Torts

Common law: unlawful violation of private right, not created by

contract, and which gives rise to an action for damages.
An act or omission producing an injury to another, without any
previous legal relation of which the said act or omission may be said to
be a natural outgrowth or incident.
Private or civil wrong or injury, other than breach of contract.
Can be based on all 5 sources of obligation as enumerated in Art.
1157, NCC
Genus; involves any violation of a right
Separate legal institution under the Civil Code
Classes of torts:
Intentional torts
Conduct where the actor desires to cause the consequences of his
acts or believes that consequences are substantially certain to result
from it.
Battery, assault, false imprisonment, defamation, invasion of privacy,
interference of property
Negligence
Voluntary acts or omissions, which result in injury to another without
intending to cause the same. The actor fails to exercise due care in
performing such acts or omissions
Strict liability
The person is made liable independent of fault or negligence
upon submission of proofs of certain facts
Culpa Aquiliana is substantive and independent, which in itself
constitutes the source of obligation between persons not formerly
connected by any legal title.
Culpa Contractual is considered as an accident in the performance of
an obligation already existing.
Culpa Aquiliana affects private concern; means of indemnification,
merely repairs the damage; includes all acts in which any kind of fault
or negligence intervenes.
Culpa Criminal affects public interest; the Penal Code punishes or
corrects the criminal act; are punished if there is a penal law clearly
covering them.
Quasi-Delict Statutorily defined
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation

between the parties, is called a quasi-delict and is governed by the

provisions of this Chapter.
Negligenceis want of care required by the circumstances.
Degree of Negligence
Slight Negligence Failure to exercise great or extraordinary care.
Ordinary Negligence The want of ordinary care or diligence.
Gross Negligence Absence of care is an absence of even slight care
or diligence; it implies a thoughtless disregard for consequences or an
indifference to the rights or welfare of others.
Proximate Cause
Defined as the dominate and immediate cause; the cause that
sets the others in motion; the efficient cause; the one that
necessarily sets the other causes in operation.
Res Ipsa Loquitur
[Latin, The thing speaks for itself.] A rebuttable presumption or
inference that the defendant was negligent, which arises upon
proof that the instrumentality or condition causing the injury was
in the defendant's exclusive control and that the accident was
one that ordinarily does not occur in the absence of negligence.
A rule of evidence whereby negligence of alleged wrongdoer may
be inferred from the mere fact that the accident happened
provided character of accident and circumstances attending it
lead reasonably to belief that in absence of negligence it would
not have occurred and that thing which caused injury is shown to
have been under management and control of alleged wrongdoer.

I.

INTRODUCTION

The United States of America is unique in that it is comprised of a

federal district and fifty states. As a result, the legal system in the
United States is divided into two separate courts: federal and state
courts. The differences between federal and state courts are defined
mainly by jurisdiction, which refers to the types of cases a court is
allowed to decide.
The types of cases heard by courts in the United States can
largely be divided into two areas of law: criminal and civil law. Criminal
laws and the supporting judicial system recognize and enforce
violations of laws that exist to protect all of society from conduct
deemed wrongful. Such laws are typically enacted by the elected
legislative branches of government. The purpose of the criminal law
system in the United States is to punish violators and, by way of
example, deter others from committing similar misconduct.
Unlike criminal law, the primary purpose of civil law in the United
States is not to punish misdeeds but, rather, to compensate those
individuals whose person or property has been wrongfully damaged by
the conduct of another. In addition to compensatory damages,
remedies available to civil litigants include equitable relief, such as an
injunction, whereby a court orders a wrongdoer to cease its harmful
conduct.
Civil law in the United States encompasses not only breaches of
commercial duties and obligations arising from contracts, but also
breaches of duties of care owed to one another by virtue of being
members of society. It is the latter category that comprises tort law in
the United States: i.e., a body of law generally governing duties that
arise by operation of law and not by mere agreement of the parties.
A tort is [a] private or civil wrong or injury, including action for bad
faith breach of contract, for which the court will provide a remedy in
the form of an action for damages. BLACKS LAW DICTIONARY 1036
(Abridged 6th ed. 1991). U.S. tort law has its origin in the British
common law system. Much of U.S. tort law was developed by judges
through years of opinions written in specific cases. The body of law is
fluid, literally changing on a daily basis as new cases cause judges to

