Tort Law

Injury law is primarily tort law. So what is a tort? (No, it’s not a French pastry.)

A Georgia statute defines a “tort” as “the unlawful violation of a private legal right other than a mere breach of contract, express or implied,” and states that “a tort may also be the violation of a public duty if, as a result of the violation, some special damage accrues to the individual.”

Every tort claim must include four basic elements:

• Duty. The defendant must have a legal duty of care toward the plaintiff.
• Breach of duty. The defendant must have violated a legal duty of care toward the plaintiff.
• Damages. The plaintiff must have suffered a form of harm for which the law authorizes an award of monetary damages.
• Proximate cause. The defendant’s breach of a legal duty must be related to the plaintiff’s injury closely enough to be considered at least one of several dominant cause or legal causes of the injury.

Private duties may arise from contracts or other private relationships between parties. For example, a contract to repair a car creates a duty to perform the repairs skillfully, carefully, and in a workmanlike manner. However, a violation of that duty supports a tort claim only if the resulting damage goes beyond a mere failure to receive the expected benefit of the contract.

Public duties may be based upon a statute or local ordinance. An extremely simple example is the statutory duty not to run a stop sign.

Tort law serves several important purposes, not least of which is a civilized way to resolve disputes when one party’s unreasonable conduct injures another. Even the folks who complain of too many lawsuits shrink from proposing a return to duels and bloody reprisals. Tort law provides a system for compensating injured parties in a way that bears a reasonable relationship to the conduct of the parties and the degree of injury. It allocates risks of injury in ways that our society has deemed appropriate. Last but not least, it defines duties to other people in a practical way that provides economic incentive to take care not to hurt other people.

Modern tort law has many sources.

First, the common law of torts evolved through centuries of court decisions, originally in England and later in America.

Second, statutes define much in tort law. Georgia is one of the states that has codified much of its common law heritage of tort law, and modified it from time to time in legislation, including “tort reform.” Courts also look to statutes on other subjects in determining the rights and duties of parties in a tort case.

Third, contractual relations may create rights and duties which give rise to tort claims between parties.

Fourth, courts may look to persuasive court decisions in other jurisdictions, “Restatements” of the law drafted by groups of prominent judges and law professors in the American Law Institute, and a large body of scholarly legal publications.

In Georgia, courts can respond to new circumstances with the statutory rule that “[f]or every right there is a remedy; every court having jurisdiction of the one may, if necessary, frame the other.”

Contrary to the suggestions of some who lobby against the rights of individuals to recover for legitimate injuries, what we now know as tort law has a history as long as civilization the following is adapted from “ 4,000 Year Perspective on Tort Law,” a chapter in Georgia Law of Torts: Trial Preparation & Practice (West, 2010), authored by Kenneth L. Shigley, but without all the footnotes.

This is a practical book for lawyers laboring in the often muddy trenches of the law. It is to jurisprudential theory as auto mechanics is to quantum physics. However, before delving into the pragmatic details of personal injury litigation, there may be value in a quick look at the history, purposes, and policy of tort law.

The story of what we now classify as tort law began in ancient Sumeria, the likely birthplace of Abraham set among the shifting navigational channels and irrigation canals where the Tigris and Euphrates rivers emerge into the Persian Gulf in what is now southern Iraq and Kuwait. The same culture that developed the wheel, written language, mathematical notation, specialization of labor, the plow, the potter’s wheel, glass, beer, and urban life, advanced the seminal development of law. Much as later American tort law would emphasize business, insurance, motor vehicles and manufactured products, Sumerian laws focused on the particulars of their social and economic context, as they devised rules for orderly compensation gradually supplanting the instinct for uncontrolled revenge. The Laws of Ur-Nammu (c. 2112–2085 B.C.) mandated compensation in silver for putting out a man’s eye, and the Code of Lipit-Ishtar (c. 1934-1924 BC) set a negligence standard for property damage to a house. The Sumerian city-state of Eshnunna developed a legal code (c. 1900 B.C.), that expanded upon these principles of compensation for damages done to another, addressing conflicts over sunken boats, gored oxen, biting dogs and collapsing walls.

A couple of centuries later – after Sumerians migrated upstream in the Tigris-Euphrates river valley, Amorites conquered Sumer, and Babylon emerged to dominate Mesopotamian culture – Sumerian laws became the foundation of the Code of Hammurabi (c. 1700 BC). Included were early versions of the principal features of tort liability – intentional tort, negligence, strict liability, indirect causation, fixed versus variable compensation, notice, knowledge, objective standards for conduct, monetary compensation for private harms, and perhaps even contributory negligence. The Code of Hammurabi would heavily influence the legal systems of the Middle East for a thousand years or more.

