Tort

Tort law is the foundation of personal injury practice — it defines when one person's conduct creates legal liability to compensate another for harm.

Torts in Personal Injury Cases

Every personal injury case is a tort case. The word comes from the Latin tortus (twisted) and the Old French tort (wrong). Tort law covers the civil wrongs that cause personal injury, property damage, or economic loss — separate from the criminal law system and from contract disputes.

The three categories of torts.

Negligence torts are the most common category in personal injury practice. Negligence occurs when a person fails to exercise the care that a reasonably prudent person would exercise under the same circumstances — and that failure causes injury. Car accidents, slip and falls, medical malpractice, and most premises liability cases are negligence torts.

Intentional torts involve deliberate harmful conduct: assault, battery, false imprisonment, intentional infliction of emotional distress, fraud, and trespass. An intentional tortfeasor may also face criminal prosecution for the same conduct — but the criminal case and the civil tort case are separate proceedings.

Strict liability torts impose liability without proof of negligence or intent. In California, manufacturers are strictly liable for injuries caused by defective products (Greenman v. Yuba Power Products, 1963). Dog owners are strictly liable for bites under Civil Code § 3342. Operators of abnormally dangerous activities are strictly liable for resulting harm regardless of the care taken.

Remedies. The primary remedy in tort law is compensatory damages — designed to make the plaintiff whole. Punitive damages are available in cases of oppression, fraud, or malice. Injunctions may be available in certain ongoing tort situations.

How Tort Law Works in Practice

A tort case proceeds through a defined legal pathway: the plaintiff files a complaint alleging the tort; the defendant answers; the parties conduct discovery; and the case either settles or goes to trial where a jury determines liability and damages.

Most tort cases — estimated at 95% or more — settle before trial. Settlement resolves the case without a judgment, through negotiated compensation between the parties (typically through their insurance companies and attorneys).

Tort vs. crime. The same act can be both a tort and a crime. A drunk driver who injures another person commits criminal DUI (prosecuted by the state) and also commits a tort (for which the victim can sue in civil court). The burden of proof differs: criminal conviction requires proof beyond a reasonable doubt; tort liability requires proof by a preponderance of the evidence (more likely than not).

Tort vs. contract. A tort duty arises from law, not agreement. A contract duty arises from the parties' agreement. Some situations involve overlapping duties — a contractor who builds a defective house may face both breach of contract claims (from the homeowner) and tort claims (from third parties injured by the defect).

California Tort Law Framework

California's tort system is governed by Civil Code §§ 1708–1723, which establish the general principle that every person is bound not to injure another person or their property (§ 1708), and that everyone is responsible for injuries caused by their failure to exercise ordinary care (§ 1714).

California follows a pure comparative fault system (Civil Code § 1431.2) in negligence cases — reducing the plaintiff's recovery by their own percentage of fault rather than barring recovery entirely.

California has modified the common law in several significant ways: Proposition 51 (Civil Code § 1431.2) made non-economic damages several only (not joint and several); MICRA caps non-economic damages in medical malpractice cases; the Government Tort Claims Act extensively modifies tort liability for government entities; and AB 5 restructured independent contractor classification affecting respondeat superior analysis.

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