Intentional and Negligence Torts: A Complete Guide to Tort Cases 😍🔥

Did you know that tort cases are one of the top five most common lawsuits against businesses?

While most people are familiar with the criminal law process, a la Law and Order, you're much more likely to interface with the tort law system. This is the law you turn to when someone else has harmed you, and you need a way to hold them accountable so that you can take back control of your life.

Intentional and Negligence Torts: A Complete Guide to Tort Cases

Here's everything you need to know about tort cases before embarking on one yourself.


  • What is a Tort Case?
      • Four Elements of a Tort Case
      • Tort Cases vs. Criminal Cases
  • Legal Remedies in Tort Cases
      • Types of Damages in Tort Cases
  • 3 Types of Cases Involving Tort Law
      • Intentional Tort Cases
      • Negligence Tort Cases
      • Strict Liability Tort Cases
  • Why Do Tort Cases Go to Trial?
  • Need More Legal Tips for Your Business?

What is a Tort Case?

Tort law is the type of law covered in most civil lawsuits. Unlike criminal law, it is considered a form of restorative justice, where the goal is to redress wrongs committed against someone and to discourage others from taking similar actions in the future. The wrongdoer may be a person, group, organization, or even a corporation, and the wrongdoer is called the defendant and the victim is called the plaintiff (just like in criminal cases).

Under tort law, those at fault for committing harm against others must remedy it by compensating the victim, usually in the form of monetary damages. 

Typical harms include things like:

  • Injuries
  • Loss of current income
  • Loss of future income
  • Medical expenses
  • Pain and suffering

Tort cases fall into three basic categories: intentional torts, negligent torts, and strict liability torts. However, all tort cases have four key elements in common.

Four Elements of a Tort Case

There are four elements of every successful tort case:

  • Duty of care
  • Breach of duty
  • Cause of harm
  • Harm

Duty of care simply means that someone has a legal duty not to inflict harm on someone else, which means avoiding actions that could inflict harm. For example, you have a duty of care to other drivers every time you hit the road, and you abide by that duty of care by following the speed limit and other traffic laws. The scope of your duty of care is defined by your relationship with the other party and is based on what a reasonable person would do under the same circumstances.

This is important for the second element, breach of duty. After establishing that the defendant owed you a duty of care, you then have to prove that they breached that duty of care (knowingly or unknowingly). This typically means providing evidence, though, under the doctrine Res Ipsa Loquitur, the court may infer negligence from the nature of the accident in the absence of direct evidence.

This brings you to causation, i.e. harm was inflicted on you as a result of the defendant's negligent act (or failure to act). In other words, without the defendant's actions, you would not have been harmed.

Last but not least is harm or injury. It can come in many forms--in tort law, it's economic or non-economic--but without this key element of harm, you don't have a tort lawsuit.

Tort Cases vs. Criminal Cases

Legally, tort cases are considered civil law, while criminal cases are criminal law. However, the easiest way to think of tort cases versus criminal cases is personal duty versus public duty.

In a tort case, the defendant has a duty of care to you personally, which they violated. In a criminal case, the defendant has a duty to society. This means that tort law is more personal in nature.

In addition, because tort cases are a type of civil law, they have a different burden of proof. If you've seen Law and Order (or any cop show, for that matter) you're likely familiar with the concept of "guilty beyond a reasonable doubt". Because criminal law carries higher penalties than civil law, it carries a much higher burden of proof.

Civil law, however, has a lower burden of proof, usually relying on "preponderance of evidence" or "clear and convincing". This means that there has to be at least a 50% chance that your claims are true. The stronger your evidence, the greater the damages you can demand.

Related: Top 10 Ways to Get the Best Lawyer

Legal Remedies in Tort Cases

The disparity between criminal and tort cases also means that these cases have different results for the defendant and plaintiff. In a tort case, the goal is not jail time or similar punitive measures, but rather to remedy wrongs inflicted on the plaintiff.

Broadly speaking, there are three types of remedies in tort cases:

  • Legal remedies
  • Restitutionary remedies
  • Equitable remedies

Legal remedies are the most common, which is when you're dealing with damages. These are intended to compensate the victim for their losses.

Restitutionary remedies go one step further. They have two aims: to restore the victim to their state before the incident and to ensure that the defendant forfeits any unlawfully obtained gains.

Equitable remedies are applied when a judge feels that monetary compensation does not adequately address the impact of the tort. For example, the judge may impose a temporary restraining order or an injunction prohibiting the defendant from certain activities.

These three remedies may be applied in any combination. It's based on your case, the harm you sustained, and what the court feels is a legally adequate remedy to right the wrongs inflicted on you.

Types of Damages in Tort Cases

Generally, when we talk about damages in tort cases, we're talking about legal remedies. 

There are six types of damages in tort cases:

  • Compensatory
  • Nominal
  • Incidental
  • Consequential
  • Liquidated
  • Punitive

Compensatory damages are paid directly to the plaintiff for the value of what was done (or not done). For example, if you have medical bills from the incident, compensation for those bills falls under this type of damages.

Nominal damages are for when there has been a breach of duty, but the plaintiff did not suffer a loss or cannot prove what their loss was and thus cannot be awarded compensatory damages.

Incidental damages often go hand-in-hand with compensatory damages. These are intended to cover incidental losses, i.e. losses you incur to minimize losses flowing from the defendant's breach of duty.

