Tort law

“ The Constitution standing alone without more does not create a paramount unchangeable liability to an action of tort on the part of all persons who may take part in enforcing a state law that it invalidates. ”

“ Speaking less broadly, a wrong is an infraction of a right belonging to another, which he derives from the law governing the society of which he is a member. Many wrongs are such that he may sue and obtain redress therefor in the courts. But it by no means follows that every crime involves the infraction of a private right or the commission of a tort. ”

“ Moreover, both criminal and tort law typically sanction only “wrongful conduct,” bad acts, and misfeasance. J. Goldberg, A. Sebok, & B. Zipursky, Tort Law: Responsibilities and Redress 31 (2004) . Some level of blameworthiness is therefore ordinarily required. ”

“ He says: “A man may, however, sustain grievous damage at the hands of another, and yet, if it be the result of inevitable accident, or a lawful act, done in a lawful manner, without any carelessness or negligence, there is no legal injury, and no tort giving rise to an action of damages.” Among other examples, he refers to an act of force, done in necessary self-defence, causing injury to an innocent bystander, which he characterizes as damnum sine injuria,—“for no man does wrong or contracts guilt in defending himself against an aggressor.” ”

“ Where the cause of action arises merely from a breach of promise, the action is in contract.
The action of tort has for its foundation the negligence of the defendant, and this means more than a mere breach of a promise. Otherwise, the failure to meet a note, or any other promise to pay money, would sustain an action in tort for negligence, and thus the promisor be made liable for all the consequential damages arising from such failure.
As a general rule, there must be some active negligence or misfeasance to support tort. There must be some breach of duty distinct from breach of contract. ”

“ Because of its implications for constitutional law, in view of the increasing frequency of legislation imposing responsibility at one's peril in certain enterprises, in the case of certain dangerous agencies and in situations where it is felt that the loss should be borne by all of us rather than by the luckless individual who chances to be hurt, the basis of tort liability has become a question of moment beyond the immediate law of torts. ”

“ Whether a right created by a personal obligation can be violated by an act which constitutes a tort, i.e., by an act which does not consist of a breach of the obligation, is a question involved in much doubt and difficulty. ”

“ But the answer to the argument lies in the fact that the essence of the tort of outrage is the injury to the plaintiff's emotional well-being because of outrageous treatment by the defendant. If the conduct is sufficiently flagrant to give rise to the tort, then the injury the law seeks to redress is the anguish itself and it need not rest, parasitically, on more demonstrative loss or injury. ”

“ A tort must, on the one hand, be an act which violates a general duty. The rule which it breaks must be one made by the law, not, as in the case of a mere breach of contract, a rule which the law protects because the parties have made it for themselves. ”

“ And if the contract provides that for any damage resulting from sending the telegram, the sender must give notice within sixty days, he is bound by this stipulation, and is without redress if he delays to act beyond the time.
Torts or Wrongs.—"A tort is an act or omission which unlawfully violates a person's right created by the law, and for which the appropriate remedy is a common law action for damages by the injured person." The right that is violated is private and not public, which marks off a tort from a crime. ”

“ It is well settled that, though a lunatic is not punishable criminally, he is liable in a civil action for any tort he may commit. However justly this doctrine may have been originally subject to criticism on the grounds of reason and principle, it is now too firmly supported by the weight of authority to be disturbed. It is the outcome of the principle, that, in trespass, the intent is not conclusive. ”

“ It has been assumed hitherto that every tort consists in misfeasance. In fact, however, some torts consist in nonfeasance merely; for whenever the law imposes a duty upon a person, which does not amount technically to an obligation, any failure to perform that duty by which another person is injured (as it is not a breach of obligation) is a tort. ”

“ In spite, however, of all the arguments which may be [89] urged for the rule that a man acts at his peril, it has been rejected by very eminent courts, even under the old forms of action. In view of this fact, and of the further circumstance that, since the old forms have been abolished, the allegation of negligence has spread from the action on the case to all ordinary declarations in tort which do not allege intent, probably many lawyers would be surprised that any one should think it worth while to go into the present discussion. ”

“ Where a party becomes responsible to the public, by undertaking a public duty, he is liable, though the injury may have arisen from the negligence of his servant or agent. So, in cases of public nuisances, whether the act was done by the party as a servant, or in any other capacity, you are liable to an action at the suit of any person who suffers. Those, however, are cases where the real ground of the liability is the public duty, or the commission of the public nuisance. There is also a class of cases in which the law permits a contract to be turned into a tort ”

“ But if we assume that the contract was to make the repairs within a reasonable time, and that the jury would be justified in finding that the defendant had not performed it within a reasonable time, the question is whether, for such a breach, the plaintiff can maintain an action of tort to recover for personal injuries sustained by reason of the defective condition of the stable floor.
The cases are numerous and confusing as to the dividing line between actions of contract and of tort, and there are many cases where a man may have his election to bring either action. ”

“ The contract obligation is voluntarily assumed. The law imposes the obligations or duties which exist in torts, and I must observe those duties whether I wish to or not. Similarly, one must observe all of the criminal law of the jurisdiction where he is, whether he will or not. In fact, ignorance of the law is no excuse. A man may even commit a crime, although he did not know there was a law prohibiting the act. Again, in the definition of a tort, we shall find the expression, "breach of duty imposed by law." A man arrives home late at night. ”

