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Tort Law Depends
Upon State Law
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.
Legal Theories
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 across the United States 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 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 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.
Your Lawyer
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
2005 LexisNexis, a division of Reed Elsevier Inc.
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