Trekking westward through the desert from the ziggurats of Mesopotamia to the pyramids along the Nile, along the route of Abraham, Isaac, Jacob and Joseph, we find the Egyptians relying upon criminal punishments with no apparent theory of legal compensation for private wrongs similar to later tort law.

But when Moses led the Hebrews out of Egyptian slavery (circa 1440 B.C. – 1290 B.C.), the Mosaic laws included distant echoes of Eshnunna and Hammurabi. The Torah is “filled with what we think of as ‘tort’ rules,” indicating “the depth of the roots of tort law in the Judeo-Christian tradition.” Precursors of tort law in the Pentateuch include the spreading fire, the straying livestock, the uncovered pit, the bull goring another bull (property damage), the bull goring humans (personal injury), the injunction to maintain a railing around one’s roof, compensation for accidental injury of one man by another swinging an ax, and that one man quarreling with and injuring another man must pay the wages of the injured man until he recovers.

A millennium after Hammurabi, the mythic roots of unwritten Greek customary law appeared in the poetry of Hesiod (c. 700 BC) and histories of Herodotus (c. 484 BC–c. 425 BC). The emphasis was on fairness and integrity of judges more than the specifics of rules and doctrine, as judges were chosen by the parties much as private mediators and arbitrator are chosen today. However, running through was a growing preference for resolving disputes through just compensation rather than the bloody retribution and feuds of old. As Greek philosophy formed the bedrock layer of western political thought, principles of corrective justice emerged. Plato in The Laws wrote of “little repeated torts between neighbors” for which there was strict liability to others for either personal harm or invasion of property, and awards of a multiple of pecuniary damages for “churlish” conduct. Artistotle in Nichomachean Ethics taught the rectification of marginal inequality created by involuntary transactions in which either an intentional act or an unintentional “mistake” – equivalent to concept of negligence in modern tort law – caused foreseeable injury. The amount of inequality to be rectified was the community’s valuation the physical injury due to the defendant’s wrongful act. Customary Greek law was first codified by Dracon, circa 622 B.C., with penalties so harsh as to give us the word “draconian” and as to require reform within a generation. By 594 B.C., Salon was given a year to reform the Athenian constitution, legal code and law courts. Under the Code of Salon, juries of as many as 500 members determined both fault and penalties, a spectacle against which even those who trust modern juries would recoil.

Early Roman law was simple and pragmatic, arising from an agrarian Italic culture thrust into a role of economic and military dominance. The disparate sources of customary laws were codified initially around 889 B.C. by a panel of ten patrician jurists (Decemvirs) on ten wooden panels, into the “Ten Tables.” This was later expanded by 450 B.C. to the “Twelve Tables” through a process that also include plebian jurists, in a manner that vaguely foreshadowed the Bill of Rights to the U.S. Constitution.

Like other early legal systems, the line between criminal and civil remedies was not clearly delineated. However, personal actions not based on contract, broadly corresponding to torts, were classified as “delicts.” Under the Twelve Tables, the penalty for intentional homicide was blood vengeance at the election of the victim’s family, while for an unintentional homicide payment of a prescribed number of cattle or a ram (scapegoat) for ritual sacrifice by the victim’s family. For accidental personal injury there was often an election between retaliation in kind or a specified payment. Delicts addressing various categories of property damage required two or three times the amount of actual pecuniary loss.

The Twelve Tables were replaces by the Lex Aquila, enacted by popular plebiscite around 286 B.C. While preserving the general rule of strict liability for one’s actions, the Lex Aquila introduced elements of fault and negligence. To encourage truthfulness, there was an early form of “loser pays” rule, as willful denial of a meritorious claim could result in doubling of the damages awarded. The Lex Cornelia ( c. 67 B.C.) adjusted monetary remedies upward to account for four centuries of inflation since adoption of the Twelve Tables.

Throughout Rome’s thousand year run as the dominant western power, its laws were continually reformed, refined, and influenced by legal scholars, culminating in the Justinian Code. Except for the limitations inherent in a class-conscious, patriarchal society heavily dependent on a slave economy, Roman law provided the foundation for civil remedies for personal injury, including (1) money damages as the dominant remedy in resolving civil disputes; (2) the identification of instances in which strict liability for the consequences of one’s actions might not apply, such as in the instance of action not voluntarily taken; (3) transparency in judicial decision making as Praetors were required pronounce the law they would apply; and (4) judicial discretion to determine when strict application of legal rules, or the absence of rules and remedies, would produce a manifestly unjust outcome.

