LESSON 4

TORT AND
TORTFEASORS
“A tort is defined as (A) a breach of contract, (B) a wrong against the public at large, (C) a wrong
against a town government, (D) a wrong against an individual.”

A tort, which means “wrong” in French (from the Latin tortus, meaning “twisted”), is a wrong
against an individual (a private wrong), as opposed to a crime, which is a wrong against the public
at large. A tort action is a civil suit brought by the injured party to recover money damages to
compensate him or her for losses caused by the tortious act of tortfeasor (the one who commits the
tort). It differs from a criminal action, which is brought by the state to punish the defendant for the
wrongdoing. In some situations, such as in the case of assault and battery, the wrong is both a tort
and a crime. In such a case, the state can bring a criminal action against the defendant, and the
injured party can bring a separate tort action against the defendant for the same occurrence. The
term cybertort means a tort associated with a computer.

In comparing a tort with a breach of contract, a tort is a breach of duty imposed by law, whereas a
breach of contract is a breach of duty imposed by agreement of the parties.

ELMENTS OF A TORT ACTION

Although each tort has its own particular elements that must be alleged and proved by the plaintiff
in order for the plaintiff to win a case, four basic elements are common to all torts. In general, the
plaintiff must allege and prove all of the following:

1. the existence of a duty owed to the plaintiff by the defendant;

2. a violation of that duty;
3. a showing that the violation was the cause of the plaintiff’s injuries; and
4. damages.
Several years ago, an intoxicated person tipped over while paddling a canoe on a lake. The
proprietor of a boathouse watched from the shore while the person yelled for help and finally
drowned. The proprietor was sued by the decedent’s estate for negligence (a tort to be discussed
later) for not attempting to rescue the drowning person. The court held in favor of the boathouse
proprietor, saying that he owed no duty to go to the rescue of the person who was drowning.

The rule that people are not legally bound to help others who are in trouble has been modified
somewhat in recent years. For example, the janitor of a building was held to be negligent when he
failed to turn off the electricity to an elevator after he was told that a child had climbed through
the opening in the elevator car’s roof. The child was killed when the elevator was set in motion by
an unsuspecting person. In that case, the court held that the janitor owed a duty to go to the aid of
the child by shutting off the electricity (Pridgen v. Boston Housing Authority, 364 Mass. 696
(Mass. 1974)).
 Although in most cases people are not legally bound to help others, if they do so and are negligent,
they will be liable for any injuries that they may cause. For this reason, people in the medical field
would, in the past, sometimes refuse to assist injured people at accident scenes or in other
emergencies. States have passed laws, known as Good Samaritan statutes, to alleviate this
problem. Good Samaritan statutes provide that physicians, nurses, and certain other medical
personnel will not be liable for negligent acts that occur when they voluntarily, without a fee,
render emergency care or treatment outside of the ordinary course of their practice. For instance,
Colorado’s Good Samaritan Statute (C.R.S. §13-21-108) covers nonmedical personnel as well,
and states as follows:

“Any person licensed as a physician and surgeon under the laws of the state of Colorado, or any
person, who in good faith renders emergency care or emergency assistance to a person not
presently his patient without compensation at the place of an emergency or accident, including a
health care institution as defined in section 13-64-202 (3), shall not be liable for any civil damages
for acts or omission made in good faith as result of the rendering of such emergency care or
emergency assistance during the emergency, unless the acts or omissions were grossly negligent
or will and wanton.”

IMPUTED LIABILITY

Although all people are responsible for their own torts, in some situations one person may be held
responsible for the torts that are committed by another person; this is known as imputed liability.
Often, the term vicarious liability is used interchangeably with the term “imputed liability.”
Vicarious liability applies most frequently when an employee commits a tort while working for an
employer. Under the doctrine of respondent superior masters (employers) can be held responsible
for the torts of their servants (employees) that are committed within the scope of employment. A
tort committed within the scope of employment is a wrongful act committed by an employee that
is nonetheless committed inside the zone of that person’s employment authority. Similarly,
principals (people who authorize others to act for them) can be held responsible for the torts
committed by their agents (people authorized to act) while acting within the scope of the
principals’ authority. Similarly, a partner may be held liable for torts committed by another partner
while acting in the ordinary course of the partnership.

