A tort, in common law jurisdictions, is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. It can include the intentional infliction of emotional distress, negligence, financial losses, injuries, invasion of privacy and many other things.
Tort law, where the purpose of a legal action is to obtain a private civil remedy such as damages, may be compared to criminal law, which deals with criminal wrongs that are punishable by the state. Tort law may also be contrasted with contract law, which also provides a civil remedy after breach of duty; but whereas the contractual obligation is one chosen by the parties, the obligation in both tort and crime is imposed by the state. In both contract and tort, successful claimants must show that they have suffered foreseeable loss or harm as a direct result of the breach of duty.
Terminology
The person who commits the act is called a tortfeasor. Although crimes may be torts, the cause of legal action in civil torts is not necessarily the result of criminal action; the harm in civil torts may be due to negligence, which does not amount to criminal negligence. The victim of the harm can recover their loss as damages in a lawsuit. In order to prevail, the plaintiff in the lawsuit, commonly referred to as the injured party, must show that the actions or lack of action was the legally recognizable cause of the harm. The equivalent of tort in civil law jurisdictions is "delict".
Legal injuries are not limited to physical injuries and may include emotional, economic, or reputational injuries as well as violations of privacy, property, or constitutional rights. Torts comprise such varied topics as automobile accidents, false imprisonment, defamation, product liability, copyright infringement, and environmental pollution (toxic torts).
Compared to criminal cases, tort lawsuits have a lower burden of proof, namely "preponderance of evidence", rather than beyond a reasonable doubt.
Sometimes a claimant may prevail in a tort case even if the defendant
who allegedly caused harm were acquitted in an earlier criminal trial.
For example, O. J. Simpson was acquitted in criminal court of murder but later found liable for the tort of wrongful death.
Both tort law and criminal law may impose liability where there is:
- intentional action
- reckless behaviour
- carelessness
- product liability (without negligence) in the US & the EU
- "innocence" (or blameless inadvertence) provided there is strict liability.
History
Roman law contained provisions for torts in the form of delict, which later influenced the civil law jurisdictions in Continental Europe, but a distinctive body of law arose in the common law world traced to English tort law. The word 'tort' was first used in a legal context in the 1580s, although different words were used for similar concepts prior to this time.
Medieval period
Torts and crimes at common law originate in the Germanic system of compensatory fines for wrongs (OE unriht), with no clear distinction between crimes and other wrongs. In Anglo-Saxon law, most wrongs required payment in money or in kind (bōt, literally 'remedy') to the wronged person or their clan. Wīte (literally 'blame, fault') was paid to the king or holder of a court for disturbances of public order.
Weregild, which was a murder fine based on a victim's worth, was intended to prevent blood feuds. Some wrongs in later law codes were botleas
'without remedy' (e.g. theft, open murder, arson, treason against one's
lord), that is, unable to be compensated, and those convicted of a botleas crime were at the king's mercy. Items or creatures which caused death were also destroyed as deodands. Assessing intention was a matter for the court, but Alfred the Great's Doom Book did distinguish unintentional injuries from intentional ones, whereas culpability depended on status, age, and gender.
After the Norman Conquest, fines were paid only to courts or the king, and quickly became a revenue source. A wrong became known as a tort or trespass, and there arose a division between civil pleas and pleas of the crown. The petty assizes (i.e. of novel disseisin, of mort d'ancestor, and of darrein presentment) were established in 1166 as a remedy for interference with possession of freehold land. The trespass
action was an early civil plea in which damages were paid to the
victim; if no payment was made, the defendant was imprisoned. The plea
arose in local courts for slander, breach of contract,
or interference with land, goods, or persons. Although the details of
its exact origin are unclear, it became popular in royal courts so that
in the 1250s the writ of trespass was created and made de cursu
(available by right, not fee); however, it was restricted to
interference with land and forcible breaches of the king's peace. It may
have arisen either out of the "appeal of felony", or assize of novel
disseisin, or replevin. Later, after the Statute of Westminster 1285, in the 1360s, the "trespass on the case" action arose for when the defendant did not direct force.
