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Torts

This web page introduces the legal concept of torts; that is, the idea that a peson is legally responsible if their action injures another person or damages another person's property. The converse or corollary is that everyone is entitled to not be injured nor to have their property damaged.

This introduction to torts begins with a general overview of tort law followed by examples of selected tort topics.

Overview of Tort Law

• Everyone has the right to not be injured (N.D.C.C. chapter 14-02), nor to have their property damaged.
  • N.D.C.C. §14-02-01. General personal rights. Every person ... has the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to the person's personal relations.

• Conversely, each of person is obligated to not injure another person or damage their property. Every person has this obligation to all other people even though we may have never met or interacted with the other persons.

• N.D.C.C. §9-10-01. "Every person is bound without contract to abstain from injuring the person or property of another or infringing upon any of his rights."  This state statute explicitly imposes the duty on each of us to not injure anyone else, nor to damage their property.

 

• The legal system refers to actions that injure another person or that damage another person's property as a tort.

• A tort is a wrongful act which injures another person's body, property, or reputation.

   

• Causation -- A person is responsible for the injury or damage caused by their action; for example, "I drove my car into your car; I am responsible for the damage to your car."
  • Likewise, people are responsible for any injury or damage resulting from a series of events that the person set in motion; that is, I am responsible for any injury or damage that my action "proximately caused." For example, I am responsible for damage to your car and a third car, when my driving led to my car striking your car that then struck the third car.
  • A person can be legally responsible for injury or damage caused by another person.  An example would be an employee doing a task assigned by the employer.  If the performance of that task injures a third person, the employer will likely be legally responsible for the injury or damage caused by the employee.
    • "...vicarious liability under the theory of respondeat superior ... extends to those acts done within the scope of the employee's duties that they owe to the employer."   "[Employers are] vicariously liable for the tortious acts of their employees for work done within the scope of their employment..."   ""scope of employment" [includes] instances where an employee is engaged in performing duties in furtherance of the employer's business..."  Tracy v. Central Cass Public School District, 1998 ND 12, 574 N.W.2d 781.
  • Conversely, a person is not responsible for injury or damages they did not cause. The following excerpt from the North Dakota court decision illustrates this idea.
    • "However, we have held that some acts are so unforeseeable and independent that, as a matter of law, they are not the legal cause of harm. In Moum v. Maercklein ... this court considered whether a railroad was liable for the negligence of its deceased employee. In that case the railroad called its employee, who lived in Minot, to report to work in Harvey, and the employee encountered a blizzard enroute. The employee attempted to pass another automobile traveling in the same direction and collided with a third vehicle in which the plaintiffs were passengers. The plaintiffs alleged their injuries were proximately caused by the railroad's acts. We reversed a judgment for the plaintiffs, concluding that where the railroad's original act created a condition which was followed by the employee's independent, unforeseeable act of negligently trying to pass another car, the railroad's original negligence was remote and not the proximate cause of the plaintiffs' injuries, even if the plaintiffs' injuries never would have happened but for the railroad's original act." Stewart v. Ryan, 520 N.W.2d 39 (N.D. 1994)

• The injured party can initiate a civil action (a civil lawsuit) wherein the injured party seeks compensation from the party who caused the injury or damage.

• A civil legal action is not a criminal legal action; even though an act can give rise to both a civil action and criminal prosecution.
  • "When the violation of a right admits of both a civil and a criminal remedy, the right to prosecute the one is not merged in the other." N.D.C.C. §32-01-08. The injured person can bring a civil action against the person who caused the injury at the same time society (through government) brings a criminal action.
    • If I stab you with a knife, you can initiate a civil action in which you demand that I compensate you for the injuries I caused you. At the same time, government can charge me with a crime that will lead to a criminal court proceeding.
  • The discussion on this web page addresses only legal issues associated with civil tort actions; it does not address legal issues that may arise as part of a criminal case.
  • Many statutes that appear to address torts are addressing the related criminal issues. Be careful to consider whether the statute is addressing the criminal component of a person's action or the civil (tort) component of the person's action.

