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University of Mississippi School of Law
Percy, E. Farish

Professor E. Farish Percy
Fall 2012
–          1 longer essay (50%+ of exam)
o   One portion of the longer essay will be damages and what each party will have to argue
§  For damages, go through each type and explain what they would argue to get them
§  Even if it’s obvious, go through it to get the points
–          1 or 2 short(er) answer/essay questions
I.            Background/Introduction
A.     What is a tort?
                                                            1.      Tort – a civil wrong not based on contract for which the law provides a remedy (circular definition)
a.       Defendants are found “liable,” not “guilty”
                                                            2.      Tort law is primarily state law
                                                            3.      Characteristics of a tort case:
a.       Duty
b.      Breach
c.       Causation
d.      Damages
B.     What is the remedy for torts?
                                                            1.      Damages à have to prove actual damages and plaintiff bears the burden of proof
a.       Compensatory/actual damages
                                                                                                        i.            Economic
                                                                                                                                    1.      Lost wages (past and future)
a.       Past – show W2
b.      Future – difficult to identify, especially with not past wages
                                                                                                                                    2.      Medical expenses (past and future)
a.       Future – medical expert testimony
                                                                                                      ii.            Noneconomic
                                                                                                                                    1.      Pain and suffering – plaintiff can testify (“a day in the life”)
                                                                                                                                    2.      Loss of enjoyment of life
a.       Used to be able to recover in early death in MS à Example: mom dies at 45; children used to be able to bring and recover for anything mom would have recovered; now, you actually have to experience it (can’t recover for premature death)
                                                                                                                                    3.      Emotional distress – more difficult to prove
b.      Punitive damages
                                                            2.      Injunctive Relief
a.       In some tort cases (trespass), you can sometimes receive nominal damages ($1) even when no actual damages occurred
C.     Why recognize torts?
                                                            1.      Compensate victims
                                                            2.      Deter wrongful conduct and encourage responsible behavior
                                                            3.      Prevent people from taking the law into their own hands
                                                            4.      Corrective justice (punish fault)
D.     Potential problems
                                                            1.      Expensive à but courts try to adjudicate them as efficiently as possible
E.      Sources of tort law
                                                            1.      Statutes (state)
                                                            2.      Common law (ex: MS Supreme Court) à what is the most recent opinion from that court?
                                                            3.      Restatement – restatement of the law of the majority of the states
a.       Not binding
b.      Might want to use if there is no statute or common law or you want the law to trend in your favor
F.      Vocabulary
                                                            1.      Directed verdict – plaintiff failed to prove their claim and no evidence from which a reasonable jury could find for the plaintiff
                                                            2.      Demurrer – called a “motion to dismiss for failure to state a claim” today
a.       Procedurally different than a directed verdict
b.      Filed after plaintiff files a written complaint
                                                                                                        i.            Defense can even file if everything in the complaint is true à motion says that defendant should win based on the failure to state a claim that makes defendant liable
II.            Development of Liability Based Upon Fault (Breach)
A.     Rule: If a man does a thing he is bound to do it in such a manner that by his deed no injury or damage is inflicted upon others.
                                                            1.      Suggests liability is based on the act, not the intent or negligence (fault)
                                                            2.      Strict liability/liability without fault
a.       Ex: car accidents (tire blows and you hit someone)
b.      This is not true today à you would not be liable today
B.     Rule: No man shall be excused of a trespass…except it may be judged utterly without his fault
                                                            1.      Introduces liability based on fault à but, defendant in this case bears the burden to prove
a.       Burden has shifted to the plaintiff today
C.     Rule: The standard for negligence is ordinary care.
                                                            1.      Ordinary care is different in different circumstances
a.       Lubitz v. Wells: father left golf club out and child unintentionally hit another child with it in the course of swinging it
                                                                                                        i.            Questions to ask: What are you leaving out (golf club vs. sword)?  What do you know about your child?  Do they frequently hit people with golf clubs?
                                                                                                                                    1.      All of these will help determine if the behavior was negligent on the part of the father
                                                                                                      ii.            Why would you bring a case against a child when the child typically does not have any money and the parents aren’t liable to pay the damages?
                                                                                                                                    1.      Homeowner’s insurance will typically cover it so it is fairly safe
                                                            2.      There is no distinction between a necessary and permissible act
                                                            3.      Burden is still on the plaintiff
D.     What is the basis for liability?
                                                            1.      Fault/negligence
a.       Failure to do something or conduct
b.      Example: car tire blows out à if you exercised reasonable care to maintain car you would likely not be liable
E.      Three general types of torts:
                                                            1.      Intentional torts
a.       Assault – causing someone to fear contact by threatening them
b.      Battery – actually making contact
c.       Trespass
d.      Intentional infliction of emotional distress
                                                            2.      Negligence – liability based on fault
a.       Failure to use reasonable care
                                                            3.      Strict liability
a.       Liability is not “always” based on fault
b.      Used for public policy reasons
                                                                                                        i.            For ownership of wild animals (tiger bites neighbor)
                                                                                                      ii.            Abnormally dangerous activity
                                                                                                    iii.            Products liability and manufacturing defects
III.            NEGLIGENCE: A Negligence Formula
A.     Rule: In order to prove negligence, the plaintiff must prove the following elements by a preponderance of the evidence
                                                            1.      Duty – a duty to use reasonable care.  A recognized obligation requiring the actor to conform to a certain standard of care to protect others from unreasonable harm.
