Tort law consists of a number of different causes of action which are seemingly unrelated except that all involve civil wrongs, other than mere breaches of contract. The various torts have different elements; some, like the nominate or intentional torts, very specific; others, like negligence, more general and vague. There is no apparent, coherent, or consistent structure applicable to all torts. This Article articulates just such a unified structure for all torts: one that arises out of and is based upon the elements of negligence. All torts involve the judicial delineation of the defendant's duty or legal obligation. All torts require the factfinder to decide if the defendant satisfied or breached that legal obligation. All torts involve a question of factual cause, or cause-in-fact, and, there is always an actual, or muted, consideration of legal cause. Finally, the factfinder considers and, if appropriate, awards damages--unless the plaintiff seeks some alternative remedy, in which case the judge may decide the remedial question. After articulating the structure, this Article applies it to a number of torts--products liability, absolute liability, defamation, and battery. Through the process of articulating and applying the structure, it becomes clear that there are legal questions involving the precise scope and extent of the defendant's duty or legal obligation within all of the various elements. This Article makes those issues plain and emphasizes that they are really questions of the defendant's duty.
Tort theory, Strict liability, Torts, Product liability, Obedience (Law), Breach of contract
Date of Authorship for this Version
Thomas C. Jr. Galligan, The Structure of Torts, 46 Fla. St. U. L. Rev. 485 (2019).