Tort law: what counts as a civil wrong

The Cornell Legal Information Institute’s Wex encyclopedia defines a tort as “an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability” (Wex: tort). Wex is an educational, secondary reference, not a statute or court ruling.

What tort law is for

Tort law aims to give relief to people harmed by others, to place liability on the party responsible, and to discourage harmful conduct. In practice it shifts the cost of a loss from the person who suffered it to the party at fault, or the party better placed to carry it. Most tort claims ask for money. Less often, a person asks a court for an injunction, an order to stop an activity.

Tort, crime or contract?

• A crime is treated as a wrong against the state or society. The government prosecutes it, and its main purpose is public justice.
• A tort is a private wrong. The injured person brings the claim, and its central purpose is compensating the victim rather than punishing the wrongdoer.
• A breach of contract is a broken promise between parties to an agreement. Wex notes that a breach of contract “is not typically considered a tortious act,” even when the contract claim is strong.

Some acts are both a tort and a crime. Wex gives battery as an example, and notes that gross negligence that endangers other people’s lives can be both at once.

Three kinds of tort liability

Wex sorts torts into three general categories, which differ mainly in what the defendant intended and how careful it had to be.

Intentional torts involve deliberate conduct; Wex’s example is intentionally hitting a person. Battery, assault, trespass and false imprisonment are examples, and each has its own required elements, including its own kind of intent. Wex lists battery as requiring an intent to cause contact with the other person, and assault as acting intentionally to make the other person expect an imminent harmful or offensive contact.

Negligence covers conduct that was unreasonably unsafe. The Wex negligence entry describes it as failing to act with the care a reasonable person would have used in the same circumstances (Wex: negligence). A claim typically has to show a duty of care, a breach of that duty, harm, and causation. Wex splits causation into two parts: cause-in-fact (the harm would not have happened but for the conduct) and proximate cause (whether the connection is close enough for legal responsibility). Wex describes foreseeability as one way to assess proximate cause, and notes that the injured person’s own conduct or an intervening factor can affect it.

Strict liability does not depend on how careful the defendant was. Courts focus instead on whether a particular result or harm occurred. Harm alone is still not enough: the claim’s other elements must be shown. Wex’s example is liability for making and selling defective products, where the elements it lists include a commercial seller, a defect when the product was sold, and a defect that actually and proximately caused the injury.

What a court can award

In most successful tort cases, the remedy is compensatory damages. Wex lists the usual components as lost earnings, loss of future earning capacity, pain and suffering, and reasonable medical expenses, so an award can cover both losses already incurred and losses expected later.

In some cases a court adds punitive damages to deter further misconduct. These are exceptional, not a standard part of every claim. An injunction is a different kind of remedy: the party asking for one typically has to show it would suffer considerable or irreparable harm without the court’s intervention.

Why jurisdiction matters

There is no single national tort code. Wex explains that the boundaries of tort law come from common law and state statutes, that judges, in interpreting statutes, have wide latitude in deciding which wrongs are legally recognized, which defenses apply and how damages are measured, and that many courts treat the Restatement of Torts as an influential guide. Two states can answer the same question differently.

Procedure differs too. In federal court, a lawsuit starts with a complaint that describes the harm, explains how the defendant caused it, shows that the court has jurisdiction, and asks for relief; the plaintiff must then prove the case by a “preponderance of the evidence,” meaning more likely than not (U.S. Courts: civil cases). State courts follow their own rules.

Questions to sort a possible tort

• What was the harm? Injury to a person, damage to property, or something else, such as a purely financial loss?
• What was the conduct? Deliberate, careless, or a product or activity where care may not be the question?
• Is it really a contract problem? If the complaint is that a promise was not kept, start with the contract.
• Which state’s law applies? Elements, defenses and damages vary, and filing deadlines are set by each jurisdiction.

This guide explains general legal concepts and is legal information, not legal advice. Tort rules differ by state and depend on the facts; consult a lawyer licensed in the relevant jurisdiction about a specific situation.