As its scope increased, it became simply "action on the case". The
English Judicature Act passed 1873 through 1875 abolished the separate
actions of trespass and trespass on the case.
In 1401, the English case Beaulieu v Finglam imposed strict liability for the escape of fire; additionally, strict liability was imposed for the release of cattle.
Negligently handling fire was of particular importance in these
societies given capacity for destruction and relatively limited
firefighting resources. Liability for common carrier, which arose around 1400, was also emphasized in the medieval period.
Unintentional injuries were relatively infrequent in the medieval
period. As transportation improved and carriages became popular in the
18th and 19th centuries, however, collisions and carelessness became more prominent in court records. In general, scholars of England such as William Blackstone took a hostile view to litigation, and rules against champerty and maintenance and vexatious litigation existed. The restriction on assignment of a cause of action is a related rule based on public policy.
English influence
The right of victims to receive redress was regarded by later English scholars as one of the rights of Englishmen. Blackstone's Commentaries on the Laws of England, which was published in the late 18th century, contained a volume on "private wrongs" as torts and even used the word tort in a few places.
United States influence
United States tort law was influenced by English law and Blackstone's Commentaries on the Laws of England, with several state constitutions specifically providing for redress for torts in addition to reception statutes which adopted English law. However, tort law was viewed
as relatively undeveloped by the mid-19th century; the first American
treatise on torts was published in the 1860s but the subject became
particularly established when Oliver Wendell Holmes, Jr wrote on the subject in the 1880s.
Holmes' writings have been described as the "first serious attempt in
the common law world to give torts both a coherent structure and a
distinctive substantive domain", although Holmes' summary of the history of torts has been critically reviewed. The 1928 US case of Palsgraf v. Long Island Railroad Co. heavily influenced the British judges in the 1932 House of Lords case of Donoghue v Stevenson.
Modern development
The
law of torts for various jurisdictions has developed independently. In
the case of the United States, a survey of trial lawyers pointed to
several modern developments, including strict liability for products
based on Greenman v. Yuba Power Products, the limitation of various immunities (e.g. sovereign immunity, charitable immunity), comparative negligence, broader rules for admitting evidence, increased damages for emotional distress, and toxic torts and class action lawsuits. However, there has also been a reaction in terms of tort reform, which in some cases have been struck down as violating state constitutions, and federal preemption of state laws.
Modern torts are heavily affected by insurance and insurance law, as most cases are settled through claims adjustment rather than by trial, and are defended by insurance lawyers, with the insurance policy, a deep pocket limit, setting a ceiling on the possible payment.
Comparative law
In the international comparison of modern tort law, common law jurisdictions based upon English tort law have foundational differences from civil law jurisdiction, which may be based on the Roman concept of delict.
Even among common law countries, however, significant differences
exist. For example, in England legal fees of the winner are paid by the
loser (the English rule versus the American rule of attorney fees). Common law systems include United States tort law, Australian tort law, Canadian tort law, Irish tort law, and Scots Law of Delict. The Jewish law of rabbinic damages is another example although tort in Israeli law is technically similar to English law as it was enacted by British Mandate of Palestine authorities in 1944 and took effect in 1947. There is more apparent split between the Commonwealth countries (principally England, Canada and Australia) and the United States.
The United States has been perceived as particularly prone to
filing tort lawsuits even relative to other common law countries,
although this perception has been criticized and debated. As of 1987, class actions were relatively uncommon outside of the United States. As of 1987, English law was less generous to the plaintiff in the following ways: contingent fee arrangements were restricted, English judges tried more decisions and set damages rather than juries, wrongful death lawsuits were relatively restricted, punitive damages were relatively unavailable, the collateral source rule was restricted, and strict liability, such as for product liability, was relatively unavailable. England's welfare state, such as free healthcare through National Health Service, may limit lawsuits.
On the other hand, as of 1987 England had no workers compensation
system and lawsuits due to workplace injuries were relatively common and
facilitated by trade unions,
whereas in the United States the system of workers' compensation
insurance prohibits lawsuits against the employer although lawsuits
against third parties such as manufacturers does occur. The United States also has faced a rise in no-fault insurance for automobile liability in several states. In England, ombudsmen may also take cases which could alternatively become tort lawsuits.
