Updated: Aug 11, 2022
At Wilkerson Law Group, we regularly speak with people who have questions about their respective situation and how it applies to the law. A very common question that nearly all of them ask is, “Do I have a case?” Not everybody we speak to has a case. There are many reasons an attorney would decide whether or not to take on a case, but one of them depends case meets all the elements of a tort: duty, breach, causation or injury, and damages.
What is a Tort
Before we delve into these elements, let’s first establish what a tort is. The legal definition of a tort is “an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.” Many attorneys specialize specifically in tort law. It can be very deep and very complex. The whole purpose of tort law is to help an injured party receives compensation for damages. Compensation for damages is usually obtained by suing the offending party or coming to a settlement agreement.
Elements of a Tort
Demonstrating the existence of a tort requires proving the existence of the four elements listed above in your case:
The offending party had a duty to act a certain way.
The offending party committed a breach of that duty.
An injury was caused to you.
The breach of that duty resulted in damages against you.
For 18 years, Dr. Larry Nassar was the team doctor for the US women’s gymnastics team. He habitually took advantage of his position to sexually abuse women, including minors. After receiving multiple tips in 2015, the FBI failed to investigate and arrest Dr. Nassar, allowing him to continue abusing girls and women. It wasn’t until a couple of years later that he was finally indicted and sentenced to 175 years in prison. The FBI had a duty to investigate the accusations of sexual abuse, including sexually assaulting children as young as six. They breached their duty by failing to investigate and notify state and local law enforcement; it is alleged that the FBI had knowledge of abuse and that he had child pornography for at least five years. The alleged failure of the FBI caused Dr. Nassar to continue abusing women for several more years before finally being arrested by state law enforcement. Now, over 90 women who were reportedly abused by Dr. Nassar are suing the FBI for their gross negligence and seeking approximately $1 billion in damages.
Types of Torts
There are three different kinds of torts: intentional torts, negligent torts, and strict liability. Each of these torts must almost always consist of the four elements listed above.
An intentional tort occurs when a person has intentionally committed an act resulting in a civil wrong against another person. This type of tort is different than most others because it is something being performed on purpose, whereas the other two are accidents. The most common example of an intentional tort is assaulting another person. Other common examples include fraud, misrepresentation, and defamation.
Depending on the state and jurisdiction, intentional torts are also crimes. However, there is an important difference between the two. A tort claim is brought before the court as a civil suit where the injured party seeks monetary damages. A criminal proceeding is brought before the court by the state or federal government for violating criminal statute. Unlike a civil suit, there is usually no monetary compensation for damages. Rather, the goal is to protect the public and penalize the criminal. In criminal cases, the injured party may still be able to sue for damages in a civil suit.
The recent high-profile lawsuit between Johnny Depp and Amber Heard is a prime example of an intentional tort. The suit was over defamation. Both parties claim that one defamed the other, which resulted in them both losing major movie contracts and millions of dollars. People have a duty to refrain from spreading false information that would negatively affect that person's life (i.e. loss of employment, damaged reputation, etc.). Heard breached that duty by writing an op-ed in the Washington Post accusing Depp of domestic abuse and sexual violence. Depp sued Heard claiming that her op-ed caused Depp to lose millions of dollars in movie contracts. Heard countersued for essentially the same reason. Depp was awarded $10.35 million in damages while Heard was awarded $2 million.
Unlike intentional torts, negligent torts are harms done through the failure of another person to exercise a certain level of care. In other words, they are unintentional accidents. Many torts fall under this category. The four elements of a tort claim are most prevalent and necessary in a negligent tort.
Negligent torts comprise a vast majority of personal injury cases, ranging from car accidents, slip and fall injuries, and others. Medical malpractice and wrongful death claims are also examples of negligent torts.
Landlords have a duty to repair and maintain the properties for their tenants. Say, for example, a landlord fails to replace the batteries or repair a smoke detector because they were lazy. Now they have breached their duty to maintain the property. One day, while the tenant is taking a nap, an appliance malfunctions and starts a fire, and the smoke alarm doesn’t go off. Maybe the tenant, a family member, or their dog was killed. At the very least, the apartment burned down with everything in it and the fire department didn’t arrive in time. Because the landlord failed to maintain the smoke alarm, this has caused a wrongful death or property damage. The tenant may now have a case to sue for damages.
