Types of Law

Criminal Law

It is a crime to make unauthorized and harmful physical contact with another person ( battery ). In
fact, it is a crime even to threaten such contact ( assault ). Criminal law prohibits and punishes
wrongful conduct, such as assault and battery, murder, robbery, extortion, and fraud. In criminal
cases, the plaintiff—the party filing the complaint—is usually a government body acting as a
representative of society. The defendant—the party charged in the complaint—may be an
individual (such as your roommate) or an organization (such as a business). Criminal punishment
includes fines, imprisonment, or both.

Civil Law

Assault and battery may also be a matter of civil law—law governing disputes between private
parties (again, individuals or organizations). In civil cases, the plaintiff sues the defendant to obtain
compensation for some wrong that the defendant has allegedly done the plaintiff. Thus, your
roommate may be sued for monetary damages by the homeowner’s neighbor, with whom he
made unauthorized and harmful physical contact.

In civil litigation, contract and tort claims are by far the most numerous. The law attempts to adjust
for harms done by awarding damages to a successful plaintiff who demonstrates that the
defendant was the cause of the plaintiff’s losses. Torts can be intentional torts, negligent torts, or
strict liability torts. Employers must be aware that in many circumstances, their employees may
create liability in tort.

Tort Law

The term tort is the French equivalent of the English word wrong . The word tort is also derived
from the Latin word tortum , which means “twisted or crooked or wrong.” Thus, conduct that is
twisted or crooked and not straight is a tort.

Long ago, tort was used in everyday speech; today it is left to the legal system. A judge will instruct
a jury that a tort is usually defined as a wrong for which the law will provide a remedy, most often
in the form of money damages. The law does not remedy all “wrongs.” The preceding definition of
tort does not reveal the underlying principles that divide wrongs in the legal sphere from those in
the moral sphere. Hurting someone’s feelings may be more devastating than saying something
untrue about him behind his back; yet the law will not provide a remedy for saying something
cruel to someone directly, while it may provide a remedy for “defaming” someone, orally or in
writing, to others.
Although the word is no longer in general use, tort suits are the stuff of everyday headlines. More
and more people injured by exposure to a variety of risks now seek redress (some sort of remedy
through the courts). Headlines boast of multimillion-dollar jury awards against doctors who
bungled operations, against newspapers that libeled subjects of stories, and against oil companies
that devastate entire ecosystems. All are examples of tort suits.

The law of torts developed almost entirely in the common-law courts; that is, statutes passed by
legislatures were not the source of law that plaintiffs usually relied on. Usually, plaintiffs would rely
on the common law (judicial decisions). Through thousands of cases, the courts have fashioned a
series of rules that govern the conduct of individuals in their noncontractual dealings with each
other. Through contracts, individuals can craft their own rights and responsibilities toward each
other. In the absence of contracts, tort law holds individuals legally accountable for the
consequences of their actions. Those who suffer losses at the hands of others can be
compensated.

Many acts (like homicide) are both criminal and tortious. But torts and crimes are different, and
the difference is worth noting. A crime is an act against the people as a whole. Society punishes
the murderer; it does not usually compensate the family of the victim. Tort law, on the other hand,
views the death as a private wrong for which damages are owed. In a civil case, the tort victim or
his family, not the state, brings the action. The judgment against a defendant in a civil tort suit is
usually expressed in monetary terms, not in terms of prison times or fines, and is the legal system’s
way of trying to make up for the victim’s loss.

Kinds of Torts

There are three kinds of torts: intentional torts, negligent torts, and strict liability torts. Intentional
torts arise from intentional acts, whereas unintentional torts often result from carelessness (e.g.,
when a surgical team fails to remove a clamp from a patient’s abdomen when the operation is
finished). Both intentional torts and negligent torts imply some fault on the part of the defendant.
In strict liability torts, by contrast, there may be no fault at all, but tort law will sometimes require
a defendant to make up for the victim’s losses even where the defendant was not careless and did
not intend to do harm.

Dimensions of Tort Liability

There is a clear moral basis for recovery through the legal system where the defendant has been
careless (negligent) or has intentionally caused harm. Using the concepts that we are free and
autonomous beings with basic rights, we can see that when others interfere with either our
freedom or our autonomy, we will usually react negatively. As the old saying goes, “Your right to
swing your arm ends at the tip of my nose.” The law takes this even one step further: under
intentional tort law, if you frighten someone by swinging your arms toward the tip of her nose, you
may have committed the tort of assault, even if there is no actual touching (battery).