When comparing Australia and the United States, Australia's tort law is similarly state law;
however, there is a federal common law for torts unlike the United
States. The influence of the United States on Australia has been
limited. The United States may have influenced Australia's development
of strict liability for products indirectly through legislation affected
by European Union, and in the 1990s class actions were introduced in Australia. Australia has universal healthcare and 'welfare state' systems which also limit lawsuits. In New Zealand, a no-fault accident compensation system has limited the development of personal injury torts.
Conflict of laws
In certain instances, different jurisdictions' law may apply to a
tort, in which case rules have developed for which law to apply. This
occurs particularly in the United States, where each of the 50 states
may have different state laws, but also may occur in other countries with a federal system of states, or internationally.
Categories
Torts may be categorized in several ways, with a particularly common division between negligent and intentional torts. Quasi-torts
may be used to refer to torts which are similar to but somewhat
different from typical torts. Particularly in the United States,
"collateral tort" is used to refer to torts in labour law such as intentional infliction of emotional distress ("outrage"); or wrongful dismissal; these evolving causes of action are debated and overlap with contract law or other legal areas to some degree.
The most common action in tort is negligence. The tort of
negligence provides a cause of action leading to damages, or to relief,
in each case designed to protect legal rights, including those of
personal safety, property, and, in some cases, intangible economic
interests or noneconomic interests such as the tort of negligent infliction of emotional distress in the United States. Negligence actions include claims coming primarily from car accidents and personal injury accidents of many kinds, including clinical negligence, worker's negligence and so forth. Product liability
cases, such as those involving warranties, may also be considered
negligence actions or, particularly in the United States, may apply
regardless of negligence or intention through strict liability.
Intentional torts include, among others, certain torts
arising from the occupation or use of land. The tort of nuisance, for
example, involves strict liability for a neighbor who interferes with
another's enjoyment of his real property. Trespass allows owners to sue
for entrances by a person (or his structure, such as an overhanging
building) on their land. Several intentional torts do not involve land.
Examples include false imprisonment, the tort of unlawfully arresting or
detaining someone, and defamation (in some jurisdictions split into libel and slander),
where false information is broadcast and damages the plaintiff's
reputation. Other intentional torts include Battery, Assault, Trespass
to Chattels, Intentional Infliction of Emotional Distress,
Misrepresentation, and Alienation of Affections.
In some cases, the development of tort law has spurred lawmakers
to create alternative solutions to disputes. For example, in some areas,
workers' compensation
laws arose as a legislative response to court rulings restricting the
extent to which employees could sue their employers in respect of
injuries sustained during employment. In other cases, legal commentary
has led to the development of new causes of action outside the
traditional common law torts. These are loosely grouped into quasi-torts or liability torts.
Negligence
Negligence is a tort which arises from the breach of the duty of care owed by one person to another from the perspective of a reasonable person. Although credited as appearing in the United States in Brown v. Kendall, the later Scottish case of Donoghue v Stevenson
[1932] AC 562, followed in England, brought England into line with the
United States and established the 'tort of negligence' as opposed to
negligence as a component in specific actions. In Donoghue,
Mrs. Donoghue drank from an opaque bottle containing a decomposed snail
and claimed that it had made her ill. She could not sue Mr. Stevenson
for damages for breach of contract and instead sued for negligence. The
majority determined that the definition of negligence can be divided
into four component parts that the plaintiff must prove to establish
negligence. The elements in determining the liability for negligence
are:
- The plaintiff was owed a duty of care through a special relationship (e.g. doctor-patient) or some other principle
- There was a dereliction or breach of that duty
- The tortfeasor directly caused the injury [but for the defendant's actions, the plaintiff would not have suffered an injury].
- The plaintiff suffered damage as a result of that breach
- The damage was not too remote; there was proximate cause to show the breach caused the damage
In certain cases, negligence can be assumed under the doctrine of res ipsa loquitur (Latin for "the thing itself speaks"); particularly in the United States, a related concept is negligence per se.
For example, in the business realm, the auditor has a duty of
care to the company they are auditing - that the documents created are a
true and reliable representation of the company's financial position.
