Tort- My Outline

Goals of Tort Law: 1-11

Torts as wrongdoing: Torts are wrongs recognized by law as grounds for a lawsuit.Harm required: In all tort cases, the defendant’s wrong results in a harm to another person or entity.Torts, crimes and contracts. Breach of contract is often not considered to be a tort and must ordinarily be redressed under the rules of contracts, not the rule of torts. Some torts are crimes – eg battery.. criminal law and Tort law sometimes overlap but are not identical. Criminal law aims at vindicating public interests, while tort law aims at vindicating individual rights and redressing private harms.Non-tort systems. There are alternatives to tort law. Eg. Workers CompensationCommon questions in tort law.

A) what conduct counts as tortuous or wrongful B) did the conduct cause the kind of harm the law will recognize C) what defenses can be raised against liability if the defendant has committed a tort.

Some Broad and Conflicting Aims of Tort LawMorality or corrective justice. Tort law are largely erected under two large systems of thought. Morality or corrective justice attempts to hold defendants liable for harms they wrongfully caused on others. While good social effects may result from doing so, that’s not the objective. The overall object of tort law as stated in a recent decision of the House of Lords, is to define cases in which the law may justly hold one party liable to compensate another. Fairchild v. Glenhaven Funeral Servs., [2002] 3 All E.R. 305, 2002 WL 820081 (H.L. 2002)Social utility or policy. This school of thought bases tort law on social policy or a good for all of us view. Process. Rules must be made with the legal process itself in mind. Must be the kind of rules that judges and juries can understand and apply in practical ways.Potential conflict. Morality and Social utility basis for tort law are usually antithetical to each other.

Ideas of Corrective JusticeFault and corrective justice. Tort law imposes liability upon defendants for conduct the law treats as wrong. In these situations, tort law seems to be commensurate with corrective justice ideals. Conversely, one may argue that it would be wrong to impose liability upon a defendant who is not at fault in causing the plaintiff harm. Society may wish to compensate injured people by the use of public funds, but it cannot justly force one innocent individual to compensate another.

1

This view emphasizes individual accountability for fault along with individual freedom to act without fault.

Strict liability and corrective justice. Does tort law go beyond the principle of corrective justice when it imposes liability without fault? E.g. someone damages your property while the property is in my care..A rule that imposes liability upon me would be a strict liability rule because I was not at fault however, liability seems to accord with corrective justice as long as you and I both understand upfront.

Uniting the potential gains and losses. Some thinkers advocate that a general regime of strict liability on the grounds that it is morally based and within the principle of corrective justice. This line of thought works best when an active person causes harm to a person or thing—when both parties crash into each other for instance, it is much harder to work out strict liability based on corrective justice.

Compensation, Risk Distribution, Fault

..Risk distribution or loss spreading.. Some commentators argue that tort liability should be strict or expansive to secure more compensation for more injured persons. Some defendants such as product manufacturers, were seen as good risk distributors and could pay compensation for injuries they cause and then recoup some or all of those costs by raising price of product. In this view each purchase of the product will pay a tiny fraction of the cost of injuries inflicted by those products and injured person will not be compelled to bear the entire cost alone. Similarly, an enterprise would be forced to internalize losses typically generated by the business itself.

Limited acceptance of risk distribution. The common law of tort has not generally adopted views that compensation is more important than corrective justice or that liability should be strict. Distribution arguments and strict liability have gone hand in hand in a few kinds of cases. They have not supplanted ‘fault’ as the most common basis for tort liability.

Moral and policy reasons for limiting compensation to cases of fault. Judges possibly do not adopt strict liability across the board and order compensation in every case in which defendant causes harm because judges feel heavily committed to a system of corrective justice and turn to social policy only when the feel that social policy and corrective justice coincide at least in part. Possibly, in spite of social policy favoring compensation, other social policies may only counsel limited compensation through the tort system.

Risk distribution arguments may be sound but better suited to legislatures.

