§33.1 Introduction

LibraryTorts (OSBar) (2012 Ed.)
§33.1 INTRODUCTION

§33.1-1 Overview and Scope of Chapter

This chapter addresses the relationships between statutes and tort actions. Topics covered include negligence per se, statutory duties, and statutory torts. The relationship between statutes and injunctive relief falls outside the scope of this chapter. The relationships between statutes and common-law torts vary widely. Statutes may create torts, modify common-law tort liability, or provide evidence on the issue of tort liability. Statutes may affect torts by setting a standard of care, defining new duties, codifying common-law torts, or creating new rights of action. Statutes may also be the basis for defenses such as comparative negligence per se.

Confusion persists over the relationships between tort and statutes. Part of the problem arises from inconsistent terminology. For purposes of this chapter, the authors draw the following distinctions:

(1) Liability per se, including negligence per se, is a statutory determination of the standard of care creating a separate count in an existing common-law claim;

(2) Statutory duties expand the scope of common-law tort liability by defining a duty when none previously existed; and

(3) Statutory torts are legislatively created remedies, both express and implied.

Over the last 60 years, legislation and regulation have emerged as growing sources of tort law. Lawyers and courts recognize that statutes, regulations, ordinances, and codes should be examined to determine how each affects tort law. When considering whether and how a statute should affect tort liability, the...

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