Torts Outline

Torts
Durham
Fall 2013
 
 
 
I.                   Introduction to Tort Liability
 
a.       4 Purposes
                                                              i.      Deterrence
                                                            ii.      Reform
                                                          iii.      Isolate Dangerous People
                                                          iv.      Feeling of Justice
 
b.      Torts can occur without a promise- not a contract
 
c.       Durham’s Definition: an act or omission causing injury other than breach of contract where the law allows victim to seek compensation in court
 
d.      Main Question: Who should bear the cost; who should be liable for the injury?
 
e.       Considerations
                                                              i.      Moral Responsibility
                                                            ii.      Economic Consequences
                                                          iii.      Public Health and Safety
                                                          iv.      Fairness
 
f.       Negligence v. Absolute Liability (Hammontree v. Jenner)
                                                              i.      The court declined to impose the absolute liability of products liability cases upon drivers under the circumstances in this case. *Make sure to keep absolute and strict liability distinct (pg. 9)
                                                            ii.      It is not enough to say that the insurance carriers should be the ones to bear the cost of injuries to innocent victims on a strict liability basis.
                                                          iii.      Oliver Wendell Holmes:
1.      The requirement of an act is the requirement that the ∆ should have made a choice
2.      Prevailing view: “the state’s cumbrous and expensive machinery ought not to be set in motion unless some clear benefit is to be derived from disturbing the status quo”- loss from an accident must lie where is falls unless a benefit arises from shifting the burden
3.      What are we accomplishing by making ∆ (Jenner) pay?
                                                          iv.      Strict liability is not the standard; negligence is applied
 
g.      The Litigation Process
                                                              i.      If the claimant and their attorney cannot obtain a settlement, they become the π and file a “complaint,” which states what occurred and the relief sought.
                                                            ii.      Factual disputes require a jury; questions about the law are for the court
                                                          iii.      The ∆ may make a motion to dismiss (demurrer) on the ground that even if the allegation of fact in the complaint are true, there is no sound legal theory upon which the π is entitled to relief.
1.      This occurs in the early stages of proceedings and raises a legal question for the judge to decide under relevant law.
                                                          iv.      π can appeal motion to dismiss by ∆. Sometimes the judge will grant the π permission to amend the allegations to add essential fact to invoke a sounds theory.
                                                            v.      The ∆ may meet the π’s allegations by pleading an “answer” in which he may deny some or all of the allegations and perhaps add some new ones that will defeat the π’s case.
1.      Facts are traditionally resolved at trial; however, apparent disputes can be decided without a trial. If the conclusion is foreordained, the court will grant summary judgment.
                                                          vi.      During the period before trial, parties may engage in discovery. This allows the parties to obtain evidence.
                                                        vii.      At trial, π has the burden of proving the essential facts of her case. There are two components of burden of proof.
1.      “Burden of Production”- The π must introduce sufficient evidence that the jury could rationally find in her behalf. The court will dismiss the case if this is not met.
2.      “Burden of Persuasion”- The π must persuade the jury that her version of the facts is “more likely than not” what occurred. The π must convince the jury by a “preponderance of the evidence.”
3.      If after deliberation the jury is in equipoise- they cannot decide which side presented the stronger case- they are to return a verdict against the party who had the burden of persuading them, generally the plaintiff.
                                                      viii.      If after the π has presented her case the ∆ does not believe that an essential fact has been proven, the ∆ may make a motion for a “directed verdict” today called “judgment as a matter of law.”
                                                          ix.      If it goes to the jury and the ∆ rests, the judge will “charge” the jury with “instructions” that tell the jurors about burdens of proof and the legal rules they should apply to the facts they find.
 
g. Traditional goal of Tort Law: to return π to the equivalent of her condition prior to the harm. Some π’s would prefer an injunction to prevent conduct that threatens harm, and, in a defamation case, the π might prefer a retraction to money damages.
 
 
 
 
II.                Vicarious Liability- suffering the consequences of someone else’s liability. A form of strict, secondary liability that arises under the common law doctrine of agency- respondeat superior.
 
a.       Respondeat Superior: A common-law doctrine that makes an employer liable for the actions of an employee when the actions take place within the “scope of employment.” Holding a fault-less employer responsible.
                                                              i.      An incentive for employers to hire the right types of employees and train effectively. Makes employers think about changing policies and other ways of doing business.
                                                            ii.      HYPO: A pizza delivery boy gets in a wreck while delivering. Company has a policy that states, “Pizza is free if it takes more than 30 minutes.” This might lead company to change its policy.
 
b.      Scope of Employment (Christensen v. Swenson)
                                                              i.      Whether an employee is acting within the “scope of employment” is typically a question of fact. The question must be submitted to a jury if “reasonable minds differ as to whether the employee was at a certain time involved wholly or in part in the performance of the employer’s business or within the scope of employment.” Precedent Birkner Case
                                                            ii.      Acts within scope of employment:
1.      “Those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of employment.”
                                                          iii.      3 criteria: (all three must be met)
1.      Employee’s conduct must be of the general kind the employee is hired to perform; not a wholly personal endeavor
2.      Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment
3.      Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.
 
c.       Negligent Policies: an additional way to hold employers liable for employee’s actions.
                                                              i.      HYPO: A company hires a truck driver with a history of accidents and poor driving. The company does not train this employee. In the scope of his employment, the driver gets into a wreck. Employer could be responsible for poor hiring practices, lack of training, etc.- all of these are negligent policies.
 
d.      Intentional torts within scope of employment
                                                              i.      HYPO: Swenson punches a trespasser on Geneva Plant propert