B. Overview of Damage Awards: 13-16

C. Overview of Procedure: 17-24

2

II. INTENTIONAL TORTSA. Battery: 27-35, 35-43B. Elements of Battery: (Dual Intent)

a. Intenti. Intent to touch/contact and

ii. Intent to harm or offendb. Result

i. Contact, andii. Contact was

1. Harmful, or2. Offensive

Single Intent Jurisdictiona. Intent

iii. Intent to touch/contact andiv. Intent to harm or offend

b. Resultv. Contact, and

vi. Contact was harmful or offensive Effects of classifying a tort as intentional. Restatement Third of Torts calls itsomewhat

ironic that intentional torts are generally deemed considerably more serious than torts of mere negligence and yet in some situations, the plaintiff is worse off if the tort is classified as intentional rather than negligent. - --insurance may not pay for intentional torts; statutes of limitation is typically shorter on intentional torts—as a result, plaintiffs sometimes underplead..

Cohen v Smith debrief: Note that professor is interested in procedural context Facts: P expressly indicated that she did not want a health care learners working on her. And was reassured by anesthesiologist.When she was anesthetized, Dr allowed student D to practice intubation on her. D lacerated P’s esophagus. P required additional surgery and recuperation time as a result of the laceration.Procedural Context: Issue:Holding:Legal Reasoning

Garatt v Dailey

Facts:

Rule:Actual intent to contact or Knowledge substantial certainty of contactAbsence of any intent to injure the plaintiff or to play a prank on her

3

Additional Consideration:***Contact need not be direct. Intent and result could be both direct or indirect.***Even if knowledge of substantial certainty of contact is not there and Intent Element is still met if actual intent or contact is determined.Probability of harm not magnitude of harm.

***Show similarity and difference with Cohen (if nurse did not know)***

White v Muniz

Additional Consideration:…..

One way to group tort claims is: i) the interests the protect;

a. physical injury to person or propertyb. dignitary and emotional harmc. economic harm

ii) ii) the levels of culpability they require.a. Serious wrongdoing (intent or malice)b. Negligence (lack of reasonable care)c. Defendant is guilty of no fault (strict liability)

Think about how we treat children and mentally ill * possible exam questions

Battery – Prima Facie CaseIntent Element:

1. Intent to touch / contacta. Actual intent to contact or knowledge of substantial certainty of contactb. Intent to contact plaintiff or intent cause plaintiff to come into contact with

something / someonec. Intent to contact another transfers to plaintiff

And2. Intent to harm or offend

a. Actual intent to harm / offend or knowledge of substantial certainty harm/offendb. Knowledge can be found if:

i. People typically harmed/offended by conductii. Defendant knew plaintiff would be harmed / offended

Result Element:1. Contact

i. Direct contact or cause plaintiff come into contact with something/someone

4

And2. Contact was harmful or offensive

i. Offensive if reasonable people offended or plaintiff reasonably offended

Assault – Prima Facie CaseIntent Element:

Intent cause harmful or offensive contact, or Imminent apprehension of harmful or offensive contact

Result Element: Reasonable apprehension of a battery

False Imprisonment – Prima Facie CaseIntent Element: Intent to confine

Result element: Confinement, and Plaintiff either (1) aware of confinement, or (2) harmed by confinement

McCann v. Walmart Stores Inc. Debrief

FACTS:· π’s shopping at Δ’s store· When leaving, π’s were prevented from leaving the store by two employees of the Δ who stepped in front of the shopping cart, blocking their path to exit and actually placing their hand on the cart, stating that the police were on their way.· π’s son was mistaken for the son of a different family who had been caught shoplifting two weeks before.· π’s were detained near the front of the store and waited for the police, which later turned out to be a security guard who stated that they had the wrong boy.

PROCEDURE:

Jury awarded the McCanns $20,000 in Compensatory damages. Wal-Mart appealed.

ISSUE:

Whether the jury, by the facts presented, would conclude that the π was falsely imprisoned by the Δ?

HOLDING:

The court concluded that a reasonable jury could conclude that Δ’s employees intended to “confine” the π’s “within boundaries fixed by” Δ, that the employees’ acts did result in such a confinement, and that the π were conscious of the confinement.