When Rome’s dominance disintegrated and a dark age of feudalism descended across Europe, the sceptered isle of Britain was soon divided into a number of small kingdoms. Its laws evolved through the mists of the dark ages and the medieval period with a blend of ethnic and local influences from old Britons, Celts, Picts, Mericans, Rome, the Church, Angles, Saxons, Danes, and eventually Normans. By the twelfth century, the legal traditions of these diverse sources eventually merged into a single “common law.”

Under the common law, when the writ of trespass emerged in the thirteenth century, a form of strict liability or no-fault system prevailed, as causing harm to another resulted in payment for the loss, regardless of lack of fault or intent. Trespassers had to pay for the harm done, so that private vengeance was unnecessary and security in civil society was enhanced. In time there developed a distinction between trespass and trespass on the case, which gave injured parties a remedy for the less direct consequences of a defendant’s conduct. Trespass and trespass on the case grew more distinct from each other as trespass focused on intentional misconduct, where actual damages did not have to be proven, and trespass on the case came to require proof of actual damages and began to include acts of negligence.

Over the centuries, there were court decisions to restrict liability for trespass and trespass on the case, essentially “tort reform” long before the word “tort” came into common use to describe a category of law. Court decisions refined burdens of proof, created defenses such as contributory negligence, assumption of risk, the fellow servant rule, and limitations based on privity of contract. Of course, these early evolutionary reforms had the effect of constricting the plaintiff’s ability to recover.

But then the pendulum swung again in favor of compensating injured plaintiffs. These decisions overturned much of the privity requirement, created the last clear chance doctrine and comparative negligence to soften the draconian harshness of the pure contributory negligence rule, and eroded the rule on assumption of risk defense.

Georgia adopted the common law of England as it existed on May 14, 1776, by an Act of the General Assembly approved February 25, 1784, but not so narrowly limited as before the Revolution as our common law includes the progression of law that has developed by construction of the statutes and legal maxims since that time. The common law inherited from Britain was and is a living, growing body, flexible enough to address new conditions but rooted in the doctrines and precedents of the past.

In Georgia, as in the rest of America, the law eventually responded to changes in technology and the economy. In the nineteenth century, the growth of railroads, industry and large scale commerce corresponded with the adoption of code pleading that eventually supplanted common law writs. This led to legal scholars and judges beginning to address the law of private wrongs not arising from contract in a new paradigm which came to be known as tort law.

In the late nineteenth century, defenses which had essentially immunized employers from liability to injured workers began to erode. In response, employers began to purchase a new innovation, liability insurance. The market for liability insurance expanded ninety-fold in nineteen years from 1887 to 1906. This helped bring about the “tort reform” of workers compensation, in which there was a tradeoff of a relatively certain though modest compensation for injured workers in exchange for limitation of employers’ exposure, eventually followed by other social safety nets such as Social Security disability, Medicare, Medicaid and first party medical insurance.

In the twentieth century, the proliferation of automobiles, highways and installment credit influenced virtually every aspect of American life, including the rise of state financial responsibility laws requiring automobile liability insurance. The symbiotic relationship between tort law and liability insurance rapidly grew. Over the same time period, the complexity of manufacturing and commerce helped give rise to theories of product liability. Tort law and insurance, joined at the hip, became as American as automobiles and fast food.

By the last quarter of the twentieth century there was a backlash, largely promoted and funded by business and insurance organizations, and ingeniously labeled “tort reform.” (“Reform” sounds generically good, and most citizens have no idea what a “tort” is, unless it is a French pastry.) Waves of tort reform advocacy have rolled through the body politic since the 1960s, with each new impetus for legislation to restrict liability roughly coinciding with declines in investment returns for the insurance industry. At the same time, procedural tort reform measures designed to favor defendants and constrict the practical availability of recovery for personal injury plaintiff have been developed through prominent think tanks and made their way through the American Law Institute, the Federal Rules of Evidence Advisory Committee, and the Federal Rules of Civil Procedure Advisory Committee of the Judicial Conference of the United States.

Tort reform is nothing new. No one knows which way the law on compensation for injury will change during the working life of lawyers reading this book. The scope of what we now categorize as tort law has gone through many cycles of expansion and contraction in reaction to changes in social, economic and technological conditions, as well as competing economic interests and conflicting views of personal and social virtue, for four thousand years. If mankind survives, tort law will likely to continue to reform in cycles far into the unseeable future, long after the author’s and reader’s labors have ceased.