Crimes versus Torts (What is a tort?)

In our system of law, there are civil actions and criminal actions that can be litigated in court.   In a criminal case, a defendant is one who has committed an offense against the laws of the State, which were enacted to protect the health, safety and welfare of the people.  Criminal law focuses on punishment.  When a person commits a crime, he or she is either immediately arrested or a warrant is issued for his or her arrest.  A bond is then set either administratively or by a judge and the person is incarcerated until trial or released on that bond promising to appear.  A person is considered innocent until proven guilty by a jury of his or her peers by a unanimous decision.  The standard for a guilty verdict is beyond a reasonable doubt.  Once convicted, a criminal will be sentenced by a judge to a term of imprisonment and/or probation, or fined as punishment for their crime.

In contrast to criminal law, a civil tort action involves a private plaintiff-victim seeking compensation (usually money) for the harm caused by another’s actions or failure to act.    In a civil tort action the injured plaintiff must prove his or her case by a preponderance of the evidence (by the greater convincing force) rather than the much more burdensome criminal law standard of beyond a reasonable doubt.

Most civil tort actions involve personal injury cases based on negligence.  Negligence is a harm caused by the failure to exercise the appropriate level of care in a particular circumstance.  In South Dakota there are four elements to negligence.  There is a duty of due care, then a breach of that duty, legal causation, and damages due to that breach of duty of due care.  Also, in South Dakota there is a comparative negligence statute, meaning that if the injured party were to be partially at fault, that injured party’s damages may be reduced by that injured party’s contributory negligence or percentage of fault.  In South Dakota an injured party’s recovery may be barred if that injured party’s contributory negligence is more than slight in comparison to the negligence of the defendant(s)

Other types of civil torts include intentional torts such as assault, battery, trespass, conversion and false imprisonment.  Many intentional torts are also crimes.    In those cases, in addition to receiving compensatory damages, if the prevailing injured plaintiff can further prove by a preponderance of the evidence that the defendant-tortfeasor is guilty of fraud, oppression or malice, then the injured plaintiff may also be entitled to an award of punitive or exemplary damages to punish the defendant-tortfeasor.

If you believe that you have been injured as a result of the negligence, crime, or liability of another contact the experienced lawyers at Wilka & Welter, LLP for a no charge review of your tort case.  You may be entitled to compensation for your loss.

Posted in Wilka & Welter LLP Law Blog.