What is a tort?

Axelrod & Associates, P.A.

Jan 17, 2022

If we file a lawsuit on your behalf, it is because someone has harmed you by committing a tort, and we are asking the courts to compensate you for the harm they caused.

But what does “tort” mean? “Tort law” is a broad subject that covers most lawsuits that are filed in the civil court – below, we will go over some of the basics of tort law in SC, including:

The definition of “tort,”
The reasons we have tort law,
The different types of torts, and
The remedies available in tort law.

WHAT DOES “TORT” MEAN?

A tort is any act – or failure to act – that causes harm to other people and that the courts or legislature have decided is a “cause of action” for which you can recover compensation. In your lawsuit, you must identify the specific cause of action that entitles you to relief and the specific relief that you are asking for (usually financial compensation).

Tort law shifts the burden of a financial or other loss to the person or company who is responsible for causing that loss – requiring the responsible party to pay financial compensation for the harm they caused.

Why do We Have Tort Law?

There are plenty of rational, reasonable, and official-sounding reasons for why we have tort law. For example:

To provide relief for people who have been harmed through no fault of their own,
To deter others from committing similar harmful acts,
To shift the burden of the loss from the injured party to the party who 1) is responsible for causing the loss and 2) may be better equipped to bear the burden of the financial loss, and
To motivate companies and individuals to make their products, methods, and workplaces safe.

Tort law stops corporations from hurting and killing us.

If it is cheaper for a corporation to manufacture a product that may kill some people here and there, they will kill people to increase their profits. But, if it costs more money to manufacture a product that kills people because then they are forced to pay wrongful death damages to the victims, they will change their product to make it safer.

When it is cheaper to not kill people, corporations “do the right thing” and make their products safe…

Tort law stops us from hurting and killing each other.

Another reason we have tort law is to stop us from killing each other…

If someone harms you, and there is no recourse under the law, you are more likely to “take the law into your hands” and seek justice, whether that means physically assaulting a person out of frustration and anger or forcibly taking that person’s property to reimburse yourself for the damage they caused.

Tort law and the civil courts provide a way for people to seek justice – and fair compensation – without committing crimes or torts themselves.

WHAT ARE THE DIFFERENT TYPES OF TORTS?

How do we know what is a tort and what is simply an unfortunate event for which there is no remedy? We must look to written laws and appellate opinions to find causes of action that have been authorized by the courts and by the legislature.

Categories of Torts

There are three general categories of torts – intentional torts, negligent torts, and strict liability torts.

Intentional torts are often also crimes – the person committing the intentional tort 1) can be sued for their actions in civil court and 2) can also be prosecuted for their actions in criminal court. Some examples include:

Trespass,
Assault and battery,
Wrongful death (which could also be murder or manslaughter), and

Negligent torts are based on a person or company’s failure to protect the people around them by acting recklessly or carelessly. Many lawsuits are based on negligence in one form or another, instead of intentional conduct. For example:

Auto accident lawsuits,
Motorcycle crashes,
Slip and fall accidents, or
Medical malpractice.

Strict liability torts are not based on intentional conduct or negligence – if the thing happens, you are liable, period. For example:

Strict liability for dog attacks in SC,
Defective products, or
Inherently dangerous activities like the use of explosives or owning a wild animal.

There are Two Sources of Tort Law – Statutory and Common Law.

Common law torts are developed by the courts over time in appellate opinions. For example, there is no statute that says, “trespass is a tort and you can recover damages if a person trespasses upon your property.” SC appellate opinions have authorized a cause of action for trespass, however, and they have outlined the elements that must be proven:

The mere entry entitles the party in possession at least to nominal damages. Lee v. Stewart, supra. To constitute an actionable trespass, however, there must be an affirmative act, the invasion of the land must be intentional, and the harm caused must be the direct result of that invasion. Alabama Power Co. v. C.G. Thompson, 278 Ala. 367, 178 So. (2d) 525 (1965). Trespass does not lie for nonfeasance or failure to perform a duty. Id.

Strict liability for dog bites in SC is an example of a tort that is defined by statute – SC Code § 47-3-110 provides for strict liability if your dog attacks a person, with few exceptions (for example, if the person provoked the animal, or the person was trespassing).

What are the Available Remedies in Tort Law?

In most cases, the only available remedy is financial compensation. If someone negligently causes a car crash, for example, they must compensate you – with money – for the damage caused to your vehicle, your medical expenses, your pain and suffering, and any other compensable losses that you suffered because of the crash.

In some cases, you may also ask the court for an injunction as a part of your case – the court can order the other party to stop doing what they are doing (or do something they are not doing) to minimize the damage and prevent ongoing harm from the tort that they are committing.