1. Why Tort?
a. Substantive Reasons
a. Content of the legal rules
b. Procedural Aspects
a. Means available to enforce substantive rules
c. Tort Definition
a. System of civil redress for injuries that are not governed by contractual duties but rather duties that are imposed by law
b. Tort is CIVIL law
c. Tort law à focuses on under what circumstances does cost of liability shift from the victim to someone else
d. Other systems of redress besides Torts:
a. Two types:
i. Insurance – pool risk together, privately run
ii. Social insurance – public redress for injuries
b. Benefit of tort system vs social insurance
i. USA has a ton of private insurance
ii. USA has some social insurance à social security
iii. encourages the pursuit of civil redress in court system more then countries w/social insurance
e. Goal of Tort system à Optional investment in safety
a. Compensation
b. Fairness
c. Efficiency
i. Efficiency Concern
a. Undercompensation
i. does not cover loss
ii. No motivation to avoid harm
b. Overcompensation
i. Reduces efficiency
ii. Limits freedom – more taxes
f. Reasonable Person Standard
a. Actor is liable if fails to take reasonable precautions where a reasonable person would have foreseen the risks and taken precautions
g. There are 2 Tort themes à Negligence and Strict Liability
a. Negligence
i. Based on conduct of ∆
ii. Must breach either
a. General Duty of care
i. Reasonableness standard
b. Limited Duty of care
ment for ∏ REVERSED – jury could say she was acting within scope of employment
b. Court used Birkner TEST – within the scope of employment when:
i. is the kind of work employed to perform
ii. Occurs within the authorized time and space limits
iii. Is actuated at leas in part by purpose to serve employer
iv. (beyond Birkner: If the force is used by the servant against another, it must be not unexpectable by the master)
d. Baptist Memorial v Sampson. Texas Supreme 1998 (p24)
a. ∏ bitten by spider, claims negligent treatment = permanent injury
b. Hospital claims doctors are “independent contractors”
c. ∏ claims Ostensible agency – apparent authority
i. Trying to hold hospital vicariously liable
d. Court à NO respondeat superior
i. Hospital did no affirmative act to make patients believe doctors were employees & DID make reasonable effort to inform ∏ they were not employees