Consequential damages, or special damages, are damages that occurred because the defendant failed to meet their contractual obligations to the plaintiff. These differ from compensatory damages because they apply to damages that are an indirect result of an incident.

Liquidated damages are meant as a fair representation of damages in cases where actual losses are difficult to ascertain. A reasonable sum is decided by the court in light of the actual or expected harm.

Punitive damages are used to punish the defendant, given in cases where the defendant willfully and maliciously inflicted harm and the court wants to deter others from similar acts. Judges may award punitive damages at their discretion, but these are rarely awarded and are typically a modest sum.

RelatedGuide on Coping with Trauma After a Car Accident

3 Types of Cases Involving Tort Law

As previously noted, there are three main types of cases involving tort law:

  • Intentional torts
  • Negligent torts
  • Strict liability torts

Each category comes with its own unique set of cases based on the type of wrongdoing committed by the defendant. The type of tort you have depends on the harm inflicted on you.

Intentional Tort Cases

As the name implies, intentional tort cases refer to any type of wrongdoing which a defendant knowingly commits. This is done on purpose, consciously, maliciously, and with the intent to commit harm despite the foreseeable risk of harm. If the act was done knowingly but carelessly, you don't have an intentional tort case.

Let's say you're at a bar and someone punches you in a fight. If they hit you on purpose, that would be considered an intentional tort (battery, specifically). However, if they intended to hit someone else but hit you instead, or if they hit you accidentally, this would not be considered intentional because there was no deliberate intent to commit harm (though it may be considered a negligent tort if you were injured).

Common examples of intentional torts include:

  • Assault
  • Battery
  • False arrest
  • False imprisonment
  • Conversion (civil law equivalent of theft)
  • Fraud
  • Intentional infliction of emotional distress
  • Trespass
  • Defamation
  • Burglary
  • Sexual assault

There is a bit of gray area between intentional torts and crimes, in that many acts which can be considered intentional torts may also be considered crimes--assault and battery, for example. The easiest way to think about it is the difference between interfering with someone's wellbeing and interfering with the wellbeing of society. Criminal charges bring jail time and similar penalties, while the goal of torts is monetary compensation.

Negligence Tort Cases

Negligent tort cases are the most common type of tort.

Basically, everyone is expected to abide by a certain legal code of conduct--following the speed limit, for example. Negligent torts happen when someone doesn't abide by that legal code of conduct and inflicts harm on someone else, but unlike an intentional tort, negligent torts happen when someone breaches their duty of care due to carelessness.

Let's say, for example, that you live in a rented apartment. Your landlord has a legal duty to provide safe, habitable living quarters. If it snowed overnight and your landlord didn't salt the sidewalk or make any other effort to clear the ice, and you sustained a serious injury as a result of slipping on the ice, this can be considered a form of negligent tort.

In cases like these, you would typically be looking at accidents, like a motorcycle accident (click here to learn more). 

Other common types of negligent tort cases include things like:

  • Auto accidents
  • Truck accidents
  • Bicycle accidents
  • Pedestrian accidents
  • Slip and fall accidents
  • Premises liability
  • Medical malpractice

These are the types of cases that people usually think of when they think of a lawsuit--someone was injured in an accident due to someone else's recklessness, and the injured party pursues damages.

Strict Liability Tort Cases

Strict liability is the least well-known of the three main tort cases, but it's also an important branch of tort law. It's easiest to understand strict liability based on how it differs from negligence.

In a typical negligence claim, the plaintiff must prove that the defendant inflicted harm on them, breaching their duty of care and causing the plaintiff to sustain injuries. This means you have to provide evidence of negligence or direct fault.

In a strict liability case, you can hold the defendant liable for inflicting harm on you even without evidence of direct fault or negligence. This is where the legal concept of Res Ipsa Loquitor is important. Basically, where intentional and negligent torts are concerned with the defendant's actions (i.e. the defendant's culpability), a strict liability tort focuses on the action itself, not the defendant's culpability.

This means that if someone committed an act, then they are responsible for damages resulting from that act, regardless of their intentions or care taken.

Common examples of strict liability torts include:

  • Defective products
  • Dangerous activities
  • Dog bite cases (in some states)

The best example of a strict liability case is a defective product lawsuit. In these cases, all the plaintiff has to do is prove that they sustained injuries as a direct result of the product in question. The company's intent in producing the product does not matter, which means that the company may be held liable even if they were not technically negligent.

To be clear, there are some strict liability cases where the defendant is negligent, but the point of strict liability is to show that the defendant can and should be held liable for harm even without evidence of direct negligence.

Why Do Tort Cases Go to Trial?

Very few tort cases are decided in a trial and are instead resolved in a settlement outside of court. This is advantageous for both parties. For one thing, it's more expensive and lengthy to go to trial. For another, your odds of winning at trial are far from guaranteed, even if your case seems open and shut.

Tort cases usually only go to trial when both sides are unwilling to compromise and a settlement cannot be reached. Ultimately, it is better to settle out of court than go to trial--once you go to trial, the result of the case is in the jury's hands, not yours, and there's a lot more uncertainty.

Need More Legal Tips for Your Business?

For a business, understanding tort cases are critical to doing business the right way. By understanding what happens when something goes wrong, it's that much easier to stay out of trouble and focus on running your business successfully.

Need more great legal tips for your business? Make sure to check out our blog for more great posts like this one.

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