Chapter 1 – Introduction
Tort – civil wrongs other than a breach of contract for which the law provides a remedy.
P in a torts case wants damages as a remedy. Occasionally, P’s seek injunctive relief or class action – but usually seek money damages.
Types of Money Damages:
· Injury – medical costs (i.e., bills, prescriptions, etc.)
· Lost wages – projection of future wages – a particular table is used for this
· Property damage
Pain and suffering – jury can award this. The decision is not based on a particular formula
Loss of consortium – filed by husband or wife
Loss of companionship – as a parent with child
Loss of enjoyment of life – similar to pain and suffering – this is sometimes awarded after death
Justification for Torts system:
Deter behavior – make people take precautions/act in a certain way or not act in a certain way
Corrective justice – strong rationale for intentional torts, but most theorists more opposed to this in negligent torts
Prevent the risk – ensure against danger
Chapter 4 – Negligence
General issue: P must prove that D was negligent in order to recover for injuries.
Negligence – failure to use reasonable care; conduct which falls below the standard of care established by law for the protection of others against the unreasonable risk of harm.
Reasonable care – the degree of care which a reasonably prudent person would use under like or similar circumst
rules of law
the reasonably prudent person standard – all states recognize the “reasonably prudent person” as the standard to determine if there was a duty of care.
duty is a question of law for the courts to decide (when the duty is set up by status or rules of law)
Breach – a failure to conform to the required standard. A breach is a question of fact for the jury to decide, unless reasonable minds could not differ in the decision
Causation – the conduct that resulted in an injury. Types of causation include:
cause in fact – decided by jury
proximate cause – decided by court
Damages – there must be actual damage in order for P to recover (If D’s risk – creating negligent conduct threatens but does not harm the P, the P may obtain an injunction and stop the activity as a nuisance, but he does not have a negligence suit). Damages are decided by the jury.
In order to prove negligence, the P must prove by a preponderance of the evidence that:
1. D owed P a duty
2. D breached that duty
A preponderance of the evidence means that reasonable persons would conclude it is more likely than not that the facts presented by the P substantiate his claim.
A. General Questions to Ask in a Negligence Case
Was there a duty?
Was the duty breached?
Was the D’s breach the cause of the injury?
Were there damages?