Mark Rahdert
Torts
Fall 2011
Introduction
INTRODUCTION
I. Tort:
A. Definition for Torts (the law of civil justice)
1. Failed obligation of care with respect to another person or their property, leading to an injury
a. Physical harm, property damage, privacy infringement, etc.
2. Torts v. contracts
a. In contracts, the interaction begins with something consensual that both parties chose to initiate – Need not be true in torts
b. Unlike contract law, which is mostly statutory, torts is primarily non-statutory and comes from common law
3. Torts v. criminal law
a. Criminal law is public punishment – threat to public safety, public welfare
b. Torts – There is a personal responsibility, and it is mostly not about punishment, but about compensation
B. Remedy is usually damages, occasionally an injunction
C. Why have torts?
1. Compensate the injured party
2. Prevent violence
3. Civil justice
4. Deter conduct
II. What is the standard of liability
A. Types of cases
1. Intentional tort – standard is INTENT(substantial certainty)(transferred intent)
a. See more below
2. Accidental – The D didn’t mean for it to happen, but it happened anyway
a. Negligence – favors Defendants
i. The P must show that the D’s actions fell below due care
b. Strict Liability – favors Plaintiffs
i. Even if the d exercised all possible care, the D is still responsible if injury was caused.
B. Absolute Liability(no place in tort law now) – The foundation for torts. Fault NOT required, just cause
1. Slightly different but similar to strict liability, which is now used in cases involving product strict liability (must show both cause and defective product) and abnormally dangerous activities
2. Were two writs:
a. Trespass vi et armis – DIRECT – I cut a tree and it lands on you; act and injury are simultaneous)
b. Trespass on the case – CONSEQUENTIAL -I cut the tree, it falls on the road, you stumble on the tree
i. You could always bring your case under this if the Defendant’s defense was that it was utterly without his fault
ii. Because this was more of a catch-all, everyone pleaded negligence under “case”
III. Cases:
A. Brown v. Kendall: Dog fight
1. Established negligence as a tort – defendant used reasonable care in a lawful act, thus not guilty
a. shifted burden to plaintiff to prove defendant’s act was unlawful and plaintiff was using ordinary care in avoiding the injury
b. if unlawful, defendant would still be held strictly liable, unless he could prove t
uthority and clarity, 2nd restatement has had enormous impact. Even becomes adopted as the law of the jurisdiction
1. Two Approaches to Tort Law: (from later on in chpt. 5)
a. Formal Approach: An approach the prescribes in advance a categorical process of evaluation
i. Set out specific categories with specific legal consequences (i.e. numbered elements, sets out an orderly and systematic analysis)
ii. Works best when you do not know if you have all of the issues right, and therefore need to rely on tests worked out overtime
1. Example: Rule of no duty unless one of 5 exceptions is evident (checklist to determine if elements are satisfied)
b. Functional Approach:
i. Does not systematically go through the steps, but looks behind the steps in asking what are we trying to accomplish
ii. Works best where you know that you have all the things right and can go outside the prescribed rules
iii. Tarasoff, though it provides a list, is functional, in that it looks to the result you want to obtain and tries to find a way to get it