                                                            2.      Breach – a failure to conform to the required standard.  This is a question of fact for the jury to decide, unless reasonable minds could not differ in the decision.
                                                            3.      Causation – a reasonably close causal connection between the conduct and the resulting injury.  It’s a combination of two elements: (1) causation in fact, and (2) proximate, or legal, causation.
a.       Causation in fact à “but for” cause
b.      Proximate cause
                                                            4.      Damages – actual damages or loss resulting to the interests of another.  Damages are decided by jury
a.       MUST prove all 4
b.      Note: This will be on test à when she asks what element they have to prove negligence
                                                                                                        i.            Example: Dr. misdiagnosed a heart attack
                                                                                                      ii.            Duty and breach – Yes (Dr. has a duty to use reasonable care when treating patients
                                                                                                    iii.            Causation – Maybe (can the plaintiff show that they would have been any better if Dr. used reasonable care)
B.     Rule: Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would do.
                                                            1.      Foreseeability and probability are major factors in determining negligence
a.       To be foreseeable it does not have to be likely or probable
b.      Foreseeability ≠ Probability.
                                                                                                        i.            Plaintiff doesn’t have to show the accident was probable, only foreseeable.
c.       Example: Driving on a rural MS road and coming to a curve.  It’s not probable that you will meet a car but it is foreseeable that you may meet a car à It would be negligent to drive on the other side of the road
                                                            2.      What is reasonable depends on the facts and circumstances of every case à that is why these questions should go to trial
a.       Example: Blyth v. Birmingham Waterworks Co. (frozen pipes)
                                                                                                        i.            We would need to look at the circumstances surrounding the situation, cost of doing the act ($10 to make the pipes “unfreezable”), the likeliness of something happening (foreseeability), etc.
C.     What is the difference between breach and duty?
                                                            1.      Whether there is a duty is a legal question
                                                            2.      In most cases there is a duty
a.       Example where there isn’t à in MS, social hosts don’t have a duty to stop serving drinks at the

                                 ii.            Jury doesn’t have to consider defendant’s intellect or actual knowledge
                                                                                                    iii.            Encourage people to conform to a higher standard
b.      Disadvantages:
                                                                                                        i.            Holding people liable even though they were using their best judgment
                                                                                                                                    1.      When suing for fraud, you have to show that they were lying and that they knew they were lying à you must get inside someone’s head here
                                                            2.      In a subjective standard, the jury would have to look to see if the actual person would have known any better
G.     Standard Industry Practice
                                                            1.      Rule: When using common practice as a standard, it is necessary to prove that the standard practice exists and that it is reasonable.
a.       Jury must decide if it is a reasonable industry practice
                                                                                                        i.            If it is not reasonable, this is proof that it may not always be relevant evidence/information
b.      It is usually admissible evidence, but it won’t be dispositive or conclusive
                                                                                                        i.            Jury won’t be told that they must return a verdict for the plaintiff if they can find that the standard was reasonable.
                                                            2.      Plaintiff will use this evidence of what industry standard is when the defendant did not comply with it.
                                                            3.      Defendant will do so if they are complying with it
a.       You may have a fact dispute about what the industry standard is
H.     Emergency Situations
                                                            1.      Rule: The most the law can expect from someone is to use reasonable care under the circumstances [in an emergency].
a.       Exception: Unless the emergency is caused by the person that is pointing to the emergency circumstances.
                                                            2.      The jury will be instructed that the defendant has to use reasonable standard of care under the circumstances à this will cover the emergency situation
–          MUST SAY ON EXAM: Plaintiff must prove the following elements by a preponderance of the evidence (50.01%)
o   Duty
o   Breach
o   Causation
o   Damage
§  Note: She may ask which element the plaintiff and defendant might argue and what the other party’s response might be.
–          Duty
o   Whether a duty exists is a legal issue for the court to decide
o   Usually a person has a duty to use reasonable care
§  The care that a reasonably prudent person would use under the same or similar circumstances à unless there is an argument for public policy reasons, you can just say this
o   The majority of the time it is clear that there is a duty (a duty to use reasonable care when you are doing something)
§  Exception: Case where party grabbed the steering wheel in the car à does a driver owe a duty to the passengers?
·         Argue both ways
o   The court will rarely determine that as a legal matter, no duty is owed
–          Breach
o   The failure to use reasonable care under the same or similar circumstances
o   Failing to do something that the standard of care requires or doing something the standard of care prohibits
o   Whether the defendant breach is an issue for the jury
§  Unless the plaintiff failed to introduce sufficient evidence à judge can take the case away from the jury and enter judgment for the defendant
§  The evidence is sufficient if a reasonable jury could find that the defendant breached
o   The court must determine whether the plaintiff has sufficient evidence of breach
o   If the plaintiff has sufficient evidence of breach and the other elements, then the jury will decide the case:
§  If it is a rare case in which the only verdict a reasonable jury could return is a verdict for the plaintiff (i.e. drunk driving case), then the judge may direct a verdict (grant judgment as a matter of law) in favor of the plaintiff.
o   The risk must be a foreseeable risk à plaintiff bears the burden of proving that
§  A risk doesn’t have to be probable or likely to be foreseeable (i.e. driving on the wrong side of the road around a curve)
o   If you can say it is foreseeable, then you must ask if the risk is such that a reasonably prudent person would have taken some precaution