This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the types of torts under the American legal system and other important principles and remedies thereunder.
It has been published by Rachit Garg.
The American constitution has given the country a federal structure, and in total, the country consists of 50 states. This gives rise to a two-fold judicial system in the country, i.e., federal courts and state courts. The thin line of difference between these courts is the type of cases which can be heard by them and the jurisdictions vested in them. On the other hand, the American legal system can be broadly categorised into two parts, the criminal legal system and the civil legal system. Criminal law aims to punish individuals for acts committed against society and provides remedies in-rem, whereas civil law deals with the rights of individuals in persona.
The civil legal system comprises two things. Firstly, it provides remedies for breach of contracts and other commercial transactions; and secondly, it provides remedies for civil wrongs, i.e., the breach of duty owed to society at large by any individual. It is this facet of civil law that comprises the law of torts in the American legal system. In simple words, a tort is a civil wrong which arises out of the operation of the law rather than an agreement between the parties. The US tort law has its roots in the English common law system and has evolved over time through several judicial decisions.
Now that we have a brief background on the American judicial and legal systems, let us understand the American law of torts in detail.
Types of torts in the USA
The term ‘intention’ in intentional torts does not mean a malafide intent. Intent can be defined as the intent to do any act that violates the rights of any individual in a manner that is not sanctioned or allowed by law. This was further explained in the case of Bazley v. Tortorich (1981) wherein the Supreme Court of Louisiana observed that any person who consciously desires the physical result of his act, irrespective of the fact that such result is likely from his conduct or knows that his actions will have a certain result, irrespective of the fact that he desires such result, will be liable for the offence of intentional tort. In simple words, it is the end result that is the outcome of the act that is considered while determining if the tort is intentional or not.
Another example of an intentional tort is trespass. Trespass is a rule that protects the landowner from any unauthorised entry on his property and provides the landowner with rights of exclusive possession and enjoyment of property. In the case of Porter vs. Kirkendoll (2018), the Court of Appeals of Washington, while dealing with a case of timber trespass, observed that when any person cuts or carries off any tree, plant or timber that is growing on the land of any other person, without the authorisation of the owner of the land, they will be liable for timber trespass. The Court further stated that because trespass is an intentional tort, timber trespass will also qualify as an intentional tort.
A battery can be defined as any physical act done intentionally with the desire of causing harm to another person without the consent of that person. In the case of City of Miami v. Sanders (1996), the Court of Appeal of Florida held that a battery is an intentional tort with two elements, intent and contact. It is further observed that a person is liable for battery if he acts intentionally to cause harm to another person or makes offensive contact with any person, thereby causing harm to such person directly or indirectly. However, in the absence of intent, no person can be liable for the tort of battery irrespective of the fact that the other person sustained any harm.
The term ‘assault’ can be defined as any action of an individual which is undertaken as an attempt to commit battery. In the case of Donohue v. Dominguez (2016), the Court of Appeals of Texas, while referring to the Texas Penal Code 1994 and the Texas Torts Claims Act 1969 observed that although the evidence required to prove civil and criminal assault is the same when relief is sought for civil assault, the action lies under the Texas Torts Claims Act 1969 because civil assault is an intentional tort.
Infliction of emotional distress
In America, cases surrounding this area of tort are usually seen in the corporate world, wherein the employer inflicts emotional distress on the employees. However, the scope of the same is not limited to employer-employee relationships but extends to any person who causes emotional distress to another. In the landmark case of White v. Monsanto Co. (1991), the Louisiana Supreme Court laid down a three-fold test to determine cases of intentional infliction of emotional distress. Firstly, the conduct of the tortfeasor should be extreme and outrageous. Secondly, the emotional distress caused to the victim should be severe, and thirdly, the tortfeasor should have desired to inflict emotional distress on the victim. The Court further noted that the conduct of the tortfeasor should be so severe and extreme that it is regarded as atrocious and intolerable in a civilised society.
False imprisonment can be defined as any act by which an individual who is not guilty of an offence, is accused and falsely imprisoned against his will. This act is unlawful and attracts the relief of compensation or damages under the American law of torts. False imprisonment was defined in the case of Marshall v. Heller (1882) as any unlawful act that restraints the personal liberty of another person or prevents the free movement of such a person according to his free will. It was in the case of Missouri Intergovernmental Risk Management Ass’n v. Gallagher Bassett Servs., Inc. (1993) that the Court of Appeals of Missouri held that falsely imprisoning any person without any legal justification amounts to an intentional tort on the part of the tortfeasor.
