Select Page

Rutgers University, Newark School of Law
Bell, Bernard W.

Torts Prof Bell Outline

When reading cases you should first attempt to determine the main legal principal or standard established in the case. Pay attention to the facts of the case, the procedural posture of the case, and the courts statement of the issue and its statement on the resolution. Note limitations on rule announced by court.

Torts are wrong done to one person to another for which the law provides a remedy. Tort law is not a coherent body of doctrine, it just prescribes remedies, whether intentional or not. Purpose is to compensate the victim, though punitive damages are simultaneously a penalty and an incentive to the victim to seek redress.

(Class one)
What are torts? Civil claims for injuries that develop from common law i.e. statutes and do not involve agreements between parties
Examples of torts: automobile accident injuries
Medical malpractice
Injuries from defective products
Assault and battery also be criminal subject (civil side)
Defamation: star ledger writes something not true
Trespassing on property (civil side)
Torts cover wide array of litigation
Criminal law deals with criminal punishment, i.e. incarceration
Torts personal law suits; decided usually by common law, rather than criminal via statutes
Different than other types of law i.e. contract law (agreements)

Why do we study torts?
Tradition: legal profession and legal education is pretty traditional.
It is on the bar exam.
A significant practice of law is able to read, analyze court cases.
Caveat: most law is statutory, and often these statutes will reflect common law.

The Litigation process: (procedure See handout #1)
Notes: one important analysis is the impact of a case on future cases. Need to know procedural process; what stage the process is in.
If you go to jury and they decide that you are guilty you have to pay. If it happens again then you still go to jury. However, if there is summery judgment that mean that you are liable already and wont go to jury. Not relevant to go to jury.

Cause of action—it is a claim for relief, money/action to gain relief.
Complaint—alleges cause of action
States the elements of a cause of action—matters that must be establish in order to prove a cause of action

Negligence: five elements of a negligent cause of action
Breach of duty
Actual causation
Proximate causation
Point of complaint is to set forth a cause of action and its elements
Defendant can make a motion for dismiss the lawsuit
A motion of dismiss alleges plaintiff fail to state a claim, or some of the elements of a claim

Duty of care
Was person doing a lawful act (Brown v. Kendall)?
Was harm reasonably foreseeable Adams v. Bullock degree of injury?
B < PL formula Boat case B>PL no negligence U.S. v Carol towing
Was risk of harm foreseeabl

tiff wins the case moves forward, the court denies the defendants motion to dismiss
If defendant wins then the case is dismissed, and can only be reinstated with an appeal

Standard of review: how close is the appellate court going to follow the lower court
2 standard of review: deferential the higher court gives the lower court the benefit of doubt, and only looks at the reasonable (even if it wasn’t the best answer)
not a deferential standard of review: was the lower court right? Does not matter what lower court did, sufficient to overturn lower court.
Why this kind of system, we treat questions of law and fact differently.
Theory of legal system, appellate judges decide question of law, and trial judge and juries decide questions of fact. (more deferential system of review)
Questions of law that is not deferential, was lower court right? Motion to dismiss then the standard is non-deferential

Answer Second way to deal with compliant is to answer the complaint: called the answer
You can dispute facts in the case in the answer
Another thing that you may do is say that there is some defense that they have.