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What is a Tort?

Everywhere you turn, you hear: “Tort Reform.” Everybody wants it! Business needs it! Fairness demands it! But what, exactly, is a tort? The answer might surprise you.

Texas has two types of law: Criminal law and civil law. Criminal law, as its name implies, deals with violations of the criminal laws of ths State. Violations of criminal laws carry potential incarceration as a penalty, as well as fines. Civil law is everything else.

Civil laws are laws that are passed as statutes or codes that require compliance. Violations of civil laws are punishable by fine or money damages only. No one goes to jail if they lose a civil case. Civil laws are either specifically drafted by the legislature, or they exist as “common law.” Common law is the law that has evolved over hundreds of years through decisions made by courts. Many things that used to be common law have now been codified. However, there is still a vast body of law that is defined, not by fixed written statutes or codes, but by history. It is within this vast body of common law that you find torts.

Torts occur when one person harms another person. It is really that simple. Harm is an essential factor of tort law because, without harm, you have no tort. In tort law, you cause harm to another by either an intentional act, or an unintentional act. While there are many types of intentional torts, they most commonly occur as some species of fraud or other deception. The hallmark of intentional torts is the intent to cause the harm, or actions that are so indifferent to the harm they may cause, they amount to intentional acts. Unintentional torts usually occur in some species of negligence. The hallmark of unintentional torts is that you don’t intend to hurt someone, but you are careless in actions that you should know could hurt someone.

Fraud occurs when (1) you make a representation to someone; (2) you know, or should know, that the representation is false; (3) you intend that the other person is going to rely upon your representation; (4) the other person relies on your representation; and (5) the other person suffers harm as a result. In fraud cases, the issue between the parties usually involves monetary loss in investments, purchases or various business activities. The injury in fraud cases is almost always financial, whether it be in easy calculable amounts or n more abstract amounts, like loss of business opportunity.

Negligence occurs when (1) you act; (2) your actions harm a person; (3) the harm you caused was reasonably foreseeable to you before you acted; and (4) you acted anyway. In negligence cases, the issues between the parties usually involves personal injuries like physical or mental harm.

Tort law evolved to make things fair to those who are injured, and for the betterment of society as a whole. Thus, when dealing with issues of “tort reform,” keep in mind that the person seeking “reform” is the person who caused, or could potentially cause, the harm. Ask yourself some questions when considering whether reform is appropriate:

1. What is the nature of the action for which protection is sought?

2. What is the effect, of the protection sought, upon the person harmed?
3. Is there an effect of the protection upon society as a whole?

4. Is the protection sought really “reform,” or is it special treatment for one group of people?

5. If it is special treatment for one group of people, is that special treatment fair to everyone else?

6. What exact type of “reform” is proposed?

7. What other actions could the person requesting “reform” do to reduce his/her exposure?

8. What is the societal cost for failing to pass the “reform.”

There are many issues to consider, these are just a few. Think about the nature of torts and the nature of the “reform” dispute. Asking questions and getting answers will always help you understand the issues and make the decisions that are right for you.