Tort Law : Personal Injury and Property Damage

Most of us heard of the McDonald’s coffee case where seventy-nine-year-old Stella Liebeck was awarded damages of almost US $ 3 Million because of McDonald’s served her a coffee that was “too hot.” Liebeck bought a cup of coffee for US$0.49 at a drive-thru McDonald’s in New Mexico and placed the cup between her legs to open its lid. She ended up spilling the coffee and scalding herself in the process. She sued McDonald’s, alleging that the coffee served to her was “too hot,” and the jury awarded her US$160,000 as compensatory damages for her injuries and US$2.7 Million as punitive damages on McDonald’s. While the punitive damages were substantially reduced on appeal, Liebeck v. McDonald’s Restaurants indicates how broadly can Tort law be used to recover damages in case of an injury or property damage. 

What are the different types of torts laws?

Three areas in which an injured party may recover damages for personal injury or property damage are:

  1. Intentional torts: William L. Prosser has touched upon the ‘intent’ in intentional torts in the fourth edition of Law of Torts 31 in the following words:
    “The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law will not sanction.” 

    Frequently occurring intentional torts include battery, trespass, assault, false imprisonment, infliction of emotional distress. 
  2. Negligent torts: perhaps the most commonly asserted cause of action in the United States. Negligence is defined under the sixth edition of Black’s Law Dictionary as the failure to use such care as a reasonably prudent and careful person would use under similar circumstances. A duty of care that is owed to the plaintiff is the essence of every negligence action. 

  3. Strict liability: a theory in tort law that imposes legal responsibility for damages or injuries, even where the fault is not attributable to the defendant, and they did not act negligently. This theory usually applies in animal bites (in individual states), manufacturing defects, and abnormally dangerous activities.

US tort law has its origin in the British common law system. In any common law jurisdiction, a tort is understood as a civil wrong. A civil wrong that is not a breach of contract -not occurring out of a promise you made to someone, it is of an existing duty that most of us have. It can be a specific duty, as a doctor to patient, or more general like not harming others in the street.

The “wrong” occurs because there is a breach of a duty imposed by the law and the law aims to protect individual interests. The “breach” gives rise to a right for a remedy (usually in the form of damages) and standing to sue. Although crimes may be torts, the cause of legal action is not necessarily a crime, as the harm may be caused due to negligence, injury to real or personal property through another’s negligence or nature. 

How is a personal property defined? 

Personal property is movable property, virtually everything that can be subject to ownership, except land. Real estate is immovable property – It is, thus, it is a property that includes land, buildings, air rights, above the area, and underground rights, below the ground. The personal property can be differentiated from the real estate as the real property is permanently fixed to one location. In lawsuits for damages caused by negligence or a willful act, property damage is distinguished from personal injury. Property damages can include harm to an automobile, a fence, a tree, a home, or any other possession. The evidence of replacement value may establish the amount of recovery for any property damage, cost of repairs, loss of use until repaired or replaced, or, in the case of heirlooms or very personal items (e.g., wedding pictures), by subjective testimony as to sentimental value.

What is the meaning of damages in the US tort law ? 

There are various remedies available to the injured person, but the most common treatment for tort law is the award of damages. Damages refer to the amount of money the injured person gets from the person who caused injury to him. It acts as compensation in the form of payment against the loss/injury suffered by the victim. 

When someone pursues a claim under a tort, they are typically looking for damages to be awarded as the legal remedy. Damages in tort are generally assigned to restore the plaintiff to the position he or she was in had the tort not occurred.

Damages mean that you have been harmed, and you are going to get money to repay you for being injured. In a claim for damages, the person must suffer a legal injury because if no legal harm happens, a person cannot claim damages even if he suffered an actual loss. It can be understood with the help of these maxims:

Injuria sine damno means Injury without cost, or it means an infringement of an absolute private right without any actual loss or damage. 

Damnum sine injuria refers to an injury that the plaintiff has suffered, but there is no violation of any legal right of a person. 

Damages can be provided in injuria sine damno but not in a case of damnum sine injuria.

How are damages awarded in personal injury cases?  

In law, damages are an award, typically of money, to be paid to a person as compensation for loss or injury. Costs are classified as compensatory (or actual) damages and punitive damages. Compensatory damages are further categorized into special damages, which are economic losses such as loss of earnings, property damage, medical expenses, and general damages, which are non-economic damages such as pain, suffering, and emotional distress. The compensation will be highly different following the type of tort (intentional, negligent or strict). You can obtain a first idea of the compensation by using our online claim calculator.

What are Stigma Damages?  

In common parlance, a stigma is a mark against one’s reputation. Similarly, in the context of tort law, shame is a mark against the status of one’s property. Stigma is the identifying mark or characteristic permanently or temporarily associated with real or personal property. Stigma causes mostly revolve around real estate disclosure cases.

For illustration purposes, imagine a house claimed to be haunted by its neighbors occupied by an AIDS patient who was later convicted of a heinous crime and eventually executed. The buyer who was not informed of such a house may sue the seller for not disclosing the facts correctly and seek to recover what is stigma damages. The Stigma is the difference between the fair market value of the house minus had it not been tainted with the undesirable characteristics. Stigma damages are those tort damages awarded for diminution in value of specific property due to negative public perception, rational or not, and are in addition to any recovery obtained for physical injury to the property.

What are Compensatory Damages?  

The purpose of the Compensatory damages is to put the claimant back in the position he/she would have been in, had the breach not happened. These damages are awarded to restore the plaintiff to his previous situation. These damages are very helpful in monetary losses in which the amount of loss can be easily calculated.

How is Emotional Value understood?  

Courts cannot award the “emotional” value of personal property, such as family photos and videotapes. There is no established method of valuing such property, although family photos and recordings are worth more than the photographic paper and new video. 

As stated in Mieske vs. Bartell Drug Company [1979] 92 Wash.2d 40, 593 P.2d 1308]: 

When determining damages based upon value to an owner, compensation for sentimental or fanciful values will not be allowed. The type of sentiment which is not – 5 – compensable as value to the owner is that which relates to indulging in feeling to an unwarranted extent or being affected or mawkishly emotional. However difficulty of assessment is not cause to deny damages to a plaintiff whose property has no market value and cannot be replaced or reproduced.

Can damages have a peculiar value? 

The usual measure of damages for the property, which is destroyed, is its market value. However, an exception to this general rule is applied in cases involving loss to items with little or no market value, which have particular importance to the owner, such as books or manuscripts. Witkin, in his book on Torts, has indicated that where the market value is relatively small as compared to its emotional value to the owner, the psychological cost to the owner may sometimes be recovered, and resort may be had to such evidence as the value of time spent in producing it. 


There is consensus that the ‘duty to act reasonably’ now operates as the default standard, and that deviation from that standard requires explanation and justification. In no small degree, negligence coupled with causation is synonymous with tort liability. However, it must be noted that this general duty of due care extends only to cases of physical injury and property damage. 

By Utkarsha Nikam, Attorney

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