What's a "Tort"? And What You Need to Know About Liability in Tort Claims

A tort is an action or omission that results in injury to another person. Under certain circumstances, the injury victim has a legal right to sue for his injuries (damages). The rules of liability in tort claims require you to gather specific information.

The Rules of Liability

Three circumstances must be present to win an injury claim:

  1. The party responsible for the accident must have had a legal duty to act in a manner which would have prevented the injury.

  2. The party failed to act in that manner, breaching his duty.

  3. As a result of the breach of duty, someone is injured and suffers damages.

Types of Torts in Accident Cases

There are three types of torts in accident cases:

  1. Negligent
  2. Intentional
  3. Strict liability

Negligent Torts

A negligent tort occurs when a person has a duty of care to protect someone from harm and fails to act in a way that supports that duty. As a result, the person who was supposed to be protected is injured.

Example: Negligent driver

Bill was texting while driving. Because he wasn't paying attention to road conditions, he failed to stop at a red light in time to avoid hitting the car in front of him. The collision caused injury to the driver of the front car.

Bill had a duty to drive responsibly. He breached that duty and someone was injured. His action wasn't intentional, it was negligent.

Intentional Torts

An intentional tort occurs when a person has a legal duty not to intentionally harm another person, but does so anyway. When someone purposely injures another person, his actions are intentional. Criminal charges are often filed in these cases.

Example: Intentional harm

John and Dave were both attending a local football game. They started arguing over a contoversial play. Without provocation, John decided to punch Dave in the face, breaking his orbital bone.

John had a legal duty not to harm Dave. He breached that duty when he intentionally punched him in the face.

Strict Liability Torts

Strict liability occurs when a person or corporation has a legal duty to act safely, and breaches that duty. Negligence and intention don't matter in strict liability cases. Proving the action or omission that caused the injury is enough.

Example: Strict liability

Henry was a truck driver heading down the interstate at night. The legal weight capacity of the truck was 8,000 pounds, but the company that owned the truck was making him haul a load of pipes weighing 10,000 pounds.

Henry tried to make a turn, and the extra weight caused the truck to topple. It crashed on top of a car, killing the driver. The driver of the car, Jim, had poor eyesight, and a restriction on his license against driving at night.

In a case like this, the fact that Jim shouldn't have been driving at night is irrelevant. The truck never should have been carrying that extra weight. Comparative negligence (see more below) is irrelevant in strict liability cases. The company and truck driver are both strictly liable.

Proving Negligence

The first hour after an accident is the most important. If you're the victim of a car accident, you can't presume the other driver will accept responsibility. No matter how clear his liability may seem, you must protect your interests.

Tools for Building a Case

Building a strong case relies on gathering as much verifiable proof as possible. Think of it as similar to building a fortress. The stronger the materials you use, the more impenetrable your fortress will be. The four tools needed to build a strong case are:

When police officers respond to an accident scene, their first duty is to see if anyone is injured, and call EMS if necessary. Their next step is to secure the scene, to keep the people involved and witnesses safe, and to preserve the site. They also mark evidence and sometimes take photographs.

The Accident To-do List

No one plans on being in an accident, but a little preparation can make a big difference to your claim. It's a good idea to create a checklist of what you should do in case of an accident. Keep it in your glove compartment or console.

Here's a free accident report form to make recording information easier after an accident.

If you're ever involved in an accident, this list will guide you through a step-by-step process to help build an injury claim. Follow it, and you'll be sure to collect all the info needed to prove the other driver's negligence.

  1. Call 911 and ask for police assistance.

  2. Get the other driver's contact and insurance information.

  3. Collect the contact information of any witnesses. Have them write down what they saw, and ask them to date and sign it.

  4. Use a camera or your cell phone to photograph the scene. Include the position of the cars, any damage and debris that may have fallen off the cars, skid marks, and damages to anything else in the area, such as bent signs or dented guard rails.

  5. Ask the officer for the service number of the police report so you can get a copy in a few days.

  6. Write down any other information you think will be helpful.

Traffic Tickets

Traffic tickets issued to an at-fault driver are extremely valuable in proving liability. The other evidence (witness statements, photographs, and diagrams) are important tools, but a police report showing the other driver violated a traffic law can seal the deal.

Tickets for excessive speed, failing to yield, disobeying a traffic signal, and entering an intersection can all help prove negligence. An at-fault driver will have a hard time overcoming the significance of a traffic ticket.

No-doubt Tort Claims

Certain types of vehicle collisions require little, if any, supplemental proof of liability. These accidents are considered no-doubt liability. Here are some examples:

Rear-end collisions are seldom contested. That's because there are very few defenses to these collisions. An at-fault driver can rarely make a believable excuse by saying a car suddenly appeared out of nowhere, or purposely backed up into him.

In rear-end accidents, liability is usually clear. But, you should always follow through as if it was unclear. Some drivers are convinced they couldn't be responsible for any accident, ever. They'll blame the other driver for stopping too fast, having brake lights that weren't bright enough, or some other excuse.

Crossing-an-intersection collisions are also seldom contested. In 99 percent of these accidents, drivers heading in one direction down a roadway have the clear right of way. Collisions normally occur when a driver thinks he has time to cross an intersection before the oncoming car gets there. This mistake in judgment can cause terrible crashes.

Drunk driving collisions are another type of accident that is seldom, if ever, contested. A driver arrested for driving while intoxicated has little credibility, and no excuse.

Comparative Liability

Most states recognize some form of comparative liability, also referred to as comparative negligence. This means if you're in an accident, and you have some fault, even if that fault is minor, the amount of your settlement can be decreased proportionately.

Example: Comparative negligence

Jane is traveling down a road with a 35 mile per hour speed limit. She has the green light as she approaches an intersection. Suddenly, a car heading in the opposite direction turns left in front of her. The other driver, Bob, thinks he has enough time to cut across the intersection. Jane slams on her brakes, but there's not enough time. The two cars collide.

Some witnesses stop to help. A few minutes later the police arrive and talk with both drivers. When they ask Jane how fast she was going, she honestly states about 40 miles per hour.

The police give Bob a ticket for failing to yield at an intersection. They don't give Jane a ticket because her speed was only slightly above the limit. They include her statement admitting to driving five miles per hour over the speed limit in the police report.

Jane's medical bills come to $1,000, and she wants at least $3,000 to settle the case (a reasonable amount). The insurance company responds that since she was speeding, she has some fault in the accident. They say their insured, Bob, is only 80 percent liable, and Jane is 20 percent liable.

As a result, they offer a settlement of $2,400, which is 80 percent of Jane's demand. By claiming comparative negligence, the insurance company deducted 20 percent, or $600 dollars, from their offer.

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