I. What is a Tort (latin: twisted)? A civil wrong for which a remedy maybe obtained usually in the form of damages; to act in a manner that is wrongful toward and injurious to another. Torts are the collection of recognized legal claims that enable a person to obtain redress.
II. Tort Law subdivided into 2 categories based on the “standard of care.”
1. Accident Law – strict liability or negligence liability, usually for physical injury – bodily injury or property damage. Strict liability is imposed w/o regard to degree of care tortfeasor (defendant) exercised.
2. Intentional Torts – liability is not imposed for negligence but only upon proof of the defendant’s intention to invade the legally protected interest of another.
III.FOUR Elements of any cause of action in tort:
1. Duty (Legal duty to comply with a particular standard of care)
2. Breach of Duty (failure to comply)
3. Causation (actual and proximate – ‘legal’ cause)
4. Damages
IV. Procedure in a Tort Suit: Five major phases of a Tort Suit:
1. Pleadings
2. Pre-Trial Motions
a) “Motion to Dismiss” Defendant says there is no valid, legally cognizable claim, e.g., failure to state cause of action..
b) “Motion for Summary Judgment” Asserts 1) there is no genuine issue of material fact, and 2) based on the undisputed facts, the party making the motion is entitled to judgment as “matter of law.”
3. Discovery
4. Trial
a) Courts decide issues of Law; Juries only decide issues of FACT (really fact & law).
b) “burden of production” evidence from which jury could find each element proved; “burden of persuasion” persuade the jury by a preponderance of evidence – “more probable than not” each element of claim is true: 51% not 50% or less.
c) Standard for making out a jury question is whether “reasonable people could disagree” about the question. If not, it is “a matter of law” decided by the judge that P wins having prevailed on all of the elements as a matter of law) OR the defendant wins as a matter of law – the plaintiff failed to provide evidence sufficient to make a jury question.
d) Directed verdicts: Jury
uffers an injury is guaranteed compensation.
(1) What system can compensate accurately?Insurance does.
C. Optimal Deterrence
1. Pros
a) Product liability is the biggest area of success
b) Remember we don’t want to deter all risky activities.
c) Deter excessively risky activity so that only those losses worth avoiding are avoided.
2. Cons
a) Problem unless we have a specific person
b) How do you deter an accident
c) Can’t deter without publicity
(1) Doesn’t happen as general public not interested
D. Risk/Loss allocation
1. Pros
a) Promoting the broad distribution of losses is one of the functions of tort liability.
b) Having a large number of people bear a small loss is better than having a single person bear a large one.
Entrepreneur (francais for risk taker) – We want people to take risks
