Tort Law

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A body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. The person who sustains injury or suffers pecuniary damage as the result of tortious conduct is known as the plaintiff, and the person who is responsible for inflicting the injury and incurs liability for the damage is known as the defendant or tortfeasor.

Three elements must be established in every tort action. First, the plaintiff must establish that the defendant was under a legal duty to act in a particular fashion. Second, the plaintiff must demonstrate that the defendant breached this duty by failing to conform his or her behavior accordingly. Third, the plaintiff must prove that he suffered injury or loss as a direct result of the defendant's breach.

The law of torts is derived from a combination of common-law principles and legislative enactments. Unlike actions for breach of contract, tort actions are not dependent upon an agreement between the parties to a lawsuit. Unlike criminal prosecutions, which are brought by the government, tort actions are brought by private citizens. Remedies for tortious acts include money damages and injunctions (court orders compelling or forbidding particular conduct). Tortfeasors are subject to neither fine nor incarceration in civil court.

The word tort comes from the Latin term torquere, which means "twisted or wrong." The English common law recognized no separate legal action in tort. Instead, the British legal system afforded litigants two central avenues of redress: trespass for direct injuries, and actions "on the case" for indirect injuries. Gradually, the common law recognized other civil actions, including defamation, libel, and slander. Most of the American colonies adopted the English common law in the eighteenth century. During the nineteenth century, the first U.S. legal treatises were published in which a portion of the common law was synthesized under the heading of torts.

Over the last century, tort law has touched on nearly every aspect of life in the United States. In economic affairs, tort law provides remedies for businesses that are harmed by the unfair and deceptive trade practices of a competitor. In the workplace, tort law protects employees from the intentional or negligent infliction of emotional distress. Tort law also helps regulate the environment, providing remedies against both individuals and businesses that pollute the air, land, and water to such an extent that it amounts to a nuisance.

Sometimes tort law governs life's most intimate relations, as when individuals are held liable for knowingly transmitting communicable diseases to their sexual partners. When a loved one is killed by a tortious act, surviving family members may bring a wrongful death action to recover pecuniary loss. Tort law also governs a wide array of behavior in less intimate settings, including the operation of motor vehicles on public roadways.

The law of torts serves four objectives. First, it seeks to compensate victims for injuries suffered by the culpable action or inaction of others. Second, it seeks to shift the cost of such injuries to the person or persons who are legally responsible for inflicting them. Third, it seeks to discourage injurious, careless, and risky behavior in the future. Fourth, it seeks to vindicate legal rights and interests that have been compromised, diminished, or emasculated. In theory these objectives are served when tort liability is imposed on tortfeasors for intentional wrongdoing, negligence, and ultrahazardous activities.

Intentional Torts

An intentional tort is any deliberate interference with a legally recognized interest, such as the rights to bodily integrity, emotional tranquility, dominion over property, seclusion from public scrutiny, and freedom from confinement or deception. These interests are violated by the intentional torts of assault, battery, trespass, false imprisonment, invasion of privacy, conversion, misrepresentation, and fraud. The intent element of these torts is satisfied when the tortfeasor acts with the desire to bring about harmful consequences and is substantially certain that such consequences will follow. Mere reckless behavior, sometimes called willful and wanton behavior, does not rise to the level of an intentional tort.

Under certain circumstances the law permits individuals to intentionally pursue a course of conduct that will necessarily result in harm to others. The harm that results from such conduct is said to be outweighed by more important interests. Self-preservation is one such interest and is embodied in the right of self-defense. Individuals may exert sufficient force in self-defense

Breast Implant Lawsuits

When a company produces a dangerous or defective product that injures an individual, the injured person may sue the company in a products-liability tort action, demanding compensation for the injuries. To prevail in a products-liability action, the plaintiff must demonstrate that the injury-causing product was defective, that the defect existed at the time the product left the control of the defendant, and that such defect was the proximate cause of the plaintiff's injury. If many individuals have been injured by the same product, the court may permit the filing of a class action lawsuit, in which a small number of plaintiffs represent the entire group of injured victims.

