Roman Zaika, Legal practce

Tort wrongs in USA

Theory of tort in USA

A "tort" is a civil wrong, that should be delimitated from a crime. A crime is a public wrong. The main source of the law of torts is mainly common law principles.

Concept of tort

1.1 Elements

A tort is the breach of a legal duty which causes some kind of compensable injury or loss to person, property, or rights.

Four things together make a tort, and a tort lawsuit will succeed only if the plaintiff who brings the suit against the defendant proves all four:

• the defendant owed a duty to the plaintiff;

• the defendant violated (or breached) that duty;

• the plaintiff suffered an injury or other loss; and

• the defendant’s breach of duty directly and proximately caused the plaintiff’s loss. (4, p. 46)

The first requirement for a tort is a legal duty owed by one person to another (its presence). The nature and scope of these duties are defined mainly by common law. This law represents the accumulated experience of the years in describing conduct which is acceptable or unacceptable to society. An example of a duty which is important in many lawsuits is the broad rule that a person must act with reasonable regard for the safety of others. The scope of any duty may vary according to the relationship of the parties, and may also vary according to the circumstances.

The second requirement for a tort is the breach of a legal duty. Normally, the issue of whether a legal duty exists is a question of law and the issue of whether the duty has been violated is a question of fact. The judge decides whether the law imposes a duty, but the jury decides whether or not the defendant breached the duty.

The third requirement for a tort is injury or loss suffered by the plaintiff. The injury or loss may be a physical injury, injury to property, or injury to (or loss of) a valuable right or interest. In the absence of injury or loss, violation of a legal duty is a "wrong without harm" or "damnum absque injuria." Moreover, the injury or loss must be significant enough to warrant the court's time and trouble in providing and enforcing a remedy. This last concept is restated in the maxim, "de minimus non curat lex"-literally, "the law does not cure trifles."

The fourth requirement for a tort is that the defendant's breach of duty is a proximate cause of injury or loss to the plaintiff. Legally, an act or omission is a proximate cause of an event if the act or omission is a substantial factor in bringing about the event.

1.2 Crimes And torts

The criminal law and the law of torts both deal with conduct which is considered socially unacceptable. A crime is a wrong against the public interest for which the remedy is a criminal penalty inflicted in a prosecution brought in the name of the state. A tort is a private wrong for which the remedy is money compensation awarded in a lawsuit brought by the injured person.

Although a criminal act usually has an individual victim, the act is a crime because it is also a serious offense against a public interest: the peace and safety of the community. The alleged wrongdoer is brought to court by a prosecutor on behalf of the public, and if the defendant is found guilty, he or she is punished by the state.

It is possible for an act or omission to be both a crime and a tort. A crime which has a victim is also a tort. Even if an act or omission is both a crime and a tort, the criminal and civil proceedings are entirely separate. A person who causes an auto accident by carelessly running a red light may be prosecuted in a criminal action by the state for the traffic violation. If the victim of the accident wishes to recover compensation for her injuries, in most cases she must file a civil lawsuit on her own behalf. (5)

The crime and the tort have different elements and criteria for liability. The tort affects the individual but does not affect the peace and safety of the state. The individual suffering injury or loss is the plaintiff in the civil action. The state is the plaintiff in the criminal action.

The cornerstone of casual law system is classification of a damages. Due to a character of damage it can be compensatory or punitive, the compensation also.[4]

Compensatory damages, like the name suggests, are intended to compensate the injured party for his loss or injury(negligence). Punitive damages are awarded to punish a wrongdoer. There are other modifying terms placed in front of the word damages like "liquidated damages," (contractually established damages) and "nominal damages" (where the court awards a nominal amount such as one dollar).[1]