Torts Outline

Torts Outline
Spring 2010
Professor Zamperini

1. Generally
a. Definition of a tort
i. A civil wrong, other than a breach of contract, for which the law provides a remedy
b. History of tort law
i. Primarily common law, but in some areas statutes common – and now we have the Restatement (second)
ii. Origins — theories
1. Liability based on ‘actual intent and actual personal culpability’ – strong moral tinge à external standards and less personal fault
2. Liability on those who caused physical harm à moral standards as base for liability
3. No progression – difference is only degree
iii. Forms of action
1. Unless fit into specific ‘forms of action’, could not seek damages in the King’s court
2. Writ of trespass
1. Forcible breaches of the peace
2. Criminal character
3. No proof of damage required – invasion of rights it a tort itself
4. No proof of fault required
3. Writ of trespass on the case
1. Special writ in the nature of trespass, drawn to fit a particular case
2. Purely civil
3. No liability until actual damage proven
4. Need proof of culpability
4. Distinction = direct and immediate application of force to the person or property of P
1. Trespass = direct and forcible injuries
2. Case = other tangible injuries
3. Log thrown onto highway à person struck by log is trespass, person who came along later and stumbled on it and fell is case
4. Causal sequence, NOT intentional vs. negligent
5. Now blurred!!!
iv. Modern = center of policy debates
1. Huge insurance system backing it now – liability, etc
2. Actual damages needed unless assault, offensive but harmless battery, false imprisonment, trespass to land
3. No longer looks at direct/indirect injuries – now looks at intent vs. negligence
v. Cases
1. Anonymous
1. King’s Bench 1466
2. Hierarchical, agrarian, feudal system; only one (royal) court
3. Holding: liable without intent
4. Social engineering: message is, be more careful! No health care, insurance, etc – someone has to bear the cost burden!
5. Absolute liability = we always know what the result will be; leave courts free for other things
2. Weaver v. Ward
1. King’s Bench 1616
2. Skirmishing with muskets (in a military matter), D accidentally wounded P
3. Setting: colonies (new ideas) exist and so does parliament; rise of cities (more people closer together) and of merchant class
i. Want people to explore, work, do things – but the more people act, the more likely accidents etc are à changes in law
4. earliest case where D might not be liable for a pure accident
5. holding: D must be at fault somehow, at least negligent
6. accidents (causation w/o fault) happen! Risk is on P!
7. still on D to prove no fault, though
8. this is also where you get trespass vs. case – as courts open up to merchants, case volumes go up – SEE SLIDES FOR LISTS OF EACH
9. today: actions for injuries to person or tangible property require proof of intent to inflict/failure of proper care
3. Brown v. Kendall
1. MA 1850
2. 2 dogs fighting, D tried to separate them with a stick, hit P when backing up to do so
3. Context: USA, industrial revolution, expanding cities, more labor, more accidents
4. Holding: ordinary care under the circumstances should be the standard . . . and P shows D’s deviation from ordinary care
5. IMPORTANT: shift in burden!!!
i. How to prove care? Preponderance of the evidence = normal civil standard
ii. It’s very important who has the burden of proof . . . they have to work, and if they fail, the case fails
iii. This makes it more difficult for Ps to win cases . . . not impossible, but harder . . . fits with factories/corporations growing and hiring people/courts wanting them to grow/lower costs to businesses, manifest destiny, etc . . . not a blank check to factories, but not automatic liability, either
iv. We are trusting industry’s self-interest . . . money can go elsewhere now, not to lawsuits
v. Other industries rise – insurance, etc
vi. This lead to the big corporations we have now
6. Earliest statement of current rule: liability must be based on legal fault
4. Cohen v. Petty
1. DC appeals 1933
2. P arg: riding in D’s car who crashed it and P was injured, P fell below ordinary care standard (must be awake when driving. You weren’t, so pay me); D arg: I fainted! I could not have predicted that in any way!
3. Context: cars; more global context after WWI
4. Holding: because sudden and unanticipatable, no fault; no intent; met ordinary care
5. Message if had let P recover = all risk on driver = people would have stopped driving cars = economy would suffer
6. Hypos
i. D asleep behind driver, unconsciously pushed driver, who ran off road à NOT liable because didn’t act with volition
ii. At least one court has found that falling asleep at wheel is negligence unless it’s a sudden illness; fright at brakes not working does NOT excuse previous negligence for causing the situation that frightens you
iii. D liable if knows has epilepsy and still drives car; NOT liable if didn’t know was epileptic and seizure occurred
5. Spano v. Perini Corp.
1. NY court of appeals 1969
2. Issue = whether a person who sustained property damage caused by blasting (caused only by the sound waves etc, not actual rocks flying) on nearby property can maintain an action for damages w/o a showing that the blaster was negligent
3. K
4. Weaver v. Ward-type strict liability persisted wrt trespass to real property and has gone away only in modern times – but now some states apply strict liability to ‘abnormally dangerous activities’ like blasting . . . strict liability may be applied in this type of situation w/o any showing of intent or negligence in a majority of courts
5. R2d §519?
6. Also applied to manufacturers of products when defects in items have caused injury, now usually when defect is due to an error in the manufacturing process – less agreement about using strict liability wrt failure to use a safer design/warn of dangers/etc
7. 3 possible bases of tort liability
i. Intentional conduct
ii. Negligent conduct that creates an unreasonable risk of causing harm
iii. Conduct that is neither intentional nor negligent, but that is subject to strict liability b/c of public policy
c. Purposes of tort law
i. Provide a peaceful means for adjusting the rights of parties who might otherwise ‘take the law into their own hands’
1. No ‘self help’ . . . avoid civil wars etc. have a system people trust and can go to
ii. Deter wrongful conduct
1. Hurting people is bad
iii. Encourage socially responsible behavior
1. Ideal = no one uses tort system because no one hurts anyone
iv. Restore injured parties to their original condition (insofar as the law can) by compensating them for their injury
1. Look to past – where would P have been had nothing ever happened?
v. TORT LAW ALLOWS US TO SHAPE SOCIETY and interact with it, govern how we do so; we can shape it any way we want to; it’s a balancing process
vi. Risk allocation
d. Questions to consider in tort law
i. Should people always be compensated?
ii. How to determine compensa