Torts
Preliminary concepts
· The common law is the law in Florida unless it has been superceded.
The Role of Torts: To restore a person to his position prior to his damages (to the “status quo
ante.”
Authors of text: “All of the law represents society’s institutional system for regulating human
behavior.
A tort is “a wrongful, civil behavior,” that causes injury to body or property. This wrong or injury, as defined by Barron’s, results from a breach of a legal duty that exists by virtue of society’s expectations regarding interpersonal conduct, rather than by contract or other private relationship.
“The law of torts divides what we want to classify as tortuous, and not consistent with “normal
human behavior (class of behavior that requires compensation), and what we deem to be
“normal” human behavior (class of behavior that does not require compensation).”
The jurisdiction of a court can be limited both geographically and by subject matter.
An act can be both tortuous (private), and criminal (public). The state can still choose to go after the one who committed the tortuous and criminal act, even if the victim chooses to
not to go after the perpetrator.
The Civil law (note the capital ‘c’) developed in Rome. It was based on deductive logic where
the “smartest people” got together and came up with the law. They believe they could
develop law based on self-evident precepts pertaining to all of mankind.
The Common law developed from and inductive approach to the law. It started as an attempt by
the King to apply law commonly throughout England.
Policy arguments arise when parties are trying to argue for their benefit and there is no, “fixed
law.”
In tort law, the lawyer always comes in after the fact. He must gather evidence to prove his case, but because time and conditions change from the time the tortuous act occurred to the time the lawyer starts putting together his case, this can prove difficult.
“The consequences of an act are not known, just more or less probability.” –OWH
Negligence Overview
Stanley v. Powel
Q.B. 1891
P was an employee of one of the shooters at a pheasant shooting party. When D fired a second shot at a pheasant he was trying to kill, ricocheting off of an oak and hitting P in the eye. The jury didn’t believe D was negligent.
The defendant will be held liable only if he was negligent or intended to hurt the plaintiff.
“In this case, the judge asked the jury to return a special verdict answering three questions: (1) Was the plaintiff injured by a shot from the defendant’s gun? (2) Was the defendant guilty of negligence? and (3) Where there Damages? The jury answered (1) Yes, (2) No, and (3) Yes. The issue was whether or not the defendant should be liable without negligence having still shot the plaintiff, and causing harm.”
Fowler v. Lanning
Q.B. 1959
P alleged that D shot him at a shooting party and suffered personal injuries. The defendant motioned to dismiss because the P didn’t allege whether the act was intentional or negligent.
The plaintiff must prove the defendant committed a wrongful act.
“The plaintiff’s lawyer probably knew about Stanley. He probably figured that he could not prove negligence, so he didn’t allege it, hoping the defendant would raise an affirmative defense. This would shift the burden of proof to the defendant, who would have to prove that he was not negligent.”
Williams v. Holland
House of Lords, 1833
D negligently crashed his gig and horse into the plaintiff’s cart, injuring the plaintiff’s kids. The jury at the trial court awarded the plaintiff 12 pounds, but the court ruled JNOV, because the P pleaded the wrong form. He pleaded case, but proved trespass.
If a plaintiff pleads case, but proves trespass, he can still be awarded damages.
“Case was what a plaintiff had to plead if the act he was injured by was the indirect action of the defendant. Trespass was what the plaintiff had to plead if the act he was injured by was the direct action of the defendant. In a previous case cited, Leame v. Bray, the plaintiff had pled the form of trespass and proved case, and was awarded damages.”
Letang v. Cooper
Q.B. 1965
A woman (P) was sunbathing on a grass parking lot when a car ran over her. After 3 years, the statute of limitations for claims of negligence, had passed she brought an action against the D. Consequently, the lawyer for P pleaded both theories: trespass, and negligence.
A plaintiff must plead the defendant’s act was either negligent, or intentional, but not both.