reconsider and affirm or revise prior opinions, as well as address issues

that previously escaped adjudication.
Tort law in the United States exists to redress damages caused
an individual by the conduct of another that falls below a standard of
care defined by the civil courts.
II. TYPES OF TORTS
As noted above, the primary purpose of tort law is to
compensate individuals or entities that suffer personal or property
damage because of anothers wrongful conduct and, when possible,
enjoin continuing misconduct. The specific causes of actions
comprising tort law in the United States are too numerous to list, but
include liability arising out of: (1) intentional misconduct; (2)
unreasonable conduct; (3) defects in the design, manufacturing, or
marketing of products sold; and (4) ones relationship to the tortfeasor.
1. Intentional
The intent with which tort liability is concerned is not necessarily a
hostile intent, or a desire to do any harm. Rather it is an intent to bring
about a result which will invade the interests of another in a way that
the law will not sanction. WILLIAM L. PROSSER, LAW OF TORTS 31 (4th
ed. 1971).
Determining whether liability exists for an intentional tort focuses on
whether the actor intended his conduct. The plaintiff need not prove,
however, that the actor intended the harm that actually results. White
v. Muniz, 999 P.2d 814, 819 (Colo. 2000); Mooney v. Carter, 160 P.2d
390 (Colo. 1945) (finding defendant had sufficient intent when she
speeded up her car and swerved for the purpose of throwing plaintiff
from the car).
Perhaps the most common intentional tort to land is trespass. A
trespass occurs when one intentionally enters or causes someone or
something to enter upon the land of another. CJI-Civ. 18:1 (CLE ed.
2010). The owner or lawful possessor of the land may recover damages
for physical damage to the property caused by the trespass. Id. A
trespass may occur when the defendant originally had permission to be
on the land, but such permission was subsequently revoked or
otherwise terminated and defendant remained on the land. Id., Notes
on Use (citing RESTATEMENT (SECOND) OF TORTS 158 (1965)).
Torts similar to trespass exist to allow redress for intentional conduct
damaging personal property. Frequently occurring intentional torts to
persons include:
Battery; Assault; False imprisonment; Infliction of emotional distress
2. Negligence

Negligence is perhaps the most commonly asserted cause of action

in the United States. Negligence is the failure to use such care as a
reasonably prudent and careful person would use under similar
circumstances. BLACKS LAW DICTIONARY 716 (Abridged 6th ed.
1991). Simply, it is conduct below that which society considers
reasonable. When such unreasonable conduct is the proximate cause
of injury to another person or his property, the actor may be liable in
tort for negligence.
What constitutes unreasonable conduct typically is not defined by
statute but, rather, is a question of fact to be determined by the
finder(s) of fact. An exception may exist where instances of misconduct
are frequent and so obviously unacceptable that the law imposes a
rebuttable presumption of negligence. For example, the law may
presume that a rear-end motor vehicle accident results from the
negligence of the driver in the car hitting the vehicle in front of him.
In contrast to intentional torts, in negligence cases the actor need not
intend the conduct causing damage. In fact, by definition the tortfeasor
is not accused of acting with intent, but rather for failing to exercise
the reasonable degree of care required by society as expressed
through judges and juries. The care required is that of a fictional
reasonable man in similar circumstances. Unreasonable conduct often
is deemed to have occurred when motor vehicle accidents result from
excessive speed or inattention to traffic control devices. Negligence
may also be found in a commercial setting, such as where a designer,
manufacturer or seller of a product does not exercise the reasonable
care deemed necessary to prevent a dangerous product from reaching
the consumer.
The essence of every negligence action is that a duty of care is
owed to the plaintiff. Such duties may be found to exist irrespective of
a pre-existing relationship between the parties. Common examples are
the duties imposed on operators of motor vehicles. Other duties exist
by virtue of a pre-existing relationship, such as a doctor-patient
relationship,
attorney-client
relationship,
or
clergy-parishioner
relationship.
Generally, negligence laws exist as a non-criminal regulator of
conduct in society. Those individuals whose conduct falls below the
required minimum standard of care may be liable for the resulting
bodily injury, including death, and property damage.
3. Product Liability
Product liability refers to the legal liability of manufacturers and
sellers to compensate buyers, users, and even bystanders, for
damages or injuries suffered because of defects in goods purchased.
BLACKS LAW DICTIONARY 840 (Abridged 6th ed. 1991); see also Model