In simple words, negligence can be defined as the failure to exercise the minimal amount of care that a prudent man would exercise in similar circumstances. A similar definition was provided by the Supreme Court of Colorado in the case of Slack v. Farmers Ins. Exch. (2000) wherein it stated that negligence is the failure of any person to exercise a particular standard of care that a prudent man would have exercised in a similar situation. It further stated that if any action falls below the established legal standards for the protection of people against any harm, it amounts to negligence unless done intentionally. Referring to Title 13, Article 21 of the Colorado Revised Statutes, the Court further observed that the term ‘tortious act’ includes any action that is negligent in nature.
In Tingler v. Graystone Homes, Inc. (298 Va. 63), the Supreme Court of Virginia observed that liability for negligence only arises when the party who conducted the negligent act owed a duty of care to the person against whom such a negligent act had been conducted. It further noted that in contractual relationships, if there is any duty owed by one party to the other outside the scope of the contract, a breach of such duty would give rise to an action under the tort of negligence.
Product liability accrues to any person who sells a defective product in the market which causes harm to the end consumer on account of such a defect. In the case of Jimenez v. Superior Court (2002), the Supreme Court of California observed that any manufacturer or retailer who supplies or distributes a defective product on the market that causes personal injury to any consumer who uses such product will be strictly liable in tort for the injuries caused. The Court, however, exempted service providers from the rule of product liability. In the case of E. River S.S. Corp. v. Transamerica Delaval (1986), the United States Supreme Court included product liability as a tort under maritime laws as well.
Vicarious liability accrues to the person due to his relationship with the tortfeasor. One of the most common examples of vicarious liability is an employer-employee relationship wherein the employer is vicariously liable for all acts of the employee conducted within the scope and course of employment. In M.P. v. City of Sacramento (2009), the Court of Appeal of California held that the vicarious liability of the employer extends to wilful criminal acts of the employee as well, if such act has a causal nexus with the work allotted to the employee. However, it is further observed that any act of sexual assault committed by the employee will be deemed to fall outside the scope of employment and the employer will not be held liable for the same. In the case of Burke v. Webb Boats (2001), the Supreme Court of Oklahoma observed that a master cannot be held vicariously liable for the acts of his servant even if the negligent act of the servant has caused harm to the plaintiff only in cases where no fault is directly attributable to the master.
Other important principles of the law of torts
Burden of proof
The burden of proof can be simply defined as the party who bears the burden of producing evidence to prove his claims against the opponent. In Weimer v. Hetrick (1987), the Court of Appeals of Maryland held that in order to prove liability in torts, the burden of proof is on the plaintiff who pleads the existence of a fact. The Court justified this proposition by stating that since it is the plaintiff who seeks relief from the court, his case must outweigh the case of the defendant, and thus, the burden of doing the same lies on the former.
Proximate cause can be defined as the causal connection or nexus between the act of the tortfeasor and the injury caused to the victim. In Thomas v. Lusk (1994), the Court of Appeal of California observed that the burden of proving a causal nexus between the act of the tortfeasor and the injury caused is on the plaintiff. Also, the injury caused must not be remote and must result directly from the conduct of the tortfeasor. It was further held that there were several causes that led to the injury and the act of the tortfeasor contributed to only one of those causes. Therefore, the test of proximate cause failed.
The Federal Torts Claims Act
The American legal system follows the doctrine of sovereign immunity. According to this doctrine, no suit can be initiated against the government or any government entity without the permission of the government itself. However, the Federal Torts Claims Act (FTCA) is an exception to this doctrine. This law allows individuals to file suits against the government and government officials for any injury sustained by them due to the actions of the former. In Lanus v. United States (2013), the US Supreme Court observed that the FTCA waives sovereign immunity and makes the government liable for the torts committed by government employees.
Provisions under the Federal Torts Claims Act (FTCA)
The term ‘federal agency’ was defined to include all three organs of the US government, i.e., the executive, the legislature, and the judiciary. It also includes all the military and private establishments of the US government. Further, any organisation that acts as an instrument of any of the US agencies is also deemed a Federal Agency. However, it does not include any contractors for the US government.
