Tort Law
Tort law provides monetary compensation to redress a plaintiff’s claim that the defendant injured her, interefered with her property, invaded her privacy, or invaded another legally protected interest. Tort law determines who bears the burden of an injury and what injuries are compensable.
Theories of Tort Law
I. Law and Economics pg 6-10
A. Applies economic theory to examation the formation as well as impact of tort law and damages.
1. positive—descriptive, what is. “What rule of tort law will induce the industry to undertake efficient precautions?”
2. Normative—prescriptive, what should be. Prescribes changes that will increase the efficiency of legal rules or institutions.
B. Deterrence is the primary rationale.
1. Reduce the sume of the costs of accidents and the costs of avoiding accidents.
2. Specific deterrence—assesses a price to a particular wrongful act
3. General deterrence—vindicates broader societal interest by making wrongful acts more expensive and less atrractive to potential wrongdoers
4. Calabresi-Primary accident losses may be reduced where primary accident costs exceed prevention costs.
II. Corrective Justice pg 11
A. Provide victims with the legal weapons necessary to right wrongs. Make injured party whole.
B. For the def to be held liable, it is not enough that the def’s neg act resulted in harm to the plaintiff. Harm has to be an interest that has the status of a right, def’s action has to be wrongful w/ respect to that right.
III. Critical Race Theory
A. Racial Dynamics underlie many cases. Treating those situated differently in merely an equal manner can produce systematic injustice.
B. People of color experience differential injuries and experience frustration at trying to redress their injuries in the the civil justice system.
IV. Critical Feminism
A. Makes gender a central focus of inquiry; ‘woman question’ identifies and challenges the omission of women and their needs from the analysis of any societal issue.
B. Relevant only women use the product?
V. Pragmatism
A. Every concept should be understood in terms of its practical effects. Consider all points of view.
B. (1) the important of context; (2) the lack of foundations; (3) the instrumental nature of law; and (4) the unavoidable presence of alternate perspectives.
VI. Social Justice pg 22
A. Tort law is public policy in disguise. A means of social control over powerful corporate interests. Rectifies imbalances in political power.
B. Penalties that send a message of deterrence to corporate America.
C. Evolving and open-ended nature of tort causes of action permits tort plntfs to bring to light and seek remedies for new forms of domination and exploitation as they emerge.
VII. Application
A. Consider whether policy arguments based upon the six perspectives will aid analysis of the cases and pr
; Vos ultimately develops an infection on leg.
ii. Rule of Law: P must show either D had unlawful intention to produce harm or that he committed an unlawful act
1. note: that harmful or offensive contact must result in order for there to be battery
iii. Intent:
1. irrelevant that Putney did not intend to harm (as jury found)
2. if the intended act is unlawful then the intention to commit it must also be unlawful.
iv. Unlawful Determination:
1. flexible standard – look to context, look for implied license (cf. playground vs classroom)
2. Unlawful contact if it is Harmful (§13) or Offensive (§18)
a. Offensive: if it offends the reasonable sense of personal dignity
b. Harmful: counts if a) there is intent to cause harmful contact and b) harmful contact results, even indirectly
i. Hypo: P trying to avoid harmful contact injures himself – battery.
ii. note: intent to harm can include imminent apprehension of such contact
Prima Facie Case: You need to establish
1. An act by defendant,
2. with intent to inflict harmful or offensive touching,
3. a harmful or offensive touching,
4. and causation.