However, as per Esanda Finance Corporation Ltd v. Peat Marwick Hungerfords,
such auditors do NOT provide a duty of care to third parties who rely
on their reports. An exception is where the auditor provides the third
party with a privity letter, explicitly stating the third party can rely
on the report for a specific purpose. In such cases, the privity letter
establishes a duty of care.
The case Chapman v Hearse
added to the precedent of negligence where in previous cases reasonable
foreseeability was applied narrowly to include all predictable actions,
Chapman v Hearse extended this to include all damages of the same nature which could be reasonably foreseen.
Proximate cause
Proximate cause means that you must be able to show that the harm was caused by the tort you are suing for.
The defense may argue that there was a prior cause or a superseding
intervening cause. A common situation where a prior cause becomes an
issue is the personal injury car accident, where the person re-injures
an old injury. For example, someone who has a bad back is injured in the
back in a car accident. Years later he is still in pain. He must prove
the pain is caused by the car accident, and not the natural progression
of the previous problem with the back. A superseding intervening cause
happens shortly after the injury. For example, if after the accident the
doctor who works on you commits malpractice and injures you further,
the defense can argue that it was not the accident, but the incompetent
doctor who caused your injury.
Intentional torts
Intentional torts are any intentional acts that are reasonably
foreseeable to cause harm to an individual, and that do so. Intentional
torts have several subcategories:
- Torts against the person include assault, battery, false imprisonment, intentional infliction of emotional distress, and fraud, although the latter is also an economic tort.
- Property torts involve any intentional interference with the property rights of the claimant (plaintiff). Those commonly recognized include trespass to land, trespass to chattels (personal property), and conversion.
An intentional tort requires an overt act, some form of intent, and
causation. In most cases, transferred intent, which occurs when the
defendant intends to injure an individual but actually ends up injuring
another individual, will satisfy the intent requirement. Causation can be satisfied as long as the defendant was a substantial factor in causing the harm.
Statutory torts
A
statutory tort is like any other, in that it imposes duties on private
or public parties, however they are created by the legislature, not the
courts. For example, the European Union's Product Liability Directive
imposes strict liability for defective products that harm people; such
strict liability is not uncommon although not necessarily statutory.
As another example, in England common law liability of a landowner to guests or trespassers was replaced by the Occupiers' Liability Act 1957; a similar situation occurred in the U.S. State of California in which a judicial common law rule established in Rowland v. Christian was amended through a 1985 statute.
Statutory torts also spread across workplace health and safety laws and
health and safety in food. In some cases federal or state statutes may
preempt tort actions, which is particularly discussed in terms of the
U.S. FDA Preemption; although actions in the United States for medical devices are preempted due to Riegel v. Medtronic, Inc. (2008), actions for medical drugs are not due to Wyeth v. Levine (2009).
Nuisance
"Nuisance" is traditionally used to describe an activity which is
harmful or annoying to others such as indecent conduct or a rubbish
heap. Nuisances either affect private individuals (private nuisance) or
the general public (public nuisance). The claimant can sue for most acts
that interfere with their use and enjoyment of their land. In English
law, whether activity was an illegal nuisance depended upon the area and
whether the activity was "for the benefit of the commonwealth", with
richer areas subject to a greater expectation of cleanliness and quiet. The case Jones v Powell
(1629) provides an early example, in which a person's professional
papers were damaged by the vapors of a neighboring brewery. Although the
outcome of this case is unclear, Whitelocke of the Court of the King's Bench
is recorded as saying that since the water supply in area was already
contaminated, the nuisance was not actionable as it is "better that they
should be spoiled than that the commonwealth stand in need of good
liquor".
In English law, a related category of tort liability was created in the case of Rylands v Fletcher
(1868): strict liability was established for a dangerous escape of some
hazard, including water, fire, or animals as long as the cause was not
remote. In Cambridge Water Co Ltd v Eastern Counties Leather plc (1994), chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's water reservoirs. The Rylands rule remains in use in England and Wales. In Australian law, it has been merged into negligence.
Defamation
Defamation is tarnishing the reputation of someone; it has two varieties, slander and libel.
