Chapter 1 An Overview of Modern Tort Liability: Intentional Injury, Failure to Exercise Care, and Strict Liability.
1) Personal Injury & Property Damage
a) Tort law is vehicle of legal redress for victims of physical injury or damage to tangible property. Also, mental distress, impairment of reputation, and non-tangible economic injuries.
b) Every person whose conduct or inaction precipitates a result which another perceives as harmful is a potential tort defendant.
2) Common Law and Statutory Law
a) Tort law is common law in the fact that its principles are articulated by courts, not legislatures. Process involves considerable discretion and judges often make up new law in the process. Has been legislated, but judges can overturn legislature by ruling a different way.
3) Primarily State Law: determined by the state, not federal. Can differ from one district to another.
4) Re-forming Tort Law: subject to change with the times. Calls for reforms make it subject to re-examination.
5) Tort Law and Public Policy
a) Liability should be based on “fault”: situations where harm is the product of intentionally tortious conduct or failure to exercise care.
b) Liability should be proportional to fault: defendant’s burden should not be disproportionally heavy or unlimited. In cases of 2 or more defendants, liability should be allocated according to degree in which conduct precipitated damage.
c) Liability should be used to deter accidents.
d) The costs of accidents should be spread broadly.
e) The costs of accidents should be shifted to those best able to bear them.
f) Those who benefit from dangerous activities should bear resulting losses.
g) Tort law should foster predictability in human affairs: individuals should not be forced to act at own peril, unsure of what the law requires of them.
h) Tort law should facilitate economic growth and the pursuit of progress.
i) Tort law should be administratively convenient and efficient, and should avoid intractable inquiries: dollars spent on accident compensation should be efficiently employed without expenditure of considerable time and money (intractable inquiries).
j) Tort law should promote individual responsibility and discourage the waste of resources: individuals protect their own interests instead of depending on others to save them from harm.
k) Courts should accord due deference to co-equal branches of government:
The Concept of Duty
a) Prosser’s Four Elements: duty, breach, causation, damage
b) From Limited Duty to General Duty: reasonable care owed to those who may be harmed by one’s action where harm is foreseeable. Exception: limited-duty categories.
c) PALSGRAF V. LONG ISLAND RAILROAD CO. (range of apprehension)
i) Legal Issue: To what extent are we responsible for injuries done to others, seen and unforeseen?
ii) Cardozo, C.J.
(1) One owes duty only to those foreseeably endangered.
(2) Duty = range of apprehension.
iii) Andrews, J.
(1) Where there is the unreasonable act, and some right that may be affected, there is negligence whether damage does or does not result.
(2) One owes a duty of care to the world in general.
(3) Responde ex superior: Company is liable for employee’s actions while the employee is working. Acting in scope of employment. Employee is agent of employer.
(4) Duty = proximate cause.
3) The Negligence Balancing Test B
