Torts in the United States

Introduction to Torts

Because injuries to one’s body, mind, or well-being are the bread and butter for most lawyers, it’s ironic that the term used by the legal profession to describe personal injury is so obtuse. Tort derives its status from the Latin word for twisted, and comes to us from the Anglo-French derivation for a wrongful or illegal act involving injury.

Torts Legal Materials

The Internet offers a wide range of databases containing facts and statistics on a host of injuries, accidents, and damaging agents, from cars to toxic materials. Let’s start with the law. Title 28 of the U.S. Code, Part VI, contains Chapter 171-Tort Claims Procedures (www4.law.cornell.edu/uscode/28/ch171.html or http://caselaw.lp.findlaw.com/casecode/us codes/28/parts/vi/chapters/171/toc.html) for those of you suing a federal employee or agency. To look at the California Code (www.leginfo.ca.gov/calaw.html) go to the Legislative Counsel’s site, where the code is kept current within a week of any official changes. If you want to see what might be coming over the horizon, the latest draft of the Uniform Apportionment of Tort Responsibility Act (www.law.upenn.edu/bll/ulc/uatla/tort0129.htm) and the final draft of the Uniform Law Commissioners’ Model Punitive Damages Act (www.law.upenn.edu/bll/ulc/mpda/finaldft.htm) is available from the National Conference of Commissioners on Uniform State Laws. (If you want to see all the recommended Uniform Model Laws and weigh in on them, go to the University of Pennsylvania Law School site (www.law.upenn.edu/bll/ulc/ulc.htm.)

The resources on the Net that can really help, especially when you’re in a hurry or not sure where to go for statistical support, are the government and private databases that abound in cyberspace. There are too many to mention individually, but on the government side many of the databases are offered by the obvious sources-you will have to explore a little to get to the nuggets. The U.S. Consumer Product Safety Commission (www.cpsc.gov/) provides its Consumer Product-Related Statistics (www.cpsc.gov/library/data.html) on injuries caused by specific products, such as Trampoline-Related Injuries (www.cpsc.gov/library/tramp00.pdf) and Baby Boomer Sports Injuries (www.cpsc.gov/library/boomer.pdf). All the reports are in Adobe’s Acrobat PDF format, so if you don’t have the Acrobat Reader browser plug-in, you can download and install it for free (www.adobe.com/products/acrobat/readstep2.html). The U.S. Food and Drug Administration will bury you in facts (www.fda.gov/), as will the National Highway Traffic Safety Administration (www.nhtsa.dot.gov/) and its Crash Statistics (www.nhtsa.dot.gov/people/ncsa/) and Air Bag Related Cases (www.nhtsa.dot.gov/people/ncsa/scireps.html). Visit, too, the National Vaccine Injury Compensation Program (http://bhpr.hrsa.gov/vicp/) and the U.S. Chemical Safety and Hazards Investigation Board (www.chemsafety.gov). Findlaw has a list of more of these government agencies (http://guide.lp.findlaw.com/01topics/22tort/gov_agencies.html).

Tort counsel can also help themselves to more factual abundance in a separate list that includes government and private groups, generally nonprofit organizations that monitor injuries, illnesses, and dangers. The National Safety Council offers its Research and Statistics (www.nsc.org/lrs/statstop.htm) summary of injuries occurring in just about every type of environment and invites you to order the entire annual report, available in print or CD form. The Insurance Institute for Highway Safety (www.highwaysafety.org/vehicle_ratings/ddr/ddr.htm) includes data on auto accidents by make and model. The National Transportation Safety Board Aviation Accident/Incident Database (http://nasdac.faa.gov/asp/fw_ntsb.asp) lets you search by keyword, airline, airport, aircraft, date, or specific accident number, and the Aviation Safety Statistical Handbook from the Federal Aviation Administration gives you monthly reports (http://nasdac.faa.gov/Safety_Handbook/), while the Near Midair Collisons Systems (http://nasdac.faa.gov/asp/fw_nmacs.asp) talks about those close calls that juries and judges might like to know about. In that vein is the Major Airline Disasters Database 1920-2000 (http://dnausers.d-n-a.net/dnetGOjg/Disasters.htm), maintained in England. The Bureau of Transportation Statistics, via the U.S. Coast Guard, has a Boating Accident Report Database (www.bts.gov/ntda/barduscg/).

And there’s even more. The Fatality Analysis Reporting System (www-fars.nhtsa.dot.gov/) offers fact sheets, in PDF format, on traffic deaths, broken into categories that include Alcohol (http://www-fars.nhtsa.dot.gov/pubs/2.pdf), the Older Population (www-fars.nhtsa.dot.gov/pubs/7.pdf), and other germane groups.

Top Websites:

• msha.gov/fatals/fab.htm: U.S. Department of Labor’s Mine Safety and Health Administration Fatality Information
• osha.gov/oshstats/work.html: The Occupational Safety and Health Administration Statistics and Data
• stats.bls.gov/oshhome.htm: Bureau of Labor Safety and Health Statistics

Torts: due process clauses

According to the Encyclopedia of the American Constitution, about its article titled “Torts”, the Constitution intersects with tort law, broadly conceived, in various ways. Most basically, the due process clauses of the Fifth Amendment and fourteenth amendment require that in any legal proceeding enforced by public authority in which a property interest is at stake.

Tort vs. Contract Remedies

Note: For more information on Compensatory Damages, click here. See Consequential Damages here and Nominal Damages here. For more information on Reliance, click here. For information on Remedies, read here.

Frequently a contract breach may also amount to tortious conduct. A physician warrants her treatment as perfectly safe but performs the operation negligently, scarring the patient for life. The patient could sue for malpractice (tort) or for breach of warranty (contract). The choice involves at least four considerations:

• Statute of limitations. Most statutes of limitations prescribe longer periods for contract than for tort actions.
• Allowable damages. Punitive damages are more often permitted in tort actions, and certain kinds of injuries are compensable in tort but not in contract suits—for example, pain and suffering.
• Expert testimony. In most cases, the use of experts would be the same in either tort or contract suits, but in certain contract cases, the expert witness could be dispensed with, as, for example, in a contract case charging that the physician abandoned the patient.
• Insurance coverage. Most policies do not cover intentional torts, so a contract theory that avoids the element of willfulness would provide the plaintiff with a surer chance of recovering money damages. (1)

Resources

Notes

1. “Business and the Legal Environment”, by Don Mayer, Daniel M. Warner and George J. Siedel.

See Also

• Toxic Tort
• Tort
• National Manufactured Housing Construction And Safety Standards Act Of 1974
• Tort Claims
• Tort Liability
• Fatal
• Research and Innovative Technology Administration
• Federal Motor Carrier Safety Administration
• Moral injuries
• US Medical Malpractice Tort Reform Resources
• Theories of Tort Law

Further Reading

• Information about Torts in the Gale Encyclopedia of American Law.