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Rutgers University, Newark School of Law
Payne, John M.

Torts Exam Outline

1)     Overview

a)     Tort: injury to one’s person, property, economic interest, identity, personality, privacy, sense of self, etc.
b)     Tortfeasors: wrongdoers
c)     Debate: fault-based v. strict liability
d)     Lawyer fees: win – get a cut, lose – get nothing

2)     Procedure

a)     Seek a settlement
b)     File a complaint
i)       Present alleged facts that point to a legal theory
c)     In discovery stage, there is full disclosure of facts between sides
d)     Motion to dismiss (demurrer): even if the facts stated are true, there is no sound legal theory for relief
(1) used by D
(2) Supported by legal argument
(3) If judge does not grant it, legal theory is sound, and proof of alleged facts will result in liability
e)     Summary judgment: there’s no fact dispute and therefore only one possible finding
f)      Trial begins
g)     Burden of proof
i)       starts on ∏
ii)     2 components:
(1) Must introduce evidence sufficient enough that a jury could rationally find in their behalf
(2) Burden of persuasion (must persuade jury that their version is correct – “is more likely than not” or by a preponderance of the evidence” depending on state)
h)     Judgment as a matter of law (formerly directed verdict): legal rule not disputed, but fact necessary to win under rule missing
(1) To be granted – no reasonably jury could find any other way
i)       Ruling
j)      Judgment as a matter of law (formerly judgment notwithstanding the verdict)
i)       No reasonably jury should have found that way
(1) Should only be used where there is no evidence to support finding (rather than just insufficient evidence)
(2) Can be used if judge thinks jury was influenced improperly (ex: by severity of injury)

3)     When should unintended injury result in liability?

a)     Hammontree v. Jenner
i)       Court declines to superimpose strict liability instead of negligence
(1) Hammontree: Jenner is like a defective product
(a)  Driver is only one who could anticipate consequences
(b) driver has insurance just like product liability Ds
(2) Court: not the same
(a) Product liability Ds are part of business that should bear cost of injury
(b) Regardless, this would create case-by-case chaos (policy decision)

4)     The parties and vicarious liability

a)     Minors
i)       As ∏s
(1) Suit brought by parents
(2) Damages
(a) For permanent physical harm: go to minor (held in trust)
(b) For medical expenses: go to parent
ii)    As Ds
Parents not liable for damages of child (except where within their control)
(1) Insurance often covers

violated company rule against” drinking and driving
(4) Birkner criteria not limited to negligence, can be applied in intentional tort (Clark v. Pangan)
(5) respondeant superior possible where improper screening (Foster v. The Loft, Inc)
(a) The Loft hired a bartender guilty of assault and battery
(6) Baker v. St. Francis Hospital:  respondeant superior where nurse banged baby’s head to shut it up
(7) Apparent authority
(a) There can be respondeant superior with apparent authority (rather than expressed authority)
(b) Rosslver v. Novack (p24)
(i)    Hospital may have apparent authority over independent contractor doctor, 3 requirements:
1.     a representation by the purported principal
2.     a reliance on representation by third party
3.     change in position by third party in reliance on representation
(ii)based on whether principal created appearance, not third party’s subjective experience
(c) Baptist Memorial Hospital System v. Sampson: signs and disclaimer used to avoid apparent agency even though patient claims not to be aware