Examples of torts arising from actions (some of these are discussed in more detail in subsequent sections):

• Assault - an attempt to strike someone; I swing a stick intending to hit you but I miss. Even though I did not strike you, my attempt to strike you is a legal wrong -- that is, a tort -- for which I am responsible.
• Battery - struck someone; I not only attempted to strike you, but I did strike you -- see Wishnatsky v. Huey, 1998 ND App 8, 584 N.W.2d 859.
• Wrongful death - my action caused someone's death - see Goodleft v. Gullickson, 556 N.W.2d 303 (N.D. 1996); also see N.D.C.C. chapter 32-21.
• Personal injury - my action injured someone
  • "We conclude that a "personal injury," as contemplated by Ch. 32-12.1, NDCC, includes physical injuries, disease, sickness, mental anguish and suffering." McCroskey v. Cass County, 303 N.W.2d 330 (N.D. 1981).
  • Assault and battery generally contemplate intentional torts, whereas personal injury can include negligent actions, as discussed in a subsequent section.
  • In a rural setting, personal injury may occur when my operation of a machine or vehicle injures another person. Likewise, personal injury may occur when someone is injured while visiting me on my land.
• Trespass - entered onto someone's property without their permission; used someone's (real and personal) property without their permission.
  • In a rural setting, trespass could be in the form of someone entering onto your land, a neighbor's livestock entering onto your land, or the neighbor's agricultural chemical drifting onto your land.
• Nuisance - interfering with someone's use and enjoyment of their property.
  • In a rural setting, smoke, odor, dust, noise, or light resulting from my activities could be a nuisance if it interferes with the neighbors' use of their land.
• Conversion - taking someone's property without their permission.
  • "Conversion is the wrongful exercise of dominion over the personal property of another in a manner inconsistent with, or in defiance of, the owner's rights." Harwood State Bank v. Charon, 466 N.W.2d 601 (ND 1991).
• Fraud - misleading someone (see Delzer v. United Bank of Bismarck, 1997 ND 3, 559 N.W.2d 531).
• Tortious interference with a contractual relationship - a person interfering with a contractual relationship between two other people for the indirect purpose of injuring one of the contracting parties or benefiting the person causing the interference at the expense of one of the contracting parties [see Bismarck Realty Co. v. Folden, 354 N.W.2d 636 (N.D. 1984)].
• False imprisonment - limited a person's movement -- I did not allow you to leave the party when you wanted to go home.
• Libel - false written statement
  • N.D.C.C. §14-02-03. Civil libel defined. Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes the person to be shunned or avoided, or which has a tendency to injure the person in the person's occupation.
• Slander - false spoken statement
  • N.D.C.C. §14-02-04. Civil slander defined. Slander is a false and unprivileged publication other than libel.

Liability arising from inaction:

• In addition, liability may arise from failure to act when you have a duty to do so. The duty arises from contract, actions, common law, and statutory law. Restated, my duty or legal obligation to do something for you is a legal right you can enforce against me.

• Example:  "It is well settled that an employer owes an employee a duty to exercise ordinary care to furnish the employee with a reasonably safe workplace and tools." Johansen v. Anderson

• Example:  "Landowners owe a general duty to lawful entrants to maintain their property in a reasonably safe condition under the circumstances." Sternberger v. City of Williston

Actor's State of Mind

The law not only considers the person's actions, but also their thought process.

• Intentional -- the actor purposely pursued an action which natural consequence is injury to someone or damage to something; e.g., you wanted to hurt me.
  • A person is legally responsible for injuries and damages that the person intentionally causes; that is, those injuries and damages that occur when someone wants to injure or damage. Clearly, our society does not want people to "intentionally" injure others, so the notion that an intentional act gives rise to a legal obligation to compensate the injured person could be described as obvious or intuitive.

