A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Across private law, a tortfeasor's liability is established by satisfying all of the following four elements:
Did the defendant owe a legally cognizable duty?
Was that duty violated (breach)?
Did that violation cause the plaintiff’s harm (causation)?
Did the plaintiff suffer legally compensable harm (damages)?
The elements themselves do not changes, but the content of each element does change depending on the specific theory an injured party uses to establish a tortfeasor's liability. The main theories of liability employed in civil cases are strict liability, negligence, and intentional acts.
A duty is simply a legal obligation imposed by law.
In negligence cases, duty is defined by a standard of care, the degree of prudence and caution required of an individual who is under a duty of care. The extent of carefulness required varies from reasonable care for most individuals to reasonable prudence for professionals.
For intentional torts, duty is absolute: You must not intentionally invade protected interests, such as bodily integrity, property, or personal autonomy.
In strict liability cases, duty arises from engaging in certain activities or placing certain products into commerce, regardless of how careful the tortfeasor may have been.
Breach of duty occurs when a person’s conduct fails to meet an applicable standard of care.
In negligence cases, breach means falling below the reasonable person standard.
For intentional torts: breach means intentional interference with a protected interest.
In strict liability cases, breach means engaging in the activity or distributing the defective product that causes harm. Here, unlike in negligence cases, breach does not mean carelessness but deviation from an obligation imposed by law.
Every tort requires proof that the defendant’s conduct caused the plaintiff’s injury. This requires establishing both factual causation and legal causation.
Factual causation is typically established using the but-for test, which asks, "But for the defendant's act, would the harm have occurred?" If the answer is no, then by definition, the defendant cannot be the legal cause of the injury either, and thus, are free from liability.
Legal causation requires showing that the defendant has caused the loss in a legal sense—or, in technical terms, whether the defendant was the proximate cause of the plaintiff's damages. The underlying ethic behind this inquiry is to determine whether it is fair to hold the defendant accountable. The most common test of legal causation is the foreseeability test, which determines whether the harm resulting from an action could have reasonably been predicted.
Tort law is fundamentally remedial, not symbolic or punitive. The plaintiff must show legally cognizable harm for which some remedy can be sought.