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Overview of Torts

Tutorial on tort law for judges in New Mexico.

Torts and How They Are Different From Crimes

In general, a tort occurs when someone either intentionally or negligently causes injury to another person or his property. It is a civil wrong, which comes to the court as a private lawsuit, as opposed to a criminal matter, which is prosecuted by the government on behalf of the citizenry as a whole. If a plaintiff proves that a defendant has committed a tort and that the plaintiff has suffered damages as a result of it, then the court can order the defendant to compensate the plaintiff for her losses. In a criminal case, by contrast, the defendant who is convicted pays a fine to the government, serves jail time or is placed on probation as punishment for the crime.

Most crimes against another person or his property are also torts against that person. But many torts are not crimes, because a person cannot be fined or imprisoned for committing them.

The Common Law

Tort law is also distinguished from criminal law in that torts are largely found in the common law, rather than in the statutes. Common law is handed down from generation to generation and continues to change as judges write legal opinions on the cases they hear. Many of the basic principles of tort law are centuries old. Although some of the terms used to define torts – such as assault and battery – are also used in criminal statutes, they are civil wrongs when a victim files suit and asks the court to award money damages.

The Burden of Proof

There are other differences between civil and criminal cases. A prosecutor in a criminal case must prove the guilt of the defendant beyond a reasonable doubt. A plaintiff in a civil lawsuit for damages must prove by only apreponderance of the evidence that the defendant committed a tort and that the plaintiff suffered some loss for which she can be compensated. Preponderance of the evidence means the greater weight of the evidence, or that something is more likely true than not true. Medical expenses, loss of income, repair costs, personal injury, and/or pain and suffering are examples of compensable losses.

The Significance of Intent

Another important difference between civil and criminal cases is that to convict a defendant in most criminal cases (with some exceptions) the prosecutor must prove beyond a reasonable doubt that the defendant not only did the criminal act, but that she intended to do it. By contrast, a defendant may be liable for damages in a tort case for an injury that he causes, even if it was an accident.