• Negligence -- the actor was careless; failed to exercise the level of care that a prudent person would have; e.g., the actor did not want to hurt someone but the actor's carelessness resulted in someone being injured.
  • Wanner v. Getter Trucking, Inc., 466 N.W.2d 833 (ND 1991)
  • The standard of care (that is, how careful do I need to be) is set by our "community," (i.e., a jury)
  • Restated, negligence can be described as carelessness or not exercising the level of care the community expects of each person.
  • As discussed in the subsequent subsection of Legal Defenses, persons who are alleged to have caused injury or damage as a result of their negligence, can argue "that they had been careful, that they were not negligent, and that they should not be legally liable or responsible for the damage or injury."

• Tort law v. Criminal Law -- again.  As stated in a previous point, some events may result in 1) the injured person initiating a civil lawsuit and 2) society (through local government) initiating a criminal action against the person who caused the injured.  Two legal proceedings are most likely if the injury was intentional.  It is both a crime and a tort to intentionally hurt someone, for example.  In contrast, a tort resulting from negligence is not likely to lead to a criminal action. 
• Restated, criminal law is aimed at intentional actions, thus it is primarily intentional torts that will lead to two legal proceedings.  A negligent action (although a tort) generally will not also be a crime.  Striking someone with a bat because you are angry with them is both a tort (an intentional tort) and a crime; carelessly (negligently) swinging a bat in the park and accidently striking someone who is walking nearby is a tort (based on negligence), but most likely not a crime.
• Reminder -- this web page focuses on tort law, not criminal law, but the basic distinction should be understood.

 

• Absolute liability -- person is liable regardless of their state of mind and level of caution.  Absolute liability usually arises when one is engaged in a dangerous activity; strict liability imposes legal responsibility even if the person has taken every possible precaution to prevent an injury or damage.

The following examples illustrate some of the situations in which society (through the legal system) imposes the greater obligation that “I am responsible for damages resulting from my actions even though I was careful in how I performed my activity.”

• Example:  N.D.C.C. §18-08-04. "If a fire which is lawfully set to burn grass or stubble land accidentally and without any negligence on the part of the person setting the fire gets beyond the person's control, the person is liable ... in a civil action to the person damaged for the amount of the damage."
• Example:  N.D.C.C. §36-11-09. "Any person owning or having charge of any livestock that goes through, over, or under any lawful fence is liable for all resulting damages."
• Example:  "Strict liability in tort focuses on whether or not the product is defective and unreasonably dangerous, while negligence focuses on whether or not the manufacturer's conduct falls below the standard of reasonable care." Crowston v. Goodyear Tire & Rubber Company, 521 N.W.2d 401 (N.D. 1994).
• The law often imposes absolute liability on persons who engage in activities that are considered dangerous, such as setting a fire or using explosives. The issue of liability for damages resulting from application of agricultural chemicals is addressed in a subsequent section.
• Unlike negligence, persons who are absolutely liable for the results of their actions cannot avoid legal liability or responsibility by arguing that they were careful or "not negligent." Restated, being careful is not a defense against liability that arises from damages caused by an action that imposes absolute liability on the actor.
  • Examples of absolute liability: applying agricultural chemical that drifts onto the neighbor’s field, or livestock escaping onto a neighbor’s land, or a fire that gets out of control and damages the neighbor’s property.  All three examples are based on the idea that the underlying activity (applying chemical, having livestock, setting a fire) are legal but dangerous.  For example, we know that “messing with” fire is dangerous, that it can get out of control, and when it does get out of control, it can cause substantial damage.  The same can be said about maintaining a herd of livestock or applying chemical.

  Accordingly, the underlying legal principle of absolute liability is that the person will be legally liable if the activity results in injury or damage to someone else, and that arguing “I was careful” will not relieve him or her of the legal responsibility.

