her claim. He or she must prove the case through a preponderance of the evidence. This is a lower standard of proof than in criminal cases. A civil trial ends with the court or jury’s decision on the case. Parties may appeal an adverse ruling at the trial court level. Either party may appeal a ruling to a higher court through several different procedural rules. These rules are outside of the scope of this chapter.