Outline For Torts
I. Introduction to the Tort Lawsuit-
A. Procedure
1. Investigation. Prior to filing a lawsuit on the tort claim, a detailed investigation must be conducted. This investigation should cover, and least, 4 important points.
a. when. Determining when the injury occurred is a first that. All tort claims are brought within particular time periods by statute.
b. damages. Tort claims may only be brought when the injured party has suffered from some loss. The investigation determines whether the injured party has suffered personal injury, property damage, or economic loss. When losses are occurring compensatory damages may be recoverable. When the act is intentional, additional damages, nominal damages are punitive damages may be recoverable.
c. A valid claim. In order to recover damages the injured party must have a valid legal claim. The investigation determines if the claim exists.
d. Settlement. During investigation process, efforts should be made to reach a settlement.
2. Pleadings. The action is begun with the filing of a pleading. The plaintiff files a complaint, which sets forth the claim. The defender responds with an answer, indicating what facts are denied and what defenses will be raised.
Defense motions. ( pretrial )
i. motion to dismiss-fails to state claim upon which relief can be granted. Even if facts are true there is no way party could win.
ii. motion for summary judgment-question of dispute of the facts. If no dispute, judge grants for defendant if other side could not win.
3. Trial. The judge instructs the jury on of law, and the jury determines the facts, applies the facts so found , and reaches a verdict. The judge then enters a judgment.
a. Opening statements. Both parties are given the opportunity to present a brief outline of the facts they expect to prove.
b. direct and cross-examination. Each side presents its evidence hews to the plaintiff first and then the defendant. Each side can also question the witness from the opposing side. Post evidence motions
i. motion for a directed verdict or JMOL-defendant moves to show plaintiff has not proved to show one or more elements of case and that a reasonable jury cannot find other than for the defendant.
ii. motion for RJMOL- if the losing party earlier moves for JMOL then it can be renewed after the jury verdict.
iii. motion for new trial-either side can make this after verdict when it is clearly against the evidence.
c. Cl
awful acts
Both defendants were not at fault
Both cases are not trying to sue for losses but who to blame
Blasting and driving are both intermittently dangerous activities
DIFFERENCES
Likelihood of harm is more predictable in blasting
Property damage v damage of a person
Plaintiff is blasting is really innocent, plaintiff in driving case knows damage could occur when getting in the car
Professional (business) v amateurs (individuals)
In order to get a feel of how the judge is going to rule, find other cases that the particular judge you are going in front of has ruled
What is important to the judge?
· Dangerousness of activity
· Not whether at fault but who should bear the loss; person engaging in the activity or the innocent bystander
III. Intro to Evaluation of Tort Rules-
A. Strict Liability v. Negligence
