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University of North Carolina School of Law
Corrado, Michael L.

Spring 2015
Introduction to Torts
What is a tort?
1.      To commit a tort is to act in a manner that the law deems wrongful toward and injurious to another, such that the other gains a right to bring a law suit to obtain relief from the wrongdoer
a.       A tort is a wrong, and a tortuous act or omission is a wrongful act or omission, affecting a legally protected interest in person or property (or both), done with a certain state of mind (intention, reckless disregard for consequences, carelessness, etc) though state of mind may be immaterial (as in strict liability), which causes damages
2.      Proceedings in a tort case
a.       Initial pleadings
                                                               i.      Complaint: describes the injury, says it was wrongful/negligent, and asks for compensation
1.      Has to state a claim that the law actually give redress for
2.      Must include all elements of a tort claim
                                                             ii.      Answer: where the defendant states his defenses
1.      Rebuttal defenses: where the defendant says, “I didn’t cause the injury” or “I didn’t act wrongfully”
2.      Affirmative Defenses: acknowledges that all the facts are true, but even if they are, there is no reason for liability to be shown
a.       Ex. contributory/comparative negligence or Self-defense
3.      May then file Motion to Dismiss
a.       Requests that court enter judgment and get rid of the case on the basis of nothing more than the pleadings
b.      Many times it is based on deficiency in complaint such as procedural issues or not redress provided by the law
                                                           iii.      Discovery:
1.      Fact finding process between the parties
                                                           iv.      Motion for Summary Judgment:
1.      A motion to dismiss baed on evidence or information gathered during discovery
2.      Saying that, in light of the undisputed facts, no reasonable jury faithfully applying governing law could find in favor of the party opposing the motion
                                                             v.      Motion for Directed Verdict:
1.      Motion made during trial afer either plaintiff or defendants testimony saying that there is no case
                                                           vi.      Judgment Notwithstanding the Verdict:
1.      Asks the judge to throw out the jury’s verdict and will probably move for a new trial
How to Analyze Negligence:
Negligence (Unintentional Torts): Was there negligence (Duty & Breach) was negligence the cause of the harm (Causation)
1.      Basics:
a.       Prima Facie Case for Negligence:
                                                               i.      Duty
                                                             ii.      Breach
                                                           iii.      Causation (actual + proximate)
                                                           iv.      Injury
b.      Plain English for Negligence Claim
                                                               i.      A plaintiff can win a negligence case by showing that
1.      The defendant had an obligation to be careful,
2.      The defendant wasn’t careful, and the carelessness was
3.      An actual cause and
4.      A not-too-indirect and not-too-far-fetched of
5.      A bodily injury or damage to physical property
2.      Duty – Matter of Law – Court Determined
a.       Classification
                                                               i.      Usually duty is assumed & not a big deal for the court
                                                             ii.      May be dependent on facts though
b.      Reasonable Duty of Care –
                                                               i.      General duty to take reasonable care to prevent causing foreseeable injuries to others
                                                             ii.      If you should have known you could hurt someone by being careless, then you had an obligation to be careful
c.       No Affirmative Duty to Help
                                                               i.      No one has a general duty to protect others from harm or rescue them; only a duty to not willfully harm
1.      Yania v. Bigan
2.      Theobald v. Dolcimascola
                                                             ii.      Good Samaritan Laws:
1.      Function to provide a liability shield for the clumsy rescuer
2.      Rescuer that does more harm than good
3.      Provides immunity from ordinary negligence, but not GROSS negligence
d.      Nonfeasance
                                                               i.      A failure to act-here there is no general duty
                                                             ii.      There is only a duty if there is a special relationship
                                                           iii.      Look to see if there is dependency
e.       Exceptions:
                                                               i.      Defendant created the risk of peril
1.      However if conduct was innocent and somehow creates peril the defendant was not liable
2.       South v. Amtrak

iversity of California
1.       Supreme Court of CA
2.       Plaintiff are the decedent’s parents, suing for failure to confine and warn a dangerous person
3.       Patient expressed intent to kill decedent, briefly detained and then released
4.       Issue of the fact that state employees have immunity
5.       Dismiss charges against police and only address failure to warn
6.       RULE
a.       Issue of nonfeasance: there is a duty for the doctor to warn if the person is readily identifiable, needs to be specific. LIMITED DUTY
3.      Breach – Jury Decision – Matter of Fact
a.       General:
                                                               i.      This element is established if the defendant was not being careful (breach the duty)
                                                             ii.      Was the defendant being Careless??
b.      Essential Question
                                                               i.      Was the Risk Unreasonable?
1.      What is reasonably expected of people living in civil society who do not want to cause harm
2.       Rogers v. Retrum
a.       Court of Appeals of AZ 1991
b.       Student injured when he was a passenger in a car of another friend, left campus due to open campus policy.
c.       Sued the teacher and school district
d.       Plaintiff alleged that the school violated its supervisory duty
e.       (Clearly the school owes a duty to its students that is not the issue at hand/ the issue is if it was breached)
f.        if it foreseeable that an open campus policy would lead to motor vehicle accidents, however, is the risk unreasonable?
g.       RULE
                                                                                                                                       i.      Court finds that it was not unreasonable. Teens are always at a greater risk for accidents and there is a policy agreement the school district has valid reasons for instituting an “open campus” policy
                                                                                                                                     ii.      Breach about unreasonableness