Most legal scholars agree that the scope of liability in the U.S. legal system has expanded dramatically in the past three decades. That expansion began early in the 20th century with a growing acceptance of the notion that more extensive tort liability would serve to compensate injured parties and reduce the level of accidents. Although no complete set of data is available, limited data call attention to several prominent features of the current tort litigation landscape--that the vast majority of tort claims are settled out of court, that state courts handle the bulk of torts, and that different types of torts have different impacts on litigants and on the tort system.
 

The Expansion of Tort Liability in the United States

U.S. tort law is based primarily on common law--in which judicial rules are developed on a case-by-case basis by trial judges--rather than on legislation. Tort liability is assigned using two basic standards: strict liability and negligence. Under strict liability, injurers are held fully liable for their victims' losses without regard for whether they were actually negligent or intended to harm anyone.⁽¹⁾ Under a negligence standard, by contrast, injurers are held liable only if they failed to meet a certain standard of care. According to legal scholars, a number of important developments have increased the scope of liability for torts in the United States.

Early English tort law, the antecedent of U.S. tort law, was chiefly concerned with making injurers pay for the losses of their victims, with little emphasis on fault or negligence.⁽²⁾ That standard was used in the United States until the 19th century, when U.S. common law established negligence as the basis for tort liability. However, strict liability continued to apply in certain cases, such as injuries caused by wild animals kept as pets or damage to crops caused by trespass of domestic animals.⁽³⁾ Some scholars argue that the requirement for plaintiffs to show that defendants had been negligent effectively limited the scope of the U.S. tort system.⁽⁴⁾

The turn of the 20th century saw public policy increasingly emphasize victim compensation and accident reduction. The enactment of workers' compensation laws--which established a public insurance system aimed at lowering employers' payments while making workers' recovery of damages automatic--played an important role in the evolution of tort law and policy.⁽⁵⁾ Before workers' compensation programs, the only remedy that injured workers had was to prove their employers negligent through the tort system. Workers favored legislation instead because they often had been unable to recover damages or had experienced delays or high costs when they had been successful. For their part, employers favored legislation because it limited their liability and made payments predictable.⁽⁶⁾ That shift away from tort law to a public compensation system led to more thought about how tort liability could be improved or better applied in other types of cases.

By the 1940s, legal scholars had begun to think about two ways in which the tort system could serve the wider goal of enhancing social welfare. First, they saw the economic concept of "cost internalization" as a tool for reducing accident rates: if potential injurers know they will be held liable for accidents, they will take appropriate action to avoid liability. In that view, by awarding damages to compensate victims, tort law would serve as a mechanism to ensure that potential injurers faced the appropriate future costs of their actions.⁽⁷⁾ Second, some scholars argued that the tort system could provide a kind of accident insurance for victims. They did not focus on the possibility that an expanded liability system could increase carelessness on the part of potential victims, nor did they adopt any of the methods that traditional insurance policies use to deal with that problem.⁽⁸⁾ Rather, they focused exclusively on the distributional goal of relieving victims of the burden of accident losses and spreading that burden across a broader population.

One area in which those concepts proved appealing in practice was product liability.⁽⁹⁾ Historically, product liability was dealt with either as a breach of warranty under contract law or as a tort subject to the negligence standard. Under contract law, recovery in such cases was limited to repair and replacement of the product; under tort law, recovery was limited by the difficulty of proving negligence. In the 1960s, the courts moved rapidly toward a standard of strict liability for defective products; in 1964, that standard was accepted and recommended by the American Law Institute in its second Restatement of the Law volume on torts. By the mid-1970s, most states had adopted provisions that were either identical or similar to those in the Restatement.⁽¹⁰⁾

In addition, the concept of negligence has undergone significant reinterpretation over time, according to legal scholars. The law now takes into account the fact that manufacturers often have more ability than consumers to avoid accidents; thus, it is more likely to view failure to take inexpensive action as negligence or to attach liability to indirect or partial contribution to an injury.
 

Civil Remedies Glossary

Aiding and Abetting. Similar to civil conspiracy, when someone, not the actual perpetrator, so significantly contributes to the criminal operation as to be considered liable for their actions.

Abscond. To go in a secretive manner out of the jurisdiction of the courts, or to lie concealed, in order to avoid their process.

Answer. Formal written responses to the defendants/perpetrators file in response to plaintiff's complaints. These pleadings may deny some or all of the allegations; they may raise defenses such as self-defense or assumption of risk, or they may allege that even if all of the plaintiff's allegations are true, there is no liability. These pleadings are usually accompanied by legal memoranda and briefs. The names of the pleadings vary from jurisdiction. "Demurrers," "motions for summary judgment," motions to dismiss," and "answers" are all descriptions of a responsive pleading.

Assault. A cause of action for intentionally putting the victim in fear of a battery, coupled with the apparent ability to commit the battery.

Assumption of Risk. A legal doctrine that may relieve perpetrators of liability for injuries to victims if the victim voluntarily entered into a situation knowing that there was a risk of foreseeable injury.

Automobile Insurance. Insurance policies that cover injuries "arising out of the use, operation, or maintenance" of the vehicle.

Battery. The intentional, offensive, unpermitted touching of the victim by the perpetrator.

Burden of Proof. The threshold of evidence that one party must present in order to prevail in his or her case. In criminal cases, the burden of proof is very high: "beyond a reasonable doubt," or generally 99 percent of the evidence. In civil cases, however, the burden of proof on the victim/plaintiff is "a mere preponderance," or more than 50 percent of the evidence.

Causes of Action. The legal basis for a civil lawsuit.

Civil Actions. Lawsuits filed by victims to recover from injuries sustained and damages incurred as a result of the perpetrator's crime.

Civil Conspiracy. See Aiding and Abetting.

