August 13, 2019
Introduction to Tort Law
Questions regarding the appropriate scope and content of
generally been less willing to entertain negligence
tort law have often provoked debate inside and outside of
claims alleging pure economic losses like lost revenues.
Congress. This In Focus surveys basic tort law principles
and identifies pertinent legal considerations for Congress.
The defendant’s breach of his duty caused the plaintiff’s
injury. The plaintiff must prove not only that the
What Is Tort Law?
defendant actually caused his injury—that is, that the
Tort law is the body of rules concerned with remedying
injury would not have occurred but for the defendant’s
harms caused by a person’s wrongful or injurious actions.
breach—but also that the defendant proximately caused
For instance, if a surgeon tasked with amputating a patient’s
his injury—that is, that the causal connection between
left leg commits medical malpractice by instead amputating
the defendant’s breach and the plaintiff’s injury was
her right leg, that patient may be able to pursue a tort
sufficiently direct as a matter of public policy.
lawsuit for monetary damages against the surgeon.
(Typically, a defendant is responsible only for injuries it
could reasonably anticipate and not those that are
Traditionally, with a few significant exceptions, tort law has
unforeseeable or remote.)
primarily been a matter of state rather than federal law. Tort
law has also historically been a matter of common law
Notably, under certain circumstances, a defendant may be
rather than statutory law; that is, judges (not legislatures)
liable for negligence committed by a third party. For
developed many of the fundamental principles of tort law
instance, under the doctrine of respondeat superior, an
through case-by-case adjudication. Over time, however,
employer may be liable for torts committed by its
state legislatures and Congress have begun to intervene in
employees. To illustrate, if an employee negligently causes
the development of tort law to a greater extent.
a vehicular collision while driving a company car on
company business, that driver’s employer may be liable to
Why Does Tort Law Exist?
persons injured in the crash. The employer will ordinarily
Tort law serves at least three purposes. The first is to
not be liable, however, for torts an employee commits
compensate plaintiffs who are injured by a defendant’s
outside the scope of his employment.
conduct. The second is to deter persons from acting in
ways that may cause injury to others. A third purpose—
Strict Liability and Products Liability
albeit one of somewhat lesser significance—is to punish
Whereas negligence is chiefly concerned with whether the
people who wrongfully injure others.
defendant acted carefully or carelessly, strict liability torts
impose liability without regard to the defendant’s level of
Negligence
care. One prominent example of a strict liability tort is
Perhaps the paradigmatic example of a tort is negligence.
products liability, which permits a plaintiff injured by a
For example, a motorist who causes a fatal collision by
defective product to recover damages from the seller of that
looking at his cellular phone instead of the road may have
product without having to prove that the seller acted
committed a tort by driving negligently. To establish a
negligently. Instead, generally speaking, a products liability
defendant’s negligence, a plaintiff must ordinarily prove all
plaintiff only needs to prove that
four of the following elements:
the defendant sold a product;
The defendant owed a duty to the plaintiff. (Different
defendants may owe different duties depending on the
the defendant was a commercial seller of such
circumstances. For instance, whereas motorists owe a
products;
duty of reasonable care to not injure pedestrians and
other drivers, doctors generally owe their patients a
the product was in a defective condition at the time the
stricter duty to abide by the standard of care and
defendant sold it;
prudence prevailing in the medical community.)
the plaintiff sustained an injury; and
The defendant breached that duty. (For instance, a
defendant may breach his duty of reasonable care by
the defect actually and proximately caused the injury.
acting carelessly.)
Courts have identified several rationales for subjecting
The plaintiff suffered a legally cognizable injury.
commercial sellers to strict liability, including the fact that a
Whereas a plaintiff may ordinarily sue a defendant for
business entity is often in a better economic position to bear
personal injury or property damage, courts have
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Introduction to Tort Law
(or insure against) a loss caused a defective product than an
question. Additionally, legislation intended to preempt state
individual consumer injured by the product.
tort law in a particular context raises questions regarding its
preemptive scope. Depending on the circumstances and the
Intentional Torts
way in which Congress drafts legislation preempting state
Critically, none of the torts discussed above require the
tort law, a federal statute may either displace state law
plaintiff to prove that the defendant intended to cause
entirely or leave pockets of state law intact.
injury. A driver who negligently causes a car crash, for
instance, may be liable even if he did not mean to cause the
Other constitutional doctrines may affect the federal
collision. Other torts, by contrast, do require the plaintiff to
government’s ability to enact certain types of tort
prove that the defendant intentionally caused harm.
