Torts
A tort is a legal "wrong." Because it is impossible to make laws for every conceivable wrong that might occur, the law of torts allows injured parties to recover when another party has been negligent. For instance, the driver who rear-ends you is probably negligent. Your resulting lawsuit is based on that tort.
SIDEBAR: Lawsuits based in tort also include situations involving medical malpractice, defective products and unsafe premises.
Torts do not apply to criminal acts. The law of torts allows a person who has suffered an injury to pursue a remedy. Though the party who caused the injury may have committed a criminal act, his penalty is provided under criminal laws.
TIP: A crime victim can always sue the criminal in a civil lawsuit for the injuries she suffered. The civil suit is completely separate from the criminal prosecution.
SIDEBAR: Civil "punishment" does exist in the form of punitive damages-an amount of money awarded to the plaintiff to deter the defendant from further reckless acts. See DAMAGES, below.
Duty
Every lawsuit based on a tort hinges on whether a duty exists to act in a certain way. Because drivers have a duty to drive safely and cautiously, the person who rear-ends another vehicle has generally breached the duty.
Without a duty, there cannot be an action based on tort. For example, a trespasser who injures himself on your deck does not have a cause of action against you because you have no duty to make your deck safe for trespassers. On the other hand, an invited guest would have a cause of action if you knew the deck was unsafe.
Foreseeability
Whether a tort was committed depends not only on the existence of a duty but also on the foreseeability or likelihood of the injury. Without proof of foreseeability, the tort case fails because a required element is missing. The most common cases involving questions of foreseeability are "slip and fall" cases.
EXAMPLE: The situation where vegetable oil, for instance, has spilled all over a grocery store aisle which employees knew about but failed to clean up (or warn customers) is the type of scenario where it was foreseeable a customer would slip and fall. On the other hand, the customer who slips and falls on a grape in the produce section would have to prove that the store employees knew about the grape and did not pick it up. Foreseeability for an injury because of the grape does not exist because its presence was unknown to store employees.