Tort Liability, or Who is Responsible for Damages?

hitchhiker on the side of the road

A “tort” is what it’s called when someone commits a wrongful act for which they can be held responsible. California tort law dictates that a person may be held liable under one or more of the following theories.


The negligence standard is the most widely known form of tort liability, and the most commonly used in car accident or truck accident cases. The fact finder must determine the following in order to find a party negligent:

  • Duty: The party must owe some legal duty to the other.
  • Breach: The party must have breached the duty.
  • Causation: Said breach must be the actual and proximate cause of the damages.
  • Damages: The injured party must have suffered some damage.

When a person is found to be negligent, they are legally responsible for the damages incurred by the victim. In a car accident case, every driver has a legal duty to exercise caution and obey the laws when driving. If the driver makes dangerous choices, like texting while driving, they are breaching that duty.

Strict Liability

Less straightforward is the strict liability standard. If a personal is held to be strictly liable, this means that a finding of intent or negligence is not required. This area is primarily confined to ultra-hazardous activities and product liability cases, but can also apply to employment cases as well.

An activity is ultra-hazardous if it is so inherently dangerous that even the highest degree of care will not eliminate the risk of harm.

If someone is injured because of such activity, the defendant is liable regardless of the level of care he or she exercised. Some examples of ultra-hazardous activities include:

  • handling, storing and transporting explosives
  • discharge of any toxic substance in or on any waterway
  • causing or permitting oil to be discharged

barrels of oil that may cause tort liabilityA familiar example of the latter was the Exxon-Valdez oil spill. In the wake of that tragedy, strict liability provisions of the Refuse Act and Migratory Bird Treaty Act meant that oil carriers would be liable for any violation, regardless of whether it occurred accidentally or as a result of intentional misconduct. Both scenarios are handled the same when viewed through the lens of strict liability. The Restatement of Torts Section 520 states that in determining whether an activity is, in fact, “abnormally dangerous”, a court will consider the following:

  • The existence of a high degree of risk of harm to the person or land.
  • The likelihood that the harm that results from it will be great.
  • The inability to eliminate the risk by the exercise of reasonable care.
  • The extent to which the activity is not a matter of common usage.
  • The inappropriateness of the activity related to the place it occurred.
  • The extent to which the value to the community is outweighed by the danger.

Vicarious Liability

Vicarious liability makes one person responsible for a wrongful act committed by another person. There are a number of contexts in which this situation arises.

Read how vicarious liability applies to teen driving accidents.

Respondeat Superior

Under the doctrine of respondeat superior, an employer is liable for an employee’s harmful actions if the employee was acting within the scope of employment. How do we determine “scope”?

  • The conduct must be authorized by the employment.
  • The employee must have been motivated, at least partially, by a purpose to serve the employer.
  • The act must have been of a kind that the employee was hired to perform.

Example: An employee is driving a car during standard business hours, delivering supplies from one office to another. During that time, he strikes and injures a pedestrian. Was this work in the scope of employment?

  • If it occurred while on the clock, from one office to another at the behest of the employer, it is considered within the scope.
  • If the employee was taking lunch to a co-worker whom he was dating at another job site and it occurred during his lunch hour or on his way home, the employer may not be liable.

Someone who engages an independent contractor is not liable to others for the acts or omissions of the independent contractor. An independent contractor is a person who performs services for another person under agreement and who maintains control over the way he performs the work.two people who are jointly liable holding a dollar

Joint and Several Liability

If two or more people are found liable for an injury, they will be held jointly and severally liable. This means that each person is liable for the entire award regardless of the individual degree of fault. Because a so-called “deep pocket” defendant may be held liable for an entire damage award even if he is only partly responsible, California has modified the doctrine of joint and several liability for personal injury cases. To apportion financial liability closer to the degree of fault, California does not apply several liability for non-economic damages.

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