legislation as well. For example, some federal policymakers
Depending on the circumstances, a defendant who commits
have proposed making it easier to pursue defamation
an intentional tort may more likely to be held liable for
lawsuits. However, because defamation claims penalize
additional damages, such as punitive damages.
defendants for the content of their speech, the First
Amendment may limit the circumstances in which a
Perhaps the most familiar example of an intentional tort is
plaintiff may constitutionally pursue a defamation cause of
battery—that is, an intentional harmful or offensive contact
action.
with another person. For example, a brawler who
purposefully punches an innocent bystander in the face may
One issue over which Congress enjoys a substantial degree
be liable for his victim’s dental bills. Another intentional
of control, however, is whether (and under what conditions)
tort is intentional infliction of emotional distress
a plaintiff may pursue tort litigation against the United
(IIED)—that is, engaging in extreme and outrageous
States. Congress has enacted a statute called the Federal
conduct intended to cause another person severe mental
Tort Claims Act that governs whether, when, and how a
anguish. For instance, a person who subjects someone else
plaintiff may pursue lawsuits against the federal
to a concerted campaign of harassment and bullying with
government for torts committed by federal employees.
the purpose of causing that person psychological harm may
have committed IIED. Yet another example is
Congress also possesses significant legislative authority
defamation—making a spoken or written statement that
over the procedural rules governing tort litigation in the
harms another person’s reputation.
federal courts. For instance, Federal Rule of Evidence 702
regulates when an expert witness may testify in a federal
Tort Remedies
tort suit. In Daubert v. Merrell Dow Pharmaceuticals, Inc.,
A plaintiff who proves that a defendant has committed a
509 U.S. 579 (1993), the U.S. Supreme Court interpreted
tort may potentially recover various types of monetary
Rule 702 to require federal judges to play an active
damages. For instance, a successful tort plaintiff may
gatekeeping role in scrutinizing experts’ qualifications and
generally recover compensatory damages, which attempt
methodology before they may testify. Because expert
to make an injured plaintiff “whole.” To illustrate, a
testimony is a critical element of many types of tort cases
defendant who negligently causes $3,000 in property
(such as medical malpractice actions), Congress may
damage may be required to pay $3,000 in compensatory
modify these evidentiary standards by amending the
damages to the property owner. Notably, a plaintiff may
Federal Rules of Evidence. Similarly, Congress may amend
potentially also recover noneconomic damages to
Federal Rule of Civil Procedure 23, which governs whether
compensate the plaintiff for injuries—such as pain and
and under what circumstances a tort lawsuit may proceed as
suffering—that may be more difficult to quantify. In
a class action.
exceptional circumstances in which a defendant has
engaged in particularly egregious behavior, a plaintiff may
CRS Products
also recover punitive damages—that is, damages in excess
of compensatory damages that are solely intended to punish
CRS Report R45732, The Federal Tort Claims Act (FTCA): A Legal
the defendant for his conduct. Notably, however,
Overview, by Kevin M. Lewis
constitutional and statutory limitations may cap or
CRS Legal Sidebar LSB10118, Tort and Litigation Reform in the
otherwise restrict the amount and types of damages that a
115th Congress, by Kevin M. Lewis
plaintiff may recover.
CRS Report R45825, Federal Preemption: A Legal Primer, by Jay
Considerations for Congress
B. Sykes and Nicole Vanatko
Because tort law has traditionally been the domain of the
CRS Report R45323, Federalism-Based Limitations on
states, federal legislation that proposes to preempt (i.e.,
Congressional Power: An Overview, coordinated by Andrew
displace) state tort law, modify prevailing tort doctrines, or
Nolan and Kevin M. Lewis
impose caps on damages awards may implicate federalism
CRS Report R45159, Class Action Lawsuits: A Legal Overview for
principles. For one, Congress may only enact legislation
the 115th Congress, by Kevin M. Lewis and Wilson C. Freeman
pursuant to one of its enumerated powers of the
Constitution, and the U.S. Supreme Court has articulated
constraints on Congress’s ability to regulate purely
intrastate activities. Thus, whenever Congress creates or
Kevin M. Lewis, Legislative Attorney
modifies tort duties at the federal level, it needs to point to a
source of constitutional authority (such as the Commerce
IF11291
Clause) that empowers it to enact the legislation in
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Introduction to Tort Law
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