5

REASONING:· False Imprisonment: conduct by the actor which is intended to, and does in fact, “confine” another “within boundaries fixed by the actor” where, in addition, the victim is either “conscious of the confinement or is harmed by it.” –Restatement 2d., Torts §35· Physical barriers or physical force, as well as mere threats of physical force can suffice as “confinement”· Threats of “confinement” may be implicit as well as explicit, and can also be based on a false assertion of legal authority to confine. –Restatement, Supra, § 41· Confinement may occur by other unspecified means of “duress.” Id. § 40A.· The mere threat of physical force, or a claim of lawful authority to restrain, as enough to satisfy the confinement requirement for false imprisonment.· The directions to the π, the reference to the police, and the continued presence of the Δ’s employees…were enough to induce reasonable people to believe either that they would be restrained physically if they sought to leave, or that the store was claiming lawful authority to confine them until the police arrived, or both.

HOLDING:

Affirmed

ADDITIONAL CONSIDERATION / NOTES:

Note that the court also stated that the action would induce reasonable people to believe either that they would be restrained physically if they sought to leave, or that the store was claiming lawful authority to confine them.

It is not enough that the action

The fact that the walmart’s employee did not necessary have bad motive is not a factor in this case. Their action caused false imprisonment

Remember intent – knowledge of substantial certainty..

Trespass to Land – Prima Facie Case

Intent Element:

Intentional entry another’s land, or

Intentional causing object to enter land, or

6

Unintentional entry + intentional refusal to leave

Result Element:

Entry on another’s land, or

Caused object to enter another’s land

The public policy here is to protect the right to the exclusive possession of property

Nuisance:

Nuisance is an interference with another’s use and enjoyment of one’s property. Here there is a balancing act.

Conversion of Chattels – Trover - Prima Facie Case

Intent Element: Intent to exercise dominion over chattel

Result Element: Interferes with another’s right to exclusive control

*must be nontrivial interference

*In the earlier hypothetical Proser v. Keeten, Proser wins. Note that in some cases, U.C.C. will state that the buyer wins. In situation where you have a conflict the statute wins—i.e, UCC wins.

.Intent can be established either through actual intent or knowledge of substantial certainty

Tresspass to Chattels – Prima Facie CaseIntent Element: Intent to interfere with another’s use and enjoyment of personal property

Result Element: Interference, andPlaintiff harmed thereby

School of Visual Arts v. Kuprewicz, 771 N.Y.S.2dDifferent b/w trespass to chatell and conversion is that in one, the perpetuator does not have dominion or control over the property.

Most torts law is based on state law. What happens when an action false into section 1983 and common law of tors?

7

If you prevail on both section 1983 and torts, you can only collect damages once. You would go for both to get 2 bites at the apple. Eg- you might be able to collect more damages in one over the other or you may lose in one,.

Defenses to Intentional Torts.

Types of Affirmative Defenses

Self-defense Arrest detention Defense of property Privilege to discipline Arrest and searches Privileges to enter land/premise pursuant in connection

Self Defense/Defense of Others

Must show:

1Reasonable person would have a perceived an imminent

3. Threat requiring defense, and 4. Response was reasonable and not excessive.

Defense of Third Party—similar to self defense. However, some courts (minority) take the view that if you make a mistake, you are liable.

Defenses to Intentional Torts – Privileges

Arrest and Detention

Peters v. Menard, Inc., 589 N.W.2d 395 (Wisc. 1999)

Must show:

a. Reasonable cause for believing merchandise taken;b. Detained for purpose of delivering plaintiff to law enforcement;c. Detained for reasonable amount of time; and d. Actions reasonable

8

Side note—court held that even if the defendants action was unreasonable, the deceased’s action was more unreasonable.

Assuming shop talked to shoplifter but did not call authorities?

