A tort is a civil wrong, other than a breach of contract, for which a court gives a remedy, usually money. Tort law is mostly state common law, built up case by case, and it is private law: the injured person sues (see public and private law).
Key idea
A tort is a civil wrong. Negligence requires a duty, a breach of that duty, causation (actual and proximate) and damages. Intentional torts include battery, assault and trespass. Strict liability applies, without fault, to a few activities, such as abnormally dangerous ones.
| Kind | Fault required | Examples |
|---|---|---|
| Intentional torts | intent to do the act (or knowledge its result is substantially certain) | battery (harmful or offensive contact), assault (causing a reasonable fear of imminent contact), false imprisonment, trespass to land |
| Negligence | failure to use reasonable care | a driver who runs a red light; a store that ignores a spill |
| Strict liability | none: liability without fault | blasting; keeping wild animals; many claims for defective products |
Why it works
Tort law shifts the cost of an injury to the person responsible for it, which compensates the injured and gives everyone reason to take care. Negligence measures care against the reasonable person: what would a reasonably careful person have done? Causation has two parts. Actual cause asks whether the harm would have happened "but for" the conduct. Proximate cause limits liability to harms that were a foreseeable result of the risk. In Palsgraf v. Long Island Railroad Co. (New York, 1928, 4–3), railroad guards pushed a man onto a moving train; he dropped a package of fireworks, which exploded, and a scale some distance away fell on Helen Palsgraf. Chief Judge Benjamin Cardozo held the railroad owed her no duty, because no harm to her was foreseeable from the guards' conduct. Most states now use comparative negligence, reducing a plaintiff's award by her own share of fault.
Worked example: Which element is missing?
A driver texting at a red light rolls forward and taps the bumper of the car ahead. There is no dent, no injury, and no cost of any kind. The other driver sues for negligence. Who wins?
- Duty: drivers owe others reasonable care. Yes.
- Breach: texting and rolling forward is careless. Yes.
- Causation: the tap was caused by the conduct. Yes.
- Damages: none at all.
Answer: The texting driver: negligence requires actual damages.
Worked example: Intent without touching
Ben swings a fist at Ana, who sees it coming and ducks; he misses. Battery, assault, both or neither?
- Battery requires a harmful or offensive contact: none happened.
- Assault requires causing a reasonable apprehension of an imminent contact: Ana saw the swing coming.
Answer: Assault, not battery.
Common mistake
Thinking any accident means someone was negligent. Negligence needs a breach of the duty of reasonable care, plus causation and harm. Many accidents happen even when everyone acts reasonably, and then no one is liable in negligence. Check: what would a reasonable person have done differently?
This is an educational course, not legal advice.