Prosser, Wade, and Schwartz Torts Cases and Materials 10th Edition
Exam Format (IRAC)
Identify and/or analyze:
1) The Issue
2) The Rule (there may be multiple rules)
3) Make an Argument for both sides and
4) Make a conclusion about what you think the ruling would be
An introduction to Tort law: Overview
Tort: A civil wrong, other than a breach of contract, for which the law provides a remedy.
Major purposes of a tort law:
1) To provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands”
2) To deter wrongful conduct
3) To encourage socially responsible behavior
4) To restore injured parties to their original condition, insofar as the law can do this by compensating them for their injury.
Types of torts relating to defendants conduct
3) Strict Liability
A Tort Lawsuit:
A. Pleading Stage
B. Discovery Stage
C. Trial Stage
1. In a Tort Case the plaintiff must present evidence to prove the facts which will support a conclusion that
a. D had a duty to P to act or refrain from acting in a particular way
b. D breached that duty
c. D’s breach of that duty was a proximate cause of an injury to P
d. That P sustained certain damages and, if practicable to do so, prove the money value of those damages
D. Post Trial Stage
1. The losing party can request a judgment notwithstanding the verdict (N.O.V.) that is an order from the court in their favor.
2. The losing party may also request a new trial. Common grounds for request are:
a. Erroneous instructions given to the jury by the judge
b. Erroneous rulings on the admission or exclusion of evidence
c. An unreasonable jury verdict, particularly with regard to the amount of damages.
1. A party may appeal to a higher court any decision made by a judge.
2. Decisions that give most rise to appeals are:
a. Trial judge’s decision to grant or overrule a demurrer
b. Trial judge’s decision to grant a motion for summary judgment
c. Trial judge’s decision to grant or overrule a motion for directed verdict
d. Trial judge’s decision as to what instructions to
2. A Negligence Formula
Lubitz v. Wells – golf club case (question of Inherently dangerous object)
Demurrer [Rule 12(b)(6)]: Motion to dismiss for failure to state a cause of action. Even if all the facts were true the D is still not liable to P.
Rule: There is nothing intrinsically dangerous about a golf club and therefore there is no Duty
The court introduces the equation Risk of Harm (RH) + Likelihood of Harm (LH) = Duty
Note 5 p. 132 Toddler crawls under vehicle does driver have the duty to check under car wheels for infant?
This case introduces the idea about Duty being imposed when a reasonably sound person would find Duty
Blyth v. Birmingham Waterworks Co. – Frozen Pipes case (Not judged by result)
Act of God An overwhelming unpreventable event caused exclusively by forces of nature, such as earthquake, tornado, hurricane. (Unforeseeable Frost)