An employee of the government
The following individuals were deemed to be employees of the US government:
- Employees of all Federal Agencies.
- Officers of the defence forces of the US government.
- Officers of the national guard of the US government.
- Any individual who works in an official capacity on or behalf of the Federal Agencies of the US government, with or without compensation.
- Any individual employed in the public defender’s office.
Acting within the scope of employment
This means that any individual who is acting within the line of duty in the course of their employment under a federal agency.
Administrative Adjustment of Claims
This provision deals with the adjustment of claims raised against the US government. It allows the heads of federal agencies or any person designated by them to ascertain and determine any claim for damages that is raised against the agency. It further empowered them to make attempts to compromise or settle these claims. It is pertinent to note that these claims should have arisen from the loss of property or any personal injury or death that is a result of a negligent act or omission committed by an employee of the government in the course of his employment while acting within his line of duty.
A claim can be settled by the designated heads of agencies only if it is below $25,000. If the settlement amount is higher than $25,000, then they have to seek the prior approval of the Attorney General of the concerned state. However, the Attorney General is authorised to increase the upper limit for the settlement amount and allow the designated heads of state to settle amounts higher than $25,000 without his prior approval. The federal agencies are directed to resort to arbitration as a dispute resolution mechanism for compromising or settling the claim. The award passed by the arbitral tribunal in such cases is deemed final unless such award is obtained by fraud.
For any amount that is below $2500, the head of the federal agency in question is directed to pay it out of the funds available to the agency for its operations. For any amount above $2500, it is to be paid by the head of the Federal Agency in question out of the funds available to the agency for the payment of damages ascertained by any court or tribunal of the United States. Once an individual accepts the settlement of his claim by accepting the amount of the award, he is estopped from claiming the same again in any court or tribunal, and the acceptance of his settlement constitutes a release of the United States government and its concerned employee against any subsequent claim on the same subject matter.
Reports to Congress
The reports of all claims that are settled by the Federal Agencies should be sent to Congress annually by the designated heads of every Federal Agency. The report shall consist of details of the claimant, the amount claimed by him, the description of the claim, and the settlement amount.
Liability of the United States Government
This provision restricts the liability of the United States government with respect to the tortious claims raised against it. It provides that the US government is liable to the claimant in the same manner as any private individual would be liable for his tortious acts. However, unlike private individuals, the US government will not be liable to pay any form of punitive damages or any interest on the damages claimed prior to the receipt of the judgment. If the alleged tort was committed in any state that expressly provides for punitive damages as a remedy, the US government would be liable to pay the same.
This provision also provides the government of the United States an opportunity to claim immunity for the acts of the employees of federal agencies. This claim of immunity acts as a defence for the torts committed by the employees. However, such defence claims should have a basis in existing legislation or judicial precedents. This defence shall be claimed by the Tennessee Valley Authority on behalf of the employees in question.
Disposition of claims by the federal agencies
This provision entitles the employees of the government to immunity from any action initiated in any court of law in the United States for any negligent act committed by them that led to the loss of property of any person or caused any personal injury or death to any individual, i.e., any tortious act, unless the claim for damages has been first brought to the notice of the concerned federal agency. This claim should be denied by the federal agency in writing, and such claims should be disposed of within 6 months of the date of receipt of the claims. Once such a claim has been denied by the concerned Federal agency, the claimant has the opportunity to approach the courts of law for initiating an action against the tortfeasor and the immunity available to the government employees shall no longer subsist. However, any third-party claims, cross-claims or counterclaims are not included within the scope of this provision.
Once a claim has been presented to the federal agency and has been denied by them, any action initiated by the claimant in any court of law shall not be for a sum greater than the actual claim that was presented to the federal agency. However, this is subject to the discovery of any new evidence that might result in an increase in the initially claimed damages. Also, the disposition of claims by the designated heads of the federal agencies is not deemed competent evidence for the acceptance of the liability by the concerned federal agency.
The Attorney General of the concerned state where the tort has been committed has the authority to call for arbitration between the claimant and the government. Further, he is also authorised to compromise and settle the claims arising out of the tortious acts of the employees of the United States government.
