A tort(1), in common law jurisdictions, is a wrong(2) that involves a breach of a civil duty(other than a contractual duty) owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general. Though many acts are both torts and crimes, prosecutions for crime are mostly the responsibility of the state, private prosecutions being rarely used; whereas any party who has been injured may bring a lawsuit for tort. One who commits a tortious act is called a tortfeasor(3).
A person who suffers a tortious injury is entitled to receive “damages”, usually monetary compensation, from the person or people responsible for those injuries. Tort law defines what a legal injury is and, therefore, whether a person may be held liable for an injury he or she has caused. Legal injuries are not limited to physical injuries. They may also include emotional, economic, or reputational injuries as well as violations of privacy, property, or constitutional rights. Tort cases therefore comprise such varied topics as auto accidents, false imprisonment(4), defamation(5), product liability(for defective consumer products), copyright infringement, and environmental pollution, among many others.
In much of the common law world, the most prominent tort liability is negligence. If the injured party can prove that the person believed to have caused the injury acted negligently, that is, without taking reasonable care(6) to avoid injuring others—tort law will allow compensation.
Furthermore, tort law also recognizes intentional torts, where a person has intentionally acted in a way that harms another, and “strict liability” or quasi-tort, which allows recovery(7) under certain circumstances without the need to demonstrate negligence. Hence, torts may be divided into Negligence, Intentional Torts, and Quasi-Torts.
2. Negligence
The standard action in tort is negligence. The tort of negligence provides a cause of action(8) leading to damages, or to relief, in each case designed to protect legal rights, including those of personal safety, property, and, in some cases, intangible economic interests. Negligence actions include claims coming primarily from car accidents and personal injury accidents of many kinds, including clinical negligence, worker's negligence and so forth. Product liability cases, such as those involving warranties(9), may or may not be considered negligence actions.
(1) “Snail case”
Negligence is a tort which depends on the existence of a breaking of the duty of care owed by one person to another. One well-known case is Donoghue v.Stevenson(10) where Mrs. Donoghue consumed part of a drink containing a decomposed snail while in a public bar in Paisley, Scotland and claimed that it had made her ill. The snail had not been visible, as the bottle of beer in which it was contained was opaque. Neither the friend who bought the bottle for her, nor the shopkeeper who sold it, were aware of the snail's presence. The manufacturer was Mr. Stevenson, whom Mrs. Donoghue sued for damages for negligence. She could not sue Mr. Stevenson for damages for breach of contract because there was no contract between them. Lord MacMillan thought this should be treated as a new product liability case. Lord Atkin argued that we owe a duty of reasonable care to our neighbors. He quoted the Bible in support of his argument, specifically the general principle that “thou shalt love thy neighbor.”(11)
(2) Elements of negligence
Negligence is a breach of legal duty to take care resulting in damage to the plaintiff. The legal burden of proving elements of negligence falls upon the plaintiff. The elements in determining the liability for negligence are:
a) The tortfeasor owed a duty of care;
b) There was a breach of that duty;
c) The tortfeasor directly caused the injury, that is, there was proximate cause(12);
d) The plaintiff suffered damage as a result of that breach;
There are a number of situations in which the courts recognize the existence of a duty of care. These usually arise as a result of some sort of special relationship between the parties. Examples include one roaduser to another, employer to employee, manufacturer to consumer, doctor to patient and solicitor to client.
3. Intentional torts
Intentional torts include, among others, certain torts arising from the occupation/use of land and trespass to chattels. Any direct interference, such as entering land without the occupier's consent or dispossessing him of a book, a hat, or a picture is actionable. Several intentional torts do not involve land. Examples include false imprisonment, the tort of unlawfully arresting or detaining(13) someone, and defamation(in some jurisdictions split into libel(14) and slander(15)), where false information is broadcasted and damages the plaintiff's reputation.
4. Quasi-torts
Quasi-tort means a tort for which a nonperpetrator is held liable. In a quasi tort, a person who did not actually commit a wrong is held liable. For instance, a master will be held liable for a tort committed by a servant under the principle of vicarious liability.
