Chapter 1. Tort Law: Aims, Approaches, and Processes
What Is Tort Law?
This is a course on wrongs. Tort governs a person’s ability to sue another person for a wrong for terms of money.
· Social policy (good for all of us). A good example of this would be the locality rule for medical malpractice. The change from holding standards for small-town physicians to their own standard to the same standard reflects changes in available information/standards.
· Process policy (that which judges & juries can understand and apply)
· Risk distribution—Compensation is not more important than corrective justice. The risk becomes distributed over a greater scope. Workers’ Compensation is one form of this distribution. Insurance is another means of risk distribution. Risk distribution alleviates the fault from being assigned to protect Pl.’s. Product liability is another; the incremental increase in the price of many products can offset larger costs for potential suits
The Aims and Approaches in Tort Law—Justice and Policy,
a. Some Broad (and Conflicting) Aims
b. Applying Some Approaches
Implementing Tort Law Purposes With Damages Awards
The allocation of power is the focus of tort law. The plaintiff wants the case to go to a jury. A defendant wants to keep it away from a jury.
Pl. can recover not only for immediate damages and lost wages for time spent in recovery, but can also recover for lost potential earning wages. But, such awards must be consistent with the dollar figure at hand. This becomes especially problematic in cases involving children. It is not enough to base such awards on the careers of the parents, but there must be a starting point.
The same is true for future medical expenses for serious lifetime injuries. Expert witnesses are required to establish estimates of future medical costs.
· Pl. files case
· Def. files motion to dismiss
· Motion for directed verdict
· Proposed instructions & objections to jury
· Motion for JNOV (judgment not withstanding the verdict)
o Trial judge admitting that a summary judgment could have been applied. Less chance of it being overturned. If Def. prevails, possibility for overturning judgment is slightly greater.
Chapter 2. Reading Torts Cases: Trial Procedures
1. Looking for Facts, Rules, and Reasons
2. Procedures at Trial
Questions of fact are decided by a jury. Questions of law are decided by a judge. Sometimes courts give instructions as to how to interpret some questions of fact, and that plays into how juries decide individual cases. This also could lead to potential conflicts in juries.
3. Procedures Raising Legal Issues
4. The Motion to Dismiss or Demurrer
b. The Motion for Summary Judgment
c. Objections to Evidence and Offers of Evidence
d. The Motion for Directed Verdict
e. Proposed Instructions and Objections to Them
f. The Motion N.O.V.—A Post-trial Motion for Judgment as a Matter of Law
g. The Motion for New Trial
Chapter 3. Establishing a Claim for Intentional Tort to Person or Property
a. Requiring Fault (as a cause of action, fault is required for a valid tort claim).
Intent is key here. For example, courts cannot establish intent for the actions of a young child. Court is not prepared to treat the actions of a 3-year-old on the same level as those of a 33-year-old knowing adult.
b. Elements of Battery
Contact that is offensive to a reasonable sense of personal dignity is considered offensive—offensive to a reasonable person. Physical contact is not a requirement for battery.
The right to refuse medical treatment is considered fundamental in freedom of choice. The same is true for the right to refuse exposure to member of the opposite sex, even in the middle of a medical procedure. Although the term reasonable can be subjective, individuals have the right to make that decision for themselves.
The requisite intent to commit battery is present even though the reasons and motives for performing the actions may be obscured by the actor’s mental state. Insanity can be used as a defense even if the actor cannot fully understand the full implication of the action.
Intent cannot be established when it exists only in the mind of a minor child who may or may not bee ac
xemplars of Constitutional Violations
Chapter 4. Defenses to Intentional Torts—Privileges
Protecting Against the Apparent Misconduct of the Plaintiff
When an innocent third party’s property is damaged by the police in the course of apprehending a suspect, that property is damaged within the meaning of seizure according to the US Constitution. The public must be compensated for such use of private property. The act was for the public good.
b. Defense of Third Persons
c. Arrest and Detention
One who reasonably believes that another has tortiously taken a chattel upon his premises, or has failed to make due cash payment for a chattel purchased or services rendered there…
The necessary elements of a s case for false imprisonment are a deprivation of the liberty of another without his consent and without legal justification.
d. Defense and Repossession of Property
The value of human life, however, outweighs the interest of a possessor of land. To use force intended or likely to cause death or serious harm against another unless the intrusion threatens death or serous bodily harm.
An owner of a premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or great bodily injury including the setting up of “spring traps.”
The law has always placed a higher value on human safety than upon mere property rights. A person may defend himself, even kill when necessary. But the act of mere trespass is not enough to warrant such a drastic act. There is no privilege to use force calculated to cause death or serious bodily injury where only the property is threatened.
f. Observing Privileges
The Special Case of Consent