Introduction to Tort Law

Introduction to Tort Law

Updated May 26, 2023
Introduction to Tort Law
The appropriate scope and content of tort law often provoke
personal injury or property damage, courts have
debate inside and outside of Congress. This In Focus
generally been less willing to entertain negligence
surveys basic tort law principles and identifies pertinent
claims alleging pure economic losses, like lost revenues.
legal considerations for Congress.
• The defendant’s breach of duty caused the plaintiff’s
What Is Tort Law?
injury. The plaintiff normally must prove not only that
A tort is an act or omission that causes legally cognizable
the defendant actually caused their injury—that is, that
harm to persons or property. Tort law, in turn, is the body
the injury would not have occurred but for the
of rules concerned with remedying harms caused by a
defendant’s breach—but also that the defendant
person’s wrongful or injurious actions. For instance, if a
proximately caused their injury—that is, that the causal
surgeon tasked with amputating a patient’s left leg instead
connection between the defendant’s breach and the
amputates the right leg, that patient may be able to pursue a
plaintiff’s injury was sufficiently direct as a matter of
tort lawsuit alleging medical malpractice and seeking
public policy. (Typically, a defendant is responsible
monetary damages against the surgeon.
only for injuries that they could reasonably anticipate
and not those that are unforeseeable or remote.)
With a few significant exceptions, tort law is largely a
matter of state rather than federal law. Tort law has also
In some cases, a defendant may be liable for injuries
historically been a matter of common law rather than
resulting from a third party’s negligence. For instance,
statutory law; that is, judges (not legislatures) developed
under the doctrine of respondeat superior, an employer
many of tort law’s fundamental principles through case-by-
may be liable for torts committed by its employees. To
case adjudication. Over time, however, state legislatures
illustrate, if an employee negligently causes a vehicular
and Congress have begun to intervene in the development
collision while driving a company car and carrying out
of tort law by enacting tort law statutes.
company business, the driver’s employer may be liable for
any consequent injuries. The employer ordinarily is not
Why Does Tort Law Exist?
liable, however, for torts an employee commits outside the
Tort law serves at least three purposes. First, it facilitates
scope of employment.
compensation for injuries resulting from wrongful conduct.
Second, it can deter persons from acting in ways that may
Strict Liability and Products Liability
produce harm. Third, it can provide a way of punishing
Whereas negligence is chiefly concerned with whether the
people who wrongfully injure others.
defendant acted carelessly, strict liability torts impose
liability without regard to the defendant’s level of care. One
Negligence
prominent example of a strict liability tort is products
A common example of a tort entails negligence. For
liability, which permits a plaintiff injured by a defective
example, a motorist who causes a fatal collision by looking
product to recover damages from the seller of that product
at their cellular phone instead of the road may have
without having to prove that the seller acted negligently.
committed a tort by driving negligently. To establish a
Instead, a products liability plaintiff generally only needs to
defendant’s negligence, a plaintiff must ordinarily prove
prove
each of these elements:
• the defendant sold a product;
• The defendant owed a duty to the plaintiff. (Different
defendants may owe different duties depending on a
• the defendant was a commercial seller of such
case’s circumstances. For instance, while motorists owe
products;
a 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 a duty owed. (For instance, a
defendant may breach their 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 that a
Whereas a plaintiff may ordinarily sue a defendant for
business entity is often in a better economic position to bear
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Introduction to Tort Law
(or insure against) a loss caused by a defective product than
legislation to preempt state tort law in a particular context
an individual consumer injured by the product.
raises questions regarding its preemptive scope. Depending
on the circumstances and the way Congress drafts
Intentional Torts
legislation preempting state tort law, a federal statute can
None of the torts discussed above require the plaintiff to
either displace state law entirely or leave pockets of state
prove that the defendant intended to cause injury. A driver
law intact.
who negligently causes a car crash, for instance, may be
liable even if they did not mean to cause the collision. Other
Other constitutional doctrines may also affect the federal