Uniform Product Liability Act, 102(2) (1979) (defining product liability

to include all claims or action brought for personal injury, death or
property damage caused by the manufacture, design, formula,
preparation, assembly, installation, testing, warnings, instructions,
marketing, packaging, or labeling of any product). Thus, this tort
action makes a manufacturer liable if its product has a defective
condition that makes it unreasonably dangerous to the user or
consumer. BLACKS LAW DICTIONARY 840 (Abridged 6th ed. 1991).
The rule of tort liability applicable to commercial sellers and other
distributors of products generally has been stated as follows: [o]ne
engaged in the business of selling or otherwise distributing products
who sells or distributes a defective product is subject to liability for
harm to persons or property caused by the defect. RESTATEMENT
(THIRD) OF TORTS: PRODUCTS LIABILITY 1 (1998) (superseding the
RESTATEMENT (SECOND) OF TORTS 402A (1965)); see also Newton v.
Admiral Corp., 280 F. Supp. 202, 203 (D. Colo. 1997) (noting Section
402A of the RESTATEMENT (SECOND) OF TORTS in effect implies a
warranty by the seller that the product is free from defects which
rendered the product unreasonably dangerous to the user).
There is no comprehensive federal scheme governing the law of
product liability. Rather, this area of law varies from state to state and
is a creature of statute or has otherwise become a part of common law
(i.e., it has been developed by judges over the years). Indeed, many
states have enacted comprehensive product liability statutes, some of
which are modeled after the Model Uniform Products Liability Act. See
44 F.R. 62,71462,750 (Model Uniform Product Liability Act). The Model
Uniform Product Liability Act, published by the United States
Department of Commerce in 1979, was meant to set forth uniform
standards for state product liability tort law. Id. at 62,716. Other
states have adopted, in whole or in part, provisions of the Restatement
of Law. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY
121 (1998); see also RESTATEMENT (SECOND) OF TORTS 402 (1965).
However, provisions of the Restatement do not become rules of law
until adopted as such by a court or legislature. Accordingly, it is
imperative for anyone asserting a claim for product liability to
understand the applicable law in the particular jurisdiction in which the
claim is asserted.
Liability can occur at any point along the chain of production and
distribution. Indeed, the manufacturer, wholesaler, and retailer can all
be held accountable for injuries caused by a defective product. See
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY 1 cmt. d
(1998) (noting all commercial sellers and distributors of products,
including nonmanufacturing sellers and distributors such as
wholesalers and retailers, are subject to liability for selling products
that are defective); 20(a) (defining commercial product sellers to
include manufacturers, wholesalers, and retailers). However, legislation

