What You Should Know About the Law of Torts for Your Small Claims Suit - dummies

What You Should Know About the Law of Torts for Your Small Claims Suit

By Judge Philip Straniere

There are two areas of law that are litigated in small claims court: tort law and contract law. A tort is a civil wrong other than breach of contract. A civil wrong is a wrong against an individual committed by another individual, a business, or the government.

Intentional torts

Many intentional torts have a criminal law equivalent. Just remember that you’re in small claims court, a civil arena, and are looking for money from the defendant. One major downside of suing for an intentional tort is that insurance usually doesn’t cover the defendant. If you win your case, you’ll be trying to collect directly from the defendant.

Intentional torts include

  • Assault is the apprehension or perceived threat of unauthorized touching of one person by another person.

  • Battery is the actual touching.

    Assault and battery are often linked together in tort law. In criminal law in many states, the term battery is no longer used and the tort of battery is part of the crime of assault.

  • Defamation is the intentional making of a false statement about a person that injures her reputation. Libel and slander are the most common examples of defamation. If the statement is in writing, it’s libel. If the statement is made orally, it’s slander.

  • False imprisonment is sometimes called false arrest. Ironically, there is no need for you to be taken into custody by the police — although a wrongful arrest can lead to the tort being committed. False imprisonment arises when you reasonably believe you can’t leave the location you’re in. Most of these claims arise when persons are wrongfully stopped at a store and accused of shoplifting.

    Whether the store calls the police is not necessarily important; the issue is whether you think you can’t leave the store. Obviously if you’re shoplifting, you can’t sue for false imprisonment. Also most states now have anti-shoplifting statutes permitting store owners who have a reasonable belief that a person was shoplifting to stop that person, and make an inquiry in a reasonable manner without the store being liable.

  • Trespass is intentional interference with someone’s property. Trespass cases are often brought in small claims court because the monetary damages usually aren’t very high.

    There is a difference between trespass to personal property — the unauthorized use of someone’s personal property that you eventually return — and conversion, the taking of someone’s personal property with the intent not to return it or the inability to return it.


Negligence is by far the most common type of tort action. Negligence involves the defendant breaching a recognized standard of duty to the plaintiff and the plaintiff suffering an injury as a result.

The most common type of negligence action is seeking monetary compensation after the defendant injures you or your property in some way.

For example, you come across an automobile accident. A car is wrapped around a tree. The driver is unconscious. You try to open the car door, but the door won’t open. You panic, thinking you have to act immediately because you think you smell gasoline. In desperation, you shoot the lock off the car door. The driver is now deceased, having suffered multiple bullet wounds.

The autopsy reveals that the driver was only momentarily stunned by the accident and would have walked away from the crash virtually unscathed.

The driver’s family can sue you for negligence because you acted in an unreasonable manner under the facts and circumstances existing at the time.

Strict liability actions

A third class of tort law is called strict liability in tort. The idea in these kinds of cases is that that the defendant engaged in an ultra-hazardous activity and that the plaintiff suffered an injury as a result of it. The law permits the plaintiff to receive monies because the defendant’s activity is inherently dangerous and even if the defendant does everything correctly, an injury may still occur.

Strict liability actions are rarely brought in small claims court because the legal issues are often very complicated and the damages suffered are beyond the monetary limits of the court.

As an example, say you’re hired to demolish a building. You follow all the instructions and procedures perfectly. However, because of the concussion of air naturally arising from this activity, the windows on a building a few blocks away are broken. You’re strictly liable for the damage suffered. It’s not a defense that you did everything properly.

Products liability actions

Products liability claims arise when a person is using a manufactured product in the proper manner for which it is designed and for a proper purpose but the person suffers an injury.

It’s very unlikely that this type of litigation would ever be handled in small claims court because of the nature of the injuries received, the complexity of both legal and technical issues, and the fact that the probable defendants may be located in other states or other countries.

Say you buy a new car. The first day you’re driving it, the steering wheel comes off in your hands. Under the common law if you sued the car dealer, the dealer would have a defense alleging that it was not negligent because it did not manufacture the car. The dealer would claim it sold you the car so it only had a contractual relationship with you.

If you sued the manufacturer, the manufacturer would defend saying although it made the car, it had no contract relationship with you. It provided the car to the dealer who sold it to you.

Products liability cases allow the injured party to sue both the manufacturer and the dealer. The manufacturer’s liability is based on the idea that it made a product and put that product into the marketplace knowing someone would buy it. The dealer’s liability is based on the idea that it has a duty to inspect or even test the vehicle before selling it.