A reader has inquired as to the meaning of the term “tort.” Not to be confused with the delicious dessert (“torte”), a tort is a civil wrong that may give rise to a right to recover monetary damages, as compared to a criminal act that may give rise to prosecution by the government. 

In civil litigation, the following basic question underscores every case: “What right does this plaintiff have to bring a lawsuit against this defendant?” The answer generally falls into one of two categories: 1) contract or 2) tort. A suit for breach of contract is easy enough to understand, at least in a general sense – the parties entered into an agreement and one side did not live up to their end of the bargain. 

But what exactly is a tort? One simple definition of tort is a “private or civil wrong or injury.” Another definition is “any civil cause of action not arising out of contract.” Most modern utilizations of the word encompass civil claims for harm or damage to a person or property, and include causes of action created by courts (common law) or created by the Legislature (statute). 

Common tort causes of actions include: 1) negligence claims, such as negligence in operating a vehicle or maintaining a premises; 2) assault and battery; 3) defective manufacturing, design, or labeling of a product; 4) slander, defamation, and libel; 5) trespass and conversion; 6) intentional or negligent infliction of emotional distress; 7) professional malpractice; and 8) fraud and deceit. 

 Some tortious conduct may also be criminal. For example, a physical assault may give rise to a civil tort claim for money damages and could result in a criminal prosecution seeking imprisonment. The existence of a tort cause of action, however, is not dependent upon the existence of a parallel crime or criminal prosecution. In fact, most civil tort claims are likely not to involve corresponding criminal prosecutions.

The vast majority of tort claims tend to be simple negligence claims and, as such, are likely to be covered by liability insurance. Although potential claimants may be inclined to pursue intentional tort claims, these are generally more difficult to prove and less likely to be compensable by an insurance policy. 

Important factors to remember for negligence claims include the following: 1) Statutes of limitations place time limits on pursuing a claim, and running afoul of these can result in a claim being completely barred; 2) The rules are different, and generally more restrictive (including shorter time limits), if the alleged tortfeasor is a governmental entity or employee; 3) If the claim involves an insurance company on the other side, providing timely notification and paying attention to the initial first steps are important; 4) Evidence preservation is a matter of real concern, especially for transient tourists who sustain injuries in the area; 5) issues involving subrogation are problematic and beyond the scope of treatment here, but victims should know that if their medical bills are paid by an insuring entity, that entity will want reimbursement from any tort recovery obtained. 

Importantly, not all injuries or perceived wrongs are compensable under tort law. For example, simply sustaining an injury from a fall on business’ premises does not mean the business is liable. Bad publicity from a published statement does not automatically mean that there is a viable defamation claim. The law grants latitude for people and entities to make mistakes. Knowing whether a potential claim is compensable requires legal advice from a lawyer familiar with tort law. 

Punitive Damages

One aspect of “tort law” is that in some situations, an award of punitive damages may be made. Punitive damages, if awarded, constitute damages over and above “actual damages” sustained by the Plaintiff (Victim). Punitive damages are rarely justified, rarely recovered in South Dakota, and not compensable by liability insurers. A more thorough discussion on this issue is better reserved for another column, perhaps next week 

Note: In regard to the preparation of this week’s column, the author would like to thank Attorney Michael Shubeck (practicing in the area of torts) of Yates & Shubeck, Prof. LLC, for substantial assistance and input. The author would also like to thank Attorney Sarah Baron Houy and Claudia Baron for their assistance and input. 

Anyone desiring to communicate with the Author, may do so by sending an e-mail to the author at rogermbaron@gmail.com

The views and opinions of this article may not reflect the views of The Rapid City Post, its affiliates, or advertisers.