Torts Outline

TORTS OUTLINE
Prof. Scott Hershovitz
SPRING 2011
 
 
I.  Introduction
           
1.  2 stories of what tort law is about:
§  Economic deterrence theory: tort law is trying to get people to behave in socially beneficial ways (Calabresi, Posner, Hand formula)
§  Corrective justice theory: tort law is about relationship between plaintiff and defendant, what we are going to do as society in response to harm, and what P is going to do. More about one particular person in the way in which he/she is treated
2.  Doctrine of cheapest cost avoider (Calabresi):
§  Should assign liability to cheapest cost avoider
§  Required level of precaution should be proportional to the injury.
§  In assigning, should consider who has best access to relevant information
§  Question of how much the cost is, who can bear it most efficiently, are generally left to jury
§  Criticisms:
§  This doctrine doesn't track results very well, and doesn't track mode of decision making utilized by courts, as courts typically use morally oriented language
§  Doctrine disfavored among judges
§  Judge and jury usually won't have access to information needed to determine cheapest cost avoider
3.  Coase theorem:
§  W/o transaction costs, efficient outcome brought about no matter where legal entitlement is, b/c people will bargain
§  But w/transaction costs, don't necc. get efficient outcome, because of:
§  Information costs – don't have enough info to make bargain, or don't estimate correctly
§  Issues w/social norms – e.g., dock owner values enforecement of property rights more
§  Distributional consequences
§  Whether bargain reached is highly variable empirically
§  Many people hold out, which is itself a transaction cost
§  Economists want to allocate entitlement such that transaction costs minimized
§  E.g., Vincent v. Lake Erie Transp. Co.
§  w/o transaction costs, boat will stay regardless of whether it pays for loss.
§  W/transaction costs, would assign legal liability to boat owner: has more information about potential damage to boat/cargo weighed against damage dock owner might suffer
 
 
II.    Negligence
 
A.             Definitions, injuries, prima facie case
1.  Definition:
§  Failure to heed a duty of reas. care owed to another that causes injury to the other
§  Misfeasance v. nonfeasance:
§  Misfeasance: affirmative conduct that causes harm
§  Nonfeasance: failure to act where action likely would have prevented injury
2.  Possible types of injuries:
§  bodily harm
§  harm to tangible property
§  loss of wealth
§  loss of consortium:
§  e.g., emotional distress, loss of services, loss of ability to have sex
§  Fails if tortfeasee's claim fails
§  Loss of consortium claims for parent w/r/t injured/dead child
§  Varies by state
§  No claim at all
§  No claim unless child dies
§  Only compensated if child provided economic benefit
§  Comparative fault of child can reduce parent's loss of consortium claim
§  emotional distress
§  assault
§  battery
3.  Prima facie case needed for recovery for negligence:
§  A defendant is ordinarily liable for negligence if a plaintiff suffered an injury, the defendant owed a duty to class of persons that includes the plaintiff to take reasonable care not to cause injury of the kind suffered by the plaintiff, the defendant breached that duty, and the defendant's carenessness was an actual and proximate cause of the injury suffered by the plaintiff.
§  Duty: An actor has an unqualified duty to take reas. care not to cause reasonably foreseeable injury to another
§  Breach: Breach is established when conduct of a defendant is not reasonably careful in comparison to how an ordinary person, acting reasonably, would behave under the circumstances
§  Actual causation: Actual causation is established if it is more probable than not that a defendant's carelessness caused injury to a plaintiff.
§  Proximate causation: The proximate causation requirement is satisfied, under the Wagon Mound standard used by most courts, if the harm suffered by the plaintiff was reasonably foreseeable at the time of D's negligent conduct.
 
§  Juries, rather than judges, generally decide neg.
§  Some exceptions (e.g., Walter)
 
B.            Duty
1.  Overview and history of duty:
§  Duty is question of law
§  Old English CL:
§  duties based on well-defined roles and relationships
§  Some exceptions in which duties attached in the absence of preexisting relationships, where P carelessly pursued affirmative course of conduct that directly caused P physical harm [e.g., Weav