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Torts
Temple University School of Law
Haddon, Phoebe A.

·         What is a tort?
o   Conduct that amounts to a legal wrong against one’s protected right and causes harm (physical or non-physical) to which compensation is due
§ Want to deter risky conduct for both parties
§ Fault is not all or nothing
§ Causation- defendant’s action caused plaintiff’s injury
§ Involves some type of duty/responsibility/obligation (McDonald’s owes consumer a dutyà keep temperature down, or warn that coffee was above average temperature)
§ Legally protected interest- property, physical harm, intangibleà emotional harm
§ Compensation- usually money, but sometime law will command you to do, or make you stop doing something
·         What is tort law?
o   Monetary compensation to someone who was injured, involves non contractual rights
o   Fundamental conflict between freedom of action (liberty) and society’s risk/injury
·         Law of torts focuses on non-contractual rights and liabilities
·         What are the goals of tort law?
o   Compensation- for wrongs
o   Deterrence- for certain risks
o   Justice- innocent people should not bear loss
·         Law and Economics
o   Tort law- study of resource allocation in the presence of scarcity
o   Pareto efficient- is an allocate decisions that makes at least one individual better without making any other individual worse off
o   Kaldor-Hicks- would define an outcome as efficient if those made better off would compensate those made worse by a given allocate decision
o   Two most important forms for study of tort law are positive economics and normative economics
§ Positive- describes how legal rules influence behavior
§ Normative- prescribes changes that will increase the efficiency of legal rules or institutions
o   For law and economic scholars deterrence is the primary rationale for torts
§ Specific deterrence- assesses a price to a particular wrongful act
§ General deterrence- fulfills the larger function of vindicating the broader societal interest by making wrongful acts more expensive and less attractive to potential wrongdoers
·         Goal of deterrence- a sufficient sum should be exacted to make the defendant unlikely to repeat action
o   Applying Law and Economics to McDonalds’ case
§ Defendant- M sold over 2.5 billion cups of coffee and only received 700 complaints; not sufficient enough to make change, could result in inefficiency because future coffee would be less hot, causing consumers to change their preferences or drink something else, punitive damages will deter M from making coffee how most people like it
·         Efficiency rule dictates that it should be able to continue selling coffee at prior temperature
§ Plaintiff- M should bear large punitive damages because of their failure to heed the warnings of 700 (which is likely underestimated) complaints about coffee temperature, M makes so much money it doesn’t effect them in a substantial way, punitive damages would help ensure that the wrongdoer is appropriately deterred from causing harm
·         Corrective Justice
o   Goals of tort law is to provide victims with the legal weapons necessary to right wrongs
o   Based on simple and elegant idea that an injurer who wrongfully injures another must make the injured party whole
§ Presupposes the Aristotelian idea of normative equilibrium; one party wrongfully injuring another disturbs this equilibrium
o   Posits a correlative relationship between the doer and sufferer of harm
o   Vindicating the moral basis of society through a just verdict is important, not increasing overall societal wealth though promoting economic efficiency
§ Applying Corrective Justice to McDonalds’ case
·         Defense- Mrs. Liebeck was the primary cause of her injuries, and should not be able to recover
·         Plaintiff- M was negligent in serving coffee at such a high temperature, and M should have taken some action to prevent burning customer
·         Critical Race Theory
o   Legal system cannot deny the racial dynamics underlying many cases, therefore cannot treat

icient (irrational) risk
§ Cost-benefit analysis of wrong and punitive damages
o   Corrective Justice
§ Legal action is necessary to right a wrong
§ injurer must make the injured whole
§ compensate the injured
§ restorative- restore injured to way they were
§ relationship between right and wrong that justifies compensation
·         Critical Race Theory
o   Legal system must take into account race of plaintiff, defendant, jury etc.
o   Can’t treat every case equally
·         Critical Feminism
o   Men and women are not treated equally under the law
o   Women don’t receive equal compensation
o   Must understand emotional harm
·         Pragmatism
o   Understand the context, that is how one understands the law, don’t use theory
·         Social Justice
o   Recognizes that public policy is font and center
o   Looks at everybody instead of just two parties
·         6 general risks
o   (1) was the actor’s conduct irrational? Intentional
§ Set out to do harm
§ Risk of harm is allocated to the actor
o   (2 ) willful or wanton? Recklessness, gross negligence
§ Don’t set out to do harm but obvious that the action could likely result in harm
o   (3) negligent? Negligence
§ Exposure to some risk but not as much/high as the previous two
§ Deterring thought based conduct 
o   (4) vicarious liability, relationship to a person make the actor liable for the wrongful conduct of that person
o   (5) strict liability, actor’s relationship to a thing make the actor liable for the damage causing condition for the thing
(6) actor’s participation in an activity subject him to liabil