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Rutgers University, Newark School of Law
Latin, Howard A.

Tort Outline

Brief history of torts

There were 2 writs in historical tort law:
Trespass – Direct tort (intentional)
Case – Indirect (unintentional)

This was a part of English common law. A party would have to file a writ and get the kings approval. The party would have to choose which writ they wanted to try the case on. If the party applied for the wrong writ they would not be allowed to apply for another writ the case would be over.

Social Policy Arguments
1)      Deterrence or preventative
a.   Imposing liability for risky behavior
2)      Loss spreading/compensation – Spreading the cost of an accident throughout the entire business.
a.Enterprise liability – costs of accident should be spread out through the entire business.
b.                        Raising costs to cover insurance.
3)      Reduce Transaction/administration costs.
a.Rand Agency Investigation
In the asbestos cases they determined that for every $1 spent only $0.37 was reaching the П. The other $0.63 was being consumed by transaction costs.
4)      Fairness
a.Always try and turn this around, if it can be done the argument does not work well
5)      Retribution – As punishment for bad actions or behavior
a.   Ford Pinto case
6)      Information access – Person w/ better or more access to info should be more liable than those who don’t have access.
Subcategory of deterrence or fairness
i.e. Baseball stadium where to sit statistics.
7)      Justice
Ø     Coherence – Understanding outcome of case law
Ø     Consistency – Like cases should be treated alike
Ø     Predictability – People should be able to make judgments based on liability of the risk taken. (Liability predictable)
8)      Judicial administerability
a.    Something that the court can be able to enforce

I. Negligence
Prima Facie Case:
Ø      Foreseeability
Ø      Reasonable care
Ø      Causation (Cause-in-fact/proximate cause)
Ø      Damages – Injury to П

vNote:   Holme’s theory on foreseeability – Enough of a chance that you would think of trying to prevent it.

Stone v.

     Causation (Cause-in-fact/proximate cause)
Ø      Damages – Injury to П
Trespass falls under strict liability
a)      Damages are higher if stolen intentionally
b)      Damages would be lower if unintentionally

Fletcher v. Rylands p. 114
Landowner floods neighbor’s property, when building a reservoir on his land and the water goes through mines into neighbor’s property. Although Rylands was not negligent the court found that he was still liable, if harm is caused then strict liability is enforced.
Rule: A person using his land for a dangerous, nonnatural use, is strictly liable for damage to another’s property resulting from such nonnatural use. Many American courts later rejected this. During the 1900’s the government wanted to encourage people to expand their land

Strict Liability
Ultra Hazardous activities