Arrest and Detention (General)

Must show:

e. Reasonable cause for believing crime committed;f. Detained on or near premisesg. Detained for purpose of investigation or delivering plaintiff to law enforcement;h. Detained for reasonable amount of time; and i. Actions reasonable

*Always check what the law is in your state…

*Check intent element, result element

Defense and Repossesion of Property

Defense of Property

Permissible if:

1. Action reasonably necessary to defend property, and2. Force used commensurate given threat

* Deadly force not reasonable if no threat to life or lime

Katko v. Briney

The underlying principle here is that we value protection of human life more so than we value protection of property

B. Other Intentional Torts: 44-59 (8/29/11)C. Defenses to Intentional Torts: 60-73, 73-81

9

In TX you can use deadly force to defend your property or your neigbor’s if they have asked you to protect their property.

Brown v. Martinez, debriefTransfer of intent – both sides could potentially use the same doctrine..

Recapture of chattels. – cant forcibly recapture item from thief a week or so later

Discipline of children – parents enjoy a privilege to discipline

ConsentIllustrative case – Austin v. Berwyn

Consent can be non-verbalIf the defendant reasonably thought that there was consent, then the consent element is established.

No consent if not voluntarily given and defendant knows this-Coercion / duress-Power imbalance

Consent ineffective if not meaningful consent and defendant knows this-Plaintiff incapable of understanding nature of act/consequences / moral significance-Plaintiff misled / mistaken as to true nature of act.

Robins v. Harris – debrief

Doe v. Johnson

10

Remember that consent is effective if the plaintiff knows the true nature of the act they are consenting to.

There might be a debate about what is the nature of the act..

9/8/11Remember that consent can apply not only battery but also any intentional torts.

If a patient clearly objects a specific medical treatment, and the medical provider dishonors that, then they have gone beyond the scope of their consent

Public Necessity Action intended to benefit public Reasonable belief action necessary to avoid imminent public threat Reasonable response to public threat

Note that when trespasser has public necessity defense, then privilege to protect land for trespass is gone.

Note that minority is Minnesota were govt still pays.. majority is that you don’t recover if public necessity is established.

We allow this defense because the greater public good is greater than the individual good

Private Necessity Actions intended to benefit private individuals Reasonable belief action necessary to avoid imminent threat/address immediate need

9/12Prof wants to clarify that majority view is that if public necessity is established, then defendant will not be held liable. However in a minority of cases – Minnesota, even if established, the defendant will still have to pay something.

Private Necessity1. Action intended to benefit private individuals2. Reasonable belief action necessary to avoid imminent threat/address immediate need3. Benefit to private individuals outweighs property owner’s interests

Debrief of Ploof v. Putnam

Debrief of Vincent v. Lake Erie Transportation Co

Liable for private necessity if defendant knowingly damages to preserve or benefitEconomic consideration – the principle of negative externalitiesNote that the private necessity defence extinguishes liability from trespass but it does not extinguish liability from the actual damage that may have been caused

11

When there exists a private necessity: Property owners loses right to defend property No liability wen no harm (other than loss of right to exclusive possession) Liability for any damages where deliberately trespass knowing damages likely

How you put it all together.. review all the intentional torts and prima facea

Negligence

Prima Facie Case D owed P a Legal Duty

Breach of Duty

Actual Damages

Cause in Fact

Proximate Cause

We will cover each element in detail.

Duty of Care DefinedDuty owed by all people generally – the standard of care they owe- is to exercise the care that would be exercised by a reasonable and prudent person under the same or similar

Prior to xx the general view was that the parties owed xxxx; over time, the view evolved to xxxx where courts stopped enquiring about relationship to each other and focus more on the general duty

Low-Risk Scenario

High-Risk Scenario

Beach Bum 2 5Reasonable and Prudent Person

4 8

Worrier 8 10

Remember, the majority rule is reasonable person standard

12

Bjondal v. Weitman debrief

Issue was jury instructions. Remember the role the jury is to determine the facts, the second is to understand the standard with which the jury will use to reach decision

Standard of care is the same but the duty of care should change based on the situation.

Jurisdictions that have emergency direction generally aim to cut slack to defendants in emergency but liable when defendant caused the emergency.

9/13/11Shepherd v. Gardner Wholesale, Inc., ? – is there a parallel between how we treat someone intoxicated and one who willingly creates an emergency – notice the common thing is that it was created by choice—bad choice

Assuming someone is home had a drink and for an emergency outside control is forced to drive and enters into accident—under this fact partern, we may argue for a reasonable standard for someone not drunk.