Attorney fees and penalties
This provision prohibits attorneys from charging more than 25% of any award or compromise or settlement which has arisen out of a claim for tortious acts of government employees. If an attorney charges an amount in excess of 25% of the amount, he is liable to pay a fine of $2000 or may be subject to imprisonment for more than one year or both.
Exclusiveness of the remedy
This provision states that the authority of the claimants to sue the federal agencies to realise their claims under the provisions of this Act is limited to the offences under this act. The federal agencies are immune from being sued under the provisions of any other act for the tortious liability of their employees. Also, the claimants cannot seek any other remedy other than what has been provided under the Act.
It further provides that no claim can be raised against an employee of the government or his estate in an individual capacity, even if such employee has committed a tort against the claimant. However, this does not bar any individual from instituting a suit against an employee of the government for the violation of the United States Constitution or for the violation of any statute of the United States.
The Attorney General of the concerned state where the tort was committed is authorised to deal with any case that is instituted against the government employees or their estate in an individual capacity. While dealing with such cases, the Attorney General shall first provide evidence as to the fact that the crime was committed by a government employee in the course of his employment while in the line of duty. Once this has been proved by the Attorney General, the case leveled against the government employee shall be deemed to have been leveled against the government of the United States.
If the Attorney General refuses to provide evidence for the same, the government employee in question has to provide evidence for the same during the trial. Once the Court is satisfied that the tort was committed by the employee in the course of his employment while he was in the line of duty, the case leveled against the government employee shall be deemed to have been leveled against the government of the United States and the government of the United States will be substituted as the defendant in place of the government employee in question. If the court is not satisfied with the same, the employee will be tried as any other private individual who has committed a tort. Once the government of the United States is substituted as the defendant, the limitation period of the claim is determined. The claim is said to have been filed during the limitation period if it was filed on the same date on which the tort was committed and the claim was presented to the concerned federal agency within 60 days of the dismissal of the civil action. However, the Attorney General may choose to settle the claim at the stage of the civil action instituted against the tortfeasor.
This provision provided for multiple exceptions for the application of the FTCA. The same has been enumerated below.
- If the alleged tortious act has been committed by an employee of the government while executing obligations under a statute provided he exercised due care while carrying out the obligations.
- Claims that arise out of the loss, miscarriage, or negligent transmission of letters or posts.
- Claims arising out of the assessment and collection of taxes.
- Claims arising out of a loss caused due to the detention of goods by the customs or excise departments if:
- The property was seized for the purpose of forfeiture under any of the US statutes.
- The interest of the claimant in the good was not forfeited, remitted or mitigated.
- The claimant was not convicted of the crime based on which his property was forfeited.
- Claims under admiralty statutes.
- Claims for damages arising out of the imposition of quarantine rules in the United States.
- claims for damages caused by the fiscal operations of the Treasury.
- Claims arising out of the military activities of the defence forces of the United States or the Coast Guard during the war.
- Claims that arise in a foreign country.
- Claims arising from the activities of the Tennessee Valley Authority, the Panama Canal Company, the Federal bank, the Federal intermediate credit bank, or the bank for cooperatives.
State-wise tort laws
Most states in the United States have legislation that governs the tortious liability of individuals in the state. Moreover, like the Federal Torts Claims Acts, several states, like California, Florida, Texas, Virginia, Washington, Massachusetts, New Jersey etc., have enacted their own state-level acts that deal with the claims arising from the loss of property or any personal injury or death that is a result of a negligent act or omission committed by an employee of the government in the course of his employment while acting within his line of duty. Let us now look into the common provisions under the statutes of different states that deal with the tortious liability of individuals. The following provisions are taken from the Georgia Tort Code. Identical or similar provisions exist in the tort codes of the other states as well.
Definition of tort
‘Tort’ has been defined as the violation of a private legal right by any individual. It also includes the violation of public duty by an individual if such a violation has given rise to a claim of special damages. It does not include a mere breach of contract.
It has been defined as the appropriate standard of care that is exercised by any prudent person in identical or similar circumstances.
If any person fails to exercise ordinary diligence, he is said to have committed ordinary negligence.
It raises the bar of ordinary diligence and can be defined as the extreme standard of care that is exercised by an extremely prudent person under identical or similar circumstances.
If any person fails to exercise extraordinary diligence, he is said to have committed slight negligence.
