Tort Law in the United States

December 2010

By: Michael R. McCurdy and Jason B. Robinson


The United States of America is unique in that it is comprised of a federal district and fifty states. As a result, the legal system in the United States is divided into two separate courts: federal and state courts. The differences between federal and state courts are defined mainly by jurisdiction, which refers to the types of cases a court is allowed to decide.

The types of cases heard by courts in the United States can largely be divided into two areas of law: criminal and civil law. Criminal laws and the supporting judicial system recognize and enforce violations of laws that exist to protect all of society from conduct deemed wrongful. Such laws are typically enacted by the elected legislative branches of government. The purpose of the criminal law system in the United States is to punish violators and, by way of example, deter others from committing similar misconduct.

Unlike criminal law, the primary purpose of civil law in the United States is not to punish misdeeds but, rather, to compensate those individuals whose person or property has been wrongfully damaged by the conduct of another. In addition to compensatory damages, remedies available to civil litigants include equitable relief, such as an injunction, whereby a court orders a wrongdoer to cease its harmful conduct.

Civil law in the United States encompasses not only breaches of commercial duties and obligations arising from contracts, but also breaches of duties of care owed to one another by virtue of being members of society. It is the latter category that comprises tort law in the United States: i.e., a body of law generally governing duties that arise by operation of law and not by mere agreement of the parties.

A “tort” is “[a] private or civil wrong or injury, including action for bad faith breach of contract, for which the court will provide a remedy in the form of an action for damages.” BLACK’S LAW DICTIONARY 1036 (Abridged 6th ed. 1991). U.S. tort law has its origin in the British common law system. Much of U.S. tort law was developed by judges through years of opinions written in specific cases. The body of law is fluid, literally changing on a daily basis as new cases cause judges to reconsider and affirm or revise prior opinions, as well as address issues that previously escaped adjudication.

Tort law in the United States exists to redress damages caused an individual by the conduct of another that falls below a standard of care defined by the civil courts.


As noted above, the primary purpose of tort law is to compensate individuals or entities that suffer personal or property damage because of another’s wrongful conduct and, when possible, enjoin continuing misconduct. The specific causes of actions comprising tort law in the United States are too numerous to list, but include liability arising out of: (1) intentional misconduct; (2) unreasonable conduct; (3) defects in the design, manufacturing, or marketing of products sold; and (4) one’s relationship to the tortfeasor.

1. Intentional

“The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law will not sanction.” WILLIAM L. PROSSER, LAW OF TORTS 31 (4th ed. 1971).

Determining whether liability exists for an intentional tort focuses on whether the actor intended his conduct. “The plaintiff need not prove, however, that the actor intended the harm that actually results.” White v. Muniz, 999 P.2d 814, 819 (Colo. 2000); Mooney v. Carter, 160 P.2d 390 (Colo. 1945) (finding defendant had sufficient intent when she speeded up her car and swerved for the purpose of throwing plaintiff from the car).
Perhaps the most common intentional tort to land is trespass. A trespass occurs when one intentionally enters or causes someone or something to enter upon the land of another. CJI-Civ. 18:1 (CLE ed. 2010). The owner or lawful possessor of the land may recover damages for physical damage to the property caused by the trespass. Id. “A trespass may occur when the defendant originally had permission to be on the land, but such permission was subsequently revoked or otherwise terminated and defendant remained on the land.” Id., Notes on Use (citing RESTATEMENT (SECOND) OF TORTS § 158 (1965)).

Torts similar to trespass exist to allow redress for intentional conduct damaging personal property. Frequently occurring intentional torts to persons include:

  • Battery
  • Assault
  • False imprisonment
  • Infliction of emotional distress

Battery occurs when an intentional act causes an unpermitted contact with a person. WILLIAM L. PROSSER, LAW OF TORTS 35 (4th ed. 1971). An assault does not require actual contact, but is committed when an intentional act “would give the victim reason to fear or expect immediate bodily harm.” BLACK’S LAW DICTIONARY 75 (Abridged 6th ed. 1991). False imprisonment arises when one, without lawful authority
2 (such as an arresting peace officer), restricts the movement of another against his will. Intentional infliction of emotional distress claims protect against “conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.” WILLIAM L. PROSSER, LAW OF TORTS 56 (4th ed. 1971).