Slander is spoken defamation and libel is printed or broadcast
defamation. The two otherwise share the same features: making a factual
assertion for which evidence does not exist. Defamation does not affect
or hinder the voicing of opinions, but does occupy the same fields as
rights to free speech in the First Amendment to the Constitution of the
United States, or Article 10 of the European Convention of Human Rights.
Related to defamation in the U.S. are the actions for misappropriation
of publicity, invasion of privacy, and disclosure. Abuse of process and
malicious prosecution are often classified as dignitary torts as well.
Business torts
Business torts (i.e., economic torts) typically involve commercial transactions, and include tortious interference
with trade or contract, fraud, injurious falsehood, and negligent
misrepresentation. Negligent misrepresentation torts are distinct from
contractual cases involving misrepresentation in that there is no privity of contract; these torts are likely to involve pure economic loss
which has been less-commonly recoverable in tort. One criterion for
determining whether economic loss is recoverable is the "foreseeability"
doctrine. The economic loss rule is highly confusing and inconsistently applied
and began in 1965 from a California case involving strict liability for
product defects; in 1986, the U.S. Supreme Court adopted the doctrine
in East River S.S. Corp. v. Transamerica Deleval, Inc. In 2010, the supreme court of the U.S. state of Washington replaced the economic loss doctrine with an "independent duty doctrine".
Economic antitrust torts have been somewhat submerged by modern competition law.
However, in the United States, private parties are permitted in certain
circumstances to sue for anticompetitive practices, including under
federal or state statutes or on the basis of common law tortious interference, which may be based upon the Restatement (Second) of Torts §766. Federal laws include the Sherman Antitrust Act of 1890 followed by the Clayton Antitrust Act which restrict cartels and through Federal Trade Commission regulate mergers and acquisitions.
In the European Union, articles 101 and 102 of the Treaty on the
Functioning of the European Union apply but allowing private actions to
enforce antitrust laws is under discussion.
Negligent misrepresentation as tort where no contractual privity exists was disallowed in England by Derry v Peek [1889]; however, this position was overturned in Hedley Byrne v Heller in 1964 so that such actions were allowed if a "special relationship" existed between the plaintiff and defendant. United States courts and scholars "paid lip-service" to Derry; however, scholars such as William Prosser argued that it was misinterpreted by English courts. The case of Ultramares Corporation v. Touche (1932) limited the liability of an auditor to known identified beneficiaries of the audit and this rule was widely applied in the United States until the 1960s. The Restatement (Second) of Torts
expanded liability to "foreseeable" users rather than specifically
identified "foreseen" users of the information, dramatically expanding
liability and affecting professionals such as accountants, architects, attorneys, and surveyors. As of 1989, most U.S. jurisdictions follow either the Ultramares approach or the Restatement approach.
The tort of deceit for inducement into a contract is a tort in English law, but in practice has been replaced by actions under Misrepresentation Act 1967.
In the United States, similar torts existed but have become superseded
to some degree by contract law and the pure economic loss rule. Historically (and to some degree today), fraudulent (but not negligent)
misrepresentation involving damages for economic loss may be awarded
under the "benefit-of-the-bargain" rule (damages identical to expectation damages in contracts) which awards the plaintiff the difference between the value represented and the actual value. Beginning with Stiles v. White
(1846) in Massachusetts, this rule spread across the country as a
majority rule with the "out-of-pocket damages" rule as a minority rule.
Although the damages under the "benefit-of-the-bargain" are described
as compensatory, the plaintiff is left better off than before the
transaction.
Since the economic loss rule would eliminate these benefits if applied
strictly, there is an exception to allow the misrepresentation tort if
not related to a contract.
Liability, defenses, and remedies
Indirect liability may arise due to some involvement, notably through joint and several liability doctrines as well as forms of secondary liability. Liability may arise through enterprise liability. Other concepts include market share liability.
Vicarious liability
In certain cases, a person might be liable for their employee or child under the law of agency through the doctrine of respondeat superior.
