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Torts
John Marshall Law School, Chicago
Kandaras, Kenneth

Outline Torts
 
Chapter 1: Development of Liability Based Upon Fault
 
Tort:
Civil Wrong
Imposes duties on persons to act in a manner that will not injure others.
Major Purposes
Keep people from “taking the law into their own hands”
Deter wrongful conduct
Encourage socially responsible behavior
Restore injured parties to original condition
History
Actual intent and actual personal guilt
Imposing liability on those who caused physical harm (moral standards)
Forms of action
Historically: English kings issued writs
Modern: Trespass and Action on Case
 
Trespass v. Action:
 
Writ of Trespass
Writ of Trespass on a Case
History
Had a criminal character only for forcible breaches of peace and this was the basis of royal court’s jurisdiction. Purpose of remedy for punishment, and later was the injured parties claim for compensation.
Came from cases in which there was no existing writ for the claim; must apply to the chancellor for a special writ to fit the case. It was through this action on the case rather than through trespass that most of modern tort and contract law developed.
Application
Only for direct and forcible injuries, whether or not they were intended.
For tangible injuries to person or property; might be maintained for injuries intended but not forcible or direct.
Proof
Did not require proof of actual damage b/c the invasion of the P’s rights by the crim conduct was seen as the tort in itself. Only has to est. conduct
No liability unless actual damaged was proved.
Liability
Could view liability w/o regard to D’s fault.
Always req. proof of culpability: either wrongful intent or wrongful conduct (negligence)
 
 
Pg 5
Anonymous Case: (King’s Court 1466)
Causing injury alone warrants liability (strict liability)
Ie: building a house, material falls on another’s house, liability? Yes (discourages business)
 
Weaver v. Ward (King’s Bench, 1616): Ward shoots weaver accidentally during a military drill.  D held liable. But dicta in case gives examples of when on he may not be liable (such as if P ran in front of gun while it was shot.) Rule now is: Defendant cannot be liable for an accidental injury. Court moved away from direct and indirect caused of harm and now uses intent and negligence tests.
Brown v. Kendall (Supreme Court of Mass., 1850): Dogs Fighting, Kendal hits Bro

ould precaution
$1.00                $1.00 (no liability)
$1.00                 $.99 (this causes negligence and you know have liability for all damages)
$1.00                 $1.01 (inefficient) When do you know you have reached extraordinary care?
 
Prescriptive Rights: right obtained by the effect of the lapse in time creating or destroying rights, can be acquired as an easement. 
Chapter X: Damages
 
Nominal Damages: small amt in order to vindicate rights, make record and prevent D from prescriptive rights.
Compensatory Damages: = to the loss or harm, to make the P whole again
Punitive Damages: additional sum for purposes of punishment, example and deterrence.
 
Underlying Themes
purpose of compensatory damages is to make the person whole.
The only tool for remedy is money
Judicial review of jury verdict amts is limited (shocks the conscience)
Punitive damages are focused on behavior and characteristics of D rather than the P.