torts, by contrast, do require the plaintiff to prove that the
government’s ability to enact certain types of tort
defendant intentionally caused harm. Depending on the
legislation. For example, some federal policymakers have
circumstances, a defendant who commits an intentional tort
proposed making it easier to pursue defamation lawsuits.
is more likely to be held liable for additional damages, such
However, because defamation claims penalize defendants
as punitive damages.
for the content of their speech, the First Amendment might
limit the circumstances in which a plaintiff can
Perhaps the most familiar example of an intentional tort is
constitutionally pursue a defamation case.
battery (i.e., an intentional harmful or offensive contact
with another person). For example, someone who
One issue over which Congress enjoys a substantial degree
purposefully punches an innocent bystander in the face may
of control, however, is whether (and under what conditions)
be liable for the victim’s dental bills. Another intentional
a plaintiff can pursue tort litigation against the United
tort is intentional infliction of emotional distress (IIED),
States. The Federal Tort Claims Act tgoverns whether,
which entails engaging in extreme and outrageous conduct
when, and how a plaintiff can pursue lawsuits against the
intended to cause another person severe mental anguish.
federal government for torts committed by federal
For instance, a person who subjects someone else to a
employees.
concerted campaign of harassment and bullying with the
purpose of causing that person psychological harm may
Congress also has significant legislative authority over the
have committed IIED. Another intentional tort is
procedural rules governing tort litigation in the federal
defamation—making a false spoken or written statement
courts. For instance, Federal Rule of Evidence 702
that harms another person’s reputation.
regulates when an expert witness may testify in a federal
tort suit. In Daubert v. Merrell Dow Pharmaceuticals, Inc.,
Tort Remedies
509 U.S. 579 (1993), the U.S. Supreme Court interpreted
A plaintiff who proves that a defendant has committed a
Rule 702 to require federal judges to play an active
tort can potentially recover monetary damages. A
gatekeeping role in scrutinizing experts’ qualifications and
successful tort plaintiff can generally recover
methodology before they can testify. Because expert
compensatory damages, which attempt to make an injured
testimony is critical to many types of tort cases (such as
plaintiff “whole.” To illustrate, a defendant who negligently
medical malpractice lawsuits), Congress may modify these
causes $3,000 in property damage may need to pay $3,000
evidentiary standards by amending the Federal Rules of
in compensatory damages to the property owner. Notably, a
Evidence. Similarly, Congress may amend Federal Rule of
plaintiff can possibly also recover noneconomic damages
Civil Procedure 23, which governs whether and under what
to compensate them for injuries—such as pain and
circumstances a tort lawsuit may proceed in federal court as
suffering—that might be harder to quantify. In exceptional
a class action.
circumstances in which a defendant has engaged in
particularly egregious behavior, a plaintiff might also
CRS Products
recover punitive damages (i.e., damages in excess of
compensatory damages intended solely to punish the
CRS Report R45732, The Federal Tort Claims Act (FTCA): A Legal
defendant for their conduct). Even so, constitutional and
Overview, by Michael D. Contino and Andreas Kuersten
statutory limitations might cap or otherwise restrict the
CRS Report R45323, Federalism-Based Limitations on
amount and types of damages that a plaintiff may recover.
Congressional Power: An Overview, coordinated by Kevin J.
Hickey
Considerations for Congress
CRS Report R45825, Federal Preemption: A Legal Primer, by
Because tort law has traditionally been the domain of the
Bryan L. Adkins, Alexander H. Pepper, and Jay B. Sykes
states, federal legislation that proposes to preempt (i.e.,
displace) state tort law, modify prevailing tort doctrines, or

impose caps on damages awards might implicate federalism
Former Legislative Attorney Kevin M. Lewis was the
principles. For one, Congress can only enact legislation
original author of this In Focus. Congressional clients can
pursuant its powers enumerated in the Constitution, and the
submit future inquiries on this issue to Andreas Kuersten,
U.S. Supreme Court has articulated constraints on
who updated this In Focus.
Congress’s ability to regulate purely intrastate activities.
Thus, whenever Congress creates or modifies tort duties at
the federal level, it needs to point to a source of
Andreas Kuersten, Legislative Attorney
constitutional authority (such as the Commerce Clause) that
IF11291
empowers it to enact the law in question. Additionally,

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Introduction to Tort Law

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