a. Tort = No single definition. Generally, (1) tort is a civil wrong committed by one person against another for which a remedy may be obtained (2) Torts can and usually do arise outside of any agreement between parties.
b. Prima Facie Case = Stated a PFC if all elements of tort are alleged in complaint.
c. Tort v. Crime =
i. Tort is wrong to individual. Tort law gives relief to injured individual with $$ damages
ii. Crime is wrong against public at large. Criminal law provides social good.
2) What are the objectives of tort law?
a. Corrective justice = is this P entitled to compensation/other remedy from this D? Public policy and social control implied. (traditional)
b. Compensation of victims (modern but foreshadowed by ancient notion = “If a man suffers damage, it is right that he be recompensed”(Thorns)
c. Deterrence =
i. Economic: Creation of economic incentives for ind. and firms to take care and minimize costs of accidents and their prevention.
ii. Social: Also to create and enforce norms of behavior.
3) Three theories for recovery/main basis for liability in tort
a. For harms intentionally inflicted by D on P
b. For harms negligently inflicted (by want of reasonable or ordinary care)
c. For strict liability = D who is not negligent nor with intention to harm.
a. Issue formation
i. Cite cases
b. What legal principles can we use to advance why we compensate one and not the other?
c. Are there limitations to liability?
d. Thought question. She may ask us to write a prose essay on historical evolution of legal doctrines
e. Statutory analysis: Manipulate language to bring someone you’re representing under the language.
1) Intent is the most basic rationale for tortious responsibility: Identify the tort; consider the prima facie case of each tort (apply intent to result that occurred); does D have privilege or defense?
2) POLICY: Holding D liable for intention tort generally discourages anti-social behavior, though qualified when D offers socially-acceptable excuse for that harm. But there are few defenses available to intentional tort.
3) Covered general categories are physical harm to person or property
4) Covered types are: Battery (Trespass to person)
a. Definition: An intentional, harmful or offensive touching of anot
ll the possible consequences of his act.
3. Everyone is capable of entertaining an unlawful intent – even minor and mentally incompetent person. (McGuire v. Almy; mentions both infant & insane law)
iii. Harmful or Offensive Touching = “Harmful” means physical injury.
1. Another’s person means anything attached to person, like purse.
iv. Causation= D’s conduct directly/indirectly caused injury. D’s act must do more than simply put P in a place in which some totally independent and unexpected force may injure her.
1. NOTE: A negligent tortfeasor’s liability is limited only to foreseeable harms, while an intentional tortfeasor is liable for foreseeable and unforeseeable harms.
v. Damages = P may be awarded compensatory or punative damages.
c. CONSENSUAL DEFENSES = Did D intend the act? If so, when is D’s intentional tort excusable? Some courts require D to prove P’s consent; a few make lack o’ consent an element of c/a for P to prove