The history of Anglo-American tort law can be traced back to the action for trespass to property or to the person. Not until the late 18th cent. was the currently observed distinction made between injury willfully inflicted and that which is unintentional. In the early 19th cent., negligence was distinguished as a separate tort, and it has come to supply a large portion of tortious litigation.
The general tendency today is to rule that the breach of any duty constitutes a tort, rather than to rule that an alleged tort must fit into some previously recognized variety, such as assault, false imprisonment, or libel. Some courts treat any willful unjustified injury as tortious, while others hold that the act must be defined as tortious by law, regardless of the perpetrator's motive. Torts that injure reputation or feelings are personal torts; those violating statutory rights are constitutional torts; those involving real or personal property are property torts. Property torts include several classes of torts, such as automobile accidents, negligence, product liability, and medical malpractice.
In some areas, tort liability can be assigned without a finding of fault, as in no-fault automobile insurance. In areas where the finding of fault remains crucial, and the awards of compensatory or punitive damages can be substantial, tort litigation can be time-consuming and costly. Its defenders claim tort litigation promotes safety and economic efficiency, while critics argue the process does little but raise insurance premiums while providing windfalls to a handful of lawyers. Efforts to reform tort law hope to set limits to damage settlements and to broaden no-fault statutes for use in alternative forms of litigation. In the 1990s many U.S. states, pressed chiefly by conservatives and business interests, passed laws limiting damages, but state courts have repeatedly voided these limits as violations of "open courts" guarantees in state constitutions.
For instance, if somebody throws a ball and accidentally hits a pedestrian in the eye, the pedestrian may sue the ball thrower for losses occasioned by the accident (for example, costs of medical treatment or lost income during time off work). Whether or not the pedestrian wins will depend on whether he can prove the thrower engaged in tortious conduct in injuring the pedestrian (most typically, by failing to exercise ordinary care in undertaking the activity that caused the injury). One of the main topics of the substance of tort law is determining the "standard of care" - a legal phrase that means distinguishing between when conduct is or is not tortious. Put another way, the big issue is whether a person suffers the loss from his own injury, or whether it gets transferred to someone else.
Whether or not the pedestrian wins will depend on whether he can prove the thrower engaged in tortious conduct. If the person threw the ball at the pedestrian on purpose, the pedestrian could sue for the intentional tort of battery. If it was an accident, the pedestrian must establish negligence. To do this, the pedestrian must show that his injury was reasonably foreseeable, that the thrower owed him a duty of care, and that the thrower fell below the standard of care required of him.
In much of the western world, the touchstone of tort liability is negligence. Unless the injured person can prove that the person they believe injured them acted with at least negligence to cause their injury, tort law will not compensate them. Tort law also recognizes intentional torts and strict liability, which apply to defendants who engage in certain actions.
In tort law, potential "injuries" are defined broadly. Injury does not just mean a physical injury such as where the pedestrian is struck by a ball. "Injuries" in tort law reflect any invasion of any number of individual "interests." This includes interests recognized in other areas of law, such as property rights. Actions for nuisance and trespass to land can arise from interfering with rights in real property. Conversion and trespass to chattels can protect interference with movable property. Interests in prospective economic advantages from contracts can also be injured and become the subject of tort actions. A number of situations caused by parties in a contractual relationship may nevertheless be tort rather than contract claims, such as breach of fiduciary duty.
Tort law may also be used to compensate for injuries to a number of other individual interests that are not recognized in property or contract law, and are intangible. This includes an interest in freedom from emotional distress, privacy interests, and reputation. These are protected by a number of torts such as infliction, privacy torts, and defamation. Defamation and privacy torts may, for example, allow a celebrity to sue a newspaper for publishing an untrue and harmful statement about him. Other protected interests include freedom of movement, protected by the intentional tort of false imprisonment.