has been enacted in several states that effectively immunizes

nonmanufacturing sellers or distributors from strict liability. Thus,
particular attention must be paid to the laws of the jurisdiction in which
the product liability claim is asserted.
Liability is limited to defective products. A product is broadly
interpreted to include any tangible personal property distributed
commercially for use or consumption. RESTATEMENT (THIRD) TORTS:
PRODUCTS LIABILITY 19 (1998). The defect of a product can come in
several forms: a design defect; a manufacturing defect; or a marketing
defect. Id., 2. A design defect, which occurs before manufacturing,
arises when the specific product unit conforms to the intended design
but the intended design itself renders the product not reasonably safe.
Id., 1 cmt. a; 2(b). A manufacturing defect, which occurs during
manufacturing, is a physical departure from the products intended
design. Id., 1 cmt. a; 2(a). An example would be where the
manufacturer uses the wrong materials or fails to use appropriate
quality controls that results in a defective product. Finally, a marketing
defect, which occurs after manufacturing, arises where the sale of a
specific product without adequate instructions or warnings renders the
product not reasonably safe. Id., 1 cmt. a; 2(c).
Generally speaking, product liability claims may be based on
different theories of liability, including: strict liability, negligence,
misrepresentation, or breach of warranty. Strict product liability has
been described as a term of art that reflects the judgment that
products liability is a discrete area of tort law which borrows from both
negligence and warranty but is not fully congruent with classical tort
or contract law. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS
LIABILITY 1 cmt. a (1998). Strict product liability focuses on the
nature of the product rather than the conduct of either the
manufacturer or the person injured and is premised on the concept of
enterprise liability for casting a defective product into the stream of
commerce. Boles v. Sun Ergoline, Inc., 223 P.3d 724, 727 (Colo. 2010).
Under the Second Restatement of Torts, strict liability could be found
under all three theories of liability: i.e., manufacturing defects;
marketing defects; and design defects. See RESTATEMENT (SECOND)
OF TORTS 402A (1965). Under the Third Restatement of Torts,
however, the only theory that allows for strict liability is one that is
based on a manufacturing defect.
Unlike strict product liability, where a product liability action is
brought on a negligence theory the focus is on the conduct of the
defendant. To recover under a negligence theory, a plaintiff must show
that the defendant breached a duty of care owed to the plaintiff and
thereby caused the plaintiffs injuries. See Section II(2), supra. Unlike
strict liability, in order to prevail on a negligence theory, the plaintiff
must show that the defect resulted from the defendants failure to

exercise reasonable care. Id. In some states, as in a negligence action,

a plaintiff may rely on the doctrine of res ipsa loquitor. See
RESTATEMENT (SECOND) OF TORTS 328D (1965).
A product liability claim may also be brought under a theory of
breach of warranty, which may be based on either express or implied
warranties, including the implied warranty of fitness for a particular
purpose and the implied warranty of merchantability. These cases are
substantially controlled by the Uniform Commercial Code, which
governs commercial transactions and has been adopted in whole or
substantially by all states. See BLACKS LAW DICTIONARY 1064
(Abridged 6th ed. 1991). Although a product liability claim based on
breach of warranty is a tort action, the theory is intertwined with
contract law because warranty is based on a contractual relationship.
These contractual issues can make it more difficult for a plaintiff to
succeed on this theory, notwithstanding the fact that the plaintiff is not
required to prove defendant was negligent under this theory. Plaintiff
must also provide timely notice.
Finally, some states allow strict liability for manufacturers for
misrepresentation. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS
LIABILITY 9 (1998) (One engaged in the business of selling or
otherwise distributing products who, in connection with the sale of a
product, makes a fraudulent, negligent, or innocent misrepresentation
of material fact concerning the product is subject to liability for harm to
persons or property caused by the misrepresentation.); see also
RESTATEMENT (SECOND) OF TORTS 402B (1965) (superseded by
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY 9 (1998)).
4. Vicarious Liability
The types of torts previously discussed have required some degree
of misconduct by the actor. Tort law in the United States also imposes
liability on individuals and entities simply by virtue of their relationship
to the tortfeasor. Such liability is referred to as vicarious liability,
meaning indirect or imputed legal responsibility for acts of another.
BLACKS LAW DICTIONARY 1084 (Abridged 6th ed. 1991). A frequent
example of vicarious liability arises in the employer-employee
relationship. If the employee negligently causes an accident while
acting within the course and scope of his employment, the employer
although free of fault may be liable for the losses flowing from its
employees misconduct.
Consistent with the purpose of tort law in the United States i.e.,
to compensate persons for their injuries and damages vicarious
liability generally is imposed on an employer to provide another source
from which to compensate victims. Proponents of vicarious liability
theories reason that, because the employer was benefiting from its
employees actions when the accident occurs, the employer should