TERMS IN ACTION
Predicting when imputed liability or vicarious liability applies in employment situations can be difficult. Try a
couple of examples. In the first scenario, a woman who was being transported to a hospital in Washington, D.C.,
was sexually assaulted in the ambulance by one of the ambulance employees. Six months later, another
Washington, D.C., woman was sexually assaulted under the same circumstances, allegedly by the same man. And
in Virginia, an employee – who five minutes earlier had left as employer-sponsored Christmas party where he had
been drinking alcohol served by the employer – injured someone while driving drunk. In the first two cases, the
District of Columbia, as the employer of the ambulance company, was sued under the doctrine of Respondeat
Superior, as was the employer in the Virginia case. In the first ambulance case, the jury returned a verdict for the
District of Columbia, because it was not aware of the possibility of such an act (which was not within the scope of
employment), but the same jury awarded an $180,000 verdict for the second woman, because the District was on
notice from the first allegation. In the Virginia case, the jury awarded the plaintiff $11 million in damages, but the
trial judge reversed the verdict (which was upheld on appeal), concluding that the employee was not within the
scope of employment at the time of the accident.
Sources: washingtonpost.com; Sayles v. Piccadilly Cafeterias, Inc., 410 S.E.2d 632 (Va. 1991).
LIABILITY OF MINORS

Minor children (those under the age of 18) are just as liable for their torts as adults. In fact, in
2010, a Manhattan judge ruled that a 4-year-old girl could be sued in tort law for allegedly
negligently riding her bike and hitting 87-year-old woman, who broke her hip in the fall and died
three months later. The estate of the woman sued the girl and her biking buddy (who was 5), with
whom the girl was racing down the street, on her bike with training wheels, at the time she hit the
woman. It is usually impossible to collect court judgments from minors, however, because in most
cases they have no money. Under the common law, parents were not responsible for the torts of
their minor child unless the act was committed in the parents’ presence or while the minor was
acting as the agent or servant of the parents. Some states have modified this rule by enacting
statutes that make parents liable up to a limited amount of money for the willful torts committed
by their minor children.

IMMUNITY FROM TORT LIABILITY

In the past, charitable and governmental institutions could not be sued, with some exceptions, for
their wrongdoings.

CHARITABLE IMMUNITY

Until recently, charitable institutions such as hospitals and churches were immune – that is, exempt
– from tort liability. They could not be sued in tort for the wrongdoings of their agents or
employees that occurred in the course of the charitable activity. This regulation was known as the
doctrine of charitable immunity. By 1969, most U.S. states had abolished the doctrine of charitable
immunity. To illustrate, in 1969, the Massachusetts Supreme Judicial Court (the highest court in
that state) declared that it would abolish the doctrine in the next case involving that issue unless
the legislature acted in the matter. This decision caused the Massachusetts legislature to pass a
statute in 1971 abolishing the doctrine of charitable immunity in cases arising from a charity’s
commercia; activity and setting a limit of $20,000 on the amount that may be recovered from a
charity for torts arising out of charitable activity.

SOVEREIGN IMMUNITY

The doctrine of sovereign immunity, which makes a governmental body immune from tort liability
unless the government agrees to be held liable, stems from the old common law rule that “the king
can do no wrong.” For hundreds of years, under this doctrine, individuals could not sue the federal,
state, or local government for its torts unless a statue allowed a suit for that particular wrong. This
doctrine has also been modified by the U.S. Congress, and by statute in many states.
For example, the U.S. government has waived its sovereign immunity in order to allow civil suits
for actions arising out of negligent acts of its agents. To bring such an action, strict rules under the
Federal Tort Claims Act must be followed precisely.

Under the Massachusetts Tort Claims Act, public employers (state and local governmental
agencies) are liable up to $100,000 for personal injury, property damage, or death, caused by the
negligent or wrongful act or omission of any public employee while acting within the scope of
employment. In addition, the public employee whose negligent or wrongful act or omission caused
the claim cannot be sued if the act occurred while he or she was acting within the scope of
employment and if it was not an intentional tort. Before suit may be brought under the act, a claim
must be presented in writing, within two years after the cause of action arose, to the executive
officer of the public employer involved. The public employer has six months in which to pay the
claim, deny it, refer it to arbitration, or reach a settlement. Only then may the suit be brought
against the public employer, and it must be brought within three years after the cause of action
arose.

JOINT TORTFEASORS

If more than one person participates in the commission of a tort, they are called joint tortfeasors.
They may be held either jointly or several liable for their wrongdoings. Joint liability means that
all joint tortfeasors must be named as defendants in the lawsuit and, if found liable, together they
owe the damages awarded to the plaintiff. Several liability means that the joint tortfeasors may be
sued separately the wrongdoing. Suppose that two drag-racing teens wreck into a home situated
next to the highway, causing extensive property damage, and one of the teens joins the armed
services the next day, leaving the jurisdiction. The plaintiffs sue the other teen, who is now the
only one around. If that teen-driver is found liable, he or she owes the entire damages. By stature
in some states, if one joint tortfeasor is required to pay more than his or her share to the injured
party, he or she may sue the other joint tortfeasor for the excess. This regulation is known as the
right of contribution between joint tortfeasors.