The equivalent of tort in civil law jurisdictions is delict. The law of tort can be categorised as part of the law of obligations, but, unlike voluntarily assumed obligations (such as those of contract, or trust), the duties imposed by the law of tort apply to all those subject to the relevant jurisdiction. To behave 'tortiously' is to harm another's body, property, or legal rights, or, possibly, to breach a duty owed under statute. One who commits a tortious act is called a "tortfeasor". Torts is one of the American Bar Association mandatory first year law school courses.
The dominant action in tort is negligence. The tort of negligence provides a cause of action leading to damages, or to injunctive relief, in each case designed to protect legal rights, including those of personal safety, property, and, in some cases, intangible economic interests. Negligence actions include claims arising primarily from automobile accidents and personal injury accidents of many kinds, including clinical negligence. Product liability cases may also be considered negligence actions, but there is frequently a significant overlay of additional statutory content.
Among intentional torts may be certain torts arising out of the occupation or use of land. One such is the tort of nuisance, which connotes strict liability for a neighbor who interferes with another's enjoyment of his real property. Trespass allows owners to sue for incursions by a person (or his structure, for example an overhanging building) on their land. There is a tort of false imprisonment, and a tort of defamation, where someone makes an unsupportable allegation represented to be factual which damages the reputation of another.
Workers' compensation laws were a legislative response to the common law torts doctrine placing limits on the extent to which employees could sue their employers in respect of injuries sustained during employment.
Negligence is a tort which depends on the existence of a breach of duty of care owed by one person to another. One well-known case is Donoghue v. Stevenson where Mrs. Donoghue consumed part of a drink containing a decomposed snail while in a public bar in Paisley, Scotland and claimed that it had made her ill. The snail was not visible, as the bottle of ginger beer in which it was contained was opaque. Neither her friend, who bought it for her, nor the shopkeeper who sold it were aware of its presence. The manufacturer was Mr. Stevenson, whom Mrs. Donoghue sued for damages for negligence. She could not sue Mr. Stevenson for damages for breach of contract because there was no contract between them. The majority of the members of the House of Lords agreed (3-2) that Mrs. Donoghue had a valid claim, but disagreed as to why such a claim should exist. Lord MacMillan thought this should be treated as a new product liability case. Lord Atkin argued that the law should recognise a unifying principle that we owe a duty of reasonable care to our neighbors. He quoted the Bible in support of his argument, specifically the general principle that "thou shalt love thy neighbor." The elements of negligence are:
Another example is the Occupiers' Liability Acts in the UK whereby a person, such as a shopowner, who invites others onto land, or has trespassers, owes a minimum duty of care for people's safety. One early case was Cooke v Midland Great Western Railway of Ireland, where Lord MacNaughton felt that children who were hurt whilst looking for berries on a building site, should have some compensation for their unfortunate curiosity. Statutory torts also spread across workplace health and safety laws and health and safety in food produce.
The concept of statutory torts is not held throughout all common-law countries, however. Courts in both the United States and Canada have rejected the concept that a statutory duty can be the basis of a private cause of action, absent a specific provision in statute authorising such a cause of action.
A subset of nuisance is known as the rule in Rylands v. Fletcher where a dam burst into a coal mine shaft. So a dangerous escape of some hazard, including water, fire, or animals means strict liability in nuisance. This is subject only to a remoteness cap, familiar from negligence when the event is unusual and unpredictable. This was the case where chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's reservoirs.
Defamation is tarnishing the reputation of someone; it is in two parts, slander and libel. Slander is spoken defamation and libel is printed and broadcast defamation, both share the same features. Defaming someone entails making a factual assertion for which evidence does not exist. Defamation does not affect or hinder the voicing of opinions, but does occupy the same fields as rights to free speech in the United States Constitution's First Amendment, or the European Convention's Article 10. Related to defamation in the U.S. are the actions for misappropriation of publicity, invasion of privacy, and disclosure. Abuse of process and malicious prosecution are often classified as dignitary torts as well.
