How Torts Protect Us

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T. Jake Hinkins contact

Contact T. Jake Hinkins

South Jordan, UT

Practice Areas: Business, Child Custody

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To anyone familiar with law terminology, protection through torts may seem like a contradictory phrase, maybe a bit of an oxymoron. Isn't a tort, after all, a cause of action (or, in other words, a lawsuit) that arises from some type of wrongdoing? How then, you may ask, can suffering some kind of wrong serve as a protection?

Criminal vs. Civil Charges

Before getting to that answer, a further brief introduction or review of the terms may be helpful. When someone is harmed, there are generally two types of charges that can be brought against the wrongdoer: criminal charges or civil charges. The criminal charges that are brought are left up to the determination of government officials, generally prosecutors. The civil charges, however, are charges that can be brought by one individual or company—the victim—against another individual or company—the "tortfeasor" (the individual that committed the tort). For example, if while driving, you are rear-ended and injured by another driver who was fiddling with the radio or texting, you very likely have a cause of action, as the victim of a tort, against the other driver, the tortfeasor.

So again the question, how does suffering a wrong provide protection? The answer is incentive: lawsuits provide incentive for people performing actions around us to do them in an appropriate manner. Granted, in an ideal world, people would always perform their actions in a reasonable manner because of the care and respect they feel for others. But in reality, the desire to avoid punishment is often the factor that drives people or businesses to this level of reasonableness. When they fail to be reasonable, tort cases are the mechanism available for holding them responsible for their misconduct.

How does Tort benefit you?

Think, for instance, of the last time you were driving through a construction zone on a highway. Construction zones, which are especially common in the summertime, are dangerous because of the way they change the layout of the road and the otherwise predictable flow of traffic. As a driver traversing the zone, you are not familiar with how the lanes have been changed. Sometimes two lanes of traffic are narrowed into one. Sometimes lanes are shifted over entirely.  Whatever the change, you need to be warned that conditions are different. While it would surely be cheaper to forego warning signs, cones, or other caution devices, a construction company that fails to provide sufficient warning could be liable to commuters that are injured while driving through the zone. This potential liability incentivizes companies to provide adequate warning to ensure the safety of drivers and others; in other words, the companies' awareness of possible tort claims that could be brought against them provides protection. Generalizing the principle from the example, torts give people or companies incentive to stop and consider how their actions or lack of action will affect others.

With this realization in mind, consider the numerous things you do in the day that are made safer because businesses and individuals know that they may be held liable for failing to act reasonably. Our cars don't fall apart as we drive them. Buildings don't collapse as we enter them. Foods don't poison us when we eat them. Dog owners don't allow their dogs to run around biting neighborhood children. If you take time to think about it during the day, you will notice many things that you can do without being harmed because the law of torts has provided incentive to ensure such things are done according to an appropriate standard. Whenever such standards of reasonableness fail to be met, torts provide the means for demanding responsibility and providing protection for yourself and others.  As a business owner, it is important to be aware of the potential pitfalls so that you can avoid them.

From the author: Utah Business Attorney
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