Injured party will seek

1. Monetary damages

• Compensatory damages: person(s) causing the injury or damage reimburses the injured person(s) for actual damages; that is, the payment is to return the injured parties to where they would have been had the injury not occurred.
  • Economic damages "includes damages arising from medical expenses and medical care, rehabilitation services, custodial care, loss of earnings, loss of earning capacity, loss of income, loss of support, cost of substitute domestic services, loss of employment, loss of business, and loss of employment opportunities. N.D.C.C. §32-03.2-04.
  • Noneconomic damages for pain, suffering and similar injury -- Albrecht v. Metro Area Ambulance, 2001 ND 61

    Under N.D.C.C. § 32-03.2-04, damages in a civil tort action for personal injury may be awarded by the trier of fact as "compensation for economic damages" and as "compensation for noneconomic damages." The statute states noneconomic damages include "damages arising from pain, suffering, inconvenience . . . mental anguish, emotional distress, fear of injury . . . humiliation, and other nonpecuniary damage." Metro has not cited any authority requiring a tort victim seeking damages in a negligence action for personal injury to prove economic damages, such as loss of earnings or medical expenses, as a prerequisite to being awarded noneconomic damages for pain and suffering and similar injury. Section 32-03.2-04, N.D.C.C., does not impose any such prerequisite to an award of noneconomic damages.

   

• Nominal: no actual damages but signifies that a legal right has been infringed; e.g., "you trespassed on my land; even though it caused no physical damage, you still violated my legal right to exclusive possession of my land; therefore, I am seeking nominal damage to establish that you violated my legal right."

• Example:  N.D.C.C. §32-03-38. Nominal damages . When a breach of duty has caused no appreciable detriment to the party affected, the party may recover nominal damages.

 

• Punitive or exemplary damages: an extra amount (paid to the injured party) to punish an intentional actor (enough to "teach the person a lesson"), but the injured party must also establish actual or nominal damages before punitive damages will be awarded. N.D.C.C. §32-03.2-11.

• . . . the character of the act itself, with all its surrounding facts and circumstances, may be [considered to ascertain] the motive or purpose ... of the party in committing the act. Thus, upon the consideration of these, if that motive is found to be improper and unjustifiable, the law authorizes the jury to find it was malicious.
• HINT -- briefly review the introduction to intentional torts in a previous point.

The purpose of awarding punitive damages is to punish the wrongdoing defendant and to deter him, and others, from repeating the wrongful conduct; that is, to discourage intentional torts.

In the past, evidence of a defendant's wealth or lack of wealth may properly be considered by the jury when determining the amount of punitive damages because the defendant's financial condition will necessarily have a bearing on the amount that will serve as meaningful punishment of the defendant.  Stoner v. Nash Finch, Inc., 446 N.W.2d 747 (ND 1989). Information about the defendant's financial condition can no longer be considered, see N.D.C.C. §32-03.2-11(3).

2. Injunction

• A court order prohibiting/forbidding an act that will injure, or requiring a duty to be fulfilled; injunction is available when monetary damages are not sufficient to redress (resolve) the wrongful act (N.D.C.C. chapters 32-05 and 32-06; also see chapter 27-10 ).
• "As a general rule compensation is the relief or remedy provided by the law of this state for the violation of private rights and the means of securing their observance. Specific and preventive relief may be given in no cases other than those specified in this title." N.D.C.C. §32-01-11.

Statute of Limitations

An injured person must pursue their legal remedy within specified period of time -- statute of limitations.  For property-related torts, the statute of limitations is generally six years from time of injury, learning of injury, or should have learned of injury (N.D.C.C. §28-01-16). For personal injury, the statute of limitations is generally two years (N.D.C.C. §28-01-18).

• Example:  Under the discovery rule, as we explained in BASF Corp. v. Symington, 512 N.W.2d 692, 695 (N.D. 1994), the statute of "limitations period does not begin to run until the claimant knows, or with reasonable diligence should know, that a potential claim exists." Peterson v. Huso, 552 N.W.2d 83 (N.D. 1996).

Legal Defenses

Although I may have caused your injury or damage, I may present legal arguments or defenses as to why I should not be held responsible.