2. Negligence

Negligence is perhaps the most commonly asserted cause of action in the United States. “Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances.” BLACK’S LAW DICTIONARY 716 (Abridged 6th ed. 1991). Simply, it is conduct below that which society considers reasonable. When such unreasonable conduct is the proximate cause of injury to another person or his property, the actor may be liable in tort for negligence.

What constitutes unreasonable conduct typically is not defined by statute but, rather, is a question of fact to be determined by the finder(s) of fact. An exception may exist where instances of misconduct are frequent and so obviously unacceptable that the law imposes a rebuttable presumption of negligence. For example, the law may presume that a rear-end motor vehicle accident results from the negligence of the driver in the car hitting the vehicle in front of him.

In contrast to intentional torts, in negligence cases the actor need not intend the conduct causing damage. In fact, by definition the tortfeasor is not accused of acting with intent, but rather for failing to exercise the reasonable degree of care required by society as expressed through judges and juries. The care required is that of a fictional reasonable man in similar circumstances. Unreasonable conduct often is deemed to have occurred when motor vehicle accidents result from excessive speed or inattention to traffic control devices. Negligence may also be found in a commercial setting, such as where a designer, manufacturer or seller of a product does not exercise the reasonable care deemed necessary to prevent a dangerous product from reaching the consumer.

The essence of every negligence action is that a duty of care is owed to the plaintiff. Such duties may be found to exist irrespective of a pre-existing relationship between the parties. Common examples are the duties imposed on operators of motor vehicles. Other duties exist by virtue of a pre-existing relationship, such as a doctor-patient relationship, attorney-client relationship, or clergy-parishioner relationship.
Generally, negligence laws exist as a non-criminal regulator of conduct in society. Those individuals whose conduct falls below the required minimum standard of care may be liable for the resulting bodily injury, including death, and property damage.

3. Product Liability

Product liability refers to “the legal liability of manufacturers and sellers to compensate buyers, users, and even bystanders, for damages or injuries suffered because of defects in goods purchased.” BLACK’S LAW DICTIONARY 840 (Abridged 6th ed. 1991); see also Model Uniform Product Liability Act, § 102(2) (1979) (defining product liability to include “all claims or action brought for personal injury, death or property damage caused by the manufacture, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, or labeling of any product”). Thus, this tort action makes a manufacturer liable if its product has a defective condition that makes it unreasonably dangerous to the user or consumer. BLACK’S LAW DICTIONARY 840 (Abridged 6th ed. 1991).

The rule of tort liability applicable to commercial sellers and other distributors of products generally has been stated as follows: “[o]ne engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.” RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 1 (1998) (superseding the RESTATEMENT (SECOND) OF TORTS § 402A (1965)); see also Newton v. Admiral Corp., 280 F. Supp. 202, 203 (D. Colo. 1997) (noting Section 402A of the RESTATEMENT (SECOND) OF TORTS “in effect implies a warranty by the seller that the product is free from defects which rendered the product unreasonably dangerous to the user”).

There is no comprehensive federal scheme governing the law of product liability. Rather, this area of law varies from state to state and is a creature of statute or has otherwise become a part of common law (i.e., it has been developed by judges over the years). Indeed, many states have enacted comprehensive product liability statutes, some of which are modeled after the Model Uniform Products Liability Act. See 44 F.R. 62,714–62,750 (Model Uniform Product Liability Act). The Model Uniform Product Liability Act, published by the United States Department of Commerce in 1979, was meant to set forth “uniform standards for state product liability tort law.” Id. at 62,716. Other states have adopted, in whole or in part, provisions of the Restatement of Law. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY §§ 1–21 (1998); see also RESTATEMENT (SECOND) OF TORTS § 402 (1965). However, provisions of the Restatement do not become rules of law until adopted as such by a court or legislature. Accordingly, it is imperative for anyone asserting a claim for product liability to understand the applicable law in the particular jurisdiction in which the claim is asserted.

