Legal Definitions - waiver of tort

Waiver of tort is a legal principle that allows a person who has been harmed by a civil wrong (a tort) to choose a different type of legal remedy. Instead of suing to recover the damages they suffered due to the tort, they elect to sue for the financial benefit or profit that the wrongdoer unjustly gained from their wrongful act.

Essentially, the injured party "waives" their right to sue for traditional tort damages (like compensation for their loss) and instead pursues a claim based on the idea of "unjust enrichment." This means they are asking the court to make the wrongdoer give back the ill-gotten gains, rather than simply paying for the harm caused. Although it's called a "waiver," the underlying tort must still be proven to establish that the wrongdoer received an unjust benefit.

• Example 1: Unauthorized Use of Property

  Imagine a small business owner, Sarah, who owns a popular food truck. A competitor, Mark, secretly copies her unique food truck design, including a patented cooking mechanism, and uses it to operate his own highly successful food truck for several months. Sarah could sue Mark for patent infringement and seek damages for her lost profits due to his competition. However, she might choose to pursue a waiver of tort claim instead. In this case, Sarah would sue Mark not for her lost profits, but for the entire profit Mark made from using her patented design during those months, arguing that he was unjustly enriched by his wrongful use of her intellectual property.

  How it illustrates the term: Sarah is not seeking to recover her own losses (e.g., lost sales). Instead, she is seeking to recover the financial benefit (the profits) that Mark gained directly from his tortious act of infringing her patent. She is "waiving" the traditional tort claim for damages in favor of recovering Mark's unjust enrichment.

• Example 2: Misappropriation of Funds

  Consider a situation where an accountant, David, is entrusted with managing a client's investment portfolio. David secretly diverts a portion of the client's funds into a high-risk venture for his personal benefit, which unexpectedly yields a substantial profit. The client discovers the misappropriation. The client could sue David for breach of fiduciary duty (a tort) and seek to recover the original amount of funds David diverted, plus any investment losses. Alternatively, the client could pursue a waiver of tort claim. In this scenario, the client would sue David to recover not just the original diverted funds, but the entire profit David made from his unauthorized, self-serving investment, arguing that David was unjustly enriched by his wrongful actions.

  How it illustrates the term: The client has suffered a tort (breach of fiduciary duty and misappropriation). Instead of simply recovering the funds David took and any direct losses, the client is choosing to recover the additional profit David personally made from his wrongful act. This demonstrates the election to recover the wrongdoer's unjust gain rather than the victim's direct loss.