The majority of legal actions filed in United States courts are predicated on two theories: breach of contract (involving a violation of an obligation assumed by a person under a written or oral agreement) and actions based on TORT.

A "tort" is a wrong against another which allows that person to sue. Unlike a breach of contract, a tort is not based on violation of an agreement: it is based on violation of a duty to another person. Usually that duty is the "duty of due care" which means that if one’s carelessness ("negligence") causes harm to another, one must pay for the harm caused. A second type of tort is predicated on intentional wrong doing, such as engaging in fraud against another or assault and battery against another. These types of torts are commonly known as "intentional torts" and allow the injured party not only to seek damages for injury caused, but to seek punitive damages to "punish" the wrong doer.

Quite often a single legal complaint brought against a defendant will combine causes of action for breach of contract, for negligence and also for intentional wrong doing. Typically, one finds actions in which a plaintiff claims the defendant breached the contract, committed intentional fraud in inducing someone to sign the contract, and/or was negligent in failing to disclose critical information, thus committed the tort of negligent misrepresentation.

The most common tort action is for automobile accidents in which the duty of due care in driving a vehicle was allegedly violated by the negligent driver. Other common negligence based tort causes of action often filed are for injuries to visitors on premises based on the defendants keeping premises unsafe ("slip and fall actions"); actions against persons for using equipment dangerously or operating any vehicle unsafely, as in boating or airplane accidents; and myriad other actions based on personal or property damage caused by another’s alleged negligence, from dropping objects , or discharging a weapon carelessly to failing to prevent fires or unsafely storing hazardous materials.

Intentional torts include assault and battery; conversion (theft); embezzlement; slander; libel; fraud; and virtually any other wrong intentionally committed by one against another.

It is important to differentiate between a "crime" and a "tort." If the government passes a law which prohibits a certain conduct and provides that the wrong doer will be punished by the government, that is a "crime." A tort is a private legal action in which the state is not directly involved: instead, a person seeking to protect him or herself is filing suit and it is NOT the state seeking to secure the public peace. An individual can not join his or her private action to the state criminal action and vise versa in the United States, unlike the law in other nations.

Often the same wrongful act can be both a crime and a tort. Thus, assault and battery on a person may lead the state to prosecute for violation of the law and the victim to sue for damages predicated on the same act. In such cases, the State may prosecute and the individual may also sue but those will be entirely separate actions. A conviction on the criminal matter may be used as evidence in the private tort trial but a separate private trial is still necessary, with its own judge and jury.


Elements of Proof in a Tort Action

As in most areas of American law, the plaintiff has the burden of proof by a preponderance of the evidence ("more likely than not that the plaintiff is right.") Recall that in a criminal matter, the state must prove guilt by a much higher burden of proof, beyond a reasonable doubt ("beyond a reasonable doubt to a moral certainty.") Further, in a tort action in California, the plaintiff only needs to have a majority of the jury agree with him or her to win. In criminal matters, the State must obtain a unanimous verdict in order to obtain a conviction. (Thus, in the OJ Simpson trial, the State "lost" its case in trying to prove a crime due to the high burden of proof although the parents of one of the victims won their case against OJ Simpson in a civil trial and obtained a massive judgment against him since their burden of proof was much lower and the parents did not need a unanimous verdict to get their verdict.)

In a negligence tort action, the main thrust of the plaintiff’s case is to prove that the defendant had a duty to the plaintiff and violated it by negligent action or failure to exercise due care. Negligence is normally defined as not using the same degree of care that a reasonable person would exhibit in a similar situation. Merely causing an accident is not necessarily proof of negligence. Thus, if my car bumps into yours but it is caused by factors beyond my control (failed brakes in a brand new car or a defect in the road) then I may not be liable to you for your damages-though you may have a cause of action against the car manufacturer or highway builder. The critical element is negligence of the defendant directly causing harm to the plaintiff.

Intervening causes may also confuse the proof of negligence. Thus, if I fail to set my parking brake when leaving my car but my car does not begin rolling down the hill until someone else negligently hits my parked car and starts it rolling, we have a situation in which the negligence of two people (me and the poor driver) caused the accident and we both may be liable in differing degrees.

