Oftentimes the media and lawyers use terms they expect everyone to know. Few terms fit this bill better than the term “tort,” and most folks cannot help but wonder, “what is a tort”? On a technical level, Virginia recognizes that a tort is “the violation of some duty owing to the plaintiff imposed by the general law or otherwise.” Glisson v. Loxley, 235 Va. 62 (1988). Given this definition, “[t]he primary consideration underlying tort law is the protection of persons and property from injury.” Altman v. All Am. Pest Control, Inc. Along with contract law, tort law forms the foundation of America’s civil justice system.
Perhaps one of the best ways of illustrating the civil tort system is by contrasting it with the criminal law system. Crimes involve both a mens rea – a certain mental intent to commit a crime – and an actus reus – a physical act that takes a substantial step toward committing a particular illegal act. The type of illegal act committed and/or the accompanying mental intent determines the type of crime that occurs. By way of example, intentionally harming another physically is assault and battery; stealing something with the intent to permanently deprive the owner of possession is larceny; killing another individual may be murder, etc. There are numerous crimes and classifications of crimes, and a defendant must be found guilty beyond a reasonable doubt.
Tort law acts as the civil counterpart to the criminal justice system. Tort law considers the intent of the defendant for intentional torts, but tort law will impose civil liability for negligence and strict liability where the defendant merely fails to fulfill a duty he or she owes to the plaintiff. And, like the different classifications of crimes, intentionally harming another physically may constitute the tort of assault; stealing something with the intent to permanently deprive the owner of possession may be the tort of conversion; and killing another individual may be negligence. In the civil justice system, the plaintiff will establish the defendant’s liability (as opposed to the defendant’s guilt) by proving the tort by a preponderance of the evidence.
The criminal justice system and civil justice system also differ regarding their objectives. Though there are certainly some critics to its effectiveness, the criminal system is designed to provide retribution against criminal wrongdoers and rehabilitation of those individuals. The tort system, on the other hand, is not concerned so much with retribution or rehabilitation but seeks to satisfy the third “R”: restitution or restoration of the victim. The law cannot “un-ring a bell” and make the wrongdoer’s act not occur – restitution in its most perfect form – but the tort system will seek to restore the injured individual by providing monetary relief and compensatory damages for all of the damages that the victim suffered, including economic damages like repayment of medical bills, payment of lost wages, and payment for property damage, and non-economic damages, such as pain and suffering, emotional distress, mental anguish, and disfigurement.
Robert E. Byrne, Jr., the author of this post, is a trial lawyer who serves as President and managing attorney of MartinWren, P.C. Named the Virginia State Bar’s Young Lawyer of the Year for 2010, Bob has twice been recognized as a “Rising Star” by Super Lawyers Magazine in Business Litigation and as a member of MartinWren’s Virginia Personal Injury Lawyers group and Charlottesville Personal Injury Lawyers group, an honor reserved for just 2.5% of the eligible attorneys in Virginia. To see Bob’s AVVO rating and profile, please click here. To contact Bob about his services as a Charlottesville automobile accident lawyer, please call (434) 817-3100 or send an email to [email protected].
