Tortfeasor

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In civil law, a tort is an intentional or negligent act, a civil wrong, as opposed to a criminal act, which causes harm to another. The term tortfeasor refers to the person who commits such a wrongful act, for which the law allows the injured party to seek restitution or recompense. To explore this concept, consider the following tortfeasor definition.

Definition of Tortfeasor

Noun

  1. A person or entity that commits a tort, or a civil wrong, for which the law provides a right to seek relief.

Origin

1650-1660       Anglo-French tortfesor  (“wrongdoer”)

What is a Tortfeasor

Tort law comes from both common law and statutory law, and has the goal of providing relief for individuals harmed by civil wrongdoing. The commission of a tort (civil wrong) is often referred to as “tortious conduct,” and includes such acts as assault, negligence, intentional infliction of emotional distress, and products liability. A tortfeasor, if sued in civil court, may find himself liable for paying the victim for property damages, medical expenses, pain and suffering, loss of earnings, and other monetary damages.

Tort Categories

Civil wrongs, referred to as torts, fall into three categories:

  1. Intentional Torts – wrongs that the tortfeasor, or wrongdoer, knew or should have known, would occur as a result of his actions or failure to act. Some intentional torts are also criminal acts.
  2. Negligent Torts – wrongs that result from the tortfeasor’s failure to take reasonable care to prevent harm.
  3. Strict Liability Torts – acts that cause damage, regardless of fault, intent, or the amount of care taken by the tortfeasor.

Tortious conduct does not include wrongs committed that result in breach of contract, as contract law, a separate civil law category, governs such issues.

Tortfeasor Liability

The damages for which a tortfeasor may be held liable are not limited to physical injuries and medical expenses. Tortfeasor liability often includes payment or reparation for monetary damages, property damage, emotional distress, and violations of privacy or civil rights. Tortfeasor liability follows a variety of wrongful acts, including automobile or other accidents, defamation of character, product liability, infringement of copyright or other intellectual property rights, environmental pollution, and even false imprisonment.

Many acts for which a tortfeasor is held liable are accidental, or the result of negligence. The law does, however, recognize intentional torts, in which the wrongdoer has acted intentionally in a manner which predictably caused harm to another.

For example:

Steven discovers he can order a box of 100 protective phone cases from a distributor overseas, then sell them online for a hefty profit. In order to maximize his profit, Steven uses the logo of a well-known corporation in his phone case advertisements. The corporation’s logo is protected by U.S. copyright and U.S. trademark, and Steven has not gotten permission to use it.

The corporation may file a civil lawsuit based on the tort of trademark and copyright infringement. Steven will likely be ordered to remove the logo from his advertisements and/or website, but he may also be held financially liable as a tortfeasor for any losses incurred by the corporation, costs of defending their intellectual property, and he may be ordered to pay punitive damages.

Tortfeasor Defenses

An individual or entity accused of committing a civil wrong basically has three options to defend its actions. These tortfeasor defenses include:

  1. Consent and Waiver – a tortfeasor (defendant) may defend his position in a civil lawsuit if the accuser (plaintiff) had been explicitly warned of the risk or danger of engaging in the activity that resulted in harm. This defense is referred to as the legal maxim volenti non fit injuria, which means “no injury is done to a person who consents.” This tortfeasor defense commonly relies on signed waivers of liability.
  2. Comparative Negligence – a tortfeasor may defend his position by claiming that the plaintiff caused, or contributed to, his own losses by engaging in reckless or negligent acts. A similar concept, referred to as “contributory negligence,” often results in the court assigning a percentage of fault to each party, which ultimately dictates the percentage of financial responsibility for which each party will be held responsible.
  3. Illegality – if the plaintiff was engaging in an illegal act at the time he suffered the injury or harm for which he is seeking remuneration, the defendant’s liability may be reduced or eliminated entirely.

For example:

Marino is caught burglarizing a home when the homeowner, Max, returns unexpectedly. Marino runs upstairs and jumps out a bedroom window when he hears Max yell at him. Marino lands on a metal fence post that is hidden in a large bush directly under the bedroom window, and is seriously injured.

Marino files a civil lawsuit seeking payment for his medical bills, pain and suffering, and lost work from his day job, claiming that, had Max not yelled at him, he wouldn’t have jumped out the window. Marino also asserts that Max had been negligent in allowing the bush to grow up around the dangerous post. Marino may assert a tortfeasor defense of illegality of Marino’s actions. Marino was committing a crime, and his injuries were sustained as a result of his illegal acts. Justice would not be served by allowing him to collect monetary damages from the man he was victimizing.

Related Legal Terms and Issues

  • Breach of Contract – A violation of a contract through failure to perform, or through interference with the performance of the contractual obligations.
  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Common Law – Laws that are based on court or tribunal decisions, which govern future decisions on similar cases.
  • Damages – A monetary award in compensation for a financial loss, loss of or damage to personal or real property, or an injury.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Negligence – Failure to exercise a degree of care that would be taken by another reasonable person in the same circumstances.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
  • Restitution – The restoration of rights or property previously taken away or surrendered; reparation made by giving compensation for loss or injury caused by wrongdoing.