That leads to the concept of "contributory negligence." While each state has its own definition and criteria, in California there is a "comparative" negligence theory by which a jury is required to divide among the parties comparative fault and divide the verdict accordingly. Thus, in the above example, the jury could conclude that my failure to set the parking break was 30% responsible for the damages while the driver who hit my car was 70% responsible, and if the verdict was one hundred thousand dollars, I am liable for $30,000 and the other defendant for $70,000.00.

The plaintiff can also have comparative negligence attributed to him or her and in that case the verdict is reduced by the percentage attributable to the plaintiff. Thus assuming the plaintiff hit by the above car was driving on the wrong side of the street when hit by my rolling car, the jury could conclude the plaintiff was 50% at fault, thereby cutting the verdict in his favor to fifty thousand dollars, of which I must pay 30% or fifteen thousand dollars, while the party who hit my parked car must pay 70% or thirty five thousand dollars.

Simple arithmetic can indicate that a party not very much at fault may still face massive payout if the injury is severe enough. Assume in the above case that the person in the car was crippled for life and in his wheelchair could no longer support his family. Even though my failure to set the parking break is only 30% the cause of 50% of the damages, I may still face a million dollar verdict if the jury awards him many millions of dollars of damages!

Even more remarkable, assume a plaintiff is 90% liable for his own injuries and I am only 10% liable. If his damages are ten million dollars due to a truly severe permanent injury, I still must pay him a million dollars even though the jury found that the accident was almost entirely his fault!

Intentional torts require the same burden of proof (by a preponderance of the evidence) but one must demonstrate that the defendant intentionally committed the wrongful act, be it fraud, slander, libel, assault, or whatever other intentional tort is alleged. This necessarily requires proof of the defendant’s state of mind at the time, though this may be inferred from the defendant’s actions or comments.

Intentional torts, in the United States, allow the plaintiff to seek punitive damages which are awarded to the plaintiff to punish the defendant, NOT to compensate the plaintiff for the injuries caused. Since punitive damages are based on the wealth of the defendant, not on the damages to theplaintiff, they can be much greater than the damages awarded to compensate the plaintiff for the injury caused ("compensatory damages.") For example, this office recently obtained punitive damages for fraud in a matter in which the punitive damages were millions of dollars greater than the award based on actual economic damage to the client. It is vital to note that most insurance coverage will NOT cover a verdict based on punitive damages nor can they normally be discharged by bankruptcy. They are not often obtained but when obtained are powerful weapons, indeed. It is the punitive damages which are forcing the cigarette companies in America to consider withdrawing from the entire market.

While punitive damages are usually not granted in jurisdictions outside of the United States, it is critical for off shore companies to remember that if the tort is alleged to have occurred in the United States, then the legal action may be brought in the United States and punitive damages may be allowed. Further, it has been held that engaging in business in the United States may vest jurisdiction in the United States even if no physical presence exists on the part of the offshore company. This is becoming particularly complex due to the effect of the Internet on international business. Appropriate contractual documents may avoid punitive damages in many instances and the reader should review the article on Commercial Transactions in the United States on this Website.


Damages Available in Tort Actions

Due to the numerous types of torts that give rise to causes of action, the types of damages available depend greatly on the type of tort pled. The basic rule is that if one wins, one gets full compensation for the damages caused by the other, e.g. one receives enough money to compensate in full for one’s losses. The plaintiff is "made whole" e.g. put in the position that the plaintiff would have been but for the wrongful act of the defendant. Thus, if you destroy my car due to your negligence, you must pay me for the value of the car.

However, in reality, this simple measurement of damages can become quite a complex matter. In personal injury actions, one is awarded compensation for medical bills and lost work, but can also get compensation for "pain and suffering" that one experiences and how to measure that subjective matter is an issue to be argued to the jury. The jury uses their common sense to determine how to compensate for the pain one suffers and that analysis is very difficult to compute. Normally, the award for pain and suffering exceeds by many times the out of pocket costs faced by the plaintiff. (It is this aspect of personal injury awards that causes off shore plaintiffs to seek United States jurisdiction whenever they are injured by tort feasors since most countries do not award damages for pain and suffering.)

