Torts Outline

Torts Spring ’08 Outline
 
General terms
–          Argue both sides!! Argue P & then argue D
–          Direct liability
o        Employer at fault through negligent training, hiring, or supervision
–          Vicarious liability
o        Doesn’t matter if employer did something wrong…they are responsible for the torts of their employees
–          Burden of proof
o        In most negligence cases: P must prove each element by a preponderance of the evidence (more likely than not) à 50%+
o        Plaintiff has to satisfy two elements of the burden of proof
§         1) Burden of production
§         2) Burden of persuading the jury 
 
Goals of Tort Law
–          Deterrence à punish negligent acts as an incentive for safer conduct
–          Compensation à victims shouldn’t have to pay for their own medical care
–          Economic Concerns à shouldn’t unduly burden Ds when they weren’t responsible or liable
o        Balancing test between D’s burden and P’s harm
–          Administrative efficiency à judicial efficiency
–          Fairness à justice should be the determining issue
Kinds of Tort Law
–          Intentional torts – batter & assault…compensatory and punitive damages are available
–          Unintentional torts
o        Strict liability
§         As long as there is causation, D is responsible
o        Negligence
§         When unreasonable conduct creates foreseeable risks of harm
§         Objective: what would a reasonable person have done under similar circumstances
§         P must prove her harm is legally protected & that there is a causal connection
o        Recklessness
§         When there is a conscious disregard to a high risk of harm
 
Elements of a Prima Facie Case
DUTY:
–          Q: Did D have a legal obligation to exercise some level of care to avoid the risk of harming people/prop?
o        Do you have a duty to act according to the standard of care?
–          This is a question of law: only the judge can decide whether D had a duty to P
–          Generally, one has a duty to foreseeable plaintiffs to exercise reasonable care with regard to foreseeable risks
o        Duty to act as a reasonably prudent person
o        Subjectivity doesn’t matter…not what D thought would be right, but what RPP thought
–          Rule: there is no requirement that a foreseeable P must be connected with or personally known to the D in order for a duty to exist (driver doesn’t need to know everyone else on the road to have a duty to drive carefully)
o        Rudolph v Arizona Federation: girl drowned in lake during boat race. Race organizers liable
–          Rule: if the nature of an object is such that it is reasonably certain to place life and limb in danger when negligently made, then it is dangerous & the manufacturer has a duty to make it carefully
o        Req 1: must have knowledge of the danger (not just possibly, but probably)
o        Req 2: must have knowledge that in the usual course of events, other people will be placed in danger
o        MacPherson v Buick Motors: D made the car, D tried to argue privity (contract was between seller and buyer so manufacturer is not involved), but court said no more privity law; D satisfied both requirements, so D à liable
–          Standard of care: what type of duty, what type of RPP in this situation
LIMITED DUTY
à Why LD? Too much expansion of a category of liability so try to come up with a set of rules that organize the liability 
–          Omission: (nonfeasance – failure to act)
o        Tort liability is usually based on misfeasance (acting badly)…D is liable for nonfeasance only when:
§         1) Special relationship
·         Co-adventurer (parent/child) 
§         2) Voluntary assumption
·         If you make the situation worse
o        How do we define “start to rescue”?
·         Some states have Good Samaritan…if you try to help and if you don’t exercise unreasonable care or act in negligence, you can’t be sued
§         3) Innocent prior conduct
·         The courts have also imposed a duty where a party’s non-negligent (innocent) conduct has placed the person in peril”
o        Ex: driver knocks over telephone pole while driving. They have to take reasonable steps to remove the hazard or warn other motorists even though they weren’t negligent in creating the peril
§         4) Statute says you have a duty
·         Ex: most motor vehicle laws require assistance to accident victims
§         5) Reliance on gratuitous promise
·         Little action from promisor could be enough to impose liability
§         6) Intentional prevention of aid by others