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Torts
University of Pennsylvania School of Law
Klick, Jonathan

Torts Outline – Fall 2016
Professor Jonathan Klick
 
Economics
 
Intentional Torts (FITTED CAB)
 
1. False Imprisonment
2. Trespass/Land
3. Trespass/Chattels
4. Emotional Distress
5. Conversion
6. Assault
7. Battery
 
B). Defenses to Intentional Torts (CMdNSDp)
1. Consent
2. Mental Disability
3. Self-Defense
4. Defense of Property
5. Necessity
 
 
 
Strict Liability (RApSCA)
Ultra-Hazardous
Risk of serious harm
Appropriateness of activity in place?
Socially valuable?
Common activity?
Ability to take precaution?
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ECONOMICS AND OTHER TORT THEORIES
Different theories and perspectives on tort law. Can view tort as:
           
Efficiency
Law as cost/benefit. Generating good incentives. Is rule good or bad? Induced to make cost-justified precautions
Fairness/Justice
“Just” is subjective
Compensation
Tort as an implicit insurance scheme
 
The three rules above are always in conflict
Some rules may be great for efficiency, but awful for fairness or justice
Constantly have tradeoffs
If goal of tort is to internalize externalities via damage awards it’s really a system of Pigouvian liability except we are not dealing with taxes or subsidies
Pigouvian liability to encourage an efficient amount of precaution
 
Broadly speaking, Klick is a utilitarian
Chooses outcomes that maximize utility
But maximizing utility won’t always get us fully there to what he personally thinks is the efficient outcome
 
Redistribution w/ tort law
Does ∆’s wealth actually matter with juries in terms of redistribution? Not really supposed to take into account legally, but sometimes they implicitly may
Poor guy “lucked” into getting judgment from rich guy, but that’s only one poor guy
May be better off (from wealth distribution standpoint) to tax rich guys (more people to get wealth from) and then can redistribute to lots of poor guys!
Law and Econ say it’s a lot of redistribution from one to one rather than more systematic
 
 
Chicago v. Yale School of Economics
Chicago
Things go towards efficiency over time
If we have a bad rule, mistakes can occur, but they get weeded out over time
If common law rule in effect for awhile, the presumption is that it is efficient
Yale
Mistakes happen
OUGHT to use legal rules to achieve outcomes we want
If have a bad rule, then fix it!
 
Insurance money vs going after assets
Some people think it’s wrong to go after people’s assets
Differential thinking with insurance
Will settle for policy limits
 
Juries:
Condorcet Jury Theorem:
Can show more reliance on juries
Issue where average person has > 50% chance of getting right outcome (Yes/No) case, then a jury with a unanimity requirement will heads towards correct outcome:
EX: error rate = 0.4
Success 0.6
Going from 1 decision maker to 2 [0.4*0.4 = 0.16 error rate] Assuming people more likely to get verdict right and have statistically independent events, as “N” increases, likely under unanimity rule to get as small an error rate as possible
This assu

g with substantial certainty of hitting someone)
In contrast, firing a gun into what you believe to be an abandoned house and accidentally hitting someone may not be an intentional tort, but could be liable for negligence
 
 
RATIONALE: “You take victim as you find him.” Purpose/substantially certain because we want to confine intentional tort liability to cases where ∆ acts with a higher level of culpability
(Vosburg – doesn’t matter if π more fragile – see “reasonable standard”)
 
 
Transferred Intent
An actor intends to commit battery on one person, but actually inflicts one on somebody else
EX: X throws a rock @ Y hoping to hit Y, but actually hits Z
            -The “intent” to hit Y transfers to Z
RATIONALE:  Deterrence. Should not matter that you hit somebody you did not intend. Z can satisfy intent element. (can also potentially be liable for assault to Y if Y reasonable anticipated imminent harm)
 
B) Harmful/Offensive Contact
 
Objective standard of offensive contact.
“Reasonable Person” test
– “Would this contact offend a reasonable sense of personal dignity?”
(one not unduly sensitive as to his dignity)
-Even if victim himself harmed/offended, there is NO liability if a reasonable person would not be harmed/offended