One of the more controversial class actions involved the silicone breast-implant litigation. Notwithstanding a class totaling more than 400,000 plaintiffs, a settlement that offered more than $3 billion in compensation for their alleged injuries, and a federal government ban on the product, no evidence was ever provided that conclusively linked silicone breast implants with any form of serious disease. In fact, following the settlement at least two scientific studies affirmatively concluded that no such link exists. In the wake of those studies, manufacturers have sought government approval to resume selling silicone breast implants to the public.

In 1962 Dow Corning became the first company to manufacture and market silicone breast implants. The implants consisted of a rubbery silicone envelope containing silicone gel. Plastic surgeons soon discovered that a certain (and as yet undetermined) percentage of implants rupture on their own, either because of trauma to the breast or because the implant simply tears. In many cases, the gel stays either in the implants or in the immediate vicinity. In rare cases, the gel may migrate through the body. Moreover, the implants themselves are permeable, and minute amounts of silicone gel can seep through the implants and remain in nearby tissue or migrate throughout the body.

For many years, breast implants were essentially unregulated by the government. The food and drug administration (FDA) did not have jurisdiction over medical devices, including breast implants, until the 1976 Medical Devices Amendment to the Food, Drug and Cosmetic Act (MDA) became law. The MDA "grandfathered-in" existing devices, such as breast implants, allowing them to remain on the market until the FDA could classify and regulate them. In 1982 the FDA proposed classifying silicone-gel breast implants as Class III devices, the most stringently regulated category. The FDA expressed concern about the scar tissue that forms around the implant, about potential long-term toxic effects of silicone that might leak from the implants, and about possible health effects from the silicone polymers from which the implant shells were made.

That same year Maria Stern filed the first silicone-breast-implant-related product liability suit against Dow Corning, Inc., after her implants ruptured. Testifying before a jury sitting in the U.S. District Court for the Northern District of California, Stern said that she suffered from chronic fatigue and joint pains before and after the implants were removed. Although her doctors speculated that Stern's problems had been caused by the silicone migrating throughout her body, they offered no valid scientific proof of causation. However, Stern did demonstrate that the company had acted irresponsibly by failing to conduct any research into the possible ill effects of silicone on the human body despite evidence that Dow Corning knew that implants could leak and rupture. A jury found for the plaintiff and awarded Stern $200,000 in damages. The jury also awarded her $1.2 million in punitive damages. After the trial judge upheld the awards, the case was settled before appeal for an undisclosed sum, and the record was sealed.

The media did not immediately pick up on the Stern settlement or the smattering of similar lawsuits that were pending in state and federal courts around the country. After several relatively uneventful years following a series FDA hearings in the late 1980s, however, NBC aired an episode of Face to Face with Connie Chung which focused on the dangers of breast implants. The December 1990 show frightened and outraged thousands of implant recipients. Chung referred to silicone gel as "an ooze of slimy gelatin that could be poisoning women." She interviewed several women who blamed implants for causing their auto-immune diseases, but Chung never questioned the presumed link. Chung concluded the segment by showing viewers pictures of Sybil Goldrich, whose chest had been disfigured by operations to remove her implants.

On July 9, 1991, a deadline expired for implant manufacturers to prove the safety of their product to the FDA, and no manufacturer offered any convincing proof on the matter. A year later the FDA ordered that silicone breast implants be removed from the market. Thereafter, the number of breast-implant lawsuits filed against manufacturers rose dramatically. By 1992 plaintiffs had filed 3,558 individual lawsuits against Dow Corning alone. In June 1992, the federal Judicial Panel on Multidistrict Litigation certified a multi-district class-action lawsuit against the major implant manufacturers, including Dow Corning, Bristol-Myers Squibb, Baxter International, and Minnesota Mining & Manufacturing Co.

