Torts Outline (Abraham)

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TORTS OUTLINETort: a civil wrong not arising out of a contractI. Negligence Liability: Historical Foundations and Modern Features A. Stages in a Lawsuit Plaintiffs complaint/ declaration service of process Defendants answer Discovery Trial Instructions to jury Verdict (liable/ not liable) Entry of judgment (P or D) Appeal B. Functions of Judge and Jury Courts decide question of law only Juries decide questions of fact only -Empirical question -Evaluative questionsmixed questions of fact and law Appellate courts decide questions of law only (cant second guess juries) -The basis of appeal is that the trial judge did something wrongmade an error can be described in procedural and substantive terms. Vosberg v. Putney(procedural errortrial court granted Ds motion and not Ps. A D is liable for battery when he engages in a harmful or offensive intentional touching without the express or implied consent of P. You have a right to bodily integrity except in situations where touching is expected. Issues left undecided: When is consent implied? When is intent determined? When is touching offensive even if not harmful? C. Verdicts 1. General: Jury instructed on the law and asked to find the facts necessary to decide whether the D is liable and to award damages if so. General verdicts allow juries greater opportunities to make mistakes (greater leeway to ignore the law). Sometimes we want to give the jury the power to nullify the law cheat the strict rules in a way that is unavailable with a special verdict. General verdict allows for juries having to deal with ambiguities. General verdicts also avoid getting the appellate court involved in determining fault in reasoning of the verdict. 2. Special: Jury is instructed to answer specific factual questions. Hammontree v. JennerD causes harm to Ps and their property due to an epileptic seizure (hard to show negligence b/c he had not had seizures for 14yrs). Jury found for D. Basis for Ps appealrefusal of trial judge to give absolute/ strict liability instruction to jury. D. Bases for Imposition of Tort Liability 3. Intent to invade the legally protected interest of another 4. Negligence 5. Strict Liability


E. The Functions of Tort Law 6. Corrective Justice: When one party harms another, correction of the wrong may help to restore moral balance between them. 7. Optimal Deterrence: The imposition of tort liability helps to prevent future tortious actions by threatening potential wrongdoers with liability if they cause actionable harm. Not all risky activity is worth deterring or we would be required to take endless safety precautions at unlimited costs. So one function of tort law is to promote optimal deterrencethat is to deter excessively risky activity so that only the loses worth avoiding are avoided. 8. Loss Distribution: The cost of Ps losses is not simply transferred to the defendant, but is distributed through the defendant to a larger number of individuals. Having a large number of people bear a small loss is better than having a single person bear a large one. This rationale has a weakness because it creates a situation where there is no stopping point. Plus, imposing tort liability through a lawsuit is a cumbersome and expensive mechanism for achieving loss distribution. 9. Compensation: It is sometimes argued that the principal function of tort law is to promote compensation of those who have suffered injury. This is true in a limited sense (it is a beneficial effect). But, liability is not imposed to provide compensation to victims. Victims are given compensation to serve the goals of tort law. Providing compensation under certain circumstances rather than in general is what is really going on when tort liability is imposed. 10. Redress of Social Grievances: The right to sue in tort promotes the redress of social grievances, especially against large, impersonal institutions. In this sense, tort law is a populist mechanism that allows ordinary people to put authority on trial. This function is not strong by itself, but when allied with other functions, it can explain why some cases are decided the way they are. 11. Summary: A Mixed System: Tort law does not serve any one goal, but a set of different goals whose strength is likely to vary with the situation. F. Pleas and Outcomes of early Cases Trespass-required that the injury to P be forceful and direct. In trespass the defendant is liable virtually without regard for whether he was to blame for Ps injury, as long as he caused it (it was what we would today call strict liability). Weaver v. Ward P and D were 2 English soldiers. P shot D during a military exercise. P only had to show violent harm. P can recover for direct and forceful injuries (i.e. trespass) unless the D succeeded in proving that the circumstances fell within the substantively narrow defense of utterly without fault. 2 defenses arose in trespass. 1) General defense: denied the facts alleged or at least the critical allegation that the Ds act caused Ps harm 2) Special defense: admitted that the cause of Ps harm was the Ds act, but further alleged that D was utterly without fault. Thorns Case If the claim falls within the contours of trespass, P usually won b/c the D was virtually w/o regard to whether he was to blame for Ps injuries, as long as he caused it. Case Weaver Smith Plea Special Special Rationale D not utterly without fault Not Ds act


