A Complete Guide to the Three Types of Torts

Each year, millions of Americans suffer physical injury, fraud, or other injuries at the hands of or because of others. If those injuries have resulted from a breach of your rights under the law, there exists a remedy through the civil courts system. The key to that process lies in the study of tort law, which is divided into three major categories of torts.

No matter whether you tripped in a slippery aisle at a supermarket, you have been physically attacked by your neighbor, or you were injured due to a malfunctioning product, the tort that defines your case will influence what you need to demonstrate, who will be responsible for doing so, and what type of damage compensation you can claim. In this ultimate guide, we explore the key characteristics of all three types of torts, namely intentional torts, negligence, and strict liability, through examples and explanation.

What Is a Tort?

A tort is a civil wrong, an act or an omission of duty causing harm to someone else or his or her property entitling an individual to sue for damages. This term originates from Latin “tortum,” which means “twisted,” or simply put, a wrong. At the center of American law lies tort law that differs from criminal law in a number of important aspects. Firstly, tort claims are made by the aggrieved party himself or herself (plaintiff), while the latter implies a suit initiated by the government.

In criminal actions, a defendant faces criminal charges for having broken a particular law. If guilty, a person faces punishments that usually include fines or imprisonments. When it comes to tort law, however, a tortfeasor faces a lawsuit by the aggrieved party aimed at receiving money damages for his or her wrongdoing. It is possible that a single wrongdoing can lead to being prosecuted both criminally and in tort court. An example of such wrongdoing includes drunken driving leading to death.

There are three primary functions served by tort law: compensation of the aggrieved party for the suffering caused to him or her; prevention of future wrongdoings; shifting of costs from an aggrieved party to a tortfeasor. According to data collected by the National Center for State Courts, tort lawsuits take a large portion of all civil litigation cases annually filed to state courts.

All torts can be classified into one of three major categories. They include:

Type 1: Intentional Torts

An intentional tort is committed when a person commits an act with the purpose of causing harm. The critical element is intent the defendant needed to act voluntarily, without necessarily intending the resulting specific injury but still acting intentionally. In contrast to negligence, which is always an accident, an intentional tort requires the defendant’s intent to perform an act that leads to harm.

A misconception about the concept of intent that needs clarification is that it is necessary to want to injure a person. Intentionally pushing another person as a result of an argument would qualify as an intentional tort because there is intent to perform the act regardless of whether the person wanted to break their bones or scare them.

One significant advantage that makes intentional tort cases preferable for plaintiffs is the ability to claim punitive damages. These types of damages are meant to penalize the defendant and serve as a deterrent rather than compensatory. They are much easier to claim in intentional tort cases than in negligence.

Also noteworthy is the fact that, in many cases, intentional torts are explicitly excluded from coverage in liability or homeowner’s insurance. As such, the damages the plaintiffs receive in these cases will come directly out of the defendant’s pockets since they cannot be covered by insurance policies.

Type 2: Negligence

Negligence is by far the most common among these three torts, and the basis for the vast majority of personal injury lawsuits filed in the United States. While intentional torts involve malicious intent, a negligence claim requires no such element as it is based on an individual failing to take proper care while acting in a certain way, resulting in harm to another party.

In order to prevail in a negligence lawsuit, the plaintiff must establish the presence of four important elements beyond a preponderance of evidence which means establishing these elements beyond reasonable doubt. The four elements of a negligence claim are as follows.

The law of negligence applies to an incredibly wide variety of instances; these include automobile accidents, slips and falls, professional malpractice, accidents at construction sites, dog bites (in certain states), elder abuse in nursing homes, and numerous other examples. The basic question for all these claims is that of reasonableness and causation.

“Negligence is not about bad people doing bad things — it is about all of us falling short of the standard of care that protects the people around us. When that shortfall causes real harm, the law steps in.”

