Essential Law: A Closer Look at the Four Elements of a Tort

Essential Law: A Closer Look at the Four Elements of a Tort

We’ve all had experiences where we felt like we were wronged. Someone cuts us in a long line, or we pay a price for something that simply feels “criminal.” The opposite can also be true: Maybe we’ve had accidents and never even considered that someone else might have been at fault, like slipping on an icy sidewalk. So was your experience simply an accident – or was it a tort? And what are the elements of a tort?

What Is a Tort?

A tort is an act of wrongdoing that results in harm to another person. The act doesn’t have to be intentional, and it can also include a failure to do something, for example, failing to maintain a safe business, resulting in a slip-and-fall accident. The harm can be an actual injury, or it can be emotional distress and a violation of rights. Tort law is the process of remedying this harm in civil court, usually through monetary compensation.

History of Tort Law

By law, people who cause harm can be held responsible for their actions. The concept of a tort has been around in English law since at least the 16th century, when records show evidence of torts like medical malpractice and defamation. Americans brought these laws with them to the New World and evolved them in certain ways.

Types of Torts

The law recognizes three types of torts:

  • Negligent: Doing harm to someone by failing to use a reasonable standard of care – essentially, an accident. In a negligence tort, the person bringing the lawsuit (the plaintiff) must prove that the defendant’s “breach of duty,” or failure to anticipate or prevent harm, directly caused their injury.
  • Intentional: Causing harm through “willful misconduct” – as the name implies, intentionally. Some of the most common intentional torts are defamation (damaging someone’s reputation) and inflicting emotional distress. Fraud, theft, and battery are also intentional torts, in addition to being crimes.
  • Strict Liability: Producing a defective product that causes harm. This is the only type of tort that doesn’t depend on the defendant’s intentions. Whether or not they intended to cause harm, they can still be held liable for it. The plaintiff doesn’t need to prove that they were negligent.

The Four Elements of a Tort

The four elements of a tort typically relate to negligence torts. With an intentional tort, the person did something on purpose, not negligently. And with a strict liability tort, it doesn’t matter whether the person or company was negligent.

The majority of torts, especially personal injury cases, are about negligence. In these cases, the plaintiff must prove the four elements of a negligence tort to win in court. These elements are incredibly important – if you can’t meet the burden of proof for any one of them, you won’t win your case.

1. Duty of Care

First, the defendant must have owed the plaintiff a duty of care. This means they had a responsibility to act with a certain amount of attention toward the plaintiff. Duty of care can vary based on the case: In an auto accident, the driver had a duty not to hurt others; in a medical malpractice case, the doctor had a duty to provide care that’s up to the standards of the medical community. Courts will usually find there was a duty of care if:

  • The defendant was involved in directly creating the risk.
  • The defendant had volunteered to help or protect the plaintiff and failed.
  • The defendant knew or should have known that their actions would cause harm.
  • The defendant had a business relationship or voluntary relationship with the plaintiff.

However, some laws around duty of care vary by state. For example, Oklahoma premises liability law follows the “attractive nuisance doctrine,” which means property owners have a duty to secure things that might attract children or teenagers. On the other hand, Oklahoma has passed a “Good Samaritan Act,” which protects doctors and other medical professionals from being sued for providing emergency medical assistance “in good faith,” such as when someone provides CPR.

2. Breach of Duty

Once duty of care is established, the plaintiff must prove the defendant violated that duty. This element of a tort relies on what’s known as the “reasonable person” and “reasonable care” standards. If a reasonable person would have known or should have known that their action (or lack of action) could harm someone, they’re in breach of duty. Reasonable care is defined as “the level of care that a reasonable person would exercise in such circumstances.” If the defendant didn’t use reasonable care, for example, driving with their headlights off or texting while driving, they’re in breach of duty.

3. Causation

The third element of a tort is causation: This is where the plaintiff needs to prove that the defendant’s actions caused their injury. There are actually two types of causation:

  • Actual cause is the direct agent of the harm: A runaway truck hits several cars on the highway, leading to injuries.
  • Proximate cause is the legal agent of the harm: The trucking company failed to perform safety inspections, and the brakes gave out.

In our trucking accident example, the person who was behind the wheel might not be found liable – the trucking company could be.

We can determine causation using the “but-for test,” which asks, “but for the existence of X, would Y have occurred?” Put another way: Would the harm have occurred if the defendant had not acted (or failed to act) in the way they did?

In our example, we can ask: Would the harm have occurred if the trucker was driving more carefully? Chances are, the answer is “yes,” since driving more carefully probably wouldn’t prevent the brakes from failing on a hill. But would the harm have occurred if the trucking company had not failed to inspect the truck? The answer is no – this is the proximate cause.

4. Damages

The term “damages” refers to both the harm that the plaintiff suffered and the actual money that is awarded to them. There are three types of damages that make up this element of a tort:

  • Compensatory damages: This is direct financial harm, like medical bills, lost wages, or property damage. It can be calculated by adding up the costs of something.
  • Indirect damages: These are non-monetary damages, like pain and suffering, mental anguish, loss of reputation, and loss of companionship in wrongful death cases.
  • Punitive damages: These damages are usually awarded when there is “egregious” harm, meaning it’s either especially bad or was caused intentionally.

There’s no formula to calculate indirect and punitive damages, and every case is unique. For pain and suffering, lawyers and judges will look at the facts of your case, for example if you were permanently disabled or financially ruined.

For punitive damages, they’ll look at previous cases similar to yours, in addition to considering your pain and suffering. In Oklahoma, punitive damages can’t be more than $100,000 or three times the amount of economic damages awarded in a case.

Common Defenses to Torts

Remember, it’s up to the plaintiff to prove their case meets all four elements of a tort. Defendants will often use one of these arguments to protect themselves.

Assumption of Risk

Assumption of risk means the plaintiff knew of and voluntarily accepted the risk of their actions. This is why many potentially dangerous activities, like skydiving or renting a boat, involve signing waivers, which means the participant assumes the risks. But assumption of risk doesn’t have to be contractual: If you’re hit in the head with a foul ball at a baseball game, it’s likely you knew that baseballs would be flying through the air. As long as the stadium took reasonable safety precautions, they likely wouldn’t be found liable.


Consent is similar to assumption of risk, but is more direct: It’s when you voluntarily agree to something that someone else proposes, either verbally or in writing. For example, most surgeons will inform you of the risks of a procedure and get your consent before performing the surgery, which can help protect them if something goes wrong. To legally consent to something, you must be mentally able, and the person making the proposal must not be using coercion or fraud.

Comparative Negligence

Oklahoma follows a rule known as comparative negligence, or comparative fault. Title 23, Section 13 states that if “any negligence of the person so injured, damaged or killed [the plaintiff], is of greater degree than any negligence of the person, firm or corporation causing such damage,” the plaintiff can’t recover damages. Put simply, if the plaintiff is more than 50% at fault for their own harm, they won’t have a case.

Statute of Limitations

The statute of limitations is the amount of time the plaintiff has to file a case. In most personal injury cases, Oklahoma plaintiffs have two years from the date of the incident – if more than two years have passed, they won’t be able to bring a lawsuit. But there are exceptions: Defamation cases only have one year, while birth injury cases can be filed up to seven years after the date of the harmful act.

The Bottom Line

If you’re thinking of pursuing a personal injury case, it’s important to understand the four elements of a tort. But it’s even more important to talk to an experienced lawyer. Even if you’ve read this article and think your case doesn’t meet these standards, a professional opinion is the only way to really be sure. The Oklahoma Injury Guy will give you a free case evaluation. Just fill out the form here to start the conversation!