Collateral Estoppel. A legal doctrine which provides that, in some cases, the criminal conviction of perpetrators will be considered proof of those perpetrator's legal liability in civil actions brought by the perpetrator's victims.

Collectability. A general term meaning the extent to which defendants/perpetrators have the financial means to pay judgments from assets on hand, assets reasonably to be expected in the future, or financial assistance from such sources as insurance coverage.

Comparative Negligence. The more prevalent approach to reducing amounts paid to plaintiffs/victims allowing partially negligent plaintiffs/victims to recover damages from defendants/perpetrators, however, reducing the amounts of the award by the applicable percentage of the plaintiff's/victim's own negligence (see also: Contributory Negligence).

Compensation. Monetary reparations made to crime victims by a state or a governmental entity to recover "out-of-pocket" expenses incurred as a result of a crime.

Compensatory Damages. Damages paid to compensate victims for losses caused by the torts of the perpetrator. Such losses include out-of-pocket expenses; loss of income; expenses such as medical bills, therapy, and funeral costs; loss of present and future earning capacity; conscious pain and suffering; financial support; and "consortium," the loss of the affection and society of loved ones.

Complaint. The formal written pleading filed in a civil court alleging that the defendant(s) injured the plaintiff(s), and that the defendant(s) should be liable for damages caused.

Contributory Negligence. A legal doctrine, now modified in most jurisdictions, that any negligence on the part of the plaintiff/victim will bar civil lawsuits against defendant/ perpetrator.

Criminal Action. Cases in which the state prosecutes perpetrators of criminal acts, committed in violation of the state's laws.

Damages. Amounts of money awarded to winning parties in civil suits expressed in a judgment.

Defendants. Parties against whom civil actions are brought.

Defenses. Legal doctrines that relieve defendant/perpetrator of liability for having committed a tort.

Delayed Discovery Rule. A legal doctrine that suspends the running of statutes of limitations during periods of time in which the victims did not discover, or by the exercise of reasonable diligence, could not have discovered, the injuries that would lead to their causes of action against the defendant/perpetrator.

Depositions. Pretrial proceedings in which attorneys for parties in a civil case have the opportunity to examine, under oath, the opposing parties and potential witnesses in the case. Depositions are sworn and reduced to writing. The transcripts may be admissible in evidence at trials if the witnesses are no longer available, or for purposes of impeachment.

First Party Action. Lawsuits brought by victims directly against their perpetrators.

General Liability Insurance. Insurance policies covering whatever losses are enumerated in the policy.

Homeowner's Insurance. Broad-based insurance policy that contracts to protect the insured from enumerated causes of accidental injuries to others. The accidents usually are not confined to acts that happen on the insured's "home" premises but also includes accidents that happen elsewhere. Renters of premises can obtain Renter's Insurance.

Insured. The individual who has contracted to receive insurance coverage from the Insurer whose actions are otherwise covered by an insurance policy.

Insurer. The business entity which has contracted to provide insurance coverage to the insured.

Judgments. The formal recitations of the outcomes of civil cases. They are almost always reduced to writing, and recorded as a part of the file.

Negligence. A legal doctrine providing that one may be liable to another if (1) he or she owes a legal duty to the other; (2) he or she materially breaches that duty; (3) the breach is the proximate cause of the other's injury; and (4) the other person suffers damages.

Negligent Entrustment. A tort in which one or more persons give, lend, or allow someone to use, or should have anticipated that the person would use, a dangerous instrumentality to injure another.

Parental Liability. A legal doctrine that holds parents civilly liable for the torts and crimes of their children.

Perpetrators. Persons who have criminally injured victims.

Plaintiff. Party bringing civil actions. In the case of victim civil remedies, the victim is the plaintiff.

Professional Liability Insurance. Insurance coverage issued to professional persons: doctors, dentists, lawyers, architects, etc., to cover any losses caused by malpractice in the course of their professional services.

Provocation. A legal doctrine that may excuse defendant/perpetrator from the consequences of his/her crime/tort if the plaintiff/victim instigated a confrontation, or otherwise caused or provoked the defendant's actions.

Proximate Cause. The "cause in fact" of injury to victims; a "cause" without which the victim's injuries would not have occurred.

Punitive Damages. Damages awarded to victims against perpetrators, over and above compensatory damages, in order to punish or make an example of perpetrators.

Renters Insurance. See Homeowner's Insurance.

Rescue Doctrine. A legal doctrine that allows one to recover for injuries suffered in coming to the rescue or assistance of others in peril. It is used as a counter to the defense of Assumption of Risk.

Restitution. Court action that requires perpetrators to make financial payments to their victims, usually as a condition of probation or leniency in sentencing.

Self Defense. The legal doctrine which relieves defendants/perpetrators of liability for torts if they acted in the reasonable belief that they had to use force to defend themselves, or others (loved ones, etc.), from death or great bodily harm.

Settlements. Agreements among the parties to lawsuits to end the suits without trial; usually the plaintiff agrees to drop the lawsuit for a fixed sum of monetary damages paid by the defendant.

Statute of Limitations. Periods of time, set by law, after which civil actions cannot be brought.

Third Party Actions. Lawsuits brought against persons whose negligence or gross negligence has facilitated the commission of a tort by a defendant.

Tolling of Statutes of Limitations. The running of statutes of limitations is suspended.

Torts. Civil or private wrongs (as opposed to criminal offenses) committed by perpetrators against victims.

Uninsured or Underinsured Motorists. State law usually makes it compulsory that drivers have enough insurance to cover damages if they, or others defined in the policies, are injured by motorists who have no insurance, or not enough insurance, to cover injuries that they have caused.

Victims. Persons who have been injured by the criminal acts of perpetrators.

Wrongful Death. The civil action for the killing of one human by another, without justification or excuse.