Torts Outline

Torts Outline

Fall 2014 – Professor Robbennolt

Introduction to Torts

1. Definitions

torts – civil wrongs for which victims have causes of action against the wrongdoer(s) to recover monetary judgments

tort law is a component of “private law” parallel to criminal law in the public law domain

2. Social Objectives of Tort Law

Two primary policy philosophies:

i. Correction of wrongs (injustices)

1. Courts consider historical events to determine if “wrongs” have been committed in a given case

2. D making monetary payment to P achieves “corrective justice” by “making P whole.”

3. Fairness for the sake of fairness

ii. Instrumental (deterrence)

1. Tort law as mechanism to prevent future wrongs

2. Fairness as a means to an end

3. Rules for Damage Recovery in Tort Law

Most P seek money damages

i. successful P results in judgment against D

1. A jury enters a verdict for P against D

2. The judgment orders D to pay P a specified amount within a certain time, with interest.

3. D’s who do not pay may be subject to court-directed sale of assets upon P’s request for court assistance

What losses allow recovery?

i. nominal damages – token amount to commemorate vindication of plaintiff

ii. compensatory damages – compensate for loss resulting from tortious conduct

iii. noneconomic losses – intangibles such as pain and suffering

iv. property damage – market value of property damaged by tortious conduct

v. When tortious conduct results in death:

1. wrongful death statutes in some jurisdictions permit recovery for the death itself

2. survival statutes provide for recovery for losses between the time of injury and the time of death

3. Major element is loss of decedent’s earning capacity

4. These provisions generally do not allow recovery for pain, suffering, or future medical expenses

vi. punitive damages – awarded when conduct is “outrageous;” reflects policy goal of deterrence – “teach them a lesson”

4. Time Limitations on Bringing Tort Actions

Statutes of Limitation

i. Define time limit within which action for a particular cause must be brought. Vary based on jurisdiction; often 1-2 years.

ii. Rationale for SoL is that older evidence is less reliable and thus justice is less likely to result

When does a limitation period begin to run?

i. Some jurisdictions start period at the point at which the injury should reasonably have been discovered

ii. Some start at time of discovery even if the time of the injury is unknown

iii. Some start at the time of injury regardless of discovery

Some statutes of limitation can be “tolled” (does not start to run) if the plaintiff is disabled and will not start to run until the plaintiff is no longer disabled.

Statutes of Repose

i. typically a 4-6 year time frame upon occurrence of an event other than discovery of injury

5. Steps of Bringing a Tort Action

Injury

Grievance

i. event for which injury is noted by the injured person

Claim

i. notice of injury, determine there is a grievance, notify other party

Dispute

Lawyer

i. often, claim is dropped here based on strength or weakness of case weighed against costs

1. alleged wrongdoer has no assets to recover

ii. will facilitate out-of-court negotiations

iii. will determine if there are statute of limitations problems

Filed Case

i. Vast majority result in settlement upon receipt of claim

Pre-Trial

i. Parties articulate positions

ii. Discovery of evidence

iii. Motions, conferences

iv. settlement negotiations

v. mediation negotiations

vi. arbitration (in some cases)

Trial

i. Plaintiff’s prima facie case

1. P bears burden of proof to establish elements of the tort to show cause of action

2. Must show by a preponderance of evidence; “more likely than not…”

ii. Defendant’s defenses

1. D will try to negate one or more elements of P’s cause of action

2. D will assert affirmative defenses to claims made by P

iii. Judge/jury

1. Apply the law to the facts

iv. Cases become final when the court enters a judgment; sometimes after trial, in some cases before (e.g. summary judgment)

1. motion to dismiss

a. can be effective if plaintiff has failed to state a prima facie case

2. motion for summary judgment

a. Court rules on existing, agreed-upon facts

Post-Trial Adjustments

i. Judge may change the damage amount awarded

1. About 1/3 cases have some motion for post-trial relief