What is a tort? According to the dictionary it derives from the Latin “tortus” or twisted. The late Professor Prosser begins his hornbook by saying that “a really satisfactory definition of a tort has yet to be found.”1 That said, this article provides the briefest of anecdotal highlights based on much more elaborate sources dealing with tort genealogy.2

Where could torts have begun? Are civilizations required first? The nebulous common sense answer would seem to be yes, as long as humans were capable of causing injuries capable of redress, even if the form of redress were the seizing of livestock or of goods, general burning and pillaging, or a mace to the head. But this discussion would appear to be more historian or anthropologist territory than lawyer work. Given the fact the law has many sources and it is a cultural phenomenon, pinpointing a Big Bang moment for the idea is difficult, if not impossible.

Before the question of redress can be answered, the first question is what constitutes an injury. Whatever barbaric forms the concept of injury may have evolved out of, one of the earliest known written sources, The Code of Hammu-rabi, provides a straightforward, although at times arbitrary, example. One personal injury rule states that “If a man knock out a tooth of a freeman, he shall pay one-third mana of silver.”3 This codification established a specific set of privileges for certain classes of persons in ancient Babylon. The fashioning of injury shifts with culture, where conspicuously publishing the types of injuries and providing a respected mechanism of enforcement increases the chances of taking action.

Turning to the question of what we know today as redress in the form of causable action, many modern American torts trace back to medieval concepts that took root in the frontier. “Trespass, Ôthat fertile mother of actions,’ was used in the colonies for an unprecedented number of remedies...The fundamental idea of the trespass action was that it was a remedy for the recovery of damages and not for the recovery of possession.”4

In the 17th century American colonies, there were several varieties of trespass upon the case, in theory personal actions brought to recover damages, but also used importantly to recover debts.5 Trover, the action for damages based on a fictitious loss and finding and subsequent conversion for the use of the defendant, provided another avenue of relief.6 The legal world of the pre-Revolution colonial days moved with an eye towards efficient dispatch with apparent intermingling of these doctrines.7

The development of redress for negligence finds early example in a 1647 suit brought in the New Haven General Court against John Charles for £100 for “grosse, if not wilfull, negligence & default.”8 The court found Charles had contracted to be master of a vessel but he “had not improved his owne skill, nor exercised the ordinary care of a man takeing chardge, for preservation of ye vessel & goods,” and was therefore liable for failure to employ a cable and tackle and to cast anchor that led to the damage.9 The court rendered judgment for the plaintiff for sixty-seven pounds and court costs.10

Another example in 1667 gives a somewhat clearer statement of a duty to exercise care and the ramifications of failing to do so.11 The wife of a Mr. Weekes confessed to cutting off the toes of her servant Nicholas Woodman, which likely led to his death.12 The court found Weekes “defective in his duty to his servant, which occasioned the death...as

the evidence of the Coroners Inquest Issues it, as alsoe wee find the Townes men of Kittery faulty when Complaynt to them being made they had not caused his Master to provide for him...Persons defective in their duty from whom comes dammage or charge must of right pay that dammage that cometh through their defect.”13

As the United States grew as a world power, 20th century courts expanded the types of injuries in this country to include less tangible injuries such as intentional infliction of mental suffering (or emotional distress), invasion of the right to privacy, and denial of the right to vote to name a few.14

Prosser advises, “There is no necessity whatever that a tort must have a name. New and nameless torts are being recognized constantly, and the progress of the law is marked by many cases of first impression, in which the court has struck out boldly to create a new cause of action where none had been recognized before.”15

Such a prediction of judicial activism would likely have created hysteria among wealthy business owners or other prominent figures vulnerable to suits, raising their ire to push for tort reform in 1950 as well as their descendants in spirit today. However, America’s championing of individualism and striving for balance allows for, and is encouraged by, such a range of possibilities.

1 William L. Prosser, Handbook of the Law of Torts, St. Paul Minnesota, West Publishing Co., 1941.

2 Studies in the History of American Law: With Special Reference to the Seventeenth and Eighteenth Centuries, Richard B. Norris, NY, Columbia University Press, 1930. Through the research process I read a book about the jury system written by the late judge William L. Dwyer, In the Hands of the People: The Trial Jury’s Origins, Triumphs, Troubles, and Future in American Democracy, William L. Dwyer, St. Martin’s Press, NY, 2002. Much of the thoughts recorded here were influenced by reading this book although the focus here is on the origins of torts rather than the jury system.

3 The Code of Hammurabi, King of Babylon, Robert Francis Harper, (1999), 75; See also Dwyer at 13.

4 Norris at 48, citing G.E. Woodbine, “The Origins of the Action of Trespass,” Yale Law Journal, XXXIV, 343-344.

5 Id. at 50.

6 Id. at 51.

7 Id.

8 Evance v. Charles (1647) Hew Haven Col. Rec., I, 281.

9 Id. at 203.

10 Id. at 204.