It has been defined as the minimal amount of care that all individuals should exercise with the application of common sense in identical or similar circumstances.
If any person fails to exercise slight diligence, he is said to have committed gross negligence.
Recovery of damages for breach of legal duty
If any person has the legal duty to perform an act for the benefit of another or refrain from performing an act that may cause an injury to another, under any statute, a claim for damages may arise if the person breaches his legal duty and any individual suffers damages due to such breach.
Rights arising from breach of public duty
For a claim for damages to arise due to a breach of public duty by any individual, the claimant should have suffered special damages. No action shall lie for any other form of damages even though the society at large has been affected due to the breach of the public duty.
Rights arising from breach of public duty
Any individual can claim damages for breaches of private duties by another individual. Such duties arise out of statutory norms or from a contractual relationship between the parties.
Liability for ratifying a tort
If a person commits a tort for his own benefit and the tort is ratified by another person, the ratifier will become liable for the tort committed. However, if the tort had been committed for the benefit of a third person and if such tort is ratified by any other person, the ratifier shall not be liable for the tort committed.
Imputable negligence can be defined as the transfer of liability from the tortfeasor to another person for the commission of a tort.
Basis for imputation of negligence
For the imputation of a tort from one person to the other, the person to whom the tort is imputed should be the principal of the tortfeasor or should share a relationship with the tortfeasor in a similar capacity.
Liability for torts committed by the wife, child or servant
Every individual shall be imputed for the torts committed by his wife, his child or his servant if they are acting on his directions or for the purpose of his business. It includes the imputation of both negligent and voluntary torts committed by these individuals.
Liability for malicious acts of a minor child
If any minor child, i.e., a child below the age of 18 years, commits a tort that damages the property of another or results in another person incurring reasonable medical expenses, the parent or guardian of the child will be charged with the liability of committing the tort and shall be liable for an amount not exceeding $10,000. The intent behind such an imputation is to prevent and control juvenile delinquency.
Liability for torts of an independent employee
The employer is imputed with the torts of an independent employee only if such employee was acting on the direction of the employer while committing the tort.
Liability for the negligence of a contractor
An employer is liable for the torts of his contractor in the following circumstances:
- When the act is a wrongful act and results in nuisance to others.
- If the employer knows that the act in question may be dangerous to others, even if the utmost care is taken while performing the act.
- If the act is in violation of a duty imposed on the employer under his contractual obligations.
- If the act is in violation of a legal duty imposed by a statute.
- If the act in question is committed directly at the direction of the employer or if the employer exercises a certain degree of control over the manner of performance of the act by the contractor.
- If the employer intentionally ratifies any tort committed by an independent contractor.
Liability of owner for keeping vicious animals and for injuries caused by such animals
If the person who owns a vicious animal of any kind does not manage it properly and allows the animal to go at liberty, thereby causing any injury to any person without provocation by such person, he or she will be liable to pay damages for the injury caused. The liability arises when the animal in question is not on a leash. However, domestic livestock is exempted under this provision.
Liability of owners and occupiers of land
Duties of an owner or occupier of land toward an invitee
If any individual who is the owner or occupier of land invites any other person to come to the land for any lawful purpose, he will be liable for all injuries or damages that are caused due to his failure to exercise ordinary diligence in maintaining the land in a safe and secure manner for all the invitees.
Duty of the owner of land to a licensee
The term ‘licensee’ was defined as any person who is allowed to enter the premises for his own interests with the prior authorisation of the landowner. It does not include any customer, servant or trespasser on the property. If the owner of the land causes any willful injury to the licensee, he will be liable to pay damages for the same.
Duty of care of an owner or occupier of land towards trespassers
The owner or occupier of land owes no duty of care towards any trespasser on the land. However, he will be liable if he causes any willful injury to the trespasser and will have to pay damages for the same.
Owner of property used for recreational purposes
Duty of owner towards individuals using the property for recreational purposes
The owner of the land does not owe any duty of care to any person who intends to use the property for recreational purposes. This includes having no duty of care towards keeping the property safe and secure for entry and use by such individuals; warning such individuals about any dangerous situation that may harm them; etc.