Liability can occur at any point along the chain of production and distribution. Indeed, the manufacturer, wholesaler, and retailer can all be held accountable for injuries caused by a defective product. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 1 cmt. d (1998) (noting “all commercial sellers and distributors of products, including nonmanufacturing sellers and distributors such as wholesalers and retailers, are subject to liability for selling products that are defective”); § 20(a) (defining commercial product sellers to include manufacturers, wholesalers, and retailers). However, legislation has been enacted in several states that effectively immunizes nonmanufacturing sellers or distributors from strict liability. Thus, particular attention must be paid to the laws of the jurisdiction in which the product liability claim is asserted.

Liability is limited to defective products. A product is broadly interpreted to include any “tangible personal property distributed commercially for use or consumption.” RESTATEMENT (THIRD) TORTS: PRODUCTS LIABILITY § 19 (1998). The defect of a product can come in several forms: a design defect; a manufacturing defect; or a marketing defect. Id., § 2. A design defect, which occurs before manufacturing, arises when the specific product unit conforms to the intended design but the intended design itself renders the product not reasonably safe. Id., § 1 cmt. a; § 2(b). A manufacturing defect, which occurs during manufacturing, is a physical departure from the product’s intended design. Id., § 1 cmt. a; § 2(a). An example would be where the manufacturer uses the wrong materials or fails to use appropriate quality controls that results in a defective product. Finally, a marketing defect, which occurs after manufacturing, arises where the sale of a specific product without adequate instructions or warnings renders the product not reasonably safe. Id., § 1 cmt. a; § 2(c).

Generally speaking, product liability claims may be based on different theories of liability, including: strict liability, negligence, misrepresentation, or breach of warranty. Strict product liability has been described as a “term of art that reflects the judgment that products liability is a discrete area of tort law which borrows from both negligence and warranty” but “is not fully congruent with classical tort or contract law.” See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 1 cmt. a (1998). Strict product liability focuses on the nature of the product rather than the conduct of either the manufacturer or the person injured and is premised on the concept of enterprise liability for casting a defective product into the stream of commerce. Boles v. Sun Ergoline, Inc., 223 P.3d 724, 727 (Colo. 2010). Under the Second Restatement of Torts, strict liability could be found under all three theories of liability: i.e., manufacturing defects; marketing defects; and design defects. See RESTATEMENT (SECOND) OF TORTS § 402A (1965). Under the Third Restatement of Torts, however, the only theory that allows for strict liability is one that is based on a manufacturing defect. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 (1998).

Unlike strict product liability, where a product liability action is brought on a negligence theory the focus is on the conduct of the defendant. To recover under a negligence theory, a plaintiff must show that the defendant breached a duty of care owed to the plaintiff and thereby caused the plaintiff’s injuries. See Section II(2), supra. Unlike strict liability, in order to prevail on a negligence theory, the plaintiff must show that the defect resulted from the defendant’s failure to exercise reasonable care. Id. In some states, as in a negligence action, a plaintiff may rely on the doctrine of res ipsa loquitor. See RESTATEMENT (SECOND) OF TORTS § 328D (1965).

A product liability claim may also be brought under a theory of breach of warranty, which may be based on either express or implied warranties, including the implied warranty of fitness for a particular purpose and the implied warranty of merchantability. These cases are substantially controlled by the Uniform Commercial Code, which governs commercial transactions and has been adopted in whole or substantially by all states. See BLACK’S LAW DICTIONARY 1064 (Abridged 6th ed. 1991). Although a product liability claim based on breach of warranty is a tort action, the theory

is intertwined with contract law because warranty is based on a contractual relationship. These contractual issues can make it more difficult for a plaintiff to succeed on this theory, notwithstanding the fact that the plaintiff is not required to prove defendant was negligent under this theory. Plaintiff must also provide timely notice.

