Chapter 1: Tort Law Overview
This outline may not correspond exactly to the approach taken in your class work. The purpose here is to give you a logical explanation of the subject area, rather than to mirror any particular teaching approach.
A TORT is a wrongful act recognized by law as a “tort”. An act is “wrongful” simply because English common law and English customs deem it to be wrongful. The “wrongful” act may be a breach of an existing duty to act. A person who commits a tort is a tortfeasor. Tort actions are brought by plaintiffs who present a “cause of action” claiming the tortfeasor committed a tortuous act against them. There are many different tort causes of action. All of them require plaintiffs to prove certain legal elements by a preponderance of the evidence.
A “preponderance” of evidence means the plaintiff must present more evidence or more convincing evidence than the defendant as to each element.Many of the legal elements vary from one tort cause of action to another. But all torts share three common legal elements. Every tort action claims 1) the defendant has acted wrongfully, 2) that the wrongful act caused a wrongful result, and 3) that the plaintiff deserves a remedy.
Plaintiffs in a tort action have no burden to prove they did not consent to the tortuous acts of the defendant. Law students often incorrectly think this is something the plaintiff must prove. Consent is an affirmative defense that may be raised by the defendant in any tort action. If the defendant claims the plaintiff consented to the act complained of, the burden is on the defendant to prove it.
For example: Brutus hits Caesar on the head with a baseball bat. There are no witnesses. If Brutus claims Caesar consented to be hit on the head, he has the burden of proving it. After all, if the burden was on Caesar to prove he did NOT consent to be hit on the head by a preponderance of the evidence it would be impossible because there are no witnesses and it would just be his word against Brutus. That is not a “preponderance” of evidence. 1. Tort Causes of Action Tort causes of action may be divided into the following categories, and later the book will explain the details of these causes of action in this order:
- Strict Liability in Tort
- Intentional Torts
- Products Liability
- Invasion of Privacy
- Interference with Contract
- Abuse of Process and Malicious Prosecution
- Deceit, Nondisclosure and Negligent Misrepresentation