Creasy v RuskMajority rule—If you have mental disorder..no special duty of care exception? is this consistent with the earlier case where it was established that no liability no faultLets assume that it is inconsistent with the earlier rule—no liability no fault (somehow morally blame worthy)—exception mainly because of public policy reason

A dichotomy in how the courts are dealing with mental disability in intentional torts context and how they are dealing with it negligence cases.

Hill v. Sparks? is this consistent with the Creasy Case? No—because it appears as though we are taking into account people with extra ordinary mental ability but don’t appear to take that into account people with deficient mental ability.. perhaps because we want to encourage caretakers, policy consideration may help in trying to reconcile apparently divergent reasoning.

Robinson v. LindsayWhy take a child’s age into account and why not take mental status into account? Public policy considerations—encourage kids to be kids – but discourage using dangerous activities—and/or clearly adult activities

? on the difference between how physical ability and mental disability.. concerned about fraud etc..

13

Sometimes the court will spell out in detail, what a a specific duty is. In those situations, the duty of care is now specific and objective (e.g. speed limit rules)

Mashall v. Southern Railway Co.,

Motion for Non-suit—When we have a general rule of law, and the rule of law is established then its never left to the jury—(motion for non-suit)

Chaffin v. Brame

Martin v. Herzog

Unexcused – trigger word.. look at notes..apply the xxx approach..Some states take a different approach—they call it a presumption …in practice, it is really no difference (presumption and xxx work same way)Minority of jurisdiction do follow the trial court approach ..as one piece of evidence to factor)

Remember the whole idea is that we are evaluating if defendants acted based on community norms.

Sometimes we substitute statutory definition of legal duty over jury ..

Can the government pursue this or

*Negligence per see can only be brought if …**

O’Guin v. Bingham County

When negligence per se does not apply, we resort back to common law..

Why did the court grant summary judgement? Much lower bar for common law standard.. plaintiff pushing for negligence per se because the bar is higher..

Elements of Negligence Per Se1. The statute / regulation clearly defines required standard of

conduct;2. The statute / regulation is intended to prevent type of harm D

caused;3. P member of class of persons statute / regulation designed to

protect;4. Proximate cause***not typically used**

14

Impson v. Structural Metals, Inc.

Ignorance of the law is not an excuse..

Pretty significant change in the Restatement with respect to incapacity..

Look at excuses that permit violation of statute, vs those that don’t..

Notice how the reasonable and prudent standard creeping back into the negligence per-se standard.

Remember the ..morally blame worthy standand..

9/19Negligence Per Se v Reasonable person standard..

Restatement says if the violation of the statute is excused, then no negligenceSome jurisdiction do not follow the Restatement approach so you have to always check where you are.

Negligence – Prima Facie Case D owed P a Legal Duty Breach of Duty Actual Damages Cause in Fact Proximate Cause

Pipher Case:

Hypothetical reasonable person—An adult..

Determining Breach of Duty1. Would reasonable person have foreseen a risk of harm?

a. If no, then not negligentb. If yes, move on to #2

2. Would reasonable person have taken steps to avoid or minimize the risk?a. If no, then not negligentb. If yes, then negligent

Pipher was more about foreseeability.

Indiana Case:Remember, the appellate court does not weigh in on evidence..

15

There is not necessarily one choice that a reasonable and prudent person would make..we may say that in an emergency they may do something else.. may actually be a choice of reasonable things that

Stinnet Case..

131 – 144 scan pg 122.

United States v. Carroll Towing Co.

Why in Stinnet’s case do we have a ruling that says you don’t have to be responsible for others negligence buy here in this case—we are saying you are responsible??

What if the rule is you should anticipate what other people are going to do?

As a lawyer, its your job to shape the judge’s view of how to view the evidence. Watch out for apples to apples comparison—especially with time horizon

Learned Hand Formula—RefinedBreach if B < (Pdo nothing* L) – (Ptake precautions*L)

B = burdens to actor if taking steps to avoid or minimize risks

P= probability harmL magnitude of harm

16

You can argue that the court was applying the Learned formula in Matthew albeit intuitively.