Finally, some states allow strict liability for manufacturers for misrepresentation. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 9 (1998) (“One engaged in the business of selling or otherwise distributing products who, in connection with the sale of a product, makes a fraudulent, negligent, or innocent misrepresentation of material fact concerning the product is subject to liability for harm to persons or property caused by the misrepresentation.”); see also RESTATEMENT (SECOND) OF TORTS § 402B (1965) (superseded by RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 9 (1998)).

4. Vicarious Liability

The types of torts previously discussed have required some degree of misconduct by the actor. Tort law in the United States also imposes liability on individuals and entities simply by virtue of their relationship to the tortfeasor. Such liability is referred to as vicarious liability, meaning “indirect or imputed legal responsibility for acts of another.” BLACK’S LAW DICTIONARY 1084 (Abridged 6th ed. 1991). A frequent example of vicarious liability arises in the employer-employee relationship. If the employee negligently causes an accident while acting within the course and scope of his employment, the employer — although free of fault — may be liable for the losses flowing from its employee’s misconduct.

Consistent with the purpose of tort law in the United States — i.e., to compensate persons for their injuries and damages — vicarious liability generally is imposed on an employer to provide another source from which to compensate victims. Proponents of vicarious liability theories reason that, because the employer was benefiting from its employee’s actions when the accident occurs, the employer should also be responsible to those injured as a result of the employee’s negligence when that negligence is within the scope of the employment relationship.

The employer-employee relationship is but one example of vicarious liability. Other examples include the permissive use of a motor vehicle by a motor vehicle owner to another family member, as well as instances involving the parent-child relationship and joint venturers.

5. Other Types of Torts

The body of tort law in the United States is so broad and deep that it would be difficult, if not impossible, to discuss or even identify all torts in this article. The types of torts addressed above are amongst those most commonly litigated. However, they are not exhaustive.

Other recognized torts include causes of action for defamation (written or verbal misstatements of fact), premises liability (governing duties of an owner or possessor of land to occupants), malicious prosecution and abuse of legal process, false imprisonment, outrageous conduct, intentional interference with contractual obligations, bad faith breach of insurance contract, breach of fiduciary duty, civil conspiracy, invasion of privacy, and wrongful discharge from employment.


1. Burden of Proof

“Burden of proof” is “[t]he obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.” BLACK’S LAW DICTIONARY 135–36 (Abridged 6th ed. 1991). In civil litigation, the initial burden of proof is on the plaintiff. Although there are times the burden of going forward may shift to the defendant, such as where the plaintiff has established a prima facie case, the plaintiff bears the burden of proof throughout trial. However, a defendant bears the burden of proof on all affirmative defenses raised in response to a Complaint.

In civil litigation, a plaintiff must prove his or her case by a “preponderance of the evidence,” which is defined as “that degree of proof which is more probable than not.” BLACK’S LAW DICTIONARY 819 (Abridged 6th ed. 1991). This degree of proof stands in stark contrast to, and represents a crucial departure from, the degree of proof required in a criminal case in the United States, where the burden of proof is “beyond a reasonable doubt.” “Beyond a reasonable doubt” means that “facts proven must, by virtue of their probative force, establish guilt.” Id. at 111. The standard of proof beyond a reasonable doubt has limited use in civil cases, such as claims for exemplary damages.

There are some exceptions to the general rule that a plaintiff must prove his or her case by a preponderance of the evidence in a civil case, such as where the plaintiff must prove his or her case by “clear and convincing evidence.” This degree of proof is “[t]hat proof which results in reasonable certainty of the truth of the ultimate fact in controversy, requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt.” BLACK’S LAW DICTIONARY 172 (Abridged 6th ed. 1991).

