A tort claim is a civil lawsuit you bring to recover money from a person or company whose wrongful conduct caused you harm. It covers car crashes, slip-and-falls, defective products, medical errors, assaults, and more. The goal is to shift the cost of your injuries onto the party responsible, and the law uses that financial pressure to discourage careless and intentional conduct in the first place.
Whether your claim is worth pursuing depends on which category it fits, whether you can prove four specific things, how much fault lands on you, and whether you file in time. Each of those pieces is below.
The Main Types of Tort Claims
Tort claims generally fall into three categories, plus a specialized form of negligence for licensed professionals. The category matters because it changes what you have to prove.
Negligence is by far the most common. It applies when someone fails to use the level of care a reasonable person would use in the same situation. A driver who runs a red light, a store that leaves a spill unattended for hours, a contractor who skips a required safety barrier — all negligence. You don’t have to prove anyone meant to hurt you.
Intentional torts involve deliberate acts. The person doesn’t have to intend the specific injury, only the act that caused it. Battery, assault, trespass, and false imprisonment are the familiar examples.1Cornell Law Institute. Intentional Tort If someone shoves you and you break your wrist, the shove was intentional even if the broken wrist wasn’t the goal.
Strict liability removes intent and carelessness from the equation. If a defective product injures you, the manufacturer can be liable regardless of how careful it was. Courts recognize design defects, manufacturing defects, and failure-to-warn (marketing) defects.2Cornell Law Institute. Products Liability Strict liability also applies to inherently dangerous activities like using explosives or keeping wild animals.
Professional malpractice is a specialized form of negligence for doctors, lawyers, accountants, and other licensed professionals. The “reasonable person” standard is replaced by the standard of a competent practitioner in the same field. These cases almost always require expert testimony from someone in the same specialty, which drives up litigation costs.
The Four Elements You Have to Prove
Every tort claim requires you to establish four elements. The standard is preponderance of the evidence — your version of events has to be more likely true than not.3Legal Information Institute. Preponderance of the Evidence Miss any one of the four and the claim fails.
- Duty. The defendant owed you some obligation of care. Drivers must follow traffic laws. Store owners must keep floors safe. Doctors must treat you competently.
- Breach. The defendant fell short of that duty, by action or inaction. Texting at the wheel, ignoring a spill, prescribing the wrong medication.
- Causation. The breach actually caused your injury, and the harm was a foreseeable result of the conduct rather than a freak chain of events.
- Damages. You suffered real, measurable losses — medical bills, lost wages, pain, or other concrete harm. Without damages, there is no case.
Causation is where most claims get complicated. You need to show both that the injury would not have happened “but for” the defendant’s conduct and that the kind of harm you suffered was foreseeable. A driver who runs a stop sign and hits your car clearly caused the crash. A heart attack you happened to have during the same crash is a harder link to prove.
How Your Own Fault Affects Your Recovery
Defendants almost always argue you share some blame. How much that argument matters depends entirely on your state.
More than 30 states use modified comparative negligence: your damages are reduced by your percentage of fault, but you are barred from any recovery once your share crosses a threshold.4Justia. Comparative and Contributory Negligence Laws 50-State Survey In some states the cutoff is 50%; in others, 51%. If you were 30% at fault on a $100,000 claim, you collect $70,000. If you were 51% at fault in a 50% state, you collect nothing.
About a dozen states use pure comparative negligence, which lets you recover reduced damages no matter how much fault is on you, even 90%.4Justia. Comparative and Contributory Negligence Laws 50-State Survey A handful of states still follow pure contributory negligence, the harshest rule: 1% of fault can wipe out your entire recovery. Figuring out which rule applies is one of the first things to do when weighing a claim.
What You Can Recover
Damages in a tort case are meant to put you where you would have been if the injury never happened. In practice, they break into two categories, with a third reserved for extreme cases.
Compensatory Damages
Economic damages cover documented losses: medical bills, lost wages, property repair, and future treatment costs. Medical costs alone can range from a few thousand dollars for minor injuries to well over $100,000 for long-term rehabilitation or surgery.
Non-economic damages cover pain, emotional distress, loss of enjoyment of life, and disfigurement. Roughly nine states cap non-economic damages in general personal injury cases, and about 24 states impose caps specifically in medical malpractice claims.5Center for Justice and Democracy. Fact Sheet Caps on Compensatory Damages A State Law Summary Whether a cap applies in your state can swing the value of a claim dramatically.
