Torts Outline

Torts Outline
Professor Simons – Fall 2016
 
TORT LAW
 
Tort: A civil wrong, other than a breach of contract, for which the law provides a remedy
Who should bear the risk of loss?
Theory of shifting the loss from someone who suffered it (plaintiff) to someone else (defendant) [from A to B] Reasons for Tort Law:
To provide a peaceful means for adjusting rights of parties who would “take it into their own hands”
To deter wrongful conduct
To encourage socially responsible behavior
To restore injured parties to their original conduct
To vindicate individuals rights of redress
Civil Cases
Preponderance of the evidence – weigh the evidence on both sides to reach decision
“more likely than not”
 
New York State Court System (Torts is state law oriented [for the most part])
Court of Appeals (highest court)
Appellate Divisions (4 divisions – Queens is in 2nd)
Supreme Court, Appellate Term, Surrogate’s Court, County Court, Family Court, Court of Claims
Civil Court of the City of New York, City Court, District Court, Justice Court: Town, Village or City
In NY, you get what you ask for in terms of evidence.  In Federal, there is a mandatory disclosure.
Uncontroverted facts is a basis for determining summary judgment
Can’t argue facts on motion to dismiss or demur because court is assuming they are all true
Pattern Jury Instructions (PJI): What the law is.
If jury bases charge on erroneous charge from judge, a new trial is needed so jury can deliberate with a proper understanding of the law
 
Three possible bases of tort liability:
Intentional Conduct
Negligent Conduct
Strict Liability
Conduct that is neither intentional or negligent, but that subjects the actor to strict liability because of public policy (Spano v. Perini Corp., using inherently dangerous explosives – you are strictly liable)
 
Damages
Person, Property, or Economic Loss
Nominal Damages: Damage award when a legal wrong occurred but there was no financial loss
Punitive Damages: Awarded to punish defendant
Compensatory Damages: Monetary amount necessary to replace what was lost, and nothing more (medical bills, loss of wages, etc.)
Economic Damages: compensation for objectively verifiable monetary losses such as past and future medical expenses, loss of past and future earnings, loss of use of property, costs of repair or replacement
Non-Economic Damages: Pain and suffering (the physical pain and emotional distress a victim endures as a result of a personal injury accident)
 
INTENTIONAL TORTS
 
Generally, intentional torts do not result in vicarious liability (respondeat superior) 
1 year SOL
 
FAULT
 
Fault: a negligent or intentional failure to act reasonably or according to law or duty. It is an improper act or omission causing injury to another and arising from ignorance, carelessness, or negligence.
Standard is to use reasonable care
If action is accidental (Weaver v. Ward, skirmishing for muskets), defendant can still be held liable. In certain cases, the only issue is the fact someone was harmed.
Defendant may not be liable if the injury was accidental IF they were acting reasonably and lawfully. (Brown v. Kendall, dog case; D hits P while breaking up fight; was using due care and all proper precautions necessary)
 
BATTERY
 
Battery: harmf