For example, if a shop employee spilled cleaning liquid on the
supermarket floor and a victim fell and suffered injuries, the plaintiff
might be able to sue either the employee or the employer. There is
considerable academic debate about whether vicarious liability is
justified on no better basis than the search for a solvent defendant, or
whether it is well founded on the theory of efficient risk allocation.
Defenses
A successful defense absolves the defendant from full or partial
liability for damages. Apart from proof that there was no breach of
duty, there are three principal defenses to tortious liability.
Consent and warning
Typically, a victim cannot hold another liable if the victim has
implicitly or explicitly consented to engage in a risky activity. This
is frequently summarized by the maxim "volenti non fit injuria"
(Latin: "to a willing person, no injury is done" or "no injury is done
to a person who consents"). In many cases, those engaging in risky
activities will be asked to sign a waiver releasing another party from liability.
For example, spectators to certain sports are assumed to accept a
risk of injury, such as a hockey puck or baseball striking a member of
the audience. Warnings by the defendant may also provide a defense
depending upon the jurisdiction and circumstances. This issue arises,
for example, in the duty of care that landowners have for guests or trespasses, known as occupiers' liability.
Comparative or contributory negligence
If the victim has contributed to causing their own harm through
negligent or irresponsible actions, the damages may be reduced or
eliminated entirely. The English case Butterfield v. Forrester (1809) established this defense. In England, this "contributory negligence" became a partial defense, but in the United States, any fault by the victim completely eliminated any damages. This meant that if the plaintiff was 1% at fault, the victim would lose the entire lawsuit. This was viewed as unnecessarily harsh and therefore amended to a comparative negligence system in many states; as of 2007 contributory negligence exists in only a few states such as North Carolina and Maryland.
In comparative negligence, the victim's damages are reduced
according to the degree of fault. Comparative negligence has been
criticized as allowing a plaintiff who is recklessly 95% negligent to
recover 5% of the damages from the defendant. Economists have further
criticized comparative negligence as not encouraging precaution under
the calculus of negligence.
In response, many states now have a 50% rule where the plaintiff
recovers nothing if the plaintiff is more than 50% responsible.
Illegality
If
the claimant is involved in wrongdoing at the time the alleged
negligence occurred, this may extinguish or reduce the defendant's
liability. The legal maxim ex turpi causa non oritur actio,
Latin for "no right of action arises from a despicable cause". Thus, if
a burglar is verbally challenged by the property owner and sustains
injury when jumping from a second story window to escape apprehension,
there is no cause of action against the property owner even though that
injury would not have been sustained but for the property owner's
intervention.
Other defenses and immunities
Historically, immunity has been granted to governments under sovereign immunity and to charitable organizations under charitable immunity, although these have eroded in the United States.
Various laws limit liability when giving aid to a person in need; liability can arise from a failure to help due to the duty to rescue.
Remedies
The main remedy against tortious loss is compensation in damages
or money. In a limited range of cases, tort law will tolerate
self-help, such as reasonable force to expel a trespasser. This is a
defense against the tort of battery. Further, in the case of a
continuing tort, or even where harm is merely threatened, the courts
will sometimes grant an injunction, such as in the English case Miller v Jackson
(1977). This means a command, for something other than money by the
court, such as restraining the continuance or threat of harm. Usually
injunctions will not impose positive obligations on tortfeasors, but
some Australian jurisdictions can make an order for specific performance to ensure that the defendant carries out their legal obligations, especially in relation to nuisance matters.
Theory and reform
Scholars and lawyers have identified conflicting aims for the law of
tort, to some extent reflected in the different types of damages awarded
by the courts: compensatory, aggravated, and punitive. British scholar Glanville Williams notes four possible bases on which different torts rested: appeasement, justice, deterrence and compensation.
From the late 1950s a group of legally oriented economists and economically oriented lawyers known as law and economics scholars emphasized incentives and deterrence, and identified the aim of tort as being the efficient distribution of risk. Ronald Coase, a principal proponent, argued in The Problem of Social Cost (1960) that the aim of tort law, when transaction costs
are high, should be to reflect as closely as possible the allocation of
risk and liability at which private parties arrive when transaction
costs are low.
