Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 1. Introduction
function of the criminal justice system. The remedies in a torts case aim not to punish the
defendant, but to compensate the plaintiff, almost always through a monetary award, aimed at
making up for losses, and sometimes (though much less often) through an order by a court
requiring that a defendant cease some ongoing course of conduct. The exception to this rule is the
doctrine of punitive damages, which consist of monetary sums awarded by a judge or jury for the
purpose of punishing tort defendants, and which are awardable in torts cases involving some
especially outrageous or reckless conduct. As we shall see, even though punitive damages are
rare, they have attracted considerable attention because of concerns that they punish without the
institutional protections offered to criminal defendants. The United States Supreme Court has
significantly constrained the size of possible punitive damages awards in recent years.
Tort law is a field not merely of civil law: it is a field of civil law wrongs. The term “tort”
comes from the Latin meaning bend or twist. (It shares the same root as the word “torture.”) For
centuries, tort law has thus been connected indelibly to the moral concept of wrongfulness. Most
areas of tort doctrine thus ask about the wrongfulness of the parties’ conduct. Some domains of
tort law purport to do away with the concept of wrongfulness. Since at least the middle of the
nineteenth century, important areas of the law (urged on by prominent jurists and commentators)
have embraced so-called strict or no-fault liability doctrines that ostensibly allocate accident costs
without regard to questions of wrongfulness. In the field of product-related injuries, for example,
which we will spend considerable time discussing later in this book, doctrine has moved toward
eliminating fault or wrongdoing from the analysis. Such “no fault” approaches remain the
exception to the rule.
Last, tort law is a common law field of civil wrongs not arising out of contract. This
means that, as a conceptual matter, the obligations that tort law recognizes exist independent of
any agreement between the parties. For a person to have a legal obligation to another arising out
of tort law, they need not have promised the other person anything. The law of torts itself, not the
terms of any agreement, specifies the contours of the obligations it enforces.
Yet this final piece of our definition, like each element of the definition that has preceded
it, comes with caveats and exceptions, two of which are worth noting here. First, many and
perhaps even most torts cases do arise out of the interactions of parties who are in contractual
relationships with one another, or at least in relationships akin to contracts. Consumers of
products contract with sellers to buy those products, but if they sue for product-related injuries,
they often sue in tort law. Patients of doctors enter into contracts to purchase medical services,
but if they sue when those services go awry, they usually sue in tort law. And even when there is
no formal contract, there are often relationships or social roles that could be construed as setting
the terms of the parties’ interactions. Social settings such as classrooms or playgrounds, as we
shall soon see, typically come with informal conventions and codes of conduct. Such conventions
and agreements are crucially important in modern tort law. They require that we decide whether
and when tort law should defer to private agreements and when it should override them, especially
when they purport to abolish tort obligations altogether.
Second, and just as significant, contracts are vital for the resolution of tort claims because
in the real world virtually every successful tort claim is resolved by a special kind of contract
called settlement. Contracts of settlement discharge the underlying tort obligation and render it a
contractual obligation to pay some or all of the damages the plaintiff sought. In the everyday
practice of tort law, such settlement contracts are pervasive. No one really knows what
percentage of tort claims settle, but the percentage is thought to be stunningly high, probably well
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