“Torts” is a broad category of civil law. It is a required course for all first-year law students in the United States. Unlike “Property” or “Contract”, however, “Torts” lacks a defining characteristic. “Torts” includes the claim of “negligence”, which you would file if you were injured in a car wreck, but also the apparently unrelated claim of “nuisance” you might file if your neighbors started keeping pigs in the backyard. “Nuisance” and “negligence” have little in common (the harmful invasion of another person’s legal rights?) and numerous features which can’t be explained by referring to any such broad definition.

The word “tort” is Norman French --derived somehow from the Latin “tortus” (twisted)-- meaning “wrong”. One could define “tort” as a “wrong” resulting in an injury, for which a person seeks money. This definition is over-inclusive: it subsumes the entirety of civil law, but not every lawsuit is a tort lawsuit. Modern scholars have given up on theoretical definitions of “tort”, and instead take a historical approach. “Torts” are defined as claims for damages for injury, other than contract claims, which fit certain legal definitions recognized by a common law court. This is a fairly precise definition, and does not mean "a tort is whatever a court says is a tort", because a substantial historical background determines which claims are “recognized” by a court.

To understand torts, you have to know some history. Once the high tide of the Roman Empire receded, it left in its wake protection rackets known as “kingdoms”. When you had a problem you took it to the king. Kings quickly tired of this, and delegated the task to ministers. The ministers also got tired of hearing the yokels out, with all their prayers, petitions and begging. To this day, the person who initiates a lawsuit is called “the plaintiff”, the paper the plaintiff files in Court is called a “complaint”, and the complaint, answer and any counterclaim, are called “pleadings”. Gradually, the onslaught of whining was curbed with bureaucracy. The most important rule was that, if a petition to the king was to be heard, there had to be, first of all, something the king’s men could do to remedy the problem. Since the feudal protection racket was really only good at one thing --extorting money out of people-- getting some money out of your neighbor was the preferred solution. If that wasn’t the case, there was no sense in bothering the ministers about it.

Eventually, forms were developed for a discrete set of problems which the courts would address. The kings approved “writs” which were court orders with, in essence, blanks for the names of the parties. An example is the writ of assumpsit, a late-Latin term for “undertaking” or contract. This developed into the modern contract lawsuit. Another writ dealt with wrongful behavior which injured the plaintiff in some way. This was called the writ of trespass. It meant any kind of wrong --a punch in the nose, as well as the invasion of someone’s land. Modern day torts are all descendants of the writ of trespass.

Today, if the problem described in your complaint fits a recognized formula, you can proceed to the next step (actually proving your allegations in a trial). If your problem doesn’t fit the formula, your case is dismissed --without ever reaching the question whether you are telling the truth.

An example: defamation. On the one hand, we don’t want people spreading false, hurtful gossip. On the other hand, we value free expression. The defendant can assert a fundamental right to speak, whether the plaintiff likes what he has to say or not. Common law resolves these conflicting policy considerations by requiring that a defamation lawsuit state certain “elements”. The “elements” can be adjusted to fit the circumstances. In a political discussion, we want to err on the side of a free press, we add the requirement that the allegedly defamatory statements were not only false, but maliciously false. If the defamation does not plausibly allege all the required elements, it is thrown out.

Another example: negligence. The elements of negligence are:

  • duty
  • breach
  • cause
  • harm

Applying these elements to the most common type of negligence case, the motor vehicle accident: you have a duty to drive safely, you breach that duty by driving recklessly, and if your breach causes an accident which harms someone, that person can sue for negligence. Each one of these elements can be problematic, but the ones that get argued the most are duty and cause. Whether a duty exists is a question of law, which is decided by statutes and precedent cases. The cause must be proximate cause, that is, not so remote that the consequences of one’s conduct were entirely unforeseeable.

Another example: battery. The elements of battery are:

  • a “touching” or physical contact between the plaintiff and defendant
  • without the consent of the plaintiff
  • which causes injury or harm

These elements are so broad that they can, and have, been applied in some surprising ways. If a physician performs surgery on you without your consent, and this surgery causes an undesirable medical result, you may sue for battery. Battery is not “malpractice”: a malpractice case is a negligence case, where the “breach” is the failure to use the care which a reasonable phsyician would exercise under the circumstances. The gist of “malpractice” is medical standards, but the gist of “battery” is consent, which in the case of surgery means informed consent.

A typical law school problem: P is injured playing football with D. D ran into P in a way prohibited by the rules of the game(say, “clipping”). While P obviously consented to a little physical contact by playing the game, he claims he did not consent to contact which was illegal under the rules of the game. You be the judge: throw out the battery suit, or let it go to trial?

The authoritative hornbook on Tort law in the United States is:

W. Page Keeton et al., Prosser and Keeton on the Law of Torts, (5th ed. 1984)(West Publishing Company).