What is tort law?

The three families of torts

Almost every claim falls into one of three groups, and the group decides what has to be proved:

• Negligence — the largest by far. Someone owed a duty of reasonable care, fell short of it, and the shortfall caused measurable harm. Car crashes, slip-and-falls and most medical cases belong here.
• Intentional torts — the act was deliberate: battery, assault, false imprisonment, defamation, trespass, fraud. Intent to act is enough; intent to injure is not required. A shove meant as a joke is still battery if it breaks a wrist.
• Strict liability — fault is not part of the question. Defective products, abnormally dangerous activities and, in many states, dog bites are judged by what happened, not by how careful the defendant was.

Tort, crime or contract?

The same event can lead to more than one kind of case. A drunk driver who injures a pedestrian can be prosecuted by the state for DUI and sued by the pedestrian in tort. The criminal case punishes; the tort case compensates. The two run separately, use different standards of proof, and can end differently — a defendant acquitted of a crime can still be found liable in a civil suit, because the civil standard is only “more likely than not.”

A tort also differs from a breach of contract. A contract claim enforces a promise the parties made to each other. A tort claim enforces duties the law imposes on everyone, whether or not they agreed to anything. When a contractor installs a staircase badly, the homeowner may have a contract claim; a guest who falls on it has a tort claim.

What a tort claim has to show

In a negligence case the four elements are duty, breach, causation and damages, and all four must hold. A driver may have been plainly careless, but if you walked away unhurt there is nothing to compensate. An injury may be severe, but if nobody breached a duty there is no claim. Intentional torts have their own elements — for defamation, for example, a false statement of fact, published to someone else, that damaged your reputation.

What a win is worth

Damages usually split into two parts. Economic losses can be added up: medical bills, future treatment, lost earnings, reduced earning capacity, repairs. Non-economic losses cover pain, emotional distress and loss of enjoyment of life. Punitive damages exist but are reserved for conduct a court calls reckless or malicious, and many states cap them or send part of the award to the state.

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Who actually pays

In practice most tort judgments and settlements are paid by insurance — auto, homeowner's, business liability or professional malpractice cover. That is why the defendant's policy limits shape so many cases: a claim worth $500,000 against a driver with a $25,000 policy and no assets may, realistically, be worth what your own underinsured-motorist coverage adds. A lawyer's first questions are often about insurance rather than about blame.

Common torts you may run into

• Personal injury — collisions, falls, dog bites, defective products.
• Wrongful death — a claim brought by the family or estate when a tort kills someone.
• Defamation — libel (written) and slander (spoken).
• Nuisance and trespass — interference with the use of land, from flooding to constant noise.
• Conversion — taking or destroying someone else's property.
• Intentional infliction of emotional distress — outrageous conduct that causes severe distress.

Where state law changes the answer

Tort law is mostly state law, and two rules differ enough to change the outcome of the same accident. The first is how shared blame is handled: most states reduce the award by your percentage of fault, some bar recovery once you pass 50 or 51 percent, and a handful — Alabama, Maryland, North Carolina, Virginia and the District of Columbia — still apply contributory negligence, where any fault at all can end the claim. The second is the filing deadline, which runs from one to six years depending on the state and the type of harm, and can be far shorter for claims against a city or state agency.

If you think you have a claim

Get medical care and keep every record. Photograph the scene and your injuries, collect names of witnesses, and keep receipts for every cost. Do not give a recorded statement to the other side's insurer before you understand your position. Most tort lawyers offer a free first consultation and work on contingency, so finding out whether the claim is worth pursuing usually costs nothing.