Introduction
Tort law is an academic discipline belonging to the fundamental part and is compulsory for legal specialty students. This course aims to provide a wide range of knowledge to master’s students in legislation regulating the relations on the commission of torts. The purpose of mastering the discipline is the formation of research competencies and expertise in applying legislation relating to torts, the legal status of the tortfeasor, and the procedure of compensation for harm.
For example, NY Times v. Sullivan and product liability are excellent examples of legal malpractice. In that decision, the United States Supreme Court declared that government workers cannot sue journalists for defamation unless they can demonstrate that the journalists acted with “malice” in publishing material. Thus, tort law has many aspects, but they all form a clear framework that controls society and individual organizations by establishing standards of conduct and punishing criminality.
Definition of Tort
“Tort” comes from the Latin dictum, meaning a misdemeanor. A tort is an offense that causes damage to society, the state, or a person. Such a tort is the basis for holding the offender liable under the law. This offense is unrelated to the breach of an agreement (contract).
Tort obligations are also known as noncontractual obligations. The one who causes harm is called a delinquent. The one who is harmed – the victim.
The world jurisprudence of tort obligations has been known for a long time. For example, in Ancient Rome, tort obligations can be traced already in the laws of the 12 Tables. Roman lawyers believed that a private offense (delictum private) gave rise to the obligation of the offender to pay a fine to the victim.
The Romans established the following tort offenses: injuria – personal insult; furtum – theft; damnum injuria datum – unlawful destruction or damage to another’s property. In ancient Rome, extra-contractual civil torts were called quasi-torts, which caused harm but did not fall under the definition of a tort. This concept meant liability for the following acts:
- A judge pronouncing an unjust sentence;
- Throwing or pouring out of a dwelling house;
- Hanging (displaying) things that are dangerous to passers-by;
- Misconduct by servants of hotels (ships) against customers;
- Harm caused by an enslaved person or pet to another’s property or person.
A tort is an unlawful behavior, a private or civil law misdemeanor, which entails the compensation of harm and damage recoverable in favor of the victims. Tort law is a set of legal norms governing obligations arising from the infliction of injury or harm when it is necessary to determine on whom to impose liability for the damage or harm caused. The division of liability between different wrongdoers and, where appropriate, between wrongdoers and victims is an integral part of tort law. The imposition of a penalty in tort law means that the person or organization that caused the harm will have to compensate the injured party financially.
Tort law is divided into many subfields: medical malpractice, student accidents, car accidents, local government negligence, personal injury, property damage, and more. The Torts Act details the various types of damages. Causing harm is defined as wrongful acts that give rise to tort liability.
Civil Torts
There are two types of civil torts: certain torts and frame torts. For an action by any individual or entity to be considered a tort and to result in a lawsuit, it must meet the criteria of a tort. Among the special torts listed in the Torts Act are unlawful imprisonment, trespass, trespass on private property, assault, harm caused by a dog, public nuisance, and breach of contractual obligations. For example, trespassing is unlawful entry into another person’s land or property, and criminal damage by an individual to another person’s land.
At the same time, the law clearly states that compensation for trespassing on another person’s land property cannot be claimed if no material damage has been caused. Thus, the tort criterion is considered proof of damage to the plaintiff. Compared to certain torts, frame torts do not require proof of damage. Each case is examined according to specific rules, after which a decision is made to impose liability for the frame tort. According to the Law of Torts, frame torts include negligence and breach of statutory duty.
Negligence
Negligence is the most common tort in personal injury claims. When negligence is suspected, the test is whether the individual or organization was negligent to the victim and whether the victim was injured due to that negligence. The term “duty of care” includes a conceptual and a specific component.
The abstract duty of care is a general requirement of care on the suspect’s part toward the injured person. The particular duty of care is considered on a case-by-case basis. In this case, the question is whether there is a duty of care on the defendant’s part to the injured person (plaintiff) in the particular circumstances.
The test is whether an “ordinary person” in the circumstances offered could have anticipated that their action or inaction would cause harm to the injured party. For example, not every injury sustained by a patient during surgery leads to a finding of medical error on the part of the surgeon and surgical team. The court considers whether or not another physician would have acted in this manner in this situation.
The next step examines whether the suspect deviated from the standard of safety and reasonable precautions they should have taken to prevent harm. Damages can be tangible or intangible – pain, suffering, and moral damages. In most cases, answering the question of whether there is a causal connection between the breach of the duty of care and the injury is difficult.
A lawyer specializing in tort law, filing a lawsuit, must prove to the court that there is a de jure and de facto causal connection. De facto causation means there is an actual connection between negligence and the result. De jure causation means testing normative expectations. If causation is proven, the next step is to prove damages to the plaintiff. The plaintiff’s attorney proves damages with expert medical and other expert testimony, depending on the claim’s subject matter and the injuries suffered.
