Torts Outline

TORTS OUTLINE FALL 2011 (Lidsky)

INTRODUCTION

I. Background Information

A. Deductive (Natural Law) Approach

· Civil Law approach; top-down; derived from Roman law

· Precepts are self-evident & apply to all mankind

· Louisiana is the only US state that follows Civil law

· Early example: the 10 Commandments

B. Inductive (Common Law) Approach

· Developed from Case Law; case-by-case basis

· Derived from the common law of England

· Based on following precedential authority from regulated jurisdictions

i. Geographic or Power-based

ii. Stare decisis: precedent; if a law is made by a higher court in your jurisdiction, you are bound to follow it

iii. Law of Torts is decided by each state

· Corpus juris: the body of the law; a wall in which each case law creates a brick

· Statutes do regulate to some extent, but Court interprets them very narrowly

II. Law of Torts

A. Law: society’s tool for regulating human behavior

· Some laws are completely regulatory (e.g., traffic laws)

· Some types of law are designed to truncate behavior at the margins

B. Law of Torts: divides actions into 2 categories

· Injurious acts that are wrongful & require a remedy

· Injurious acts that do not require a remedy

C. Torts: a mode of wrongful, civil behavior which causes injury to person or property

· Tort is not criminal, although act may also be a crime

· Right to bring tort is a private right; action may or may not be pursued

· Distinct from the civil wrong of breach of contract

D. Oliver Wendell Holmes, Supreme Court Justice (1900-1932, approx.)

· Law of torts is to fix dividing line between being liable for injurious acts or not

· We can’t know if an act will be a tort, b/c we don’t know if it will result in injury

E. Substantive Law: Black-letter law (ex: ingredients)

F. Procedural Law: The rules by which the law is presented to the Court (ex: recipe)

III. The Litigation Process

A. Pleadings Stage

· Complaint: filed by Plaintiff (Π)

· Motion to Dismiss (Demurrer): filed on the grounds that, even if true, allegations do not justify cause of action (looks at complaint only)

· Answer: Defendant (Δ) must respond to each allegation

i. Admit, Deny, Without Knowledge, or Affirmative Defense

· Discovery: Investigative period in which parties gather information

· Motion for Summary Judgment: Either party may file to test sufficiency of evidence (this evidence does not prove cause of action); looks at evidence

i. Π may motion on affirmative defenses

· Mediation: Often mandated before case can proceed to trial (FL requires for civil litigation)

B. The Trial Stage

· Jury Selection

· Opening Statements (Π goes first)

· Presentation of Evidence – all evidence must be presented here

i. Δ may move for Directed Verdict – evidence does not prove cause

1. If denied, case proceeds

· Charging Conference: parties propose jury instructions

· Closing Arguments

· Jury Instructions: Judge informs jury as to law; can be a cause for appeal

· Jury returns with verdict

i. General: We find for the…

ii. Special: Rationale provided for findings (rare

· Post-Trial Motions

i. Remittur: Damages too High

ii. Additur: Damages too Low

iii. Motion for Judgment Non Obstante Veredicto (JNOV) – judgment notwithstanding verdict

· Judgment entered

C. Appellate Stage

· Appeals from errors during trial, if properly preserved (through objections)

IV. Causes of Action

A. Behavior of person that results in harm is not actionable unless person is at fault

· Negligence or Intentional Harm

B. Burden of proof is on the plaintiff

· Proof must meet preponderance of the evidence (>50%)

· If the evidence is 50-50, person with burden loses

V. Separation of Negligence v. Intentional Torts

A. In the past, limited by forms of action

i. Trespass – Intentional tort

ii. Trespass on the case – Negligence

· Today, there is only negligence & intentional

i. Look at substance of what transpired, not the form of action

B. Actions that do require wrong-doing

· Intentional – requires proof of intent

· Negligent – requires proof of negligence

VI. Prima Facie Case for Negligence

A. Duty (question of law)

B. Breach (question of fact)

C. Causation (question of fact)

· Actual Causation: “but for” the action, injury would not have occurred

· Proximate Causation: Injury was foreseeable result of action; legal cause

i. Can be broken by chain of events

D. Damages (Question of fact) – cannot be purely speculative

VII. Admitting Statutes as Evidence

A. Issue of Particularizing Standard of Care

i. Presumption that we all know law & reasonable people follow it

ii. Statute is Legislature deciding what standard of care should be in a situation

iii. D would use statute to show he obeyed it, as reasonably person would, so jury should find he acted reasonably

iv. P would use statute to show D violated it, where reasonable person would not, so jury should find D not reasonable in actions

v. Must look at if statute is relevant to the behavior

1. Ex: statute against marijuana would not be relevant to DUI case if marijuana was in trunk & not in D’s system

B. What Admission Means

i. RS 286 Negligence Per Se

1. If Statute was violated, jury must find D was negligent

2. 4 Requirements for the “must” instruction: Statute must be there

a. To protect a class of persons, including the P

b. To protect the particular interest invaded

c. To protect that interest against harm that resulted

d. To protect against particular hazard from which harm resulted

3. Ex: Statute required RR to fence tracks through dairy farms to protect cows from wandering on tracks & getting killed

a. Class of person: Dairy farmer

b. Interest: Farmer’s economic interests

c. Harm: Loss of economic interest