Invitation or permission to use the land for recreational purposes
If the owner of the land or property invites or permits any person to use the property for recreational purposes, he is obligated to assure the safety and security of the property. The owner owes a duty of care towards such invitees and is liable for any injury that may be caused to such individuals due to the breach of the duty of care owed.
The owner or occupier of land or property will be liable for any willful failure on their part to warn the individuals using the property for recreational purposes of any dangerous condition associated with it that may cause an injury to them.
Liability of space flight entities
Space flight entity
A space flight entity is any person who conducts space flight activities under the authorisation of the Federal Aviation Administration. It also includes the manufacturer and supplier of spacecraft equipment, employees or partners of the owner, manufacturer or supplier of the space flight entity, the owner of the property where the space flight activity is conducted, and any government department that is associated with the space flight activities.
Space flight activities
This includes the launch and reentry of spacecraft or crew members; any activity occurring between the launch and reentry of spacecraft; descent and landing of spacecraft; post-landing recovery operations; and activities related to the embarking and disembarking of the launch vehicles.
Space flight participant
Any person who is onboard the spacecraft, launch vehicle, or reentry vehicle.
Civil or criminal liability for injuries during space flight
This provision provides civil and criminal immunity to the space flight entity for any injury caused to the space flight participant if the space flight participant has agreed to the risks associated with the space flight activities and provided informed consent for the same. However, if the injury in question was caused due to the gross negligence of the space flight entity, then it could be held liable for the same under both civil and criminal laws.
Persons entitled to initiate actions for wrongful death
The surviving spouse or in the absence of a surviving spouse, the children, whether minor or not, can initiate an action for the wrongful death. If the action is initiated by the surviving spouse, and the surviving spouse dies before the completion of the proceeding, the action can be continued by the child and in the case of the death of the child, by other surviving children.
Any amount that is received by the claimant in such cases shall be shared equally between the surviving spouse, children per capita, and the descendants of the children per stripe. In case a child has been born out of wedlock, such child shall also receive an equal share like that of a child born out of wedlock.
Recovery by administrator or executor
If there is no surviving spouse or surviving child who can initiate an action for wrongful death, the action can be initiated by the executor or administrator of the deceased and the amount recovered shall be provided for the benefit of the next of kin of the deceased.
Libel and slander
Definition of libel
A libel can be defined as a defamatory statement that is in writing or has been printed with the intention of injuring the reputation of any person by exposing the person to public hatred and contempt. Such a statement should be false and malicious in nature and it is mandatory that the defamatory statement is published. The term ‘publication’ has a wide scope and includes communication of the defamatory statement to any person other than the intended target.
Definition of slander
Unlike libel that needs to be published, slander is an oral defamatory statement made by an individual that:
- imputes any other person for a crime or any act that may result in him being excluded from the society
- makes allegations regarding his profession or trade with the intent of harming its reputation
- Any statement that may cause special damage to the intended target
Determination of malice
In all cases of libel and slander, whether or not the statement made was malicious is determined on the basis of the allegations leveled against the individual. However, the maker of the statement can prove the absence of malice by providing evidence regarding the same, and it may act as a mitigating factor while determining damages. If the statement made is true and evidence is provided in this regard, it will be deemed a valid defence for libel or slander.
The owner, licensee, operator, and employees of any visual or sound broadcasting agency will not be held liable for any defamatory statement made by a third party that is broadcast. However, if they fail to exercise ordinary care before broadcasting such defamatory statements, they can be held liable for the same. If a defamatory statement has been made by a candidate for election to any public office during a live broadcast, and the operator of the broadcast has taken ordinary care to prevent the utterance of such a defamatory statement, then there is no liability incurred by him.
Fraud and deceit
If the commission of a fraud by any person results in causing an injury to another, then the person who has committed the fraud will be liable to pay damages to the injured person.
Misrepresentation of material fact
If any person misrepresents a material fact with the intent of inducing another person to act on the basis of that material fact and thereby causes an injury to such person, he shall be liable to pay damages for the same. However, if the material fact in question is concealed, then no liability arises unless the concealment causes injury to the other person and was made with the intent of inducing another person to act on it. The mens rea is accounted for on the basis of whether the person who concealed or misrepresented the material condition had knowledge that such concealment or misrepresentation would lead to his deceiving the other party and thereby causing an injury to such party.
