Introduction to Torts
I. What is a tort?
1. “A civil wrong not arising from a contract.”
2. Not all civil wrongs that do not come from a contract are torts though.
3. Accident Law – Usually for some type of physical harm
4. Strict liability – without regard to the degree of care that the defendant exercised
5. Negligence – acted carelessly, without reasonable care
6. Intentional Torts – a defendant invaded the legally protected interest of another
i. Does not necessarily require an intent to cause harm
7. Cause of Action – “basis for applying liability”
i. Duty
ii. Breach of duty
iii. Causation
iv. Damages
II. Procedure in Tort suits
1. Initial Pleadings
i. Like other civil actions
ii. Plaintiff files a complaint or declaration which gives rise to a cause of action
iii. Allegations of tort, not counted as facts yet
iv. Typically, a cause of action is the name of the tort. i.e. negligence, battery
v. Defendant responds with an answer
vi. Admits or denies allegations
vii. may cite affirmative defenses
1. Defenses that the defendant is required to raise and prove at trial.
2. Agreeing to the facts but can prove an exception.
viii. Comparing a complaint and answer allows the parties to know what is being disputed and what is not
2. Discovery
i. seek information from each other about the nature of their positions and the evidence supporting them
ii. no blindsiding
iii. info sought in discovery does not need to be admissible to be discoverable as long as the potential to lead to admissible evidence
3. Pre-trial Motions
i. Made before or after discovery
ii. 1st procedural step of the process
iii. Motion to dismiss
1. Tests the legal sufficiency of the plaintiffs allegations
2. If even what the plaintiff says is true, the defense moves to say that the plaintiff does not have a valid, legally cognizable claim
iv. Summary Judgment
1. Either side asserts that there is no genuine issue of material fact and that based on the undisputed facts the motion is entitled to a judgment “as a matter of law”
4. Trial
i. courts only decide matters of law
ii. juries only decide matters of fact
5. Fact-finding
i. Pure – requires answering empirical questions about the world past present and future
ii. Mixed – questions about fact and law
iii. A jury will evaluate empirical facts already found and apply the law to these facts
iv. In a trial, plaintiff aims to prove and defendant aims to refute the four necessary elements of a plaintiffs case (duty, breach, cause, damages)
v. Plaintiff bears the burden of proof
vi. “burden of protection” – plaintiff introduces info which the jury could find the elements of the case t
rts suits are ordered by the rules of civil procedure
III.Functions of tort law
1. Corrective Justice and Social Redress
2. When physical injury has occurred, liability is imposed for monetary compensation
i. Corrective justice is only truly applicable when the injurer pays the victim off his own dime
3. When someone has insurance, or it’s a corporation, someone else pays the damages
4. Torts should look to provide civil and social redress instead
5. Views the system as complex
6. Optimal Deterrence
i. Prevents future wrongs by threatening potentially harmful jerks
7. Loss Distribution
i. Promoting the broad distribution of losses
8. Compensation
i. Very limited sense
ii. A beneficial effect of tort law, not a goal of tort law
iii. Victims are provided compensation because it serves to corrective justice and deterrence
9. Redress of Social Grievances
i. Sometimes people feel tort liability should imposed anyway to promote the redress of social grievances
ii. Other words, put authority on trial
10. Tort System is a mixed system
i. No single goal