2. Duty

The term “duty” is used through the Restatement of Torts “to denote the fact that the actor is required to conduct himself in a particular manner at the risk that if he does not do so he becomes subject to liability to another to whom the duty is owed for any injury sustained by such other, of which that actor’s conduct is a legal cause.” BLACK’S LAW DICTIONARY 349 (Abridged 6th ed. 1991). An actor’s duty is intertwined with the notion of due care, viewed in terms of an actor’s reasonableness: i.e., “[t]hat degree of care that a reasonable person can be expected to exercise to avoid harm reasonably foreseeable if such care is not taken” or “[t]hat care which an ordinarily prudent person would have exercised under the same or similar circumstances.” Id. at 345.

3. Proximate Cause

Most torts require that the defendant’s act be the proximate cause of the injury sustained by the plaintiff. “An injury or damage is proximately caused by an act, or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.” BLACK’S LAW DICTIONARY 853 (Abridged 6th ed. 1991).


Damages are the means by which a party injured in tort is compensated for the harm suffered, and an injured party is generally entitled to recover damages for the natural and probable consequences of the tort. Damages are primarily divided into two categories: compensatory and punitive. BLACK’S LAW DICTIONARY 270 (Abridged 6th ed. 1991).

The purpose of compensatory damages is to make the injured party whole by compensating him or her for injuries sustained as a result of the defendant’s actions. BLACK’S LAW DICTIONARY 270 (Abridged 6th ed. 1991). Compensatory damages are generally divided into the following categories: economic; non-economic; and physical impairment or disfigurement. Economic damages typically refer to the pecuniary harm suffered by an injured party, or those damages that can be accurately calculated in monetary terms. Non-economic damages refer to the non-pecuniary harm suffered by an injured party. Such damages include emotional distress, pain and suffering, inconvenience, fear and anxiety, and impairment of the quality of life. Non-economic damages, as well as punitive damages, are often limited by statute due in large part to the widespread tort reform passed in state legislatures as a result of excessive damage awards.

Punitive damages, on the other hand, are meant to punish the defendant and make an example of him or her in order to deter similar conduct. Punitive damages are similar to non-economic damages in that they are often limited by statute.

In general, attorney fees are not recoverable as damages or costs in civil litigation unless authorized by contract, statute, or court rule. This general rule, known as the “American rule” stands in stark contrast to the “English rule,” which provides attorney fees to the prevailing party. Costs, however, are typically awarded to the prevailing party.


Sovereign immunity is the judicial doctrine “which precludes bringing suit against the government without its consent.” BLACK’S LAW DICTIONARY 970 (Abridged 6th ed. 1991). This doctrine applies to the federal, state and local governments.

The federal government has generally waived its non-tort action immunity in the Tucker Act, 28 U.S.C.A. § 1346(a)(2), 1491, and its tort immunity in the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), 2674. The Federal Tort Claims Act largely abrogated the federal government’s immunity from tort liability and established the conditions for suits and claims against the federal government. See 28 U.S.C.A. §§ 1346(b), 2674. However, the Federal Tort Claims Act preserves governmental immunity with respect to the traditional categories of intentional torts, and with respect to acts or omissions which fall within the “discretionary function or duty” of any federal agency or employee. BLACK’S LAW DICTIONARY 426 (Abridged 6th ed. 1991). Most states have also waived immunity to various degrees at both the state and local government levels.


This article is meant only as a broad overview of tort law in the United States. Much like the make-up of its individual states, the body of tort law in the United States can vary from state to state. Accordingly, consultation with a local practitioner in the appropriate jurisdiction is strongly recommended.

This Article is published for general information, not to provide specific legal advice.  The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis by a lawyer of the specific facts involved.

Copyright © 2010 Fairfield and Woods, P.C., ALL RIGHTS RESERVED.

Comments or inquiries may be directed to

Michael R. McCurdy or Jason Robinson.