Further, if any person, with the intent of obtaining credit for the action of another, deceives a person by misrepresenting or concealing a material fact, then no liability shall arise unless such misrepresentation is made in writing and is signed by the deceiving party.
Fraud by acts of silence
If any person acts as a bystander and does not disclose material information to a person regarding any transaction with the intent of enforcing that information later for his own benefit, he shall be liable for committing fraud against such person.
When any person is unlawfully arrested without any just and probable cause, he shall have a right to initiate an action of false arrest against the person who arrested him and claims damages for the same.
If any person unlawfully detains another person with the intent of depriving that person of his personal liberty, irrespective of the time for which such person is detained, he shall be liable for false imprisonment and damages can be claimed for the same.
False imprisonment by several persons
If two or more individuals unlawfully detain another person, action can be initiated against them both jointly or severally.
If any person is subjected to a criminal prosecution that was initiated with the malicious intent of causing damage to the reputation of the person prosecuted, and there exists no just or probable cause for initiating such a prosecution, an action for malicious prosecution can be initiated against such person, and he will be liable to pay damages.
It will be deemed that no probable cause exists for the initiation of prosecution if, by the standards of a reasonably prudent man, no just cause exists for such prosecution and the proceedings were initiated with the intent of harming the reputation of the person who is being prosecuted. If it is established that no probable cause exists, it is deemed that the prosecution is malicious in nature.
Damages for malicious prosecution are calculated on the basis of the loss to reputation suffered by the person who is maliciously prosecuted and any other aggravating circumstances that shall be decided on a case-to-case basis.
Real estate torts
Interference with the enjoyment of property
The owner of a property has the absolute right to enjoy the such property and any person who interferes with this right of enjoyment shall be liable for an action in tort and will have to pay damages for any injury caused due to such interference. This right also extends to those who are mere possessors of the property. They can also initiate an action for damages if their right to the enjoyment of the property is violated.
Both the owner and the occupier of any land or property have the authority to initiate an action for trespass against any person who enters the land without their prior permission. However, if there are two people who claim to have possession of the land, the person who has the original and legal title documents for the land will be deemed as the owner, and the other person will be deemed as the trespasser.
Before an action for trespass is initiated, all trespasses committed by a person on land shall be deemed to be continuous in nature, and the action initiated shall be for a continuous trespass. However, after an action has been initiated, every act of trespass shall be considered a new tort and a new action should be initiated for the same.
Rights of owner
An owner of land has the legal right over everything that exists below and above the land, and if any person interferes with such a right, an action in tort can be initiated by the owner. This right includes the right over the groundwater below the property and the streams that flow over the property.
Slander or libel on the title of property
If any person makes a defamatory statement in the form of a libel or slander regarding the title of any property, the owner of the property can initiate an action for the same if the title suffers any injury due to the libellous or slanderous statement.
Defences against tortious liability
Authorisation to act
The person who has committed the tort can provide evidence as to the fact that the tort in question was committed under the authorisation of any other person or under a statutory obligation. If evidence is provided and admitted in this regard, it is deemed that the act was committed by the defendant but the liability does not accrue to him. The liability accrues on the person who had authorised the act.
If any person commits a tort against another with the consent of the other party, no claim for damages can be raised against him. It should be proved that such consent was not obtained by fraud or misrepresentation and that the person of sound mind had given his free consent to the commission of tort against him. Minors are an exception to this provision as their consent is not deemed to be valid consent.
Pendency of other actions
If the claimant has already initiated an action in any court of law having appropriate jurisdiction against a tortfeasor and the suit is pending final judgement, then no new suit can be initiated by the same party against the same tortfeasor if the cause of action is the same. Also, if a claimant has already claimed and recovered damages for the commission of a tort, the initiation of the new action is prohibited from claiming damages arising out of the same tort.
Failure of plaintiff to avoid consequences
If the injuries sustained due to any tort could have been avoided by the plaintiff by exercising ordinary diligence and he has failed to do so, then no claim for damages can be raised against the tortfeasor.
Every individual has the right to use force or threaten to use force for the purpose of self-defence, the defence of any other person, the defence of a habitation or the defence of any property other than a habitation. Such force should be reasonable and justified in accordance with the threat against which such force is used. No civil action can be initiated against a person acting in self-defence for the protection of himself, his property, or any other person and their property.