5. Tort Liability
Tort liability is customarily divided into intentional tort liability, negligence liability and strict liability. Strict liability makes some persons responsible for damages their actions or products cause, regardless of any “fault” on their part. Strict liability mainly includes but not restricted to the following situations:
Abnormally Dangerous(ultrahazadous) Activities. Strict liability often applies when people engage in inherently hazardous activities, such as bursting dams, “blow-out” oil wells, testing rocket motors, or blasting on a construction site. If a plaintiff is injured by these activities—no matter how careful the doer was—he/she is liable for the injury.
Products Liability(16)Strict liability also may apply in the case of certain manufactured products. In strict product liability, typically anyone who is engaged in the stream of the product(from the manufacturer to the wholesaler to the retailer, or all of them) can be held responsible if the product was defective and someone was injured. There is no need to prove negligence but the injured party must prove that the product was defective.
Rather than focus on the behavior of the manufacturer(as in negligence), strict liability claims focus on the product itself. Under strict liability, the manufacturer is liable if the product is defective(17), even if the manufacturer was not negligent in making that product defective.
The difficulty with negligence is that it still requires the plaintiff to prove that the defendant's conduct fell below the relevant standard of care(18). However, if an entire industry tacitly settles on a somewhat careless standard of conduct, then the plaintiff may not be able to recover even though he or she is severely injured, because although the defendant's conduct caused his or her injuries, such conduct was not negligent in the legal sense. As a practical matter, with the increasing complexity of products, injuries, and medical care(which made many formerly fatal injuries survivable), it is quite a difficult and expensive task to find and retain good expert witnesses who can establish the standard of care, breach, and causation.
Therefore, in the 1940s and 1950s, many American courts decided that it was too harsh to require seriously injured consumer plaintiffs to prove negligence claims against manufacturers or retailers. To avoid having to deny such plaintiffs any relief, these courts began to look for facts in their cases which they could characterize as an express or implied warranty(19) from the manufacturer to the consumer. The res ipsa loquitur doctrine(20) was also stretched to reduce the plaintiff's burden of proof. Over time, the resulting legal fictions became increasingly strained.
Of the various U.S. states, California was the first to throw away the fiction of a warranty and to boldly assert the doctrine of strict liability in tort for defective products, in 1963. Justice Traynor laid the foundation for Greenman with these words:
“Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest(21) to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection.”
The year after Greenman, the Supreme Court of California proceeded to extend strict liability to all parties involved in the manufacturing, distribution, and sale of defective products(including retailers) and in 1969 made it clear that such defendants were liable not only to direct customers and users, but also to any innocent bystanders randomly injured by defective products.
Ⅳ. EXERCISES Ⅳ．练习
1. Answer the following questions.
（1）Describe your understanding of torts.
（2）What are the three types of torts?
（3）What are the elements of negligence?
（4）What are the main characteristics of intentional tort?
（5）What is the quasitort?
2. Translate the following terms into English.
（1）侵权行为
（2）不法行为
（3）妨害、滋扰
（4）书面诽谤
（5）口头诽谤
（6）隐私
（7）准侵权
3. Translate the following terms into Chinese.
（1）false imprisonment
（2）proximate cause
（3）contractual duty
（4）constitutional rights
（5）monetary compensation
（6）intentional torts
（7）reasonable care
（8）cause of action
4. Match the given terms with the proper explanation.
A. proximate cause
B. contributory negligence
C. malicious prosecution
D. defamation
（1）The term is used to describe the actions of an injured person that may have also caused or contributed to his injury.
（2）It tends to harm plaintiff's reputation in the community, either by lowering others' estimation of him, or deterring others from associating or dealing with him. Examples include communications which expose plaintiff to hatred, contempt, or ridicule; which reflect unfavorably on his morality or integrity; or which impair his financial reputation.
（3）It may be an act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred.
（4）It consists of maliciously and without reasonable and probable causes instituting groundless legal proceedings, especially criminal prosecutions.