In September 1993 the parties tentatively agreed to settle the class-action products liability lawsuit for $4.75 billion. But settlement ultimately collapsed after 440,000 women registered for the settlement, forcing Dow Corning, the largest contributor to the settlement, to file for bankruptcy in 1995. On November 30, 1998, U.S. Bankruptcy Judge Arthur Spector approved Dow Corning's $4.5 billion plan to emerge from bankruptcy, which included $3.2 billion to settle implant claims with more than 170,000 women. Eventually, the other implant manufacturers entered similar settlement agreements with most of the remaining plaintiffs. More than 90 percent of the eligible class-action plaintiffs accepted the defendants' settlement offers. The remaining plaintiffs opted-out of the class settlement, which allowed them to sue the defendants individually.

A little more than a year after the class action was settled, a scientific panel appointed by the court overseeing the settlement released the results of its breast-implant study, finding that there was no sufficient scientific basis to link silicone implants to cancer, connective tissue diseases, immune system dysfunctions, or any other disease. On June 21, 1999, the Institute of Medicine of the National Academy of Sciences issued a congressionally funded report that reached the same conclusion.

In March of 2003 two California-based companies announced their desire to re-introduce silicone breast implants into the stream of commerce, and the FDA agreed to hold safety hearings and reconsider its ban on the product. The potential return of silicone gel-filled implants came at a time when more women were looking to increase their breast size: the American Society of Plastic Surgeons reported more than 206,300 breast augmentations in 2001, up from about 32,600 in 1992.

further readings

Angell, Marcia. 1997. Science on Trial: The Clash of Medical Evidence and the Law in the Breast Implant Case. New York: W. W. Norton.

Crane, Misti. 2003. "FDA Might Reconsider 10-Year Silicone Ban." Columbus Dispatch (March 16).

Stewart, Mary White. 1998. Silicone Spills: Breast Implants on Trial. Westport, Conn.: Praeger.


Class Action.

to repel an imminent threat of bodily harm. deadly force may only be used by persons who reasonably believe that their lives are endangered and for whom there are no reasonable means of escape. Reasonable force, but not deadly force, may be employed in defense of property.

Consent is a defense to virtually every intentional tort. The law will not compensate persons who knowingly allow someone to injure them. However, consent must be given freely and voluntarily to be effective. Consent induced by coercion, duress, undue influence, or chicanery is not legally effective. Nor is consent legally effective when given by an incompetent person. Consent to intentional torts involving grievous bodily harm is also deemed ineffective in a number of jurisdictions.


Most injuries that result from tortious behavior are the product of negligence, not intentional wrongdoing. Negligence is the term used by tort law to characterize behavior that creates unreasonable risks of harm to persons and property. A person acts negligently when his behavior departs from the conduct ordinarily expected of a reasonably prudent person under the circumstances. In general, the law requires jurors to use their common sense and life experience in determining the proper degree of care and vigilance with which people must lead their lives to avoid imperiling the safety of others.

Not every accident producing injury gives rise to liability for negligence. Some accidents cannot be avoided even with the exercise of reasonable care. An accident that results from a defendant's sudden and unexpected physical ailment, such as a seizure or a blackout, generally relieves the defendant of liability for harm caused during his period of unconsciousness. However, defendants who have reason to know of such medical problems are expected to take reasonable precautions against the risks the problems create. In some jurisdictions unavoidable accidents are called acts of god.

assumption of risk is another defense to negligence actions. This defense prevents plaintiffs from recovering for injuries sustained as a result of a relationship or transaction they entered with full knowledge and acceptance of the risks commonly associated with such undertakings. Assumed risks include most of those encountered by spectators attending sporting events. However, the law will not assume that individuals accept the risk of intentionally inflicted harm or damage, such as injuries resulting from assault and battery.

Strict Liability

In some cases tort law imposes liability on defendants who are neither negligent nor guilty of intentional wrongdoing. Known as strict liability, or liability without fault, this branch of torts seeks to regulate those activities that are useful and necessary but that create abnormally dangerous risks to society. These activities include blasting, transporting hazardous materials, storing dangerous substances, and keeping certain wild animals in captivity.

A distinction is sometimes drawn between moral fault and legal fault. Persons who negligently or intentionally cause injury to others are often considered morally blameworthy for having failed to live up to a minimal threshold of human conduct. On the other hand, legal fault is more of an artificial standard of conduct that is created by government for the protection of society.