If the individual who has committed a tort provides damages to the victim for the injuries suffered by the tort, no action can be initiated if the damages so paid are proportionate to the injury caused. If the victim does not accept such damages and initiates an action in a court of law, the tortfeasor shall submit the damages to the court itself prior to the commencement of trial. If the court is of the opinion that the damages are proportionate to the injury caused and no further damages need to be paid, no further trial shall progress and the damages submitted to the court are provided to the claimant.
Tort as a crime
In the event that an individual commits a tort that constitutes a criminal offence, he shall seek compensation for the injuries suffered by him in a court of law. However, if the tort does not constitute the commission of a criminal offence, the parties may attempt to settle the dispute out of court.
Types of damages
Generally, there are two types of damages that are awarded by the court, i.e., special damages and general damages. However, there are other forms of damages as well that are awarded on a case-to-case basis, as mentioned below.
These forms of damages can be recovered without the production of any evidence relating to the claimed amount. These damages are provided for the direct or consequential injuries caused to the claimant by the commission of the tortious act.
These damages are also paid for the direct or consequential injuries caused to the claimant by the commission of the tortious act. However, evidence has to be provided as to the loss or injury caused to the claimant that gives rise to a claim of special damages.
Direct damages are paid for the injuries that directly flow from the commission of the tortious act. There should be no other factor involved in causing such an injury.
Consequential damages are paid for injuries that are caused due to the tortious act, but the commission of the tortious act was not the only factor that led to such an injury. The injury might be an indirect consequence of the tortious act.
If the tortious act committed by any person gives rise to aggravated circumstances, i.e., if the act itself or the intention behind the commission of the act was to target the claimant and cause him injury, the court may award additional damages. The reason behind awarding additional damages is to deter the tortfeasor from committing such acts in the future and also to compensate the claimant for the aggravating injuries sustained by him.
If the injury suffered by the claimant is not serious and the tortfeasor has provided evidence as to mitigating circumstances acting in his favour, the court shall award only nominal damages to the claimant.
Like additional damages, punitive damages arise out of aggravating circumstances that result from the act of the tortfeasor. These damages are provided as a punishment to the tortfeasor so as to deter the tortfeasor from committing such acts in the future. These are also known as vindictive or exemplary damages. Special evidence has to be provided by the claimant to show the existence of aggravating circumstances.
Injury to peace, happiness and feelings
If the action is initiated for a tort that has resulted in injuring the peace, happiness, or feelings of any person, the damages are decided on the basis of the conscience of the court. Punitive or additional damages cannot be awarded in such cases.
Remedies under the law of torts
The primary remedies available under the law of torts are compensation or damages that are provided to the victim for the injury suffered. The remedies can be classified into two categories, i.e., judicial and extrajudicial.
Judicial remedies include, firstly, the provision of damages to the victim. Damages can take multiple forms, including contemptuous, nominal, substantial, and punitive or exemplary damages. Secondly, it includes the grant of both temporary or permanent injunction to the victim and, thirdly, the specific restitution of the property, i.e., the returning of goods to the victim of which he was wrongfully dispossessed.
Extra-judicial remedies include expulsion of the trespasser using reasonable force and barring him from re-entry, abatement i.e., removal of the object which causes the nuisance, and re-capture of goods which were unlawfully taken etc.
The aforesaid list of torts is inclusive and not exhaustive in nature. There are several other torts which are actionable in the USA, and these include the torts of defamation, malicious prosecution, violation of privacy, wrongful termination of employment etc. Also, due to its federal structure, the tortious laws of each state in the USA might vary from one another as well. The core principles governing the law of torts, however, remain the same throughout.
- TEACHING TORTS:INTRODUCTION TO THE LAW OF TORTS*, * This essay is a revised and enlarged version of an introductory lecture published in Joseph W. Little & Lyrissa Barnett Lidsky, Torts: The Civil Law of Reparation for Harm Done by Wrongful Act: Teacher’s Guide 11-29 (2d ed. 1997). Reprinted by permission. Copyright 1997, Matthew Bender & Company Incorporated. All rights reserved., 45 St. Louis L.J. 715
- ARTICLE: PERSONAL RESPONSIBILITY AND THE LAW OF TORTS, 45 Am. U.L. Rev. 1245
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