• Privilege -- I have the legal right to do this.
  • Example: a parent using reasonable force to discipline their child; see South Dakota statute which implies this parental privilege but also limits the privilege. SDCL §22-18-5.
  • Could this defense be used by person B if an individual (person A) argues "false imprisonment" because B took A's keys away when A was intoxicated?  That is, "I had the legal "privilege" to take your keys from you when you were intoxicated so you could not endanger others or yourself".

• Consent -- You gave me permission to do this; for example, you gave me permission to enter onto your land and therefore I was not trespassing.

• Necessity -- I needed to do this to protect myself; for example, a storm was approaching and I needed to seek shelter as quickly as possible to avoid injury, yes, I entered onto your land but I needed to in order to avoid injury.
  • I may use no more force than is necessary to protect myself. I cannot shift from defending myself to becoming the attacker.
  • See N.D.C.C. §12.1-05-07.2 -- "An individual who uses force as permitted under this chapter is immune from civil liability for the use of the force to the individual against whom force was used ..."
  • Could this defense be used by person B if an individual (person A) argues "false imprisonment" because B took A's keys away when A was intoxicated?  That is, "I took your keys as a legal necessity when you were intoxicated to protect others and yourself".

• Injured party partially caused damage; your own action contributed to your injury or damage and therefore I should not be solely responsible for the loss.

• Contributory negligence -- a legal concept followed in some states that the injured person is not entitled to be compensated if the injured party's actions contributed to causing the injury; even the smallest negligence on the part of the injured party would prevent the injured party from being compensated. This sometimes led to some unusual results, such as, the injured party recovered nothing even though the injury or damage was primarily the responsibility of the other person.
  • Last Clear Chance Doctrine -- an exception to counter the effect of contributory negligence; that is, the defense of contributory negligence will not be used against the injured party if the other party had the "last clear chance" to prevent the injury.

• Comparative negligence (N.D.C.C. §32-03.2-02) -- modern alternative to contributory negligence; the percent of responsibility for the injury or damage is determined for each party and the injured party will be paid the percent of damage caused by the other party.

• N.D.C.C. §32-03.2-02. Modified comparative fault. Contributory fault does not bar recovery in an action by any person to recover damages for death or injury to person or property unless the fault was as great as the combined fault of all other persons who contribute to the injury, but any damages allowed must be diminished in proportion to the amount of contributing fault attributable to the person recovering...
  • "... the ultimate objective of comparing negligence ... is to apportion, on a percentage basis, all causes of the mishap resulting in damages." Day v. General Motors Corporation, 345 N.W.2d 349 (N.D. 1984).
  • "The jury ... found: ... (6) Keller's damages were $800,000.00; and (7) the percentages of fault proximately causing Keller's damages were as follows: Vermeer 50%, Liberty Mutual 13%, White & White 0%, Keller 37%. The trial court ordered judgment for Keller ... for the sum of $504,000.00 ($800,000 minus 37%)..." Keller v. Vermeer Manufacturing Co., 360 N.W.2d 502 (N.D. 1984).

• Assumption of risk -- injured party will not recover if the injured party knew of the risk of being injured but still took the action that exposed them to the situation that subsequently caused their injury; e.g., going to work at a dangerous place.

• "Assumption of risk is a defense in a products liability action based upon strict liability in tort. Mauch v. Manufacturers Sales & Service, Inc., 345 N.W.2d 338 (N.D. 1984). In this case there was evidence that Douglas was familiar with this type of equipment and that he was aware that PTOs had to be set at proper angles and not overextended." Spieker v. Westgo, Inc., 479 N.W.2d 837 (ND 1992)
• Employers' successful use of this defense gave rise to workers' compensation laws -- N.D.C.C. Title 65.
  • Workers compensation law generally prohibits injured employees from suing their employer, but instead mandate that employees seek compensation from a fund established for that purpose. The fund is financed with mandatory payments from employers.
• In North Dakota, agricultural employers are exempt from workers compensation laws; instead, traditional tort law (and liability insurance) is still used when an agricultural employee is injured "on the job." See N.D.C.C. §§65-01-01, 65-01-02(20) and 65-04-04.