5. Choose the suitable words from the box and fill in the blanks.
A reasonable person is a (1) individual with an ordinary degree of reason, prudence, care, foresight, or intelligence whose conduct, conclusion, or expectation in relation to a particular circumstance or fact is used as an (2) standard by which to (3) or determine something(as the existence of negligence). The reasonable man or reasonable person standard is a legal (4) that originated in the development of the common law. The question, “How would a reasonable person act under the (5)” performs a critical role in legal (6), for example, “We have generally held that a reasonable person would not believe that he or she has been seized when an officer merely (7) that person in a public place and begins to ask questions.”
6. Translate the following sentences into Chinese.
（1）The claimant must produce evidence which infers a lack of reasonable care on the part of the defendant.
（2）If harm is foreseeable but occurs in an unforeseeable way there may still be liability.
（3）If the danger of a serious accident outweighs the burden or inconvenience of taking precautions to avoid the accident, the reasonable person would take those precautions.
（4）The burden of proof ordinarily rests on the plaintiff to establish this relationship on a “balance of probabilities”.
（5）Our society has many sources of laws: the federal and the state constitutions, legislative enactments, judicial decisions, and executive orders.Statues are laws promulgated by Congress or state legislatures.
（6）Case law, unlike statues, is comprised of court decisions, both at the federal and state levels.
（7）There are two defenses to negligence claims: contributory negligence and voluntary assumption of risk.
（8）Contributory negligence bars a party from recovering for damages if he or she contributed in any way to the injury，but recently has been modified so as merely to reduce damages.
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(1) tort：侵权行为。指侵犯法律规定而非合同约定的权利，并导致诉权产生的不法行为或损害行为。该词的复数形式torts一般翻译为“侵权法”或者“侵权行为法”。A civil wrong, other than breach of contract, for which a remedy may be obtained, usu. in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another.
(2) wrong：不法行为。指侵害他人权利，致人损害的行为。它尤其是指侵权行为（tort）。不法行为通常分为两类：一是侵犯个人的不法行为（private wrong），即可以为个人提供救济的不法行为，例如侵权行为、违约行为等；二是公共不法行为（public wrong），即行为人应当对整个社会承担责任的不法行为，例如犯罪、违法行为或其他违反公法规定的行为。Breach of one's legal duty; violation of another's legal right. A wrong may be described, in the largest sense, as anything done or omitted contrary to legal duty, considered in so far as it gives rise to liability.
(3) tortfeasor：侵权行为人，侵权行为者。One who commits a tort; a wrongdoer.
(4) false imprisonment：非法监禁。A restraint of a person in a bounded area without justification or consent. False imprisonment is a Common-law misdemeanor and a tort. It applies to private as well as governmental detention.
(5) defamation：污蔑；诽谤；中伤；损害他人名誉。Damage the good reputation of someone. (1)The act of harming the reputation of another by making a false statement to a third person. If the alleged defamation involves a matter of public concern, the plaintiff is constitutionally required to prove both the statement's falsity and the defendant's fault. (2)A false written or oral statement that damages another's reputation.
(6) reasonable care：合理的注意。In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others.
(7) recovery：（通过诉讼判决获得的）赔偿额；赔偿金。An amount awarded in or collected from a judgment or decree.
(8) cause of action：诉因，诉讼理由。(1)A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person; (2)A legal theory of a lawsuit(a malpractice cause of action).
(9) warranty：担保，保证。A warranty is an assurance by one party to the other party that specific facts or conditions are true or will happen; the other party is permitted to rely on that assurance and seek some type of remedy if it is not true or followed.
