Researching Tort Law

Someone has been hurt, or has lost money or property, and wants to know whether the law gives them a claim. The research problem is that "tort" names a category, not a rule. Whether a particular harm is actionable, against whom, with what defences and for what remedy depends on the law of the place that governs it. This guide sets out the vocabulary and an order of work. It does not supply a test that applies everywhere, because the sources describe none.

What a tort is, in the sources' terms

Cornell's overview defines a tort as an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. It separates two words often used loosely: "injury" as the invasion of a legal right, and "harm" as the loss or detriment a person suffers^S10. The aims it lists are relief for injured parties, liability for those responsible and deterrence, and the usual remedy sought is money damages, with injunctions and restitution less common^S10.

The same overview distinguishes torts from crimes, which are wrongs against the state or society, and notes that a breach of contract is not typically a tort^S10. One act can found both tort and criminal liability^S10, which is why a prosecution and a civil claim arising from the same event are researched as separate matters.

Three categories, and negligence as one route

The overview groups torts into three general categories: intentional, negligent and strict liability^S10. Intentional torts concern results the defendant knew or should have known would follow; negligent torts concern conduct that was unreasonably unsafe; strict liability does not depend on the care taken, and turns instead on whether a particular result or harm occurred^S10. It also names specific torts and separate areas, among them trespass, assault, battery, products liability, nuisance, defamation and invasion of privacy^S10.

Negligence is the route most researchers meet first. Cornell describes it as failing to behave with the care a reasonable person would have exercised in the same circumstances, and notes that an omission is negligent only where there was a duty to act^S11. It lists elements that may typically be required: a legal duty owed, breach of that duty, harm, and causation in two senses, proximate cause and cause in fact^S11. Use that list as a set of research questions. The word "typically" matters: the elements, their wording and the defences that answer them come from the governing jurisdiction's own statutes and decisions.

Whose law, and which sources come first

In the United States, the boundaries of tort law are drawn by common law and state statutory law; the overview notes that tort law varies by state and that many courts treat the Restatement of Torts as an influential guide^S10. That suggests an order of reading for an American question: the governing state's statutes and its courts' decisions first, an influential secondary work such as a Restatement to understand them, and general overviews, this page included, for orientation only.

For American source navigation, the United States guide explains the federal and state court split. Record forum and governing law as separate research questions rather than assuming that one answers the other. In code systems the search starts somewhere else again: the civil law guide works through one German provision, and comparative tort research covers how to compare systems without assuming that matching vocabulary means matching rules.

Research steps, in order

1. Describe the harm without legal labels. Who was affected, what was lost or damaged, when and where. Keep facts and conclusions apart.
2. Identify the governing jurisdiction. Note where the events happened and where the parties are, then choose whose law to research first. For an American question that usually means a state^S10.
3. List candidate theories. Consider intentional, negligent and strict liability routes, and named torts such as defamation or nuisance, as possibilities to test^S10.
4. Turn each theory into questions. For negligence: was there a duty, was it breached, was there harm, and was the conduct a cause in fact and a proximate cause? Answer from the jurisdiction's own authority^S11.
5. Read primary authority, then secondary. Statutes and decisions first; a Restatement or treatise to understand them; overviews only for orientation^S10.
6. Check defences, remedies and currency separately. Each is its own research question and each can change. Record the date of every source.

Common traps

• Equating an injury with a claim. Injury and harm are distinct terms, and neither one is liability^S10.
• Treating the negligence elements as a universal checklist. Cornell presents them as typically required, in an American overview^S11.
• Merging the criminal and civil consequences of one event into a single question^S10.
• Assuming that a foreign provision translated as "tort" works like its American namesake. See comparative tort research.

Related reading on this site

• Researching a personal injury questionThe same method applied to injury-related claims, question by question.
• Comparing tort law across systemsA worksheet for comparing liability rules without equating labels.
• Researching Texas lawWhere to find one state's statutes, courts and research guides.
• Civil law: the tradition and the subjectWhy torts sit inside "civil law" in one sense of the phrase.

This is a guide to the vocabulary and sources of tort law. It does not assess any claim and it is not legal advice.

Sources checked 2026-10-03. 2 sources cited on this page.