Torts Outline

TORTS
MALDONADO
FALL 2012
 
INTRODUCTION:
 
Tort:
–          civil wrong causing another person harm (physical, emotional, reputational, economic, property)
–          primary concern: should one whose actions cause harm to another be required to pa compensation for the harm done?
–          Primary goal: to restore injured person to equivalent of their prior position
 
Some torts also constitute crimes:
–          the difference is the remedy
o   for crimes: prison time, fines
o   for torts: monetary compensation
–          with criminal law, the state brings criminal charges
–          with torts, the victim or the victim’s family brings charges
 
Torts v Contracts:
–          tort law addresses duties imposed by law, with no prior dealings between the two parties
 
Questions/Themes of Torts
–          when should one be responsible for bearing the loss of another?
o   Why does the loss shift from the victim to the tort-feasor?
o   When should the victim bear the loss?
–          What is the optimal level of deterrence?
–          Tension between strict liability and negligence
 
When should unintended injury result in liability?
1.      it is impossible to avoid/foresee all outcomes of ones actions
2.      when should losses be shifted from an injury victim to an injurer or some other source of compensation
3.      losses don’t just remain where they fall; full compensation isn’t practiced either. We are in the middle
a.       concern for injury prevention and fairness compel courts to develop complex network of liability rules for determining allocation of losses in cases of unintended harm
–          absolute liability: negligence = carelessness
–          strict liability: liability without fault
–          intentional liability: assault, battery, false imprisonment
–          unintentional liability: negligence, strict liability (liability without fault), product liability
 
Hammontree v Jenner: issue as to whether to use strict liability or negligence as the proper liability principle
–          holding: liability of a driver for injury resulting from an accident occurring during sudden illness rests on principles of negligence and not absolute liability
–          *now: driving accidents almost always considered negligence
 
HOLMES:
–          concerned that there will be a world in which every act can potentially cause injury and thus people will be reluctant to act at all
–          loss from an accident should lie where they fall
o   must come up with a good reason to shift the loss to someone else
o   causation alone should not shift the burden of loss
§  for strict liability, only need to show that the act caused the harm
§  for negligence you must show that the person was acting recklessly or carelessly
 
POSNER:
–          fault system should generate rules of liability that bring about most efficient cost justified level of accidents and safety
–          society doesn’t want to see resources squandered, so we equate negligence with moral disapproval because the cause of prevention would’ve been cheaper than the cost of the accident
–          society should never be condemned for avoiding prevention methods that consume excessive resources
–          similar to HANDS LAW
 
PLAINTIFF
–          living:
o   adult
o   parents or guardian will bring suit on behalf of minor
§  parents recover medical expenses, but child will recover for permanent physical harm (money kept in trust)
o   infant born alive can sue through parents for harm suffered before birth
–          deceased/decedent:
o   administrator/administratix: named by court to handle affairs of person who died Intestate
o   executor/executrix: named in deceased person will to handle sett