Punitive Damages
Punitive damages are not about making you whole. They punish especially bad conduct — reckless, malicious, or deliberately harmful — and deter others from doing the same. Most tort cases do not involve them. When they do, the U.S. Supreme Court has said punitive awards exceeding a single-digit ratio to compensatory damages will rarely satisfy constitutional limits.6Justia. Punitive Damages in Lawsuits
Filing Deadlines
Every tort claim has a statute of limitations, and missing it ends your right to sue no matter how strong the case is. For personal injury, most states set the window between two and three years from the date of injury. A few allow as little as one year; a handful stretch to four, five, or six. Courts rarely make exceptions outside of truly undiscoverable injuries.
Claims against the federal government run on their own clock, covered below.
Defenses You Should Expect
Even with the four elements clearly on your side, defendants have tools to reduce or eliminate what they owe.
Assumption of risk applies when you knowingly and voluntarily exposed yourself to a specific danger. A signed waiver at a skydiving company, or sitting in an unscreened section at a baseball game, are the classic examples. The defense has limits: it does not cover risks created by the defendant’s recklessness, unforeseeable hazards like hidden equipment defects, or situations where the defendant violated a safety law.7Justia. Assumption of Risk in Personal Injury Lawsuits
Comparative fault is the defense raised most often. Expect the other side to scrutinize what you did before, during, and after the incident. Other common moves include arguing the statute of limitations has expired, that you failed to mitigate your damages by refusing recommended medical treatment, or that you cannot prove causation. A seasoned defense attorney will usually raise several of these at once.
Evidence That Holds a Claim Together
A tort claim lives or dies on documentation, and the time to gather it is as close to the incident as possible. Memories fade and physical evidence disappears.
The most valuable records include official reports from police or safety inspectors, complete medical records with itemized billing, and contact information for every witness. Photographs and video of the scene, your injuries, and any property damage carry enormous weight. A smartphone photo taken at the scene can become critical months later when accounts conflict.
Keep a running record of expenses and of how the injury affects your daily life: missed workdays, canceled activities, physical therapy, medications. Economic damages are only as strong as the paper trail behind them, and adjusters and defense attorneys will challenge every dollar you cannot document.
Claims Against the Federal Government
Suing a federal agency does not work like a standard tort claim. Under the Federal Tort Claims Act, you cannot go directly to court. You first file an administrative claim with the responsible agency, and the agency has to deny it — or sit on it for six months, which you can treat as a denial — before you can sue.8Office of the Law Revision Counsel. United States Code Title 28 Section 2675
The deadlines are strict: file the administrative claim within two years of the incident, and if the agency denies it, you have just six months from the denial to file in federal court.9Office of the Law Revision Counsel. United States Code Title 28 Section 2401
Most claimants file using Standard Form 95.10General Services Administration. Standard Form 95 – Claim for Damage, Injury, or Death It asks for the date, location, facts of the incident, and a specific dollar amount for your damages. That dollar figure matters, because you generally cannot sue for more than you claimed on the form.8Office of the Law Revision Counsel. United States Code Title 28 Section 2675 The Department of Justice has noted that any written notification with a specific damage amount can satisfy the filing requirement, but using the form avoids disputes over whether your submission qualifies.11Department of Justice. Civil Division Documents and Forms
What Filing a Lawsuit Looks Like
If insurance negotiations or an administrative process do not resolve the claim, you file a complaint with the court and serve it on the defendant. A civil complaint in federal court costs $350 to file.12Office of the Law Revision Counsel. United States Code Title 28 Section 1914 State filing fees vary widely, generally between $15 and $400. In federal court, the defendant has 21 days to respond after being served, or 60 days if service is waived.13Cornell Law Institute. Federal Rules of Civil Procedure Rule 4 – Summons
After the response, discovery begins. Both sides exchange information through interrogatories (written questions answered under oath, capped at 25 per side in federal court unless the court allows more14Cornell Law Institute. Federal Rules of Civil Procedure Rule 33 – Interrogatories to Parties) and depositions (live, recorded question-and-answer sessions under oath). Depositions are expensive but revealing, which is why they often push cases toward settlement. Both sides also exchange documents, medical records, and other relevant evidence.
Most tort claims settle before trial. Negotiations often intensify during discovery, once each side can see the strength of the other’s evidence. If no deal is reached, a judge or jury decides the case.
Attorney Fees and Litigation Costs
Most personal injury attorneys work on contingency: no money upfront, and a percentage of your recovery if you win. The standard contingency fee hovers around 33%, often rising to 40% if the case goes to trial. Some agreements use a sliding scale that climbs as the case moves through litigation stages.
The contingency percentage covers only the attorney’s time. Litigation costs are separate and include filing fees, medical record retrieval, deposition transcripts, and expert witness charges. Some firms advance these costs and deduct them from your settlement; others bill you as they come up. If you lose, you typically owe no attorney’s fee, but you may still owe costs depending on the fee agreement. Read that agreement before signing, and ask directly what happens to costs if there is no recovery.