Since the mid-to-late 20th century, calls for reform of tort law
have come from various perspectives. Some calls for reform stress the
difficulties encountered by potential claimants. For example, because
not all people who have accidents can find solvent defendants from which
to recover damages in the courts, P. S. Atiyah has called the situation a "damages lottery". Consequently, in New Zealand, the government in the 1960s established a no-fault system of state compensation for accidents. Similar proposals have been the subject of command papers in the UK and much academic debate.
In the U.S., reform has typically limited the scope of tort law and damages available, such as limiting joint and several liability, the collateral source rule, or capping noneconomic damages for emotional distress or punitive damages. These reform statutes are sometimes rejected as unconstitutional under the state constitutions by state supreme courts, with the Seventh Amendment to the United States Constitution possibly also relevant. Theoretical and policy considerations are central to fixing liability for pure economic loss and of public bodies.
Relationship to contract law
Tort is sometimes viewed as the causes of action which are not defined in other areas such as contract or fiduciary law. However, tort and contract law are similar in that both involve a breach of duties, and in modern law these duties have blurred and it may not be clear whether an action "sounds in tort or contract"; if both apply and different standards apply for each (such as a statute of limitations), courts will determine which is the "gravamen" (the most applicable). Circumstances such as those involving professional negligence
may involve both torts and contracts. The choice may affect time limits
or damages, particularly given that damages are typically relatively
limited in contract cases while in tort cases noneconomic damages such as pain and suffering may be awarded. Punitive damages are relatively uncommon in contractual cases versus tort cases. However, compensation for defective but not unsafe products is typically available only through contractual actions through the law of warranty.
In the United Kingdom, plaintiffs in professional negligence
cases have some degree of choice in which law while in commercial
transactions contract law applies; in unusual cases, intangible losses
have been awarded in contract law cases.
The English case Hadley v. Baxendale
(1854), which was adopted in the United States, split contract and tort
damages by foreseeability of the damages when the contract was made. In the United States, the pure economic loss rule was adopted to further prevent negligence lawsuits in breach of contract cases. This "economic loss rule" was adopted by the Supreme Court of the United States East River Steamship Corp V Transamerica Delaval Inc. (1986) and expanded across the country in a non-uniform manner, leading to confusion. Among other examples, the tort of insurance bad faith arises out of a contractual relationship, and "collateral torts" such as wrongful dismissal involving possible overlap with labour law contracts.
Overlap with criminal law
There is some overlap between criminal law and tort. For example, in English law
an assault is both a crime and a tort (a form of trespass to the
person). A tort allows a person, usually the victim, to obtain a remedy
that serves their own purposes (for example by the payment of damages to a person injured in a car accident, or the obtaining of injunctive relief
to stop a person interfering with their business). Criminal actions on
the other hand are pursued not to obtain remedies to assist a person –
although often criminal courts do have power to grant such remedies –
but to remove their liberty on the state's behalf. This explains why incarceration
is usually available as a penalty for serious crimes, but not usually
for torts. In early common law, the distinction between crime and tort
was not distinct.
The more severe penalties available in criminal law also means that it requires a higher burden of proof to be discharged than the related tort. For example, in the O. J. Simpson murder trial, the jury was not convinced beyond reasonable doubt that O. J. Simpson had committed the crime of murder; but in a later civil trial, the jury in that case decided that there was sufficient evidence to meet the standard of preponderance of the evidence required to prove the tort of wrongful death.
Many jurisdictions, especially the US, retain punitive
elements in tort damages, for example in anti-trust and
consumer-related torts, making tort blur the line with criminal acts.
Also there are situations where, particularly if the defendant ignores
the orders of the court, a plaintiff can obtain a punitive remedy
against the defendant, including imprisonment. Some torts may have a
public element – for example, public nuisance –
and sometimes actions in tort will be brought by a public body. Also,
while criminal law is primarily punitive, many jurisdictions have
developed forms of monetary compensation or restitution which criminal
courts can directly order the defendant to pay to the victim.
Law and economics
William M. Landes, Richard A. Posner, and Steven Shavell have initiated a line of research in the law and economics literature that is focused on identifying the effects of tort law on people's behavior. These studies often make use of concepts that were developed in the field of game theory.