“A long time ago, people could only plead three forms of trespass, vi et armis, quare clausum fregit, and de bonis asportatis. The judges back then got paid directly by the people who brought their cases. They didn’t allow someone to claim damages when hurt by somebody else outside of these forms. Due to competition with other court’s that would allow damages under other circumstances, the Queen’s Bench judges invented trespass on the case. This later developed into what we now know as negligence.”
A plaintiff must prove (or establish for the case to go past demurrer)
(1) Duty
(2) Breach
(3) Causation
– i. Cause-in-fact
– ii. Proximate
(4) Damages
(1) Duty Overview
Heaven v. Pender
Q.B. Court of Appeal, 1883
An employee (P) of a ship painter was injured because of a negligently installed stage while painting a ship. The defendant owned the dock where the ship was, and provided the stage.
A duty of care is owed to everyone around who should be expected to be harmed by a lack of exercising reasonable care.
It’s important to note that the dock owner and the injured employee had no direct contractual relationship with one another. This was the defense of the dock owner.
The opinion listed four situations where a duty of care had been found to have been owed between individuals who didn’t know one-another
1. When a store opens its doors, it owes a duty of care to potential customers who are “invited” in.
2. When a railway company carries a passenger who doesn’t have a contract with the company, probably because they didn’t purchase their own ticket.
3. When two drivers meet.
4. When two ships pass one-another.
This holding was never totally accepted.
Donoghue v. Stevenson
House of Lords, 1932
The plaintiff alleged that she suffered from shock and gastro-enteritis after drinking a ginger-beer that contained a decomposing snail in it. She’d gotten the ginger-beer from a friend who’d purchased it. The defendant had bottled the ginger-beer.
A duty of care is owed to anyone who is within the scope of one’s own careless actions.
The plaintiff and the defendant had no direct contract with one-another, and in fact, didn’t have physical proximity.
At the time this case was brought, there had been decisions that held that a manufacture owed no duty of care to consumers
e same as Home Office v. Dorsett Yacht Co., LTD.
· General Rule: Ordinarily, one person has no duty to control the actions of another.
o Based on the notion of “individual accountability”
o Exceptions: prison inmates, respondent superior
Restatement § 315
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.
Home Office v. Dorset Yacht Co., LTD. *exception to general proposition
House of Lords, 1970
Some boys in a minimal security reformatory controlled by D (appellant), and did some damage to a yacht owned by P. P claimed that the damage was caused by the negligence of the guards at the reformatory.
A duty of care is owed to foreseeable victims of the actions of a third party by those who have a right to control that third party.
· The guards had a right to control the boys.
· At the time of this case, there was a decided case where guards at a prison placed a rapist in the same vicinity of an imprisoned woman, and the woman was raped. It was held that those guards owed the rape victim a duty of care, because they had a right to control both the victim and the rapist. Home Office extended this duty of care to situations where someone has control of over the offender, but not the victim.
(2) Breach Overview
Vaughn v. Menlove
House of Lords, 1837
D’s hayrick spontaneously combusted, causing a fire. The Ps’ cottages were burnt down by the fire. During the weeks prior to this incident, D was continuously warned that his hayrick was in danger of catching fire.
People are held to an objective standard of care (the standard of ordinary prudence).
· D claimed that he should not be held to the standard of ordinary prudence because he was stupid.
o He was arguing for a subjective standard of care.
o If this was used everyone would be entitled to have a defense based on their own attributes, possibly eliminating claims for negligence.
· The standard of a reasonably prudent person under the same or similar circumstances was used. This is an objective standard of care.
Brown v. Kendall
Massachusetts Supreme Judicial Court, 1850
D used a stick to break up a fight between his and another dog. When doing this, D hit P in the eye on a backstroke. P sued for damages.
A person should be held to the standard of care based on whether or not his or her act was necessary or unnecessary, and whether or not he or she was negligent in performing that act.
· A duty of care was obviously owed in this case.