Strict Liability Torts
Strict liability torts differ from the previous two in that care or carelessness aren’t a factor in the case. Negligent torts involve a degree of carelessness that results in somebody getting injured. The landlord mentioned above didn’t maintain the smoke detector because he was lazy and didn’t care. Strict liability cases focus solely on the harm caused. Defective products or dog bites are common examples. If your dog attacks another person or their dog, you may be held liable even if you didn’t intend that to happen.
The Tobacco Master Settlement Agreement is one of the most famous examples of a strict liability tort. In 1998, Philip Morris, R.J. Reynolds, Brown & Williamson, and Lorillard were sued by attorneys general from 46 different states claiming that smoking causes cancer and addiction. These tobacco companies failed to provide any disclaimer to customers that smoking is hazardous. In this case, it was established that these tobacco companies had the duty to warn their customers about the dangers of smoking. They breached that duty by failing to make those dangers known. Their failure caused many customers to develop lung cancer among other life-threatening respiratory diseases. The final settlement required these four companies to pay $206 billion in damages, making it the largest settlement in US history. They also agreed to stop certain marketing practices and fund anti-smoking campaigns.
These tobacco companies didn’t sell their products with the intention of causing cancer in their customers. Unfortunately, that was what ended up happening. Because of that, they were held liable for producing those products.
Important Things to Keep in Mind
If you find yourself in a situation where there was a breach of duty and you suffered a loss as a result of that breach, it’s likely that you will meet the criteria of one of the torts described above. However, there are a few things to keep in mind:
Not every case is a good case
Although you may have a case, it doesn’t mean that it’s a strong one. If you are unable to provide sufficient evidence to support your claim, you may lose. Speculation, word of mouth, and sometimes eyewitness testimony are not enough to prove your case. Solid evidence may consist of video or audio footage, medical records, or DNA samples.
It may be true that someone may have wronged you and you have every reason to be upset. However, taking a person to court isn’t always the correct way to resolve every issue.
If you have a case that isn't very good, and you take it to court, there is a good chance you will lose. By doing this, you will have only made matters worse because now you have legal fees you didn't otherwise have to pay.
Lawsuits are expensive
Unless your attorney is working on a contingency agreement where they only get paid if they win, you’re going to have to foot the bill for the lawsuit. Lawsuits are usually never less than a few thousand dollars and the sky is the limit for how expensive they can get. Some go into the million-dollar and even the billion-dollar range.
The larger the settlement, the more money that will go into the case. That means more expert witnesses, more legal fees, more court costs, and more money that you will have to pay.
Lawsuits are not get-rich-quick-schemes. Large settlements only go to those who have legitimately suffered life-altering damages. The actual quality of life (not the perceived quality) for these people will never be what it once was. Many people who have been wronged, or believe they have been, will think that they can just sue the other party for $500k and then purchase a sweet new boat. Settlements are determined based on the loss and the cost required to compensate for that loss. If not all, a large portion of the settlement money will go to attorney’s fees, usually towards medical bills, and to restore any other loss incurred.
Detach from your emotions
Suing somebody to “teach them a lesson” is an extremely poor way to manage your finances and your time. Just because an organization or a person has wronged you or treated you unfairly doesn’t mean that you should sue them to punish them. The primary purpose of a lawsuit is to compensate for damages, not to slap a person on the wrist.
Lawsuits aren’t always worth it. If you’ve only suffered a few hundred bucks or even a couple thousand dollars worth of damages, you will end up spending more money on a lawsuit than the loss you originally suffered. It’s easy to get caught up in the anger and frustration of a loss, but suing the offending party won’t always make things better. Sometimes it makes things worse.
Lawsuits usually take several years. So, if you're angry about the local mechanic ruining your car, don't expect a lawsuit to fix things in a week or two. You will probably be dealing with this issue for several years to get it resolved if this is the route you want to take. Lawsuits are things you have to commit to 100% for long periods of time. They are not easy.
The objective of this article was to provide information to consider for your situation. We hope this helps to answer the question “Do I have a case?” If you feel you do have a case, or if you have more questions, please contact us. We would be happy to discuss your case further and see what options are available to you.