What goals of tort is promoted by this:

Economic efficiencies

Deterrent

Corrective justice

Learned Hand Formula – Refined

Breach if:

B < Reduction Risk to Plaintiff + Reduction Other Risks

Reduction risk to Plaintiff = (P do nothing * L) – Ptake precaution * L)Reduction Risk to Others = (P other harms do nothing * L other harms) – (Pother harms take precautions * L other harms)

B= burdens to actor of taking steps to avoid or minimize risk Includes direct cost + potential risk Potential risk = (Pnew risk *Lnew risk)

P= probability harmL= magnitude of harm

Hypo debrief: Brown v. StielWh

Workers comp—employer can spread the risk—sometimes, we may want to look outside the tort system to address certain situations –workers compensation..

Multi party negligence..In most states, each negligent party pays in proportion to their fault.

Thoma v. Cracker Barrel Old Country Store, Inc.Slip and Fall Cases – Legal Standard

Premises owner negligent if:(1) (a) Created dangerous condition, or

(b) Had actual or constructive knowledge of dangerous condition, and(2) Failed to take reasonable actions to minimize/eliminate risk

17

Slip and Fall Case—s

Xxxxxxxx

Walmart v. Wright – Debrief

Duncan v. Corbetta

The T.J. Hooper

Determining Breach of Duty

1. Would reasonable person have foreseen a risk of harm?2. Question is not whether technically foreseeable, but how remote3. Would reasonable person have taken steps to avoid or minimize the risk?

a. Value life over propertyb. Risk utility balancing

DamagesXxxxxxxxxxxxxxxxxxx

Cause in FactXxxxxx

But for- remember, need to show that the negligent conduct on the part of the defendant is what caused the fault

Res ipsa loquitur rule does not necessarily negate Cause in Fact—if direct res ipsa loquitur, you can safely infer causation for initial state of affairs but for subsequent state of affairs, we will have more questions there this

Defendant negligence e.g- defendant fails to have lifeguard on duty and child drowns.. court might say its appropriate to draw causation.

There often are 2 or more persons that are negligent—when that is the case, how do you allocate responsibility.

Scenario #1: Action InjuryD1’s Negligence Broken Leg

18

D2’s Negligence Broken Arm

Scenario #2D1’s Negligence Broken leg and ArmD2’s Negligence

D1 and D2 both liable for broken leg and arm

Look at scenrios in her note and

10/3/11Scenario #5

2 tests for causation—the but for test and the substantial factor test.Most courts apply the but for test and reserve the substantial factor test when you have multiple or 2 negligent tortfeasors do they go with the substantial factor test.

Scenario #6Two defendants acted negligently, but only 1 caused harm to P. Don’t know which one caused harm.

Gen- rule – each D’s is jointly liable. Apportion liability based on comparative fault. (Summers)

Proximate Cause:The main thing to remember about proximate cause is that it is about foreseeability.

When the harm that occurred was a foreseeable risk, then you have proximate cause—substantial factor test..

From 190 -203

10/4/11

Remember test for a breach of duty is a reasonably foreseeable risk

Metcalf Debrief.

19

Abrams DebriefCourt applied the scope of risk test on appeal and found that it risk was not foreseeable.? would a reasonable and prudent person have foreseen the risk and would they have done something about it..

May have been negligent for delay, but the harm was not attributable to the negligent..

Palsgraff debrief..For the purposes of this course, ask the foreseeability question during proximate cause and not during duty of care – the dominant approach to proximate cause is the Cardozo approach. The courts in WI do apply the multi factor test too.

For Thursday, read through – Page 203 - 213

10/10/11

Proximate Cause – Scope of RiskIn criminal cases, some courts focus on the foreseeability of the criminal act..In suicides, most courts still focus on ….

Sometimes an intervening act may be a negligent act..

Derdiarian debrief

Rule: An intervening act may not serve as a superceding cause, and relieve an actor of responsibility , where the risk of the intervening act occurring is the very same risk which renders the actor negligent.

