What is tort law? Here’s a primer.

What is a tort? Here’s a primer on the distinction between civil actions and crime and punishment.

Black’s Law Dictionary (7th Edition) (1) defines a “tort” as: “A civil wrong for which a remedy may be obtained, usually in the form of damages; a breach of a duty that the law imposes on everyone in the same relation to one another as those involved in a given transaction.”

Torts are not claims for breach of contract, except in very special and limited contexts. Torts can, but do not have to, constitute crimes. Actions in tort are civil cases, as opposed to criminal cases. An example of a tort that is not necessarily a crime is if a person were to negligently spill boiling water on another person, causing the latter serious burn injuries, or if a person were to negligently cause another to fall down the stairs and suffer injuries.

O.J. Simpson at trial

Photo credit: The Los Angeles Times

One of the more famous examples to help illustrate the contrast between crimes and torts is the criminal case of O.J. Simpson in his prosecution for the alleged murder of his wife Nicole Brown Simpson and her friend, Ronald Goldman. O.J. Simpson was found not guilty, by a jury, of any criminal charges related to their death; however, the families of the deceased brought two actions in tort, one for wrongful death and one for battery, against O.J. Simpson. Mr. Simpson lost that case, and the jury awarded a $33,500,000.00 dollar verdict against him. How can this be? How can O.J. Simpson be found not guilty of killing his wife and her friend, but found liable (i.e., legally responsible) for battery as to his wife and for battery and wrongful death as to her friend in tort?

One of the answers to this apparent paradox lies in the burdens of proof required in criminal cases and in civil cases. Burdens of proof are the levels of proof the party bringing the case must attain in order to prevail in the case. It doesn’t matter if the party is the U. S. Government, the People of California, a business, an individual or an individual’s estate, the burden of proof is usually the same.

In criminal cases, the prosecution must prove every element of the crime with which the defendant has been charged “beyond a reasonable doubt.” This means that if the prosecution fails to prove any element of the crime such that no reasonable doubt exists, the defendant should be found not guilty. In tort cases, however, the plaintiff (the party bringing the action), must (except in special circumstances) prove his/her case by a “preponderance of the evidence.” A preponderance of the evidence is essentially “more likely than not.” It is a much lower burden than the “beyond a reasonable doubt” standard applicable in criminal cases.

Therefore, in O.J. Simpson’s criminal case, the jury found that the prosecution failed to prove every element of the crimes with which he was charged to such an extent that there was no reasonable doubt he committed at least one of the elements of the crimes with which he was charged. However, in the subsequent wrongful death case brought by O.J. Simpson’s deceased wife’s family and her deceased friend’s family against him, the jury found it was more likely than not that he was legally responsible for their deaths and the Court ordered him to pay damages to their families.

car crash

Another more common example occurs when two automobiles collide. One (or both) of the drivers may be charged by law enforcement with criminal offenses (e.g., reckless driving, DWI, etc.) or traffic infractions (e.g., following too closely, failure to yield the right of way, etc.) for their part in the collision. At the same time, one (or both) of the drivers may bring an action in tort against the other driver for damages he or she sustained as a result of the crash.

As illustrated above with the O.J. Simpson cases, the criminal and civil processes, while similar in some respects, are different when it comes to what the party bringing the action has to prove in order to prevail. In a typical civil case, the plaintiff must prove it was more likely than not that the defendant was negligent and that the defendant’s negligence caused the plaintiff injuries. In the criminal/traffic case, the prosecution must prove the defendant committed the charged offense beyond a reasonable doubt.

In both types of cases (with rare exceptions), the party bringing the action bears the entire burden of proof; that is, the prosecution and the plaintiff must affirmatively prove each element of their cases. The defendant (with rare exceptions) does not need to prove anything. In other words, the defendant in either the criminal or the civil cases does not bear the burden to prove he or she did not commit the crime or the tort complained of–that burden is almost always only on the prosecution and the plaintiff.

A skilled and experienced personal injury attorney knows how to select, prepare, present, and argue the facts of case to meet the burden of proof at trial. This preparation is also apparent to the insurance company that is handling the claim and helps to achieve a faster and better resolution of the case. Sound legal advice is critical for an injured person to help determine the best way to meet the burden of proof required in civil cases and thereby recover the damages due, whether in settlement or at trial.


(1) Black’s Law Dictionary is one of the most cited references in American law, and is now in its 11th edition. The book is often given as a graduation present to law students upon completing law school. Interestingly, the term “black letter law” does not refer to this dictionary, but predates the publication of the dictionary by a number of years. See http://en.wikipedia.org/wiki/Black_letter_law. (2) See previous blog posting “What is Tort Law?”, by Melinda H. South, Esquire, posted March 22, 2009).