Why learn TORTS?
About body, property, power
Remedy
People – most common type of tort
Ancient law – fundamental building blocks of common law
Citizen suits (vs government suits)
Tort is a civil wrong; core is personal injury
Willful/intentional torts
Negligent torts
Strict liability torts
Trespass torts
Nuisance torts
Who determines what is a tort? Judges, juries, legislature, parties.
Themes
Role of judiciary vs role of legislature. Tort law is historically common law, but is also governed by statutory law.
Judges vs jury’s role. Judge determines the law and manages the courtroom. Jury is the fact-finder, renders verdict.
Jurisprudence. How you go about making legal decisions.
Major policy issues in torts
Compensation – goal of tort system is to compensate injured individuals.
Justice – to be fair to the parties (plaintiff and defendant) and society.
Efficiency – judicial administration (tort reform movement is a counteraction to the liberalization of tort law).
Deterrence – stop future torts.
How to FRAME and ANALYZE a tort claim
(1) Label/count to the claim
Identify plaintiff, defendant
Name the tort (e.g. assault, offensive battery, etc.)
(2) Define the tort
(3) Develop the prima facie case
Relevant rules
Relevant elements – break down the tort and apply the facts to the elements required in the rule.
Analyze the tort from the point of view of the plaintiff and the defendant
START WITH THE PLAINTIFF FIRST!
What facts support which party?
(4) Results – What were the results of the tort (i.e., what evidence of injury is there? Bruise? Emotional Distress?)
(5) Damages
Nominal
Compensatory – Specific and/or General
Punitive
Constructive
(6) What are the defenses?
(7) Any policy issues?
Adjudicatory process
Defendant acts
Plaintiff is injured
Determine remedies (remedy assessment)
Who’s going to pay for medical bills (e.g. insurance? Family?)
Identify defendant and negotiate payment (self-help)
Seek justice (mental suffering, physical suffering)
Find a tort lawyer
As a lawyer
Get the facts (story)
Research/investigate
Case assessment (strengths, weaknesses)
Consider fees
Draft complaint
File complaint
Civil procedures – discovery, motions, pre-trial, trial, judgment
Enforce the judgment
Tort defined – a wrongful act, damage or injury done willfully, negligently, or (in circumstances involving) strict liability (but NOT involving breach of contract), for which a civil suit may be brought.
Breaking down the INTENTIONAL tort definition (
ent apprehension of contact, and harmful contact results.)
Prima facie case:
· Volitional Act
· Intent
· Intent – subjective inquiry into defendant’s state of mind.
§ Evidence is based on the testifier’s point of view
§ Sometimes the court allows the jury to INFER intent
§ Must know with substantial certainty that harm will result (i.e., at least KNOWING intent)
§ possibility of harm would NOT suffice
§ knowledge of great risk of harm would NOT suffice
§ Substantial certainty = knowledge of MORE THAN very grave risk of harm
· Harmful Contact (direct/indirect)
§ loss or detriment to the person.
§ Bodily harm – physical impairment of the condition of another’s body; or physical pain, illness, or change/alteration.
Types of Damages:
· Nominal, Compensatory, Punitive
Certain questions posed in court are inherently objective (e.g., “what color was the light?”)
Eggshell – preexisting condition making a person susceptible to more serious injury.
MINORS
General rule – minors are NOT immune from liability for their batteries.
Exception – very young children may not be capable of having INTENT that liability requires.
