CH 3 – Introduction to Torts
Introduction to Tort Law
Tort is a derived French word meaning “wrong”, Tort generally consists of a failure to fulfill a private obligation
that was imposed by law.
Torts and Crimes
Torts definition refers to the breach of a private obligation. The definition also refers to a private obligation that
was “imposed by law”. A contract also contains private obligations; contractual obligations are different from
tort obligations, however, because they are created by the parties, rather than imposed by the law. An
obligation in tort law is owed to a person. Tortfeasor is a person who has committed a tort. While a crime
occurs if a person breaks a public obligation (owed to society as a whole) usually resulting in a punishment, a
tort occurs when a person breaks a private obligation usually resulting in compensatory damages. Even
though torts and crimes are different, they are two concepts that can arise from the same facts (ex: Someone
hits you, they have committed a tort of battery and the crime of assault etc.).
Torts and Contracts
One similarity and four differences between torts and contracts:
Structure- Both tort and contract involve primary and secondary obligations. Primary obligations tell people
how they ought to act. Secondary obligations are remedial; they tell people how they must act after primary
obligations have been broken.
Sources of Primary Obligations- The fundamental difference between tort and contract is: Obligations in tort
are simply imposed by law & obligations in contract are created by the parties.
Privity- The doctrine of privity states that the only people who can sue, or be sued, on a contract are the parties
Compensation- The purpose of imposing obligations in tort law is to prevent harm. The purpose of creating
obligations in contract is usually to provide benefits. Tort looks backward (paying medical bill to put them back
to their regular condition) and contract looks forward (paying a settlement, to get them what they wanted that
was agreed on).
Risk Management- Tort obligations are imposed by law, so they are more likely to take a person by surprise
and they may require more than a person is actually capable of providing. Obligations in contracts are created
voluntarily, so it shouldn’t take the parties by surprise and they should never require more than the parties
believe they can actually provide.
Types of Torts
Because tort law needs to strike a different balance in different circumstances, some torts require proof that the
defendant acted with a guilty mind. There are three possibilities:
Intentional torts occur when a person intentionally acts in certain ways (definition of intention matters). Ex:
assault, battery, false imprisonment, trespass to land, interference with possessions, conspiracy/scheme,
intimidation, interference with contractual relations, unlawful interference with economic relations, deceit.
Negligence torts occur when a person acts carelessly. Ex: occupiers’ liability, nuisance (not always classified
as a negligence tort), negligence, professional negligence, product liability
Strict liability torts occur when a person does something wrong without intending to do so and without acting
carelessly. It’s enough that the defendant was responsible for the situation that result in the plaintiff’s injury. Ex:
animals, Rylands v Fletcher (some people consider vicarious liability to be a form of strict liability; but
sometimes someone held vicarious liable didn’t commit a tort). Strict liability torts create special problems for
risk management. They don’t require proof of any sort of intentional or careless wrongdoing. Liability is
imposed simple because the defence was responsible for the situation that inured the plaintiff. Strict liability is
rare because it would be unfair to impose liability on a person who did not intentionally or carelessly cause the
General Principles of Tort Law
Liability Insurance: is a contract in which an insurance company agrees, in exchange for a price, to pay
damages on behalf of a person who incurs liability. Liability insurance also includes a duty to defend. A duty to
defend requires the insurance company to pay the expenses that are associated with lawsuits brought against
the insured party. Liability insurance creates an interesting tension between two of tort law’s most important
functions. Liability insurance contributes to the compensatory function of torts. The compensatory function aims to fully compensate people who are wrongfully injured. If a Tortfeasor cannot personally afford to pay
damages, the plaintiff will not receive full compensation unless the defendant is insured. Liability insurance
undermines tort law’s deterrence function. The deterrence function discourages people from committing torts
by threatening to hold them liable for the losses that they cause.
Vicarious Liability: occurs when one person is held liable for a tort that was committed by another person. It
may arise in various ways. For public policy reasons, a statute may hold on person responsible for another’s
torts in particular circumstances. In many cases vicarious liability arises because an employer is held liable for
a tory that was committed by an employee. The doctrine of vicarious liability may be justified on a number of
-It serves tort law’s compensatory function by allowing the plaintiff to claim damages from both an employee
and an employer
-Vicarious liability also serves tort law’s deterrence function by encouraging employers to avoid unusually
hazardous activities and to hire the best people available
-For fairness, it may be appropriate to require a business to bear responsibility for the losses that its activities
create, even if those losses are caused by misbehaving employees.
Note that 1) an employer is not liable every time an employee does something wrong. An employer is not
vicariously liable if an employee’s tort occurred completely outside of the employment relationship. 2) And an
employer may be held vicariously liable for employees, but not for independent contractors. An independent
contractor is a wor