Persons who engage in ultrahazardous activities may be morally blameless because no amount of care or diligence can make their activities safe for society. However, such persons will nonetheless be held legally responsible for harm that results from their activities as a means of shifting the costs of injury from potential victims to tortfeasors. As a matter of social policy, then, individuals and entities that engage in abnormally dangerous activities for profit must be willing to ensure the safety of others as a price of doing business.

Consumers who have been injured by defectively manufactured products also rely on strict liability. Under the doctrine of strict product liability, a manufacturer must guarantee that its goods are suitable for their intended use when they are placed on the market for public consumption. The law of torts will hold manufacturers strictly liable for any injuries that result from placing unreasonably dangerous products into the stream of commerce, without regard to the amount of care exercised in preparing the product for sale and distribution and without regard to whether the consumer purchased the product from, or entered into a contractual relationship with, the manufacturer.


Causation is an element common to all three branches of torts: strict liability, negligence, and intentional wrongs. Causation has two prongs. First, a tort must be the cause in fact of a particular injury, which means that a specific act must actually have resulted in injury to another. In its simplest form, cause in fact is established by evidence that shows that a tortfeasor's act or omission was a necessary antecedent to the plaintiff's injury. Courts analyze this issue by determining whether the plaintiff's injury would have occurred "but for" the defendant's conduct. If an injury would have occurred independent of the defendant's conduct, cause in fact has not been established, and no tort has been committed. When multiple factors have led to a particular injury, the plaintiff must demonstrate that the tortfeasor's action played a substantial role in causing the injury.

Second, plaintiffs must establish that a particular tort was the proximate cause of an injury before liability will be imposed. The term proximate cause is somewhat misleading because it has little to do with proximity or causation. Proximate cause limits the scope of liability to those injuries that bear some reasonable relationship to the risk created by the defendant. Proximate cause is evaluated in terms of foresee-ability. If the defendant should have foreseen the tortious injury, he or she will be held liable for the resulting loss. If a given risk could not have been reasonably anticipated, proximate cause has not been established, and liability will not be imposed.

When duty, breach, and proximate cause have been established in a tort action, the plaintiff may recover damages for the pecuniary losses sustained. The measure of damages is determined by the nature of the tort committed and the type of injury suffered. Damages for tortious acts generally fall into one of four categories: damages for injury to person, damages for injury to personal property, damages for injury to real property, and punitive damages.


Personal injury tort victims must normally recover all their damages—past, present, and future—during a single lawsuit. Damages may be recovered for physical, psychological, and emotional injury. Specifically, these injuries may include permanent disability, pain and suffering, disfigurement, humiliation, embarrassment, distress, impairment of earning capacity, lost wages or profits, medical costs, and out-of-pocket expenses. Courts typically rely on expert testimony to translate such losses into dollar figures.

Plaintiffs suffering damage to personal property must elect between two methods of recovery. First, plaintiffs may elect to recover the difference between the value of the property before the tort and the value of the property after it. Second, plaintiffs may elect to recover the reasonable costs of repair for damaged personal property. However, if the property is destroyed, irreparable, or economically infeasible to repair, damages are measured by the replacement value of the property. Persons who are temporarily deprived of personalty may sue to recover the rental value of the property for the period of deprivation.

Damages for injury to real property may be measured by the difference in the realty's value before and after the tort. Alternatively, plaintiffs may elect to recover the reasonable costs of restoring the property to its original condition. In either case plaintiffs may also recover the rental value of their property if its use and enjoyment has been interrupted by tortious behavior. Mental, emotional, and physical harm that is sustained in the process of a tortious injury to real property is compensable as well.

Punitive damages, called exemplary damages in some jurisdictions, are recoverable against tortfeasors whose injurious conduct is sufficiently egregious. Although punitive damages are typically awarded for injuries suffered from intentional torts, they can also be awarded against tortfeasors who act with reckless indifference to the safety of others. Because one purpose of punitive damages is to punish the defendant, plaintiffs may introduce evidence regarding a tortfeasor's wealth to allow the jury to better assess the amount of damages necessary for punishment. Such evidence is normally deemed irrelevant or prejudicial in almost every other type of damage claim.