Gilbert Gibbons

General Special

Defendant not utterly without fault Not Ds act

Wrong Pleascourts hold out the possibility that a D could prove no liability if he pleads a different wayproves it. If Ds had plead something else and offered a different defense, they could have won. D has the burden of proving freedom from fault. CaseAs tort law expanded, additional writs became available for indirect or consequential damages. Scott v. Shepherd(case of the lighted squib) D argued that P should have sued in case, not trespass, b/c harm was indirect. Court found that harm was direct and trespass would lie (arbitrary decision). 1) Trespass-lies for direct harm. Ps recover in trespass and Ds pay virtually on a strict liability basis. (D unlucky if harm is direct and sued in trespass) 2) Caselies for indirect harm. Ps recover and Ds pay only when P proves Ds negligence. (Harder to prove liability b/c have to prove negligence). Brown v. KendallD was trying to separate his and Ps dogs that were fighting. D damaged Ps eye w/ the stick he was using to separate the dogs with. Shaw/ court said that neither trespass nor case would lie unless the D intended to injure the P or had negligently injured him. The standard by which the defendant is to always be judged is one of ordinary or reasonable care. If D has exercised ordinary care, then he is not liable, whether the action is brought in trespass or case. P has the burden of proving breach of standard of care. 1) P must prove that the D was negligentfailed to exercise ordinary careor worse (not all cases of direct harm can be a cause for trespasscase overrules 400 years of precedent). 2) This is true regardless of whether the proper writ is trespass or case. 3) Even if D was negligent, there is no liability if the D proves that P was also negligent (contributory negligence). The Subsidy Thesis: results of Shaws decision in Brown -Theory-the adoption of negligence as a basis for liability in the mid-19th century operated as a subsidy for defendants and thus American industry. -Prior to 19th century there was strict liability -Does the subsidy theory operate? a) Makes sense as a matter of policy b) Just b/c this is the effect does not mean that this was the motivation -Term of Subsidy a) Subsidy as a factual description (term is loaded) b) Starting point assumption that presumes the conclusionmove from strict liability to negligence liability is true, but doesnt mean it is a subsidy. -World changes b/t 17th and 19th centuriesindustrial revolution, kinds of injuries caused by accidents are different as the accidents are different. This changes the liability scheme. -Notion that you are liable if you act in a way that is wrongful. Negligence standards fit the notion of rugged individualism. If you are not at fault, the law wont inhibit your activities. - Did not just aid the industries, all Ds benefited from this.


Holmes Life of law has not been reasoned, it has been experienced Writing a manifesto for negligence Negligence liability is the right amount of liability Historical reinterpretationall these cases involving strict liability actually hinge on fault.

G. The Reasonable Person Standard Negligence is the failure to exercise reasonable care to avoid injury to another person or property. It is the failure to exercise the reasonable care that would have been exercised by the reasonably prudent person under the circumstances. It is not a concrete rule, but a general standard that asks for a normative judgment. 12. Negligence Principle a. Tort that generates civil liability -Failure to exercise the care that would have been exercised by the reasonably prudent person. b. 4 Elements that P must prove to prevail -Duty: Did D owe P a duty to conform his conduct to a standard necessary to avoid unreasonable risk of harm? -Breach: Did Ds actions fall below the applicable standard of care? -Causation: Was the defendants failure to meet the standard of care causally connected to plaintiffs harm? -Damages: Did P suffer harm? 13. The Objective Standard a. Reduces Variability of Result: Subjective standard would be infinitely variable. With the objective standard, the jury only has to compare actual conduct of D with the standard. b. Discourages Fraud: Subjective standard would encourage fraud and deception. If the negligence determination depended on the characteristics of the defendant, the defendant would have the incentive to mislead the jury about those characteristics (unders