American Tort Law
21 Feb 2015
American Tort Law
[Explained for a layman or a common man]
By Hemant Batra
Though in definite terms one cannot conclude as to where does the origin of Tort law rest. The concepts of Tort law did exist in the ancient Roman and Anglo-Saxon laws but in a formal manner it found its eventual acknowledged place in the British legal system. From thereon, it was borrowed by other jurisdictions of the world; and America being one of them. In layman’s language, Tort law is a path of corrective or remedial justice. A path or remedy which reasons to reinstate the victim to the position he or she was in prior to the accident, through financial compensation. In legal language it can be described as status qua ante.
In more of legal terminology, the American Tort law can be defined as a private law purporting to redress the grievance of a victim by way of predominantly monies and financial compensation. In order to qualify as a victim under the Tort law one will need to establish any one of the following acts or omissions, as the case may be, on the part of the opponent - (i) `intentionally’ causing injury to the victim; (ii) `negligently’ causing injury to the victim; or (iii) `wrongfully conducting’ thereby causing injury to the victim.
Though, `negligence’ is a subjective terminology but under the American Tort law, it is defined as the failure to exercise the care, which any reasonable person of ordinary prudence would exercise under the normal circumstances in that situation. Answer B is incorrect, because negligence is not defined as causing an unaffordable injury. Negligence isn’t determined on basis of the financial status of the victim as has been unsuccessfully claimed by the defense in many cases.
An interesting sync or distinction, ought to be drawn between Tort law and other connected laws such as contract law and criminal law. There could be instances where a Tortious act may also constitute contractual breach or criminal offence but those would invite separate remedies; meaning in addition to Tort. However, how these offences, acts or omissions reconcile with each other will depend on case to case basis more so because, Tort isn’t a codified law per se, it’s derived out of judicial precedents and case laws.
The foundation of the American Tort law got to be laid down in a historic and landmark Massachusetts state court’s ruling in the “fighting dogs” case of Brown v. Kendall (1850). This American court deviated or in other words took a different path than the established principle laid down under the British Tort law. The American court in Brown V. Kendall established the “Fault Principle” whereby it held that the injured Plaintiff is entitled to recover damages if it can be established that the Defendant is at fault and that mere unreasonableness on the part of Defendant will not suffice. The court also disregarded the previously settled common law “contributory negligence rule” which embodied that where the Plaintiff was partly at fault, he would be completely barred from recovery.
Like `negligence’, `wrongful conduct’ is also one of the trigger points under the Tort law. For instance in the modern times of commerce and trade, “products liability” law is squarely covered under the American Tort law. Manufacturers of products and Renderers of services are liable for manufacturing defects, design defects, product labeling, warning defects, declarations and service defects, as the case may be. A customer or client will not expect or anticipate any defect or error inherent or apparent associated with the goods, products or services. A patient going through a scan in a CT scan machine will not expect that the same will explode causing burn injuries to him or her. Similarly, a patient will not expect a surgeon to leave a surgical blade inside the patient’s body during surgery. These are all acts and omissions associated with the products and services having tortious effect. However, the exception of force majeure or in other words act of God is available to the defense along with several other defenses like self-defense, defending the movable or immovable assets etc. but not at the cost of pleading ignorance of law.
Hemant Batra is an international corporate, commercial and business strategist lawyer with nearly 25 years of global experience in the legal profession. He is founder of Kaden Boriss, legal & business strategist firm. He is Secretary General of SAARCLAW, a regional apex body of inter-governmental diplomatic body, SAARC. He is also visiting faculty & guest speaker to global educational institutions like Indian School of Business-Harvard JV, Fore School of Management, APEA, Aces, IICA, ASSOCHAM, CII, FICCI, ME, and several National Law Schools. @firstname.lastname@example.org