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Episode 1.1: What is Torts? And what Torts is not. - YouTube
Channel: Center for Innovation in Legal Education
[2]
>> "What is Torts?
[4]
"And what Torts
is not."
[6]
A tort is a wrongful act, other
than a breach of contract,
[10]
that results in injury to
another party's person,
[13]
property, dignity,
or reputation,
[16]
and which is recognized
by statute or common law
[19]
as a legitimate basis
for liability.
[21]
In other words, torts is
the law of civil wrongs.
[25]
Now, this definition raises
some important distinctions
[29]
that are worth addressing
before we move on.
[31]
Civil or
criminal cases,
[35]
common law or
statutory law,
[38]
tort or contract.
[41]
Let's go through
these one by one.
[43]
Civil or
criminal cases.
[46]
Like contracts
and property,
[48]
tort law provides for civil
rather than criminal liability.
[53]
There are some crucial
distinctions here
[55]
having to do with, one,
who the parties are--
[58]
plaintiff as opposed
to prosecutor.
[62]
Two, what the possible
outcomes are--
[65]
liable as opposed
to guilty.
[68]
Three, the applicable
standard of proof--
[72]
preponderance as opposed to
beyond a reasonable doubt.
[77]
Four, the consequences
for the defendant--
[80]
civil damages as opposed
to criminal penalties.
[84]
And five, the procedural
rules that apply--
[88]
civil procedure as opposed
to criminal procedure.
[92]
First, torts are disputes
between private parties.
[97]
In a tort action, the
injured plaintiff brings suit
[99]
against the defendant
for damages,
[103]
whereas in a criminal
action, the prosecutor,
[106]
acting on behalf
of the government,
[107]
charges the defendant
with a crime.
[110]
The injuries on which a claim
of tort liability is based
[114]
might also form the basis
of a criminal action.
[117]
But the two cases
would be initiated
[119]
by different parties, and
would proceed separately.
[122]
For example,
O.J. Simpson
[125]
was tried by a prosecutor
on two counts of murder--
[128]
People of the State of
California v. Simpson--
[130]
and acquitted...
AKA, found not guilty.
[135]
He was also sued by the
families of Nicole Brown Simpson
[138]
and Ron Goldman
for wrongful death--
[141]
Goldman v. Simpson--
and found liable.
[145]
In some, criminal cases
are the people
[148]
represented by the
prosecutor v. defendant,
[150]
and tort suits are
plaintiff v. defendant.
[154]
Second, notice that
the possible outcomes
[157]
are also different.
[159]
In criminal cases,
the defendant
[161]
is found guilty
or not guilty.
[163]
In tort suits, the defendant
is liable or not liable.
[168]
Third, the standard
of proof is different.
[171]
In a criminal case,
the standard of proof
[174]
is beyond a
reasonable doubt,
[177]
but in a civil case,
[178]
the standard of proof, with
a few narrow exceptions,
[181]
is a preponderance
of the evidence.
[184]
The preponderance standard
has been interpreted
[187]
to mean that the finder
of fact must be convinced
[190]
that the plaintiff's
assertions
[192]
are more likely
than not accurate.
[196]
Some courts have quantified
this as more than 50% likely.
[200]
The difference between
the civil and criminal
[202]
standard of proof might
explain the divergence
[205]
between the criminal
and civil Simpson cases.
[210]
Fourth, the consequences for
the defendant are different.
[214]
If a criminal defendant
is found guilty,
[217]
the penalties
might include death,
[219]
imprisonment, or
criminal fines.
[221]
In a tort suit, if the
defendant is found liable,
[225]
the most common remedy
is that the court
[227]
will order the defendant
to pay damages.
[230]
Though, in some cases, equitable
relief may be available,
[233]
meaning that the court
can issue an injunction,
[235]
ordering the defendant to take
or refrain from certain actions.
[240]
Typically, criminal
fines are paid
[243]
by the dependent
to the government.
[245]
Civil damages are paid by the
defendant to the plaintiff.
[249]
Finally, the procedural
rules are also different
[253]
for civil as opposed
to criminal cases,
[255]
meaning civil procedure as
opposed to criminal procedure.
[261]
There are two types of law
that can form the basis
[264]
of civil liability--
common law or statutory law.
[269]
When you think of law,
you probably think
[272]
of statutes passed
by legislatures--
[275]
the U.S. Congress,
[276]
the State Legislature,
or the City Council--
[279]
and signed into law
by executives--
[282]
the President,
Governor, or Mayor.
[285]
Sometimes, these statues include
private causes of action,
[290]
meaning that the statute
includes a provision
[293]
allowing private parties
to sue each other
[295]
to enforce the rights
recognized in that statute.
[298]
For example, employment
discrimination law
[301]
is now dictated
largely by statutes.
[304]
Those statutes typically create
private causes of action,
[308]
allowing employees
who believe
[310]
that they have been
discriminated against
[312]
to sue their employers
for violating the law.