Under a capitalistic market system, rational economic rules also call for no negative externalities.
That is, actions of individuals, either alone or in concert with others, should not negatively impact
third parties. The law will try to compensate third parties who are harmed by your actions, even as
it knows that a money judgment cannot actually mend a badly injured victim.

Fault

Tort principles can be viewed along different dimensions. One is the fault dimension. Like criminal
law, tort law requires a wrongful act by a defendant for the plaintiff to recover. Unlike criminal law,
however, there need not be a specific intent. Since tort law focuses on injury to the plaintiff, it is
less concerned than criminal law about the reasons for the defendant’s actions. An innocent act or
a relatively innocent one may still provide the basis for liability. Nevertheless, tort law—except for
strict liability—relies on standards of fault, or blameworthiness.

The most obvious standard is willful conduct. If the defendant (often called the tortfeasor—i.e., the
one committing the tort) intentionally injures another, there is little argument about tort liability.
Thus, all crimes resulting in injury to a person or property (murder, assault, arson, etc.) are also
torts, and the plaintiff may bring a separate lawsuit to recover damages for injuries to his person,
family, or property.

Most tort suits do not rely on intentional fault. They are based, rather, on negligent conduct that in
the circumstances is careless or poses unreasonable risks of causing damage. Most automobile
accident and medical malpractice suits are examples of negligence suits.

The fault dimension is a continuum. At one end is the deliberate desire to do injury. The middle
ground is occupied by careless conduct. At the other end is conduct that most would consider
entirely blameless, in the moral sense. The defendant may have observed all possible precautions
and yet still be held liable. This is called strict liability. An example is that incurred by the
manufacturer of a defective product that is placed on the market despite all possible precautions,
including quality-control inspection. In many states, if the product causes injury, the manufacturer
will be held liable.

Nature of Injury

Tort liability varies by the type of injury caused. The most obvious type is physical harm to the
person (assault, battery, infliction of emotional distress, negligent exposure to toxic pollutants,
wrongful death) or property (trespass, nuisance, arson, interference with contract). Mental
suffering can be redressed if it is a result of physical injury (e.g., shock and depression following an
automobile accident). A few states now permit recovery for mental distress alone (a mother’s
shock at seeing her son injured by a car while both were crossing the street). Other protected
interests include a person’s reputation (injured by defamatory statements or writings), privacy
(injured by those who divulge secrets of his personal life), and economic interests
(misrepresentation to secure an economic advantage, certain forms of unfair competition).

Excuses

A third element in the law of torts is the excuse for committing an apparent wrong. The law does
not condemn every act that ultimately results in injury.

One common rule of exculpation is assumption of risk. A baseball fan who sits along the third base
line close to the infield assumes the risk that a line drive foul ball may fly toward him and strike
him. He will not be permitted to complain in court that the batter should have been more careful
or that management should have either warned him or put up a protective barrier.

Another excuse is negligence of the plaintiff. If two drivers are careless and hit each other on the
highway, some states will refuse to permit either to recover from the other. Yet another excuse is
consent: two boxers in the ring consent to being struck with fists (but not to being bitten on the
ear).

Damages

Since the purpose of tort law is to compensate the victim for harm actually done, damages are
usually measured by the extent of the injury. Expressed in money terms, these include
replacement of property destroyed, compensation for lost wages, reimbursement for medical
expenses, and dollars that are supposed to approximate the pain that is suffered. Damages for
these injuries are called compensatory damages.

In certain instances, the courts will permit an award of punitive damages. As the word punitive
implies, the purpose is to punish the defendant’s actions. Because a punitive award (sometimes
called exemplary damages) is at odds with the general purpose of tort law, it is allowable only in
aggravated situations. The law in most states permits recovery of punitive damages only when the
defendant has deliberately committed a wrong with malicious intent or has otherwise done
something outrageous.
Punitive damages are rarely allowed in negligence cases for that reason. But if someone sets out
intentionally and maliciously to hurt another person, punitive damages may well be appropriate.
Punitive damages are intended not only to punish the wrongdoer, by exacting an additional and
sometimes heavy payment (the exact amount is left to the discretion of jury and judge), but also to
deter others from similar conduct. The punitive damage award has been subject to heavy criticism
in recent years in cases in which it has been awarded against manufacturers. One fear is that huge
damage awards on behalf of a multitude of victims could swiftly bankrupt the defendant. Unlike
compensatory damages, punitive damages are taxable.