A tort is not short for tortilla

Like many New Mexicans this past month I have enjoyed the enticing aroma of roasted green chile and have savored a freshly cooked chile on a warm tortilla. If this was called the “Cooking Report,” what would follow would be some family recipes, but instead I am going to discuss something called a “tort.”

Black’s Law Dictionary defines a tort as “a civil wrong, other than a breach of contract, for which a remedy may be obtained …” To simplify the legalese, here are four simple elements: duty, breach, injury and causation.

Duty: We all have a duty to take steps to prevent injury from occurring to other people.

Breach: Someone failed to live up to his/her duty to prevent injury from occurring to someone else.

Injury: The person was injured.

Causation: The injury resulted from the breach of the duty.

Probably one of the more famous tort cases that you may have heard about came from a 1994 civil case out of Albuquerque. Often referred to as the “McDonald’s hot coffee case.” In the case, the plaintiff claimed the coffee “… was unreasonably dangerous because it was excessively hot …”

The injury, in this instance, was third-degree burns requiring hospitalization and skin grafts. The alleged breach of duty was that McDonald’s had “a duty to test and inspect the product for unreasonable dangerous conditions,” and that they either failed to do so, negligently did so or did so on purpose.

People fall on different sides as to whether they believe this claim was reasonable, but a jury did find in favor of the defendant and awarded $2.9 million. The judge in the case reduced the amount to $640,000. The matter was heading to an appeal when the parties settled for an undisclosed amount.

In New Mexico, a court of limited jurisdiction, such as Magistrate and Metropolitan courts, handle civil actions up to $10,000. As such, I will not see a tort case in the magnitude of the one above, but it paints a good example of what a tort is.

Using an example that I have seen in my court is a fence hit by a car. The damage (injury) could be a broken or destroyed fence that requires repair or replacement. The alleged breach of duty is that a driver did not maintain their car on the roadway.

Another example might include a dog getting out and injuring or killing livestock. The damage is the injury or death of the poultry or livestock and the associated vet bills or replacement of the livestock. The alleged breach of duty is that the dog owner did not reasonably restrain their animal.

It is important to note that depending on the situation there may not have actually been a breach of duty. Perhaps, in the scenario above, the car that hit the fence was, in fact, struck by another car causing the subsequent impact and damage. The permutations on what could have or might have happened are endless. Most cases are not clear-cut.

In my monthly columns, I often mention mediation. Why? Because it works! In the examples described above, a mediator often has the ability to find common ground between the parties, eliminating the need for a trial or the issuance of a judgement. Think of it as an opportunity to reach a settlement.

Maybe you have heard the word “tort” in the context of something called “tort reform.” This is a movement to reduce and/or limit the amount that can be awarded in a civil case.

Those in favor, argue that it reduces the price of liability insurance and health care costs while those against say it limits the ability for an injured party to recover damages.

Regardless of your opinion on tort reform, one of the benefits of past torts is the addition of safety messages on products and the increased attention to the safety of customers and the general public.

For instance, take-out coffee cups typically now have printed warnings that the contents are hot and can cause burns. Large stores have clean-up stations placed throughout their stores for rapidly cleaning up potentially hazardous spills before a customer or employee is injured. Have you ever heard, “Clean-up on aisle three”?

Increased attention to recognized hazards has also produced legislation requiring the labeling of certain products. For example, the warning on cigarettes is the result of a 1984 law. Likewise, the Food and Drug Administration has the responsibility to develop warnings for prescription drugs and highway departments have a responsibility to warn motorists of potentially hazardous conditions.

So, if you do enjoy some freshly roasted chile this fall, make sure you let it cool down before you take a bite — and caution, my wife and I like our chile HOT!

(Magistrate Judge John R. Chavez is the magistrate in Belen. He is a native of Valencia County and is a retired U.S. Army colonel.)