Further, permanent injuries can result in much larger verdicts as the jury attempts to determine the value in money of the loss of a limb or a permanent scar. Only experienced trial counsel can evaluate a case and give an educated guess as to how a jury will react to such subjective matters.

Even outside of personal injury, the damages are often a complex matter to determine. For instance, in a fraud action based on sale of real property, one is awarded the difference between the misrepresented fair market value and the actual fair marketvalue. Assuming a home without termites has a fair market value of $500,000.00 but with termites is worth 450,000.00 and the Seller lies to you about the termites, you can sue and get the fifty thousand dollars to bring the home up to true fair market value.

But if the Buyer was good at negotiations and purchased it for far below the actual fair market value, there are no damages despite the misrepresentation since the home, even as misrepresented, is still worth more than what you paid. Remember, one is not awarded damages based on what it costs to correct the defect but on the differential in fair market value between actual fair market value of the home purchased versus and what you paid. If the property is actually worth more than five hundred thousand dollars despite the termites, the actual damages are zero since the value of the house you purchased is still greater than your purchase price! In the above example, if the value of the house you purchased was actually $600,000.00 but you negotiated wisely and purchased it for $500,000.00, then your damages do not exist, under the law, despite the misrepresentation and despite your need to spend fifty thousand dollars to remove the termites.

It is therefore clear that each tort action requires careful analysis as to damages and consultation with an experienced attorney before suit is filed to ensure that it makes economic sense to actually file suit. Remember that absent a contract provision, in the United States attorney fees are not awarded to the prevailing party in most matters, thus one may end up paying more for the case than the judgment is worth. Put simply, professional evaluation of actual damages are as essential to evaluate a case as professional evaluation of liability and both must be considered carefully before one decides to file suit.



Assuming more than one person is responsible for your injury, you have a right to sue all of them and seek "joint and several liability." That term means that each defendant is entirely responsible for paying the entire judgment to you. The defendants may have a right to seek contribution for a proportionate share from the other defendants, but from the plaintiff’s point of view, the plaintiff has a choice as to whether to seek recovery from any of the defendants or all of the defendants and to enforce the judgment against any or all.

This must be compared to comparative negligence verdicts in which the jury apportions responsibility among a group of parties, including even the plaintiff. Such comparative negligence does not arise in actions based on intentional torts and even in negligence two or more parties may be held jointly and severally liable. Again, experienced counsel must be consulted to carefully analyze the various joint and several liabilities that may or may not exist.

As with measurement of damages, the Statue of Limitations (time by which a plaintiff must file suit or be barred) differs depending on the tort. Most personal injury actions have a two year statue of limitations from when the accident occurred. Actions for fraud may have a two or three year statute, depending on the nature of the alleged act, but the statute of limitations is often extended if the plaintiff did not know or could not have discovered by reasonable inquiry that the fraud by using due diligence. To be safe, one should always assume that suit should be brought within one year of the event that gives rise to the cause of action and make sure legal counsel is consulted well before that deadline.



Tort actions are how the average American uses the court and constitute, along with breach of contract, the overwhelming majority of civil actions in the American system of law. If the wrong perpetrated against you is not breach of contract, the odds are it is a tort and you will seek that type of relief.

It is important to note that intentional torts are a very different type of action despite being categorized as "torts" along with torts based on negligence. Intentional torts often allow punitive damages, often can not be eliminated by bankruptcy, and require proof of wrongful intent. It is for that reason that many parties "over plead" their cases and allege intentional torts even though the facts do not support such interpretation. The American courts are used to this type of conduct and treat it with the annoyance it deserves.

Torts have been called the Bread and Butter of the Law and undoubtedly form the basis for relief for the overwhelming majority of those who use the courts to right wrongs done to them. Torts are the legal vehicle to make whole those innocents harmed by others in daily life who have learned, to their sorrow, the wisdom of William Mc Fee who wrote in 1932: People don’t ever seem to realize that doing what is right is no guarantee against misfortune.

Article Categories