“ The argument, that an accessory cannot be held civilly liable for an act for which no remedy can be had against the principal, is not satisfactory to our minds. The perjured witness and the one who suborns him are joint tort-feasors, acting in conspiracy or combination to injure the party defamed. ”

“ As we went on to say in the same paragraph, § 1983 "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." 365 U.S., at 187, 81 S.Ct. at 484. Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause.
We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983. ”

“ Here, we must decide, first, to which State the words 'where the act or omission occurred' direct us, and, second, whether application of the internal law or the whole law of that State would be most consistent with the legislative purpose in enacting the Tort Claims Act.
The legislative history of the Act, although generally extensive, [15] is not, except in a negative way, helpful in solving the problem of the law to be applied in a multistate tort action such as is presented by the facts of this case. ”

“ No person shall, under the law of England and Wales, be liable in tort for any conduct on account of its being maintenance or champerty as known to the common law, except in the case of a cause of action accruing before this section has effect. ”

“ For example, assault and battery is a tort, and so are libel, slander, false imprisonment, malicious prosecution, fraud, deceit, and negligence. Bigelow's definition is perhaps least objectionable of all of the definitions. He defines a tort as a breach of duty imposed by municipal law, for which a suit of damages will lie. Every tort involves the violation of a duty owed to the individual. For example, A owes to B the duty not to attempt with force to harm his person, or to hit him, or to touch him intentionally, or recklessly. ”

“ Indeed, I think that even now our theory upon this matter is open to reconsideration, although I am not prepared to say how I should decide if a reconsideration were proposed. Our law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like, where the damages might be taken to lie where they fell by legal judgment. But the torts with which our courts are kept busy today are mainly the incidents of certain well known businesses. They are injuries to person or property by railroads, factories, and the like. ”

“ But how can it absorb another man’s malice?
What wrong can be conceived more cruel and grievous than wilfully depriving men of their employment? There must be a right, correlative to the wrong. What right can be more sacred than the right to live by a man’s labor? But then, it is said, the wrong and the right are subject to the legal power of another person. That is the case in many instances, in which the law nevertheless gives a remedy for wrong that requires the exercise of another person’s will. That is the case of a person who is defamed; the damage comes from those who hear. ”

“ And if I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an injury or not, and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces? ”

“ That decision related to the liability of a defendant. It may be, where a penal statute does not purport to create a civil liability, or to protect the rights of particular persons, that a violation of it will not subject the violator to an action for damages, unless his act, when viewed in connection with all the attendant circumstances, appears to be negligent or wrongful. And at the same time Courts may well hold that, in the sanctuary of the law, a violator of law imploring relief from the consequences of his own transgression will receive no favor. ”

“ In the former it was said that “The foundation of this sort of action is the wrong done to the plaintiff by the direct detention or imprisonment of his person.” As I think we shall see hereafter, that is not a correct statement of the law in this state. In the other case it was stated, “The only injury sustained by the person accused, when he is not taken into custody, and no process has been issued against him, is to his reputation; and for such an injury the action of libel or slander is the appropriate remedy, and would seem to be the only remedy.” ”

“ The declaration, which contains a technical statement of the facts necessary to support the action, alleges that the defendant falsely and maliciously published the slander to the plaintiff’s damage. In order to maintain such an action, there must be malice in the defendant and a damage to the plaintiff, and the words must be untrue. Where words, falsely and maliciously spoken, as in this case, are actionable in themselves, the law prima facie presumes a consequent damage without proof. In other cases actual damage must be proved. ”

“ The wretch stained with crime—polluted with iniquity—for which, perhaps, the statute-book contains neither name nor indictment—whose trembling lips are eager to avow that guilt which, by confessing, he hopes may alleviate the penalty—this man, I say, is checked in his intentions—he is warned not, by any chance expression, to hazard a conviction of his crime, and told in the language of the law not to criminate himself. ”

“ Any injury inflicted by one person upon the person or property of another, which is not a breach of contract, is a tort. Tort is the French word for private wrong. If A carelessly drives his automobile into B's wagon, he commits a tort. If A carelessly drives his horse over B's field, he commits a tort. If A wrongfully strikes B, he commits a tort. Torts and crimes frequently over-lap. The same act may constitute a tort and a crime. If A drives his automobile faster than the laws of the state or city permit, and while so doing runs over and injures B, he commits both a tort and a crime. ”

“ The court in that case say, “If it appear that the unlawful acts of the defendant occasioned trouble, inconvenience, or expense to the plaintiff, this action lies.” The general rule is, that for every injury the law gives redress; and it would be a reproach to the administration of justice, if one, by perjury, could take from another the control of his property, under form of law, and the law afford no remedy. Nice technicalities are sometimes applied to get rid of a hard case ”

“ If in such cases, or in any case of a civil nature, it is the policy of the law to visit upon the offender such exemplary damages as will operate as punishment, and teach the lesson of caution to prevent a repetition of criminality, yet we do not see how such damages can be allowed, where the principal is prosecuted for the tortious act of his servant, unless there is proof in the cause to implicate the principal and make him particeps criminis of his agent's act. ”

“ It would extend the maxim, ex turpi causa non oritur actio, beyond the scope of its legitimate application, and violate the maxim, equally binding and wholesome, and more extensive in its operation, that no man shall be permitted to take advantage of his own wrong. To take advantage of his own wrong, and to visit unmerited and over-rigorous punishment upon the plaintiff, constitute the sole motive for such defence on the part of the person making it. ”