[315]
The rules and standards
that a court would use
[317]
to adjudicate
such a dispute
[319]
are derived from
the statute itself.
[322]
Like contracts and property,
tort law is primarily
[326]
a common law
subject,
[327]
meaning that it is
primarily judge-made
[330]
rather than
legislature-made.
[334]
Most of tort law
has evolved
[336]
through thousands upon thousands
of court decisions
[339]
arising out of
individual disputes.
[342]
The holdings of these
individual court decisions
[345]
are treated as precedents,
which are then applied
[348]
to future disputes that arise
within the same jurisdiction.
[352]
It's worth noting that,
particularly in torts,
[355]
the common law and
statutory law
[357]
interact with each other
in a few important ways.
[361]
First, in many
jurisdictions,
[364]
at least part of the common law
of torts-- created by judges--
[368]
has been codified
into statutory law
[371]
at some point by
the legislature.
[373]
Often the legislature
effectively ratifies the rules
[377]
that judges have
developed over time.
[379]
In the absence of this
kind of ratification,
[383]
judge-made rules
are still valid...
[385]
but when the legislature
has codified an area
[388]
of common law, attorneys
and judges must look
[391]
to the relevant
statute first,
[394]
not merely to the
applicable precedents
[396]
or restatement
sections.
[399]
Second, the legislature
has authority,
[402]
pursuant to constitutional
restraints,
[404]
to reject the rules
and standards
[406]
adopted by the
judiciary.
[408]
You can think of the
judiciary and the legislature
[411]
as being in conversation
with each other.
[414]
If the judiciary recognizes
a common law rule
[417]
that the legislature
doesn't like,
[419]
the legislature is free
to pass a statute
[422]
adopting a
different rule,
[423]
and judges are then bound by
that legislative pronouncement
[427]
in future cases.
[429]
The common law cause
of action, or rule,
[432]
is said to have been
"preempted by the legislature."
[435]
Third, if the legislature
has passed a statute
[439]
that is relevant
to a tort dispute,
[441]
but does not actually preempt
the common law cause of action,
[444]
the courts might take that
legislative pronouncement
[447]
into account, particularly
when applying common law rules
[451]
that implicate policy
considerations.
[454]
Tort or contract.
[456]
Within civil common law
liability,
[459]
there is also an
important distinction
[461]
between tort liability
and contract liability.
[465]
Remember, the definition of tort
excludes breaches of contract.
[470]
One useful way of thinking
about the distinction
[472]
between torts and contracts
is that contract law
[476]
governs the creation and
enforcement of agreements,
[480]
where as tort law
dictates the relationships
[482]
between parties who have
not previously agreed
[485]
to a set of rules
that will govern
[486]
their dealings
with each other.
[488]
For example, I bump into
you on the sidewalk,
[492]
knocking you into
oncoming traffic
[494]
causing you
various injuries.
[496]
We've never met before, so
we haven't had an opportunity
[499]
to agree to the rules
that will dictate
[502]
whether I must compensate
you for those injuries.
[505]
Tort law provides a
set of default rules
[508]
which govern our
interactions.
[511]
In other situations, two
parties have had the opportunity
[514]
to agree to a set of
obligations between them
[517]
that will govern
their dealings,
[518]
or at least some aspect
of those dealings.
[520]
If I fail to fulfill
an obligation
[522]
that I have
agreed to,
[524]
then I might be liable
for breach of contract.
[527]
For example, imagine
you and I have entered
[530]
into a contract whereby
I agree to transport
[533]
a shipment of laptop computers
from your manufacturing plant
[536]
to your distributor
across the country.
[539]
If those laptops are
damaged during shipping,
[542]
you might sue me for
breach of contract.
[545]
In adjudicating
our dispute,
[547]
the court would look first
to the contract between us.
[550]
In our contract,
we might have agreed
[552]
to a set of rules that
differ from the default rules
[555]
found in the
law of torts.
[557]
This is known as
"contracting around
[560]
"the tort law
default rule."
[562]
Alternatively, our
contract might be silent
[565]
as to whether I am
liable for damage
[567]
that occurs
during shipping.
[569]
In that case, the tort law
default rules will apply.
[573]
Note that a plaintiff can
combine tort and contract
[576]
causes of action
in a single civil suit.
[579]
This often happens with
regard to harms caused
[582]
by defective consumer
products, for example.
[585]
If I am injured by
a defective blender
[587]
that you sold me,
I might bring suit
[590]
for breach of warranty, a
contract cause of action,
[593]
and for negligence, a
tort cause of action.
[596]
And you might
be found liable
[598]
for neither, both,
or either basis.
[601]
So, a tort is
a wrongful act,
[605]
other than a breach
of contract,
[607]
that results in injury to
another party's person,
[609]
property, dignity,
or reputation,
[612]
and which is recognized
by statute or common law
[615]
as a legitimate
basis for liability.
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