In addition to damages for past tortious conduct, plaintiffs may seek injunctive relief to prevent future harm. Manufacturing plants that billow smoke that pollutes the air, companies that discharge chemicals that poison the water, and factories that store chemicals that migrate through the soil create risks of injury that are likely to recur over time. In tort law, operations that produce recurring injuries like these are called nuisances. If the harmfulness of such operations outweighs their usefulness, plaintiffs may successfully obtain a court order enjoining or restraining them.


Certain individuals and entities are granted immunity from both damage awards and assessments of liability in tort. An immunity is a defense to a legal action where public policy demands special protection for an entity or a class of persons participating in a particular field or activity. Historically, immunity from tort litigation has been granted to government units, public officials, charities, educational institutions, spouses, parents, and children.

Government immunity, also known as sovereign immunity, insulates federal, state, and local governments from liability for torts that an employee commits within the scope of his or her official duties. Public policy, as reflected by legislation, common-law precedent, and popular opinion, has required courts to protect the government from unnecessary disruptions that invariably result from civil litigation. Similarly, educational institutions generally have been immunized from tort actions to protect students and faculty from distraction.

In a number of states, tortfeasors have been given immunity from liability if they are related to the victim as husband or wife, or parent or child. These states concluded that family harmony should not be traumatized by the adversarial nature of tort litigation. Charities and other philanthropic organizations have been given qualified immunity from tort liability as well. This immunity is based on the fear that donors would stop giving money to charities if the funds were used to pay tort claims.

Over the last quarter century, nearly every jurisdiction has curtailed tort immunity in some fashion. Several jurisdictions have abolished tort immunity for entire groups and entities. The movement to restrict tort immunity has been based in part on the rule of law, which requires all persons, organizations, and government officials to be treated equally under the law. Despite the efforts of this movement, tort immunity persists in various forms at the federal, state, and local levels.

Tort Reform Initiatives

The damages recovered by those injured as a result of a tortious act of another are often paid for by insurance companies. This is particularly true in medical malpractice cases. Doctors must pay significant medical liability insurance premiums in order to stay in business. When a doctor commits malpractice, the patient may receive an award of hundreds of thousands of dollars to millions of dollars. As insurance companies continue to pay these hefty awards, the rates for insurance premiums often rise sharply.

The medical profession and medical liability insurance companies have engaged in a nationwide campaign to place limitations on the amount of damages that a patient who has been subject to medical malpractice can recover. Under the guise of "tort reform," supporters advocate placing limitations on the recovery of noneconomic damages, including pain and suffering and loss of consortium. In 1975, California enacted the Medical Injury Compensation Reform Act, which limits recovery of noneconomic damages at $250,000 and restricts the amount of fees that may be recovered by lawyers. California's law has served as a model for six other states that have adopted similar tort-reform bills. Other state legislatures have considered similar tort-reform initiatives.

President george w. bush has advocated federal legislation that would place a $250,000 cap on noneconomic damages at the national level. According to Bush, the federal government spends $28 billion per year on medical liability insurance costs and defensive medical costs. Opponents of such a measure claim that many of the problems associated with insurance costs are the result of poor business practices by insurance companies. Opponents also maintain that capping damages for pain and suffering restricts the ability of patients to recover only an arbitrary amount from a negligent doctor. Supporters of the initiative claim that capping damages will lower medical costs to the general population.

further readings

Best, Arthur, and David W. Barnes. 2003. Basic Tort Law: Cases, Statutes, and Problems. New York: Aspen.

Calnan, Alan. 2003. A Revisionist History of Tort Law. Durham, N.C.: Carolina Academic Press.

Loiacono, Kristin. 2003. "A Good Fight in the House Over Medical Malpractice 'Reform'." Trial 11.

Shapo, Marshall S. 2003. Principles of Tort Law. 2d ed. St. Paul, Minn.: West.


"But For" Rule; Consumer Protection; Environmental Law; Federal Tort Claims Act; Feres Doctrine; MacPherson v. Buick Motor Co.; Product Liability; Rylands v. Fletcher.