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Southern Illinois University School of Law
Kelley, Patrick J.

§         3 categories of torts
°         Intentional
°         Negligent
°         Strict liability
§         Purpose of Tort Liability
°         Compensate innocent victim or injured party
–          Restore injured party to original condition before the injury
·         Make financially whole
–          Would be unfair b/c the wrong-doer is liable even if not at fault
°         Punish the wrong-doer
–          Appropriate for D deliberately & w/o justification inflicts physical harm on P
–          Prevent one from taking law into own hands
·         Peaceful means
–          Prevent vengeful feuds or retaliatory violence
°         Deterrence of injurious or potentially injurious conduct (Holmes)
–          Means to an ends of discouraging wrongful conduct & encourage socially responsible conduct
–          May lead to over-deterrence (people not do anything out of fear) or under-deterrence (do not act for threat of tort liability)
°         Loss spreading
–          D is a conduit through which the whole community bears the burden of injuries
·         Overhead costs: cost of insurance & cost of products
–          Changes many attributes of legal responsibility by leading to
·         Belief that burden of damages should not crush D
·         Belief that moral blameworthiness should not be sole basis for shifting loss
·         Diversion of attn. from social deficiency as the paramount criterion of legal responsibility to a quest for the person in the most strategic position to distribute the compensation cost
–          Criticism
·         Tort liability is only concerned w/ injuries by one person to another
¨       Discriminate to general social welfare system
·         Assume that cost spread will be small & the marginal utility of the dollar
·         Government is best agent to spread the loss
°         Enterprise liability
–          Very similar to loss spreading
–          Allocation of full econ cost of activity to those engaging in activity
·         Spread loss among kind of people who benefit form activity that caused harm to P
°         Optimal cost avoider
–          Econ notion of deterrence
–          Those in activity in best position to make it safer
–          Problem: people compare cost of future liability w/ cost of safety precautions
·         Choose cheaper one
–          See last rationale for SL of defective product
°         General welfare
–          Personal security w/o over-deterrence
–          Purpose of

y have DV against
–          Burden of proof: persuade jury that your evidence is more often true (preponderance of evidence)
·         Party that has it has risk of non-persuasion of the jury
·         Necessary to jury instructions
¨       Determines how persuaded the jury must be to find for the P
¨       If cannot make up mind, must always find against the party that has the burden of proof
°         Jury instructions
–          Tells jury what to find if they conclude certain facts are or are not true
·         Gives the law to apply in particular case
–          If you find X,Y,Z must return verdict for P, unless you find A,B
·         Not tell what facts to find
·         Just determine the facts that are true
°         Relationship b/w procedural & substantive issue
–          Procedural issue: motion filed by the parties & the ct. ruling(s) on these motions
·         Determines where the ct., either in first instance or on appeal, gets the facts it assumes as true
Error of law