Apart from legislation granting a right to sue for a specific harm, personal injury law generally consists of tort law and the civil procedure for enforcing it. This article discusses how tort law depends upon state law.
Tort law is a major kind of civil law along with family law, property law, and contract law, but tort law is different in that it does not give a status, ownership, or agreement right. Although torts can be viewed as certain general standards of civil conduct, tort law is nothing more than a collection of theories for suing people for money.
Tort Law Is Usually State Law
Tort law is similar from state to state across the United States. One of the reasons for the similarity of tort law from state to state is that legal professionals across the United States tend to refer to the same scholarly texts when learning about tort law. The similarity of tort law from state to state across the United States is reassuring, but it can be a trap.
In the United States, each state is sovereign as to all matters for which the federal government is not sovereign. Other than the applicability of tort law to federal government entities and federal government employees in the scope of their governmental duties, tort law is a matter of state law. As a result, although tort law is similar across the country, some torts, some tort doctrines, and some tort defenses are not recognized in every state. Some torts, some tort doctrines, and some tort defenses may be different in different states. Anyone who fails to recognize this may fall into the trap of believing that tort law is the same in every state.
Tort Law Is Not the Same In Every State
One tort doctrine that is recognized in most states the doctrine of attractive nuisance. Under the doctrine of attractive nuisance, where a child trespasser is reasonably foreseeable due to an artificial condition a child would not recognize as dangerous, and the benefit of the condition is slight, the landowner may be held liable simply for failing to use reasonable care to prevent any harm to children.
Although the doctrine of attractive nuisance is recognized in most states, it is not recognized in every state. In 1986, for example, the Supreme Court of Ohio reaffirmed its long-standing rejection of the doctrine of attractive nuisance. Those who believed that the doctrine of attractive nuisance applied in Ohio fell into the trap of believing that tort law is the same in every state.
There are many kinds of wrongful conduct that are deemed to be a tort, but what is a tort in your state depends on your state's law. Your lawyer can advise you as to whether the circumstances of your case gives you the right to sue under your state's law.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.