(10) Donoghue v.Stevenson: 多诺休诉史蒂文森案。该案的索引号是：［1932］ UKHL 100, 1932 SC 31, ［1932］ AC 562, ［1932］ All ER Rep 1。This case was a decision of the House of Lords that established the modern concept of negligence in Scots law and English law, by setting out general principles whereby one person would owe another person a duty of care. It is the origin of the modern law of delict in Scots law and the tort of negligence in English and Welsh law as well as in many other Common Law jurisdictions. 原告多诺休的朋友为她购买了一瓶姜啤（ginger beer），喝过一半之后，原告发现瓶内腐烂的蜗牛（a decomposed snail）。原告多诺休太太是一位三十岁刚出头妇女，是一家苏格兰人商店内的雇员。1928年8月的一个星期天晚上，她去了一家咖啡馆并点了一份“冰激凌漂浮”，也就是冰激凌和姜啤。老板（The proprietor）用平底酒杯（tumbler）拿来了一份冰激凌，然后在冰激凌上面倒了一些姜啤，姜啤的瓶上带有“斯帝芬森（D.Stevenson）”字样。多诺休太太喝了一口饮料之后，她的杯里又倒满了姜啤，这时她发现了和酒混在了一起的蜗牛残骸。多诺休太太大吃了一惊，并随即闹了一场严重胃肠炎（gastroenteritis），并在医院里住了好几天院。多诺休太太的律师（solicitor）起诉了“大卫·斯帝芬森”（大卫·斯帝芬森是一家生意兴隆的柠檬姜啤厂业主），要求被告赔偿500英镑损害赔偿金与住院开支（damages & costs）。该案最后到了上议院（the House of Lords），在那里该案得到判决，判决结果是原告胜诉，并随之诞生了议长阿特金（Lord Atkin）著名的“好邻居”原则（good neighbor principle）。议长阿特金判决啤酒商存有过失，判定生产商应对最后消费者（eventual consumer）负“注意义务”（duty of care）。该案的影响在于确立了生产商对最后消费者应负责任的义务。法院判定即便在原告与被告之间并无“合同的利害关系”（privity of contract），被告还是要负“注意义务”。 阿特金勋爵的“邻居原则”。这104个英文单词，可能是有史以来从法官口里说出来的最重要的一段话（probably the most important 104 words ever spoken by a judge in the world）。附原文与译文。“The rule that ‘you are to love your neighbour’ becomes in law ‘you must not injure your neighbour’ and the lawyer's question ‘Who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”（对于“要爱你的邻居”变成法律上“不得伤害你的邻居”的规则，还有律师提出的“谁是我的邻居？”这一问题，需要认真的回答。你必须采取合理注意，去避免那些你可合理预见到的、会对你的邻居造成伤害的作为或不作为。那么法律上，谁是我的邻居呢？答案是：那些能够被我的行为密切和直接影响的人；所以当我在决意作为或不作为时，应合理考虑那些可能受到影响的人们。）
(11) thou shalt love thy neighbor：你应该爱你的邻居。这句话中出现了古英语单词，thou等于you，shalt是shall的第二人称单数形式，thy等于your。在现代英语中，这些单词已经不再使用。
(12) proximate cause：近因。A cause that is legally sufficient to result in liability; an act or omission that is considered in law to result in a consequence, so that liability can be imposed on the actor.
(13) detain：扣押，扣留。(1)The action of detaining, withholding, or keeping something in one's custody. (2)The confinement of a person in custody.
(14) libel：书面诽谤。恶意地以虚假的、内容不实的书面（文字、图画、符号等）形式公开诋毁和损害他人名声、人格、信誉的行为。Libel is a false, malicious statement published in mainstream media(i.e. on the internet, in a magazine, etc.).
(15) slander：口头诽谤。指以言词或其他非永久性形式针对他人所作的虚假或诋毁性陈述，它可以作为诉因而被要求损害赔偿。False or malicious claims that may harm someone's reputation. If the defamatory statements are only spoken, they are called “slander”.
(16) Products Liability：产品责任。products liability, the liability imposed on a manufacturer or seller for a defective and unreasonably dangerous product.产品严格责任的认定不要求原告与销售商或是生产商事先具有合同关系。但原告必须证明产品在购买时就具有瑕疵，并且按规定用途进行正当使用。
(17) defective：有缺陷的。
(18) standard of care：注意的标准。In tort law, the standard of care is the degree of prudence and caution required of an individual.
(19) warranty：担保，保证。一方当事人向另一方当事人所作的承诺，如果存在违约或瑕疵，则向被担保方承担赔偿责任。A warranty is an assurance by one party to the other party that certain facts or conditions are true or will happen.
(20) res ipsa loquitur：情况不言自明，即事实本身说明过失。该原则起源于罗马法，即从事实推定行为人具有过失。