Violation of a Statutory Duty
The test at this stage is whether the suspect has breached a statutory duty designed to protect the victim, people in general, or people of the same category as the victim. Whether the breach of a statutory duty resulted in statutory harm to the victim because of the suspect’s negligence, if it is determined that the suspect has breached a statutory obligation, the lawyers will begin to gather evidence of the damage caused due to this breach of duty.
The negligence of the injured party that caused the accident is one of the defenses available to the suspect. The wounded party himself, in whole or in part, is responsible for the damage caused. If the suspect proves that the victim’s negligence caused the accident, the compensation will be reduced by the amount of damage for which the victim is responsible. If the court accepts the defendant’s argument that the accident was caused entirely by the victim’s negligence, the latter will not be compensated for damages.
Other Violations
Assault is the intentional use of force against a person’s physical body by striking, touching, moving, or otherwise, directly or indirectly, without or with fraudulently obtained consent of the person. The attempt or threat, by act or motion, to use such force against a person when the attempted or threatened force causes the person to assume, for reasonable reasons, that he has at the time the intent and ability to accomplish what he intended. Concerning this article, “Use of force” includes using heat, light, electricity, gas, a lock, bolt, or any other object, substance, or material, if used to the extent that it causes harm.
Unlawful imprisonment is the deprivation of a person’s liberty, illegal and complete, for any length of time, by physical means or pretending to be by a person in authority. Unlawful entry into a dwelling is the entry into a home in an illegal manner or criminal damage or interference by a person; however, no plaintiff can receive compensation for unlawful entry into a dwelling unless he has suffered property damage due to such entry.
Further Development of Tort Law
Tort law, called by civil lawyers the tip of the iceberg, has long been considered one of the effective means in the system of legal compensation and restitution mechanisms. Its role in the post-coronavirus world has undoubtedly increased. Subsidiary application of tort law in complex cases of infliction of harm, when there is a public-law property provision in favor of the victim, ideally allows the highest degree of protection of violated property rights. After all, the averaging and massiveness of social payments from various state and non-state funds will not cover all the losses incurred by participants in economic relations from the intervention of public authorities in circulation, from the adopted anti-epidemic measures (mostly lawful, but partially, perhaps, excessive). In addition, denials of insurance payments to insureds will inevitably lead to applying tort law remedies to compensate for the harm caused.
New impetus will be given to discussions related to the possibility of application in such situations of the norms of extreme necessity and the criteria of subjective and objective wrongfulness, significant in the recovery of damages; to the basis for the recovery of purely economic losses, to the qualification of the pandemic as a circumstance of insuperable force, as well as to the application of various concepts of causality when the occurrence of losses, compensation for which the victim claims, is not the usual consequence of a wrongful act assumed.
As a consequence of the “perfect storm,” the discussion of criteria for the quality of medical care in terms of private and public law that are relevant to lawyers and the professional medical community, as well as to consumers of medical services, will continue with renewed vigor. The need for modern medical law to define the “medical tort” category and clarify medical institutions’ civil liability for violating patients’ rights will become the starting point of a broad scientific discussion.
The Effect of Tort Law on Society
The objectives of tort law as a branch of law are:
- protection of life, health, rights, freedoms, and legitimate interests of individuals;
- interests of society and the state;
- rights and legitimate interests of legal entities (from now on, unless established otherwise, – protected interests);
- as well as the prevention of administrative offenses.
The object of obligations due to the infliction of harm is only positive actions aimed at full compensation. Abstention from the action cannot be the object of a tort obligation since damage cannot be compensated by inaction. The current legislation provides for two methods of compensation for damage:
- compensation in kind (provision of a thing of the same kind and quality, correction of the damaged thing);
- compensation for the losses incurred (item 2 of article 15 of the Civil Code of the Russian Federation).
Obligations due to the infliction of harm are aimed at full compensation, no matter to whom the damage has been inflicted and in what form it is expressed. In cases stipulated by law or contract, the scope and amount of compensation due to the victim may go beyond the limits of full payment for harm provided for in the direction towards its increase. The content of the obligation consists of the rights and obligations of the parties: the right of the victim (the creditor) to demand from the inflictor of harm to restore the property status as it was at the time of infliction of damage, and even more precisely – as it would have been if the injury had not been inflicted.
It also includes the obligation of the person responsible for inflicting property damage (the debtor) to compensate for harm. The content of the tort obligation is exhausted by the property liability of the cause to the victim. Actual compensation of damage to the victim terminates the tort obligation.
Compensation for harm is of a property nature, although the scope of these tort obligations extends to both property and personal non-property relations. Since unlawful actions generate tort obligation and arise when the offense causes harm, the question of the form of responsibility falls away. The burden due to liability occurs as a result of the violation of absolute subjective rights (benefits) of a creditor: the right to property, the right to life, health, and bodily inviolability.