Negligence Per Se

Negligence per se is a specific kind of negligence where a breach by a defendant of a statute or a regulation aimed at protecting the general public from that sort of danger, as experienced by the plaintiff, leads to his or her injury. In such situations, the mere breach of law constitutes the breach in question, meaning there is no necessity for the injured party to establish any other breaches of duty that could have been avoided. For example, when a driver fails to stop at a red light and strikes a pedestrian on the crosswalk, he is guilty of negligence per se.

Comparative and Contributory Negligence

Most negligence lawsuits are those where there is a division of responsibility between two parties. The rule of comparative negligence is now followed by most states, whereby the damages awarded to the victim are reduced depending on how much he or she is responsible for the damage incurred. If the rule of pure comparative negligence is applied, a plaintiff who is 60% responsible for their injuries would be able to recover 40% of their total loss from the defendant. However, if modified comparative negligence applies, the plaintiff cannot claim anything once they exceed 50% liability for their losses.

Type 3: Strict Liability

The final type of torts is called strict liability, and it may be said to be the most effective from the plaintiff’s point of view. This is because strict liability holds the defendant accountable for damages suffered without needing to establish intent or negligence on the part of the defendant.

In strict liability cases, the court holds that the defendant is liable for damages caused despite exercising all due care and without intending to cause any harm to the plaintiff. Strict liability exists only under certain specific circumstances that the courts or the legislature deems sufficiently compelling to shift the burden of losses on the defendant.

Three Major Classes of Strict Liability

There are three major classes where the imposition of strict liability typically occurs:

1. Abnormally Dangerous Activities. According to the Restatement (Second) of Torts, an individual who engages in an abnormally dangerous activity, that is, an activity that poses an abnormally great risk of serious injury which is difficult or impossible to eliminate through exercising due care, will be held strictly liable for all injuries that result from such activities. Examples of such activities include blasting with explosives, keeping large volumes of poisonous substances, or engaging in some forms of nuclear activities. In essence, the underlying principle of imposing strict liability is that a person who gains from an activity that poses an extraordinary danger to others should pay the price in case such harm comes to fruition irrespective of the precautions exercised by the defendant.

2. Keeping Wild or Dangerous Animals. An individual who keeps a wild animal such as a tiger, a venomous snake, or alligators would be held strictly liable for all injuries caused by the animals irrespective of how carefully the animals were kept. Where the animal is a domesticated one, an individual will be held strictly liable under the doctrine of strict liability for all injuries caused by a domesticated animal if the individual knew about the dangerous tendencies of the animals. Although there are those who argue that strict liability only applies after the second bite, this approach has been abandoned in strict liability dog bite statutes.

3. Product Liability. One of the most economically significant applications of the doctrine of strict liability is found in product liability. Under strict product liability, all manufacturers, distributors, or retailers involved in placing the defective product in the stream of commerce will be held strictly liable for all injuries caused by the product irrespective of whether each participant engaged in the activity with utmost diligence and had no knowledge of the defects. There are three major defects associated with the manufacture of products, including manufacturing defects, design defects, and failure to provide adequate instructions/warnings.

What Damages Are Available In a Tort Suit?

In any tort case, the practical question that often arises concerns what damages the prevailing plaintiff can be awarded. Tort damages may be classified into three general types:

Compensatory damages represent the largest category of tort damages, and its purpose is to make the victim whole by restoring them, as far as possible through money, to the position they were in before the tort was committed against them. Compensatory damages consist of two distinct types of damages. Special damages (also called economic damages) refer to all measurable economic losses like medical expenses, future medical expenses, lost income, lost earning potential, damages to personal property, and cost for rehabilitation. General damages (also called non-economic damages) refer to injuries that are more difficult to quantify such as physical pain, emotional distress, diminished enjoyment of life, disfigurement, and loss of companionship.

Punitive damages can be obtained in tort cases where the defendant’s conduct was highly negligent or malicious and the intent of punishing the defendant is sought. This type of damage is primarily applicable in intentional tort cases and product liability torts where corporate misconduct is gross.