In a medical malpractice – the intervening negligence does not ever brake the causal chain..

Ventricelli debrief

Marshall debrief

Understand the different nuances for applying comparative fault rules – New York, TX, WI and ND.

20

When looking at comparative faults with multiple defendants, we may look at the state of mind of the defendants. Restatement also talks about how strong the xxxx ; some states look at the capacity of the person..

Tomorrow—assumption of the risk—pg 239 – 251

10/11/11

Get notes from Suchi..

Assumption of the RiskGenerally speaking, 2 broad categories—Contractual and expressed assumption of risk.. in effect, they are waiving the defendants negligence—however, they are not consenting to waive the defandant’s liability. [ intersection of contracts and Torts]

252 – 259; skip mcdugel 587 - 594

Implied assumption of riskVoluntarily encountered a known risk—implied agreement or consent to waive defendant’snegligence. (Majority) Some courts hold that just because a P voluntarily encountered a risk, does not mean they consented to the defendant’s negligence..

a) Primary assumption of risk (Avila)b) Scenaril: P consents to risks deemed inherent in activityc) Consequences: imp

594 – 604—look at the hypothetical.

10/17/11

Damages..

NominalCompensatoryPunitive

Comp damages—must be proven..Bod – injury—past and future medical expenses; pain and suffering; lost wages

21

Tort for profit caseTort for pleasure or wage..Punitive – deterrence—watch out for underdeterrence.

III. COMMON LAW ELEMENTS OF NEGLIGENCEA. Duty of Care The Reasonable Person: 83-100 Negligence Per Se: 100-11B. Breach of Duty Risk-Utility: 112-22, 127-34 Multiple Parties: 131-34 Proving and Evaluating Conduct, Notice, Custom: 135-47 Res Ipsa Loquitur: 147-62C. Injury: 163-65, 587-97, 600-04D. Actual Cause: 165-85E. Proximate Cause Scope of Risk: 186-203; 223-47

Intervening Causes: 203-17

Class Notes: 8/22/11

Tort law is based on common law—judge made rules. Sometimes, Tort law is governed by statute.

Hierarchy..Constitution > Statute> Common Law

Encourage schedule assignment and come see her. Will plan to see once a month.

Why it is important to understand the historical basis of the law.

Prior cases serve as precedent to current and future cases—but often the facts in current case is not often similar to prior case—so understanding the historical bases of the prior case will help in understanding if it applies in your case. Sometimes there is no precedent and the judges have to make up or come up with a new rule. You as the lawyer will have to try to help the judge to come up with

22

Common theme—

Morality/Corrective justice—

Social Utility/Policy—wanting to enhance society welfare—based on economic rule—maximize social benefit.

We may want to craft tort rules that promote a certain behavior or not.

Formal rules are rulings that do not expressly take into account the philosophical basis of the law.

Other Goals.

Compensation

Risk Distribution—

Is tort system the best way to deal with these issues?

Insurance, etc..

Prosser v Keeton:

Title—one right of ownership is the right to transfer ownership

8/23/11

Compensatory damages

Lost wages/earning

Cost of repairing/replacing damaged items

23

Medical expenses

Pain and suffering

Punitive damages

Overview of the

Trial Stage Trial Stage Procedural DevicePre Trial Complaint Filed (Plaintiff) Motion to Dismiss / Demurrer

(Defendant)Answer (Defendant)Discovery Motion for Summary Judgment

(Defendant) (End of Discovery)Trial Plaintiff Presents Case Motion for Directed Verdict

(Defendant) (End of Plaintiff’s Case)

Defendant Presents Case Motion for Directed Verdict (Usually Defendant) (End of Defendant’s Case)

Jury Instructions Challenge on Appeal (Losing Party)

Jury Verdict Motion J.N.O.V (Losing Party)Motion for New Trial (Losing Party)Challenge on Appeal (Losing Party)

Appeal

Plaintiff cannot succeed if they do not establish each element of the prima facea case. Even if the plaintiff proves a prima facea case, it does not guarantee victory if the defense can come up with a viable defense to the intentional tort

24