The fundamental nature of these personal non-property rights of the victim is expressed in the fact that no one and never has the right to violate them, except in cases specified in the law. If a person violates the victim’s property or personal non-property rights, the latter has the right to demand compensation from the debtor for unlawful harm. Since the legislator clearly defines both the bearer of the request (the victim-creditor) and the obligation (the causer of damage-debtor) in the arising of this tort legal relation, it is relative. However, as already noted, it appears as a result of violating an absolute right.
Based on the above, tort obligation can be defined as a civil-law noncontractual obligation arising as a result of the infliction of harm to property or non-property rights (benefits) of the victim (the creditor) due to the violation of his absolute rights in which the debtor (inflictor of harm or another person on whom the law imposes the obligation to compensate damage) is required to perform actions to restore in full the violated right or good (offset property harm, pay the moral penalty), and credit.
In obligations from the infliction of harm, its compensation is, as a rule (due to the specificity of this type of obligation), simultaneously performance and responsibility. It should be noted that in the legal literature, the concepts of “obligations due to infliction of harm” and “liability for infliction of harm” are often used as identical, with the idea of “liability” being given a prominent place. The marked use of the concepts does not contain contradiction due to their close relationship.
Liability under civil law is the application to the offender of coercive measures – sanctions, which have a financial content. This applies to both contractual and noncontractual liability. However, contractual liability is secondary: it accompanies a contractual obligation and only occurs if breached. If the obligation has been adequately performed, the question of liability does not arise; responsibility does not manifest itself.
A different case is a liability for obligations arising from the infliction of harm. Here, the obligation arises from the fact of wrongdoing. From the moment this obligation arose, it has the content of responsibility, i.e., the possibility of imposing sanctions on the offender.
Consequently, in this case, responsibility does not supplement or “accompany” any other obligation (as in the case of contractual liability); it forms the content of the offender’s commitment to the obligation arising from the infliction of harm. The offender bears responsibility for the damage caused in the form of compensation in the presence of the conditions stipulated by law 10. According to the tradition coming from Roman law, such responsibility is usually called a tort, and the obligation, the content of which it is, is called a tort.
The above categories are known to the legislation and practice of most countries. For example, the laws of the USA also use both the concept of tort liability and the concept of negligence. Legislators and courts use both concepts as synonyms to denote the same legal phenomenon, suggesting that the tort obligation’s content is tort liability.
In science, there is no unity of opinion on the types of functions of obligations due to the infliction of harm (as, by the way, and civil-law responsibility in general) and their correlation. This can be compensatory, preventive, or educational-preventive functions. The purpose of obligations due to the infliction of harm is to eliminate the property consequences of wrongdoing at the expense of the tortfeasor.
Ensuring elimination of property consequences of misconduct, and obligations arising from the infliction of harm (as a type of civil-law responsibility), thereby performing their main, primary function – restorative (compensatory). This point of view prevails in modern literature. The Institute of Noncontractual Obligations of Vital Parts does not raise doubts. Moreover, civil literature rightly emphasizes that noncontractual obligations are special institutions aimed at the compensation (restitution) of harm.
However, putting the restorative (compensatory) function of obligations at the forefront due to the infliction of harm should stay within their preventive, educational role. The primary purpose of the Institute of Compensation for damage is not to punish the offender but primarily to restore the victim’s violated right at the offender’s expense. However, it is impossible to reduce all the meaning of the named Institute to the task of liquidation of property consequences, to the charge of compensation for the damage that already occurred, that is, to turn its tip only to the past. Limiting the Institute of Reparation’s meaning to its essential purpose is to simplify and diminish the role of tort responsibility. Its relevance extends well beyond the actual work and pursues a far larger purpose – preventing the occurrence of negative facts.
The Institute of Compensation for Noncontractual Damage cannot be reduced only to restoring the violated rights and interests of civil turnover participants. It also has educational and preventive value. It is aimed at fostering respect for the rights and interests of others and a careful attitude to them. The threat of compensation for the damage caused is a serious material incentive to refrain from offenses. Thus, this institution aims to prevent future occurrences of unlawful infliction of harm.
Thus, the second function of obligations due to the infliction of harm is preventive-educational (preventive). Established by law, an offender’s responsibility to compensate for the damage caused by them educates citizens on the inviolability of property, life, and people’s health. It encourages the observance of law and order in society. The profound educational impact that tort obligations have on potential offenders contributes to preventing abuse of the law.
Conclusion
Thus, tort law protects society and controls illegal activities. It also helps to obtain justice in many matters. In modern times, this is essential because crime is on the rise in many different areas. In specific organizations, tort law can help to achieve order. With such small communities, humanity begins its journey toward an ideal, just society. This can only be achieved by constantly improving the control of legal violations and introducing new methods.
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