Torts Outline

Torts
Spring 2010
Bernabe

I. Introduction
A. Definition of a tort: Tort- civil wrong, other than a breach of contract, for which the law provides a remedy-compensation for injury suffered.
Tort law is based on the evaluation of a person’s conduct, and on the societal agreement of reasonableness.

B. Goals of tort law:
1. For people to seek redress for wrongs suffered at the hands of other people, and to receive compensation for the loss in value b/c of the injuries suffered b/c of that wrong.
2. To prevent people from taking the law into their own hands
3. to defer wrongful conduct
Encourage socially acceptable behavior

C. The theories of liability- (I.N.S.)
1. intentional torts: liability imposed only upon proof of defendant’s intention to invade the legally protected interest of another; INTENT MUST BE ALLEGED AND PROVED, P has to MEET THAT BOP
B-Battery
A-Assault
C-Conversion
F-False Imprisonment/False Arrest
I-Intentional Infliction of emotional distress
T-Trespass to Chattels
T-Trespass to Land

2. negligence liability – imposed only upon proof of failure to exercise reasonable care under the circumstances.
Brown v. Kendall- dog owner v. dog owner w/stick
If in the prosecution of a lawful act, a casualty purely accidental arises, i.e., the injury was unavoidable, and the conduct of the defendant was free from blame, no action can be supported for an injury arising therefrom.
-ordinary/reasonable care- the kind of care which prudent / cautious men would use to avoid probable danger (shooting a gun in the forest vs in a town, show different kind of care).

3. strict liability (liability w/out fault): imposed without regard to the degree of care tortfeasor exercised; liable for damages w/out fault or trespass; liability w/out fault; While engaging in “abnormally dangerous activities” the subject is held to strict liability.
Spano v. Perini- damaged garage v. blasting company

B. The concept of damages
1. Three basic types of damages
i. nominal damages: small sums awarded to P in order to 1. vindicate rights 2. make judgment available as a matter of record to prevent D from getting prescriptive rights 3. to carry a part of the costs of the action
ii. compensatory damages: represents the closest financial equivalent of the loss or harm suffered. Goal is to restore the P to pre-injury status as far as possible, to make the P whole again with money
iii. punitive damages: additional sum over and above the compensation of the P. Awarded to punish the D and to deter D and other from engaging in similar tortious conduct.
Goals of punitive damages
a. discourage evil motives
b. remedy for refusal of American Civ Pro to allow compensation for litigation expenses, counsel fees
c. channel revenge into peaceful resolution
d. incentive to redress petty cases of outrage and oppression
Proof of punitive damages: clear and convincing
2. Evidence of damages: proof of damages important part of P’s c/a for all torts. Frequent use of demonstratives (tangible items that “bring the injury home” to jury)
3. Personal Injury damages, divided in 2 categories
i. Special (economic) Damages: lost earnings, medical and other expenses subject to objective measurement of economic loss
a. medical expenses: P able to recover all present and future medical costs unless the costs incurred were not related to tortious injury, were unnecessary, or excessively high. Future costs need to be proven by expert
b. damages for negligent exposure to possible harms: recovery sometimes permitted for early detection testing
c. lost wages
d. loss or impairment of future earning capacity: P does not recover and reenter the workforce. Injury must permanent, and an expert will assist the jury in calculating lifetime earning potential
e. Damage calculation in present value: usually jury must award the present value of all expenses including future in one lump sum minus interest. For example, if a surgery P will need in 10 years will cost 5,000, jury must discount the award to a lump that will equal 5,000 in 10 years when multiplied by the likely interest rate
f. future inflation: P’s lawyers argue for adjusting damage awards to account for inflation (the 5,000 surgery may cost 6,000 in 10 years)
g. compensatory damages not federally taxable, punitive damages are
h. interest: tort damages for personal injury generally unliquidated (no precise sum asked for) and P cannot collect interest until judgment entered or verdict reached

ii. General (non-economic damages)
a. Physical pain and suffering, mental anguish
1. past, present, future physical pain and suffering caused
by the injury; P must be conscious to recover this
2. loss of function or appearance (i.e. taste and smell,
impotence, incontinence)
3. emotional distress (recoverable only if results from
physical injury or direct invasion of rights)
b. Loss of enjoyment of life: some courts award as part of pain and
suffering, some recognize it as a compensable separate element of
damages
c. Per diem argument: breaking suffering down into units of time and
then multiplying by past and expected future duration
d. Pain and suffering damages generally not reduced to present value
e. reduced life expectancy: American courts generally do not award
for this while English do
4. Judicial control of amounts recovered: Judges or appellate panels may disturb the
jury finding of damages if it is either so inappropriately high or low that it shocks the
judicial conscience. Reduction=remittitur (new trial awarded unless P accepts reduced amount.) Addition=additur, power of which has been denied to federal courts as a violation of the 7th amendment. States are split on this)
5. Legislative control of amounts recoverable: about half the states have enacted legislation that limits damages in certain types of torts, while some states have held that this is unconstitutional
6. Duty to mitigate damages (doctrine of avoidable consequences): a rule that bars
recovery of damages that P could have avoided by reasonable conduct on the part of the
P after a legal wrong has been committed by D (for example failure to undergo
reasonable surgery that would mitigate damages.
7. Physical Harm to Property
i. chattel completely destroyed or converted: measure of damages is entire value at time and place of tort
ii. damaged but not destroyed or converted: award of difference in value before
and after the injury; cost of repairs may not exceed value of chattel
iii. deprivation of use: value of the use of which the P was deprived, measured in
rental value for period of deprivation
iv. compensated at market value (leisurely seller to willing buyer) at the time of
wrong, though for stocks bonds and commodities an allowance is made for an
increase. Many courts follow the New York Rule: highest replacement value

II. Liability