Nominal damages are awarded in tort cases where the violation of the law caused no actual harm. Nominal damages are typically awarded in intentional tort cases including trespassing and certain privacy cases.

How to Know If You Have a Tort Claim

If you have suffered an injury, financial loss, or some other harm caused by someone else’s actions, either intentional, negligent, or based on the conduct of a party, you might have a valid tort claim. However, determining whether there is a tort claim, and the specific tort in question, involves the examination of the facts and the law.

Several key questions should be considered at the outset. To begin, was there someone who caused your harm? Generally, if the cause of the harm cannot be attributed to any particular individual or entity, you would not have a tort claim. Next, is there an established tort theory of the case intentional action, negligence, or strict liability, that fits the situation? Finally, were there actual losses that you sustained? It is difficult to receive any real compensation for a legal wrong that did not produce any significant losses.

The Importance of Having a Tort Lawyer

While tort law is built on some fundamental legal principles, it is also an intricate practice area where the success of your lawsuit depends upon how you present your claims, how you collect and preserve the evidence, who you sue as your defendants, and most importantly, when and how you raise relevant theories of tort liability. All these are matters in which the average layperson may not be adept, especially considering his state after he has already sustained the injuries for which compensation is sought.

This is where having an experienced tort lawyer becomes important. In essence, an expert in tort litigation will help you with three things: He will bring to your case a comprehensive understanding of the law, the facts, and the applicable defenses; he will conduct an investigation into your case, collecting evidence even before it vanishes; and, he will know how to negotiate your way through the insurance company or other party in light of their own vested interests.

For the insurance company, whose job is to pay the least amount of money possible to settle a claim, it makes sense to employ adjusters and lawyers who are solely concerned with this task. The plaintiff not only does not have access to such experts; in fact, the lack of a lawyer puts him or her at a severe structural disadvantage. Numerous studies prove that the amount of compensation received by individuals suing without an attorney is much less than the one negotiated by attorneys.

Bottom line: Know Your Tort, Know Your Rights

Intentional torts, negligence, and strict liability comprise the three classifications of torts that govern the civil legal process for obtaining redress when one is harmed. These three tort classifications represent three separate theories of liability, with each theory being predicated on different reasons why someone should be liable. The first theory of liability involves an intentional act committed by the defendant, whereas the second revolves around negligence. Finally, strict liability is the third theory of liability, whereby one is held strictly liable for harm caused regardless of fault.

Knowing which tort classification best describes your case will determine your rights, defenses, and remedies under civil tort law. For instance, whether you are considering filing a claim or seeking information on tort liability and the legal process, knowing the differences between these three tort classifications is critical.

In the event that you have been the victim of an intentional tort, negligence, or any defect or danger, the single most important action to take is to seek legal counsel from an attorney with expertise in torts before evidence is lost, memories fade, and statutes of limitations expire. There is much that the law can do; seizing upon its benefits requires prompt action and the right advice.

Authority Sources & Further Reading

• Cornell Law School Legal Information Institute — Tort Law Overview — A comprehensive academic reference covering the foundational principles of tort law in the United States.
• National Center for State Courts — Civil Litigation Resource Guide — Data and analysis on tort filings and civil litigation trends across U.S. state courts.
• American Law Institute — Restatements of the Law — The authoritative scholarly source for the Restatement (Second) of Torts and Restatement (Third) of Torts, which govern strict liability and products liability standards nationwide.
• United States Courts — Civil Case Statistics — Federal court caseload data illustrating the scope of tort and personal injury litigation in the federal system.
• Justia — Types of Personal Injury Cases — A practitioner-oriented overview of the major categories of tort claims and how they are litigated in practice.
• Federal Trade Commission — Product Liability and Consumer Safety Enforcement — Federal regulatory context for strict products liability and consumer protection standards.