Economic torts protect people from interference with their trade or business. The area includes the doctrine of restraint of trade and has largely been submerged in the twentieth century by statutory interventions on collective labour law and modern antitrust or competition law. The "absence of any unifying principle drawing together the different heads of economic tort liability has often been remarked upon.
Two cases demonstrated economic tort's affinity to competition and labor law. In Mogul Steamship Co. Ltd. the plaintiff argued he had been driven from the Chinese tea market by competitors at a 'shipping conference' that had acted together to under price his company. But this cartel was ruled lawful and "nothing more [than] a war of competition waged in the interest of their own trade. Nowadays, this would be considered a criminal cartel. In labor law the most notable case is Taff Vale Railway v. Amalgamated Society of Railway Servants. The House of Lords thought that unions should be liable in tort for helping workers to go on strike for better pay and conditions. But it riled workers so much that it led to the creation of the British Labour Party and the Trade Disputes Act 1906 Further torts used against unions include conspiracy, interference with a commercial contract or intimidation.
Through a recent development in common law, beginning with Hedley Byrne v Heller in 1964 a victim of the tort of negligent misstatement may recover damages for pure economic loss caused by detrimental reliance on the statement. Misrepresentation is a tort as confirmed by Bridge LJ in Howard Marine and Dredging Co. Ltd. v A Ogden & Sons.
This doctrine has been widely criticized as being too draconian, in that a plaintiff whose fault was comparatively minor might recover nothing from a more egregiously irresponsible defendant. In all but four US states, it has been replaced judicially or legislatively by the doctrine of comparative negligence. Comparative negligence has also been criticized, since it would allow a plaintiff who is recklessly 95% negligent to recover 5% of the damages from the defendant, and often more when a jury is feeling sympathetic. Economists have further criticized comparative negligence, since under the Learned Hand Test it will not yield optimal precaution levels.
From the late 1950s a group of legally oriented economists and economically oriented lawyers emphasized incentives and deterrence, and identified the aim of tort as being the efficient distribution of risk. They are often described as the law and economics movement. Ronald Coase, one of the movement's principal proponents, submitted, in his article The Problem of Social Cost (1960), that the aim of tort should be to reflect as closely as possible liability where transaction costs should be minimized.
Calls for reform of tort law come from diverse standpoints reflecting diverse theories of the objectives of the law. Some calls for reform stress the difficulties encountered by potential claimants. Because of all people who have accidents, only some can find solvent defendants from which to recover damages in the courts, P. S. Atiyah has called the situation a "damages lottery". Consequently, in New Zealand, the government in the 1960s established a "no-fault" system of state compensation for accidents. Similar proposals have been the subject of Command Papers in the UK and much academic debate.
However, in the U.S. calls for reform have tended to be for drastic limitation on the scope of tort law, a minimisation process on the lines of economic analysis. Anti-trust damages have come under special scrutiny, and many people believe the availability of punitive damages generally are a strain on the legal system.
Theoretical and policy considerations are central to fixing liability for pure economic loss and of public bodies.
The more severe penalties available in criminal law also means that it requires a higher burden of proof to be discharged than the related tort. For example, in the O. J. Simpson murder trial, the jury were not convinced "beyond reasonable doubt" that O. J. Simpson had committed the crime of murder, but a later civil trial, the jury in that case felt that he did satisfy the balance of probabilities threshold required to prove the tort of wrongful death.
Many jurisdictions, especially the US, retain punitive elements in tort damages, for example in anti-trust and consumer-related torts, making tort blur the line with criminal acts. Also there are situations where, particularly if the defendant ignores the orders of the court, a plaintiff can obtain a punitive remedy against the defendant, including imprisonment. Some torts may have a public element for example, public nuisance and sometimes actions in tort will be brought by a public body. Also, while criminal law is primarily punitive, many jurisdictions have developed forms of monetary compensation or restitution which criminal courts can directly order the defendant to pay to the victim.
In addition, other legal systems have concepts comparable to torts. See, for instance, the rabbinic category of Damages (Jewish law).