This was written for those who think a tort is:
- a dessert that is served at the end of a multi-course meal
- a game of chance; or
- just another legal four-letter word used by lawyers to confuse non-lawyers
Actually, a tort is a civil action for damages relating to a variety of injuries. The law of torts is concerned with the allocation of losses arising out of human activities; to afford compensation for injuries sustained by one person as the result of the conduct of another.
Motor vehicle accident cases comprise the single largest number of tort cases. In the Arizona Superior Court, for instance, approximately two-thirds of the tort cases filed arise out of motor vehicle accidents. The remaining tort cases filed involve claims of medical malpractice, assault, battery, conversion, false imprisonment, intentional infliction of emotional distress, defamation, invasion of privacy, misrepresentation, malicious prosecution, interference with business relations, premises liability, and product liability.
Some of the torts mentioned in the preceding paragraph are also crimes, such as assault and battery. A tort is not the same thing as a crime, although the two sometimes have many features in common. A crime is an offense against the public at large, for which the state, as the representative of the people, will bring proceedings in the form of a criminal prosecution. The purpose of a criminal proceeding is to protect and vindicate the interests of the public as a whole, usually by punishing the offender. The civil action for a tort, on the other hand, is maintained by the injured person himself. Its purpose is to compensate him for the damages he has suffered, at the expense of the wrongdoer (also known as the tortfeasor). If the injured party is successful, he will receive a judgment for a sum of money, which he may then enforce against the tortfeasor.
In many cases, insurance is available to pay a money judgment entered against a tortfeasor. Auto and homeowners’ policies are the two most common types of tort insurance policies in effect today. Both cover negligent acts committed by the policyholder. Most professionals also have professional liability insurance to cover work-related negligence. This type of insurance is commonly referred to as malpractice insurance, and most doctors, lawyers and accountants carry it.
Under almost all insurance policies covering torts, in addition to paying damages, the insurance company must provide a defense for its policyholder in any civil action brought against him. This means that insurance companies hire and pay for the defense attorneys in almost all tort cases.
In the vast majority of tort cases, the plaintiff, i.e., the person who claims injury by the wrongful act or conduct of another, is represented by an attorney on a contingent-fee basis. When the fee is contingent, the attorney receives a pre-determined percentage of the amount recovered as his fee in the case. Conversely, if there is no recovery, there is no attorney’s fee.
It is widely believed that the contingency fee holds the keys to the courthouse doors for this country’s poor and middle class. The Florida Supreme Court has stated, “…the poor and the least fortunate in our society enjoy access to our courts, in part, because of the existence of the contingency fee.”
Regardless of whether a fee is contingent, it must be reasonable. The State Bar of Arizona requires that all contingent fee contracts be in writing, and that the fee be reasonable under the circumstances of the case.
The median award received by injured plaintiffs in large U.S. counties is $30,500, according to a recent U.S. Department of Justice study. This includes both compensatory and punitive damages. Compensatory damages compensate the plaintiff for losses caused by the tortfeasor’s negligent or wrongful conduct, while punitive damages punish for a tortfeasor’s egregious misconduct and willful or malicious acts. Punitive damages are awarded in only 3% of tort trials won by plaintiffs. And, according to the study, the median punitive damage award for outrageous misconduct is only $38,000. In every case, the trial judge has the power to reduce the jury’s damage award if he or she believes it is excessive. The “Headline Awards” of millions of dollars are clearly the exception to the rule in tort cases.
Scope of Law
The law of torts covers a wide range of human activities. Indeed, its scope is so broad it is difficult to imagine a human activity that is not covered by this branch of the law. Thus, a person who sustains injury to his person or property as a result of somebody else’s act or conduct, whether it be negligent or intentional, likely has a claim for damages based on the law of torts.
The above article is an excerpt from Arizona Laws 101: A Handbook for Non-Lawyers, 2nd Edition (Fenestra Books, 2012), by Donald A. Loose, republished with the author’s permission.
Disclaimer: Laws change constantly. Specific legal advice should be obtained regarding any legal matter. The information contained on this website does not constitute legal advice and no attorney-client relationship is created.
Don likes to target shoot, scuba dive, and pilot airplanes. Most recently, he has been working on his golf handicap. Don enjoys writing, reading, and spending time with his wife, twin sons, and golden retriever, Lucy.