also be responsible to those injured as a result of the employees

negligence when that negligence is within the scope of the
employment relationship.
The employer-employee relationship is but one example of vicarious
liability. Other examples include the permissive use of a motor vehicle
by a motor vehicle owner to another family member, as well as
instances involving the parent-child relationship and joint venturers.
5. Other Types of Torts
The body of tort law in the United States is so broad and deep that it
would be difficult, if not impossible, to discuss or even identify all torts
in this article. The types of torts addressed above are amongst those
most commonly litigated. However, they are not exhaustive.
Other recognized torts include causes of action for defamation
(written or verbal misstatements of fact), premises liability (governing
duties of an owner or possessor of land to occupants), malicious
prosecution and abuse of legal process, false imprisonment,
outrageous conduct, intentional interference with contractual
obligations, bad faith breach of insurance contract, breach of fiduciary
duty, civil conspiracy, invasion of privacy, and wrongful discharge from
employment.
II.

PROVING LIABILITY

1. Burden of Proof
Burden of proof is [t]he obligation of a party to establish by
evidence a requisite degree of belief concerning a fact in the mind of
the trier of fact or the court. BLACKS LAW DICTIONARY 13536
(Abridged 6th ed. 1991). In civil litigation, the initial burden of proof is
on the plaintiff. Although there are times the burden of going forward
may shift to the defendant, such as where the plaintiff has established
a prima facie case, the plaintiff bears the burden of proof throughout
trial. However, a defendant bears the burden of proof on all affirmative
defenses raised in response to a Complaint.
In civil litigation, a plaintiff must prove his or her case by a
preponderance of the evidence, which is defined as that degree of
proof which is more probable than not. BLACKS LAW DICTIONARY 819
(Abridged 6th ed. 1991). This degree of proof stands in stark contrast
to, and represents a crucial departure from, the degree of proof
required in a criminal case in the United States, where the burden of
proof is beyond a reasonable doubt. Beyond a reasonable doubt
means that facts proven must, by virtue of their probative force,
establish guilt. Id. at 111. The standard of proof beyond a reasonable

doubt has limited use in civil cases, such as claims for exemplary
damages.
There are some exceptions to the general rule that a plaintiff must
prove his or her case by a preponderance of the evidence in a civil
case, such as where the plaintiff must prove his or her case by clear
and convincing evidence. This degree of proof is [t]hat proof which
results in reasonable certainty of the truth of the ultimate fact in
controversy, requires more than a preponderance of the evidence but
less than proof beyond a reasonable doubt. BLACKS LAW DICTIONARY
172 (Abridged 6th ed. 1991).
2. Duty
The term duty is used through the Restatement of Torts to
denote the fact that the actor is required to conduct himself in a
particular manner at the risk that if he does not do so he becomes
subject to liability to another to whom the duty is owed for any injury
sustained by such other, of which that actors conduct is a legal
cause. BLACKS LAW DICTIONARY 349 (Abridged 6th ed. 1991). An
actors duty is intertwined with the notion of due care, viewed in terms
of an actors reasonableness: i.e., [t]hat degree of care that a
reasonable person can be expected to exercise to avoid harm
reasonably foreseeable if such care is not taken or [t]hat care which
an ordinarily prudent person would have exercised under the same or
similar circumstances. Id. at 345.
3. Proximate Cause
Most torts require that the defendants act be the proximate cause
of the injury sustained by the plaintiff. An injury or damage is
proximately caused by an act, or a failure to act, whenever it appears
from the evidence in the case, that the act or omission played a
substantial part in bringing about or actually causing the injury or
damage; and that the injury or damage was either a direct result or a
reasonably probable consequence of the act or omission. BLACKS
LAW DICTIONARY 853 (Abridged 6th ed. 1991).
III.

