Torts Outline

I. Introduction
a. Where does law come from?

i. Civil Law: comes from ancient Rome by way of Napoleonic Code

1. Continental Europe, Latin Am. Most of Asia

ii. Common Law: developed by England, shaped in the courts of English Kings and was applied on the assumption that it represented the common customs & convictions of all the English

iii. Constitutions

iv. Legislation- Federal & state

v. Judicial Decisions

vi. Chief Executive- Executive orders by pres of US or governors of state and Agency regulations (ie. Border laws, airline regulations, etc.)

vii. American Court System:

1. Federalism means choice btwn parallel federal and state court systems

a. often cases you deal with can be brought into either court system

b. both have jurisdiction to hear cases

2. State Courts

a. 1. Trial courts 2. Appellate Courts: most have mandatory appellate jurisdiction and can hear all trial level case 3. Supreme Courts: The state Supreme Court is the final say

b. general jurisdiction- authorization to hear a specific case

3. Federal Courts- unitary court system

a. Trial Courts- Federal District Courts- have limited jurisdiction

b. Courts of Appeal- only view decisions form federal district courts

c. US Supreme Court- final arbiter of any case form the Circuit courts & only hears cases it chooses to hear

b. Intro: Tort Theory, Policies & Approaches (1)

i. What is tort law? Study of mostly common law of personal harms

1. Why do we have tort law? What are the goals and rationales?

d. Corrective Justice- doing the right thing- based on justice, fairness and morality

e. It makes social and economic sense

i. cost of prevention= cost of injury x Probability of Injury

f. Risk distribution (loss spreading)

i. if you roll over in a car and receive $1 mil for injury and maker has to transfer costs to consumers through other products to compensate themselves for the monetary losses

2. Remedies- anything the law can do for someone who has been wronged

a. Equitable: specific relief to undo past wrongs and to regulate future conduct

i. Injunction- order to do or refrain from doing something

b. Legal: damages, payment to recompense for damages

i. Punitive damages: meant to inflict punishment for bad conduct

ii. Compensatory

Holden v. Wal-Mart: Woman stepped in a hole in Wal-Mart parking lot, had prior knee injuries but this act made have to get knee surgery sooner, jury found P 60% negligent and D 40% negligent. Rule: The evidence of a previous condition made it difficult to make a direct link with the effects of the act, therefore limiting the amount of compensatory damages that the plaintiff could seek.

c. Reading Tort Cases: Legal Terminology

i. Motion to dismiss or demurrer- D believes facts stated in complaint do not show a valid legal claim. If denied, case will proceed and D will file an answer or motion for summary judgment

ii. Motion for Summary judgment- based on showing new facts in addition to the ones stated in the complaint, showing that there is not real dispute about the new facts and the new facts compel judgment for the moving party

1. New facts come from discovery: sworn testimony

2. Appropriate when there is no room to dispute the facts

iii. Proposed Instructions- tell the jury what to consider and what facts must be found to exist before the plaintiff can recover. Must state law and not mislead the jury or mis-emphasize the element

iv. Motion for Directed Verdict- asserts that the proof offered by P is legally sufficient to warrant a jury’s verdict for the P

1. Will be granted if a jury of reasonable persons could not differ on the evidence or the facts taken in this favorable light do not est. any legal claims

2. Based on evidence produced in full at the trial, not general allegations of complaint like motion to dismiss and summary to judgment

v. Motion N.O.V.(notwithstanding the verdict)- asserts that the evidence is not legally sufficient to justify a jury verdict for plaintiff

vi. Motion for New Trial- 1. if an error was committed in the trial & judge recognizes it, there is a possibility that the error influenced the jury, a new trial should be granted 2.asks for new trial b/c verdict against weight of evidence or b/c damages award was unconscionably high/low

II. Intentional Torts

a. Battery- Elements: a)D intended to cause P a harmful or offensive contact and b)the actual harmful or offensive contact directly or indirectly occurred

i. To prove a battery, P has to prove that D’s act would be harmful or offensive to a reasonable person

Cohen v. Smith: deliver baby, religious belief for males not to see Mrs. naked & informed hospital, male nurse in room and touched her. Properly stated claim against battery? Rule: See rule of battery

b. Establishing a Prima Facie Case for Battery

i. The requirement of fault- Van Camp v. McAfoos

1. To recover in tort, P must allege (and prove) that D’s conduct was faulty

VanCamp v. McAfoos: 3yr old ran into P w/ tricycle, P claimed didn’t have to assign fault but that the act was enough. Rule: Must allege some fault to plead a cause of action for a tort.

ii. Elements of Cause of Action for Battery

Rule: a person is subject to liability for battery when s/he acts intending to cause a harmful or offensive contact, and when a harmful contact results. – Snyder (citing Rest. 2d Torts)

Snyder v. Turk: Surgeon yelled at his scrub nurse and pushed her head into hole, D claimed no tort b/c did not intentionally inflict harm Rule: Person is guilty of battery if he intends to inflict a harmful or offensive contact even against another’s sense of dignity.

1. D acted with Intent to cause a harmful or offensive contact – Snyder v Turk

a. Words + actions determine whether there was intent. It is established by showing intent to cause a harmful or offensive contact

b. Intent may be established w/out a showing of intent to inflict personal injury; it may be proven by showing intent to offend- Synder

2. Tests to prove intent

a. Deliberate or Purposeful

i. Must be deliberate desire to harm or offend

ii. Intent to act not enough

b. Substantial Certainty Intent- Knowledge that act is substantially certain to result in a harm or offense

i. Reasonable person standard

Garrat v. Dailey: P sustained an injury when D pulled the chair out from underneath her, at first D claimed no intent, but later intent was established. Rule: To make an actor liable for the tort of battery (bringing about a harmful or offensive contact), the act must be done for the purpose or with the knowledge of the purpose on he part of the actor that this action will/may cause harm on the part of the actor.

c. Transferred intent

i. Torts can transfer to the same P or to an “unintended” 3rd person

Davis v. White: P and brother were outside of their house, D and another man get into an argument down the street, D attempted to shoot the man he argued with but instead shot P. Rule: Under doctrine of transferred intent one who intends a battery is liable for that battery when he unexpectedly hits a stranger instead of the intended victim.

d. Intent of children

i. No absolute shield b/c of infancy. Liability depends on the ability of individual child to form necessary intent

Walker v. Kelly: P’s son (8) is injured by a rock thrown by D’s daughter (5), she intended to hit his bicycle but missed and hit him in the head. Rule: When an infant cannot b/c of his age or mental capacity form a state of mind (malicious intent) required by a tort, he cannot be found liable for such tort.

e. Intent of Mentally disabled

i. For policy reasons, a mentally disabled person can be held for an intentional tort

1. Unless policy reasons don’t apply (i.e. you choose to work at an assisted living home and get hit)

Polmatier v. Russ: D shot father-in-la