Torts: why O.J. Simpsons was acquitted in criminal court and found liable for the tort of wrongful death.

In this third chapter I will try to analyze one of the major areas of law along with contracts, real property and criminal law: tort law.

First, what is a tort? A tort, in common law, is a civil wrong (wether intentional or accidental), other than a breach of contract, from which injury or harm occurs to another. This results in a legal liability for the person who commits the tort, also known as the tortfeasor.

To make it clearer, tort law is what in the Italian legal system is known as illecito civile extracontrattuale, which is established in article 2043 of the Civil Code that establishes the obligation for anyone who unfairly causes another to suffer an unjust loss or harm to pay the damages to the injured party.

The main difference is that under civil law jurisdictions, every kind of damage cause (at least) by negligence is considered unlawful (with the subtle distinction that in Italy, the damage has also to be unfair=danno ingiusto). It is what in law school is called principle of “atypicality”.

On the other hand, in common law systems there is a series of unlawful facts, i.e. torts, each one with its own discipline based on judicial precedents and its own cause of legal action (in law-language: principle of “typicality”).

So we can say that, in the U.S., tort law defines what a legal injury is and wether or not a person will be held liable for the injury he\she has caused. Legal injuries can be physical, emotional or economic as well as violations of property or privacy and the victim can file a lawsuit requesting damages for the harm or loss he\she suffered.

While most of the torts are the result of negligence, tort law also recognizes intentional torts and, in few cases, strict liability (i.e. being legally responsible for the damage caused regardless of the culpability = responsabilità oggettiva).

That being said, we can divide this huge category (tort law results in more civil litigation than any other category) into the following three sub categories: negligence tort, intentional tort, and strict liability tort, and analyze them separately.

Negligence torts

Negligence is a failure to exercise the care that a reasonable person would use in likewise circumstances. In case of tort law, negligence involves harm caused by carelessness and not intention.

A plaintiff, in order to win a negligence suit, has to prove 4 elements:

1)Duty = the plaintiff was owed a duty of care, i.e. a duty to conduct as a reasonable person, or a particular duty of care based on specific relation between him and the defendant (i.e. patient-doctor);

2)Breach of duty = the defendant breached this duty;

3)Cause = the breach must be the actual and proximate cause of the plaintiff's harm;

4)Harm = the plaintiff must have suffered harm as result of the defendant breach.

Intentional torts

An intentional tort is an injury caused by someone who meant to cause physical, mental or economic harm to another person or thing, i.e. any act that is foreseeable to cause a damage and that does so. The plaintiff does not have to show that the defendant intended to cause injury; it is enough that the defendant intended a particular result.

Examples of intentional torts can be assault, battery, intentional infliction of emotional distress, false imprisonment, trespassing and defamation.

Strict liability torts

Strict liability makes a person legally responsible for a harm or loss caused by his\her acts regardless of his\her culpability. This is because even if there is no negligence, public demands strict liability on situations that are considered inherently dangerous. In tort law, strict liability is present in only the following cases:

• ownership of wild and dangerous animals;
• hazardous activities (i.e. demolition company);
• product liability

In these cases, the plaintiff has only to prove that the tort occurred and that the defendant caused it.

Strict liability in civil law is also present in the Italian system, under the name of “responsabilità oggettiva”. The cases of responsabilità oggettiva are listed in the Civil Code from article 2048 to article 2054, that declare the strict liability of\for:

• parents and tutors for the under-age individuals;
• owners for the actions of their servants;
• hazardous activities;
• damages caused by things held in legal custody;
• damages caused by animals (domestic or not);
• collapse of a building (the owner is responsible for any damage derived from the collapse of his\her building)
• circulation of vehicles (the owner of a vehicle is responsible for any damage derived from the circulation of his\her vehicle).

Now, if you have gotten to this point, we can answer the question in the subtitle, and maybe some doubts from Italian law-students.

Some torts, for example intentional torts like assault or battery (causing or threatening to cause physical damage), may also be prosecuted as crimes. These are the huge differences between criminal law and tort law:

• first, a tort is a civil wrong for which the remedy (damages) is pursued by, and at the discretion of, the injured individual or his or her representative, while a crime is a wrong for which the accused is prosecuted by the state for the purpose of punishment;
• second, and more important to answer our question, tort lawsuits have a lower burden of proof such as preponderance of evidence (the proposition is more likely to be true than not true) rather than beyond a reasonable doubt (proposition being presented by the prosecution must be proven to the extent that there could be no "reasonable doubt" in the mind of a "reasonable doubt" that the defendant is guilty);

• third, the victim of a crime can seek recovery (i.e. asking for damages) from the offender in a civil action for tort.

This is why it may happen that a defendant can be found liable in a tort lawsuit even though he was acquitted in a previous criminal trial, which is the case of O.J. Simpson, who was acquitted in criminal court and later found liable for the tort of wrongful death.