DAMAGES

Damages are the means by which a party injured in tort is

compensated for the harm suffered, and an injured party is generally
entitled to recover damages for the natural and probable
consequences of the tort. Damages are primarily divided into two
categories: compensatory and punitive. BLACKS LAW DICTIONARY 270
(Abridged 6th ed. 1991).

The purpose of compensatory damages is to make the injured

party whole by compensating him or her for injuries sustained as a
result of the defendants actions. BLACKS LAW DICTIONARY 270
(Abridged 6th ed. 1991). Compensatory damages are generally divided
into the following categories: economic; non-economic; and physical
impairment or disfigurement. Economic damages typically refer to the
pecuniary harm suffered by an injured party, or those damages that
can be accurately calculated in monetary terms. Non-economic
damages refer to the non-pecuniary harm suffered by an injured party.
Such damages include emotional distress, pain and suffering,
inconvenience, fear and anxiety, and impairment of the quality of life.
Non-economic damages, as well as punitive damages, are often limited
by statute due in large part to the widespread tort reform passed in
state legislatures as a result of excessive damage awards.
Punitive damages, on the other hand, are meant to punish the
defendant and make an example of him or her in order to deter similar
conduct. Punitive damages are similar to non-economic damages in
that they are often limited by statute.
In general, attorney fees are not recoverable as damages or costs in
civil litigation unless authorized by contract, statute, or court rule. This
general rule, known as the American rule stands in stark contrast to
the English rule, which provides attorney fees to the prevailing party.
Costs, however, are typically awarded to the prevailing party.
IV.

GOVERNMENTAL CONSIDERATIONS

Sovereign immunity is the judicial doctrine which precludes

bringing suit against the government without its consent. BLACKS
LAW DICTIONARY 970 (Abridged 6th ed. 1991). This doctrine applies to
the federal, state and local governments.
The federal government has generally waived its non-tort action
immunity in the Tucker Act, 28 U.S.C.A. 1346(a)(2), 1491, and its tort
immunity in the Federal Tort Claims Act, 28 U.S.C.A. 1346(b), 2674.
The Federal Tort Claims Act largely abrogated the federal governments
immunity from tort liability and established the conditions for suits and
claims against the federal government. See 28 U.S.C.A. 1346(b),
2674. However, the Federal Tort Claims Act preserves governmental
immunity with respect to the traditional categories of intentional torts,
and with respect to acts or omissions which fall within the
discretionary function or duty of any federal agency or employee.
BLACKS LAW DICTIONARY 426 (Abridged 6th ed. 1991). Most states
have also waived immunity to various degrees at both the state and
local government levels.
V.

CONCLUSION

This article is meant only as a broad overview of tort law in the

United States. Much like the make-up of its individual states, the body
of tort law in the United States can vary from state to state.
Accordingly, consultation with a local practitioner in the appropriate
jurisdiction is strongly recommended.
To state a legally cognizable claim for prima facie tort, a
plaintiff must allege
[T]he intentional infliction of harm,
[W]hich results in special damages,
[W]ithout any excuse or justification,
[B]y an act or series of acts which would otherwise be lawful. . . .
In addition, there can be no recovery under this theory unless
malevolence is the sole motive for defendants otherwise lawful act or,
in [other words], unless defendant acts from disinterested
malevolence.
Posner v. Lewis, 18 N.Y.3d 566, 570 n.2 (2012).
[P]rima facie tort was designed to provide a remedy for
intentional and malicious actions that cause harm and for which no
traditional tort provides a remedy, and not to provide a catch all
alternative for every cause of action which cannot stand on its legs.