The law of torts defines certain duties that the law imposes upon persons in the absence of a contract. A tort is a violation of one of these duties. One who commits a tort is sometimes called a tortfeasor.


No single principle determines under what circumstances tort law will impose a duty. Rather, the history of torts shows a gradual accumulation of duties newly imposed whenever policy considerations appeared to the courts to justify that result. Tort law is an intrinsically majoritarian body of law because tort duties are based not on the will of the parties involved in a situation but on the will of the state.

The distinction between tort and contract law illustrates the manner in which policy conflicts resolved at one level of generality reemerge at another level of generality. In theory, the law of contracts concerns duties that parties voluntarily assume, whereas the law of torts concerns duties that the state imposes on persons. In other words, the conventional understanding is that in contract law the court enforces the will of the individual, whereas in tort law the court enforces the will of the state.

Although the decision about whether a subject is to be governed by the will of the individual or by the will of the state initially appears to have been resolved by the allocation of that subject to contract or tort law, in fact the issue reemerges within each of these two fields of law. In contract law, the issue of whether to give primacy to the will of the state or to the will of the individual reemerges, for example, as the issue of whether to impose an implied warranty on a party. An implied warranty, although part of contract law and thus in theory a duty voluntarily assumed, is in fact, like a tort duty, imposed by the state for reasons of policy. Similarly, in tort law, as will be seen below, the issue of whether to give primacy to the will of the state or to the will of the individual also reemerges repeatedly, in forms such as the issue of whether to allow a tortfeasor to plead as a defense the fact that the victim consented to the injury or voluntarily assumed the risk of injury. Consent and assumption of risk, although part of tort law, are doctrines that allow the will of the individual, in this case the victim, to limit the general duty imposed on the basis of the will of the state.


Modern tort law, following the lead of Oliver Wendell Holmes Jr., organizes tort duties according to the defendant’s state of mind at the time the duty was breached. This has resulted in three categories of torts: those in which the tortfeasor intentionally caused injury (intentional torts), those in which the tortfeasor negligently caused injury (negligence), and those in which the tortfeasor caused injury without fault or intent (strict liability).

This organizational scheme illustrates the way in which a policy conflict reemerges in a body of legal doctrine at differing levels of generality but is resolved differently at different levels. Tort law is in theory a body of rules based on the will of the state, yet the central organizing principle is the nature of the tortfeasor’s act of will causing the injury. Although the concept of tort liability is majoritarian, the more specific rules imposing liability reflect at least limited deference to individualism in that they condition liability on some act of will by the tortfeasor.

A. Intentional Tort

Intentional torts are generally categorized according to the type of injury caused. They include interferences with the person, such as assault, battery, and false imprisonment; interferences with property, such as trespass to land, trespass to chattels, and conversion; and interference with economic relations.

The rules creating the intentional torts all have essentially the same generic elements. As a general matter, liability for an intentional tort arises where the defendant (1) performed some voluntary act (2) with intent that the act cause an injury, and (3) where the act causes (4) an injury.

The basic conflict in tort law between an imposition of a duty based on the will of the state and an imposition of duty based on the will of the individual reemerges within intentional tort in the form of the issue of how to define the concept of intent. This issue is reflected in the contrasting definitions of intent adopted in two well-known cases: Garratt v. Dailey and Cleveland Park Club v. Perry.1 Under the Garratt definition, which is the more commonly accepted of the two, intent exists where the tortfeasor acts with either the desire to bring about the injury or the knowledge with substantial certainty that the injury will occur. Under the Cleveland Park definition, however, intent exists where the tortfeasor intended to perform the act causing the injury. That is, under the Cleveland Park definition of intent, the only exercise of will necessary for the imposition of liability is a voluntary muscular contraction. Accordingly, the Cleveland Park definition requires a much weaker form of intent and thus a much weaker expression of the will of the individual. Under the Cleveland Park definition, intentional tort seems to collapse into strict liability, which, as will be seen, is the least-individualist form of tort.

The difference among the intentional torts rests primarily on the type of injury involved. An intentional infliction of offensive bodily contact, for example, is a battery, whereas an intentional restraint on another’s freedom of movement is a false imprisonment.

Additional rules limit the scope of liability under the intentional torts by creating defenses to those torts. One common rule, for example, provides that one is not liable for an intentional tort if the injured party consented to the infliction of the injury. Thus, a boxer who is injured fighting in the ring would probably find that any claim for a battery against an opponent is barred by his consent to the fight.2

Although tort law is generally majoritarian, the consent defense reflects a judicial decision to favor the policy of individualism over the policy of majoritarianism in those instances where the defense applies. Were majoritarianism accorded greater weight, a court might refuse to permit individuals to consent to their own destruction.

Yet the doctrine of consent does not represent a complete victory of the policy of individualism even in those circumstances in which it does apply. This fact is reflected in the rule that measures consent with an objective test. Under that test, a person is held to have consented if a reasonable person would have interpreted the words or conduct of that person as indicating consent, even if that person believed consent had not been given. For example, a boxer who puts on his gloves and climbs into the ring still carrying mental reservations about whether he wishes to fight may be found to have consented because his external conduct suggested to a reasonable person that he had consented. Thus, consent may be found where it does not really exist. In finding consent where it does not truly exist, the objective test, like formalism generally, is subject to the charge that it produces artificial results, that it treats as consent something that is not consent at all. In short, the majoritarian policy underlying the battery rule is limited by an individualist policy underlying the consent defense, which in turn is subverted by the majoritarian objective test used to interpret expressions of individual will. Different policies prevail at different levels of generality.

As in the case of the objective test in contract law, the objective test in tort law is based in part on a policy of efficiency, because it avoids the need to engage in time-consuming and uncertain inquiries concerning a person’s actual state of mind. Although individualism and efficiency are often thought to be consistent in their consequences,3 the objective test reflects a situation in which courts promote efficiency by limiting individual freedom. In the case of the objective test, then, the two policies of individualism and efficiency are opposed.

B. Negligence

The rule that imposes liability for negligence generally requires that four elements be present: (1) the defendant owed a duty of reasonable care to the plaintiff, (2) the defendant breached the duty, (3) the plaintiff was injured, and (4) the breach was the actual and proximate cause of the injury.

The distinguishing feature of negligence is that the duty imposed is usually one to exercise reasonable care. One who fails to exercise reasonable care is commonly said to be “at fault.” Thus, liability based on negligence is often referred to as liability based on fault.

Some legal historians argue that the creation of the tort of negligence represented a conscious policy choice to limit liability in order to promote economic growth.4 According to this view, prior to the mid-nineteenth century, one who injured another was very often liable even if not at fault.5 The Industrial Revolution in the nineteenth century brought about increasing numbers of injuries that would have been expensive to compensate. In order to limit liability for these newly emerging industrial enterprises and promote economic growth, courts modified the existing rules so that liability would arise only in situations where the defendant failed to exercise reasonable care.
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