 

• Another example of assumption of risk:

  "During a fist fight in a nightclub, when a beer bottle was broken over his friend’s head, plaintiff stepped in front of his friend to protect him from further injury. Plaintiff was then stabbed in the neck with the broken beer bottle. In his lawsuit against the nightclub, plaintiff alleged, among other things, that the nightclub was negligent for failing to provide adequate and competent security. The jury returned a special verdict finding that plaintiff assumed the risk of injury..."

  "“‘Knowledge of the risk is the watchword of assumption of risk.’” ... Indeed, assumption of the risk imports a knowing and voluntary self exposure to a known danger. Plaintiffs cannot assume risks of activities or conditions of which they are ignorant. They “must not only know of the facts which create the danger, but [they] must comprehend and appreciate the danger itself.” “The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates."" See Duda v. Phatty McGees, Inc.,

• No duty -- "I had no duty to take the action you claim I failed to take, and which you also claim as having led to your injury."

• In a negligence case, a plaintiff must show "a duty on the part of an allegedly negligent person to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty." Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D. 1996) (citations omitted).  In this court case, the argument was that the City of West Fargo had a duty to make a railroad crossing safer and that the City failed its duty.  The City argued and the court accepted that the City had no such duty.
• If the defendant has no duty, there is no actionable negligence. Collette v. Clausen, 2003 ND 129.

• "Generally, one who employs an independent contractor is not liable for the negligence of the independent contractor" (Rogstad v. Dakota Gasification Co., 2001 ND 54). The employer does not have the duty of assuring the work is performed in a safe manner so no one is injured; instead, that is the duty of the independent contractor.
  • However, [common law] creates an exception to the general rule for an employer who retains control over the independent contractor's work: One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care." Rogstad v. Dakota Gasification Co., 2001 ND 54
  • Also see Grewal v. N.D. Association of Counties, 2003 ND 156 -- "an employer of an independent contractor generally is not liable for the acts or omissions of the independent contractor... However, ... an employer may be liable for an independent contractor's work if the employer retains control over the independent contractor's work..."
  • A major consideration in determining whether someone is an independent contractor or an employee is identifying who decides the details for the activity. If the employer makes the decisions, the person is an "employee" and the employer is ultimately responsible.  If the person makes the detailed decisions, that person is an independent contractor and ultimately responsible. For more information about determining whether someone is an employee or an independent contractor, see North Dakota Department of Labor "Review of Twenty Factors and Pechtl v. Conoco, Inc., 1997 ND 161, 567 N.W.2d 813

• Waiver -- "I am not liable because you had previously signed a document stating that I would not be liable if you were injured during the activity or event."
  • Although a waiver of liability or exculpatory clause is frequently used, their legal effectiveness is often challenged.
  • "Generally, the law does not favor contracts exonerating parties from liability for their conduct... In Schlobohm, 326 N.W.2d at 923, the Minnesota Supreme Court explained contractual exculpatory clauses are strictly construed against the benefitted party, and will not be enforced if they are ambiguous, or release the benefitted party from liability for intentional, willful, or wanton acts. Although exculpatory clauses are strictly construed against the benefitted party, the parties are bound by clear and unambiguous language evidencing an intent to extinguish liability... Whether a contract is ambiguous is a question of law." Excerpt from Reed v. University of North Dakota, 1999 ND 25, 589 N.W.2d 880.
  • "The use and acceptance of exculpatory agreements has been firmly established in the context of recreational sports and racing... These agreements are generally viewed as being in the nature of a contractual or express assumption of the risk... The agreement must expressly manifest the intent of both parties... But because the obligations are based on policy considerations apart from manifest intent, the extent to which the obligations can be altered by contract depends on the relationship between the parties, the nature of the bargaining transaction, and the type of loss for which liability is disclaimed.

