What is a Tort?
July 24th, 2009. By AbiK
Sometimes a Pleading Ignorance topic can make you feel, well, ignorant. Just seems like all these legal terms that get thrown around in the news every day are things we should all know. But, in reality, we don’t. Case in point: according to urtak.com, when asked the question, “Do you know what the legal term tort means?” 64% of 227 respondents to date said they do not. 64%! That’s a lot of folks out there. So let’s start a little “Know your Torts!” campaign. Or, at the very least, let’s define what a tort is…
What is a Tort?
The definition provided at freedictionary.com, from The American Heritage Dictionary, is this:
Damage, injury, or a wrongful act done willfully, negligently, or in circumstances involving strict liability, but not involving breach of contract, for which a civil suit can be brought.
Huh?
Basically, a tort is a civil wrong (i.e., not a criminal offense) other than a breach of contract that injures another and for which the law imposes civil liability.
To go back to the freedictionary.com definition, there are 3 general categories of torts: intentional torts (i.e., done willfully), negligent torts, and strict liability torts.
Intentional torts are when the defendant either knew, or should have known, that a wrong would result from their action or incaction.
Negligent torts are when the defendent fails to use reasonable care, resulting in harm or damage to the plaintiff.
Strict liability torts are similar to negligent torts in that a particular action causes harm or damage; the difference is that it’s regardless of intent—so the victim does not have to prove negligence.
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Does the constitution protect our rights with regards to torts? Specifically Amendment 7 where we have a right to a trial by jury for any claim greater than $20. How does this fit with the Tort Reform campaigns that we see so broadly splashed across the media these days? Isn't this right, without any caps or reforms or modifications, one of our constitutional rights as citizens of the United States of America?
Hi Snowman, Good question. And yes, as it stands today, our rights to a trial by jury are protected by the 7th Amendment. What you're hearing–and have heard–splashed all over the media regarding tort reform is ultimately a question of the economics of litigation–the cost of it when awards for med mal or product liability cases (think big tobacco) continue to edge upwards into a monetary realm that's incomprehensible to most people. A quarter of a trillion dollars is a lot of money, by anyone's measurment. And the concerns are not just about the amount itself–for example, some argue that if a large corporation is forced to pay huge damages for a lawsuit, the intended deterrent effect ultimately does more to inhibit innovation than to deter any wrongdoing. It's just one of many arguments out there. But what's key with tort reform regarding award amounts is that the constitution–as it is written–does not have any guideline for how much is too much of an award. The constitution relative to the 5th and 14th Amendments only deals with procedural and substantive due process, and the 7th Amendment with the right to a trial by one's peers. So if one sticks to the letter of the law, so to speak, there's no guidance relative to what an award should be–and constitutional law purists would argue that monetary caps from a constitutional standpoint would therefore be unconstitutional. And as such, the only way to go after reform is to start to change the game–ie, look at the levers–from a procedural standpoint, for example–that might impact how a lawsuit is brought to trial. Things such as limiting the jurisdictions where a lawsuit can be filed or putting limits on the collateral source doctrine, which currently prohibits information (evidence) about whether a plaintiff's compensation may be sourced by someone (eg, an insurance company) other than the defendant from being admitted into court. It's a complex issue, with a lot of partisan politics in play. But if you have faith in the constitution and what our forefathers created, then the constitution will prevail and you'll retain your right to a trial by jury for any civil wrongdoing.