Torts Outline

Professor Thomas Eaton – Torts I – Fall 2009 – UGA
Torts Outline
 
Tort: Latin for tortus, which means twisted, and the French word “tort ,” which means injury or wrong. Coercive force of Government to transfer wealth from one private citizen to another.
I.      Purpose of Tort Law:
a.       Social Order – To provide a way to peacefully settle disputes (If there are no checks on the people disturbing the order, they could do whatever they please à “take the law into their own hands”)
b.       Deterrence/Utilitarian – To deter wrongful conduct & encourage socially responsible behavior (Imposing liability can have behavior-changing consequences)
c.        Corrective Justice/Fairness – To remedy the harmed victim (To restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury)
II.      Historical Origins:
a.       Theories:
                                                   i.      Actual intent and actual personal culpability, slowly formulate external standards, with a strong moral tinge
                                                  ii.      The law began by imposing liability on those who cause physical harm, and gradually developed toward the acceptance of moral standards as the basis of liability
b.       Forms of action
                                                   i.      Writ of trespass
1.       Originally had a criminal character
2.       Direct and forcible injuries with the immediate application of force to person or property of the plaintiff
3.       No proof of any actual damage required
                                                  ii.      Writ of trespass on the case-often called the action on the case
1.       Approach and nature of most modern tort and contract law
2.       Intangible injuries to person or property
3.       Proof of damage required as well as proof of intent or culpability
c.        Ideas of corrective justice
                                                   i.      Fault – liabilities imposed upon defendants for conduct the law treats as wrong – Most tort law focuses on fault
                                                  ii.      Strict liability – when tort law imposes liability without fault – usually perceived as slightly unfair, though moral and easy to enforce
d.       Compensation, risk distribution and, fault
                                                   i.      Risk distribution or loss spreading – Large companies can better handle liability than individuals
                                                  ii.      Limited acceptance of risk distribution arguments-corrective justice is less important than compensation
                                                iii.      Moral and policy reasons for limiting compensation to cases of fault
1.       The role of judges in framing schemes of distribution is doubtful
2.       An invariably awarded compensation may eliminate any deterrent effect that the award would have if it were confined to cases of fault
3.       The tort system is extremely expensive to operate, so it is an inefficient way to accomplish compensation
e.        Deterring Unsafe Conduct
                                                   i.      Should we forgive harms if the defendants are pursuing socially useful activities?
                                                  ii.      Should deterrence only be used for corrective justice
                                                iii.      Economic Analysis
1.       Encourages businesses and builders to promote safety
2.       Hitting people in their pocket book is an excellent deterrent
f.        How should rules be written to regulate compensation in tort law?
                                                   i.      Loose rules leave too much up to the judge
                                                  ii.      Tight rules prevent circumstances from being considered
g.        Conflict in application essentially boils down to
                                                   i.      Paternalism
                                                  ii.      Autonomy
III.      Trial procedure
a.       Complaint
b.       Answer
c.        Selection of Jury
d.       Opening Statements
e.        Plaintiff’s Case
f.        Defendant’s Case
g.        Closing Arguments
h.       Instructions to the Jury
IV.      Procedures Raising Legal Questions
a.       Motion to Dismiss or Demurrer
                                                   i.      Complaint does not show a good legal claim
b.       Motion for Summary Judgment
                                                   i.      A showing of new facts in addition to those stated in the complaint, and perhaps in contradiction to them
                                                  ii.      A showing that there is no real dispute about these new facts
                                                iii.      A showing than an these new facts, the law compels judgment for the moving party
c.        Objections and Offers of Evidence
d.       Motion for Directed Verdict –
                                                   i.      After plaintiff’s proof
                                                  ii.      Asserting that the proof offered by the plaintiff is legally insufficient to warrant a jury’s verdict for the plaintiff
                                                iii.      After evidence is produced in full at the trial
                                                iv.      Judge considers in light most favorable to the plaintiff
e.        Proposed jury instructions and objections to them
f.        Motion N.O.V. – non obstante veredicto – notwithstanding the verdict
                                                   i.      Asserts that the evidence is not legally sufficient to justify a jury verdict for the plaintiff.
                                                  ii.      May be more efficient, verdict is rendered, so appellate court can easily look over without remanding for retrial.
                                                iii.      Verdict may be ridiculous
g.        Motion for New Trial
                                                   i.      Error at trial may allow retrial
                                                  ii.      Verdict against weight of evidence, or damages award is ridiculously high
Intentional Torts
 
Intent
I.      Restatement § 8A:  Definition of “Intent” – used to denote the actor has:
a.       purpose to cause the consequences of his act
b.       knowledge to a substantial certainty that a certain consequence will occur
II.      Intent can be proven by Circumstantial Evidence.
III.      Actor Need Not Intend Injury –
a.       The requirement is intent to bring about the consequences that are the basis of the tort. Thus, the person may be liable even for an unintended injury if he intended to bring about such “basis of the tort” consequences.
                                                   i.      HYPO – A intends to and does hit B, who falls and breaks his arm. A is still liable even though he didn’t intend for B to break his arm because the “consequences” that formed the basis of the fall was the hit, which was harmful and offensive and which A did intend.
IV.      Substantial Certainty Test –
a.       Anything less than substantial certainty is not intent.
                                                   i.      Garratt v. Dailey – Child injures woman by pulling chair from under her. The critical question is whether defendant intended to cause the harm when he pulled the chair out from under plaintiff. If defendant knew to a substantial certainty that she would sit down, then he intended to cause her harm even if it was not his subjective desire to cause her harm.
                                                  ii.      Spivey v. Battaglia – Man gives co-worker a “friendly, unsolicited hug” that results in partial facial paralysis. HELD:it was not substantially certain that a hug would cause such substantial harm; thus, defendant’s action did not constitute an assault and battery but action for negligence could be maintained against defendant, because the hug (act) was intended.
1.       McDonald v. Ford – defendant hugged plaintiff and forcefully kissed her, in the process plaintiff hit her head & was injured. HELD: because plaintiff struggled against the hug, defendant should have known to a substantial certainty that harm was likely to result, thus defendant did have intent and is liable for a