  "In Minnesota, the framework for evaluating these factors was developed in Schlobohm v. Spa Petite, Inc... To evaluate public policy considerations affecting the validity of a release, Schlobohm requires consideration of (1) whether a disparity of bargaining power existed between the parties, and (2) whether the service offered was a public or essential service." Excerpt from Ball v. Waldoch Sports, Inc.

  • "SO SUE ME . . ." (JUST HOPE MY LIABILITY WAIVER IS WORKING) by Denise E. Farris at http://www.eqgroup.com/Library/eqlegal18.htm.
  • Is it reasonable to interpret waivers as "I will waive the right to seek damages from you if I am injured as a result of an action that neither of us can control, but I will not waive the right to seek damages from you if I am injured as a result of your negligence"? Maybe "no"; see Kondrad v. Bismarck Park District, 2003 ND 4, 655 N.W.2d 411

• Immunity -- my status (with respect to this incident) protects me from being liable for your damages or injuries.

• Sovereign (government) immunity and "exercise of discretionary acts in its official capacity" Bulman v. Hulstrand Const., 521 N.W.2d 632 (N.D. 1994)
• North Dakota's Good Samaritan Act -- I will not be held liable for damages I cause when I am trying to help you because you have been injured. I am required to "step aside" and allow professionals to provide the assistance once they have arrived at the scene.

• Insurance is NOT a defense against legal liability. It merely determines who has to pay the damages. Restated, an insurance policy is a contract whereby the insurance company agrees to assume the risk that the insured might injury someone or damage someone's property. The insurance company is willing to assume this risk in exchange for a payment (a premium). If the insured subsequently causes an injury or damage, the insured is legally responsible to compensate the injured party, but as a result of the insurance policy (contract), the insurance company makes the payment.
  • Insurance companies generally assume the risk that the insured injures someone or damages property as a result of negligence. Insurance companies generally are NOT willing to assume the risk that the insured intentionally injures someone or damages someone's property. In the case of an intentional tort, insurance policies (contract) effectively state "buddy, you are on your own when it comes to your intentional acts."

Summary of Key Points

• Everyone person has the right to not be injured nor have their property damaged. If someone causes me injury or causes damage to my property, I am entitled to be compensated.
• The law distinguishes between 1) a person who accidentally or negligently injures me or damages my property and 2) a person who wants or intends to injure me or damage my property. The law takes a tougher stance against the person who intends to cause injury or damage.
• There are also times when the law holds someone responsible for the injury or damage they cause even though they did not intend to cause harm and they tried to be as safe or careful as possible (that is, the opposite of negligent). This absolute liability usually arises when the person is engaged in a dangerous activity or is in the best position to prevent the danger that led to the injury.
• Generally, the injured person is entitled to a payment to compensate for the injury or damage. However, if the injury or damage was intentional, the injured person may also be entitled to punitive damages to "punish" the person who caused the intentional harm.
• Occasionally, monetary payment is not enough to resolve the situation. In those circumstances, the court may impose an injunction ordering the person to stop the activities that may lead to future injury or damage.
• Even though a person's actions result in injury or damage to another person, there may be a reason to not require compensation, that is, there is a defense such as privilege, necessity, consent, immunity. Likewise, if the actions of the injured person also partially caused or contributed to their own injury or damage, the cost of the injury or damage will be shared among the people whose negligence collectively caused or contributed to the injury.
• Tort issues may be best analyzed with a logical thought process, such as Step 1 -- the injured person presents information/evidence seeking to establish that the second person is legally obligated to remedy the injured person's injury; Step 2 -- the second person presents reasons why they are not responsible, such as "I did not cause the injury," or "I have a defense as to why I am not responsible, such I did the act out of necessity or you consented to me doing the act;" and Step 3 -- the injured party replies by presenting reasons why the second person's defense should not prevail. Bottom line -- torts are most easily understood with a logical analysis.

Last Updated May 14, 2010

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