Heriot
Torts
Spring 2010
Introduction: What is a tort?
– The private wrongs view:
o Tort: a civil (rather than criminal) wrong for which the victims (the plaintiffs) have causes of action against the wrongdoers (the defendants) to recover money judgments
§ Characterized as private law
§ Tort actions are typically brought by private persons who either claim themselves to be victims of wrongdoing or who claim to represent such victims
§ Most tort claims are resolved via settlement
– The “Allocating the Costs of Accident View”:
o Accidents happen so the costs must be paid
o Can demand cost from the one that caused it or share costs in proportion to blame
o Taking this view means you are more drawn to the economics rather than the criminal or justice view
o This was the dominant view
o Problem: if we don’t think of tort law as private law but rather the cost then why single out human caused accidents only
– The “Hodgepodge” view:
o Law used to be in no order, just random Writs
o When law became intellectual some writs were able to be gathered together
o Whatever subject matter didn’t fit anywhere became known as Torts
– Realistically torts is a combo of private wrongs and cost allocation
o For the most part torts are mainly accident law
– Intentional Torts: stressed in private law view and closest to criminal law
– Objective of tort law:
o 1. Many people believe that tort law exists to correct wrongs—injustices—that have occurred in the course of human interactions
§ Corrective justice: the assumption that the payment of money damages by the defendant to the plaintiff will make the injured plaintiff whole again (or nearly as whole as possible)
§ Basically the objective believed in this view is for tort laws to achieve fairness for its own sake
§ Correct past wrongs
o 2. Another objective of tort law is instrumental—tort remedies are justified because they create incentives for actors to behave more carefully in the future
§ Deter future losses
§ Unlike the corrective justice perspective, in which tort judgments are ends in themselves, from the instrumental viewpoint tort judgments are means to the end that really matters: achieving a less dangerous (and thus more prosperous) society.
MEASURES OF RECOVERY IN TORT: THE RULES GOVERNMING DAMAGES
– When a plaintiff is successful, the court enters a judgment against the defendant in favor of the plaintiff
o The judgment is an order by the court to the defendant to pay the plaintiff a specified amount of money, together with interest from the date of judgment, within a certain time.
– If a jury is involved, the jury will have returned a verdict for the plaintiff, upon which the court enters judgment.
– Types of damages:
o 1. Nominal damages: a token amount awarded simply to commemorate the plaintiff’s vindication in court
§ Usually for intentional torts that do not involve physical harm or outrageous behavior
o 2. Compensatory damages: awarded to compensate the plaintiff for losses caused by the defendant’s tortuous conduct.
§ In personal injury cases can include
· 1. Economic losses
o Examples of economic loss include lost earnings, reduced future earning capacity and in personal injury cases may include medical and rehabilitation expenses, past and future.
· 2. Noneconomic losses
o Examples of intangible noneconomic losses include pain and suffering and mental upset, past, present and future
§ Property damage
· The plaintiff may recover an amount representing the extent by which the market value of the plaintiff’s property has been diminished because of the defendant’s tortuous conduct.
§ Death
· The action is brought by surviving next of kin or by a legal representative on behalf of the decedent’s estate
· Wrongful death statutes authorize recovery for the death itself
o Compensatory damages here track those awarded in personal injury cases not involving death, and include funeral and burial costs
· Survival statues authorize recovery for losses incurred by the victim between the time of injury and the subsequent death
· The major element of economic recovery in these cases is destruction of the decedent’s earning capacity
· Damages do not include the elements of future medical expenses and pain and suffering, allowed in non-death cases.
o 3. Punitive Damages: awarded when the defendant’s tortious conduct is especially outrageous
§ In theory, the amount of the award should be great enough, in relation to both the defendant’s conduct and the defendant’s net economic worth, to teach the defendant a lesson
Statute of limitations:
– There is a fixed period of time within which a person may file a complaint against someone who has caused them harm
– These time periods are referred to as statute of limitations
o Intentional torts: one year from the time that the plaintiff discovers the injury
o Unintentional, fault-based torts: two years from the discovery of injury
Procedure:
1. Accident Occurs > Injury Results > Dispute arises
2. Plaintiff will file a complaint > Serve on defendant > Defendant will file an answer
3. Period of discovery: includes facts, evidence, depositions
4. Trial > Jury Instructions > Reach a verdict on the basis of law based on jury instructions
5. Judgment in favor of P or D
6. Parties may appeal
Motions:
– If the motions are granted, a judgment is entered in favor of the party bringing the motion which can be appealed by the losing party
Motion to Dismiss: making the claim that even if the facts in the complaint are true, there is no basis for legal relief
– If the motion is granted there is a judgment in favor of the defendant and the plaintiff can choose to appeal
Motion for Summary Judgment: takes place before the trial
Motion for Directed Verdict: Takes place during the trial
Motion for Judgment Notwithstanding Verdict: Takes place after jury verdict
Restatement?:
– The American Law Institute composed of lawyers and judges believes keeping track of the law was getting difficult
– So the group go together to come up with the Restatement to distill all the laws
– Is the Restatement Law?—In a way no but the courts sometimes will state that they will follow the restatement
– The Restatement Second and Third both discuss negligence in Learned Hand Terms
Perfect Safety
– We cannot and do not want perfect safety
– The cost of safety would make items very expensive
– But we need to know how much safety we need and the economic approach wants optimal safety which is the level at which the cost is less than the amount of damage being avoided.
Standard of Proof
– Preponderance of the evidence for both plaintiff and defendant
NEGLIGENCE
Negligence: failure to use the care that a reasonable person would have used under the circumstances
Prima Facie Case:
– Element which must be proven by the Plaintiff
– If Plaintiff can prove all then will prevail unless Defendant proves an affirmative defense
Prima Facie Case for Negligence: Professor Smith’s Elements:
Negligence
Was it reasonable?
Causation
Actual Cause
i. But for?
Proximate cause
ustom—helps P’s case
o 1. Will help the plaintiff because it will show the court the determine the act to be negligent will not upset the practices of the entire industry and
o 2. The fact that others perform the task in a safer manner suggest that an alternative not only was feasible but the D knew or should have known of the custom
§ Statutes: Overall rule is that D’s compliance does not conclusively prove that his behavior was reasonable. But defiance of the statute may itself establish breach of duty of care
· Compliance with a statute
o Following the statute that sets only a minimal level of conduct may not be enough to establish reasonable care under the circumstances
· Violation of the statue
o P may be able to establish negligence simply by proving the violation
o Negligence per se in most cases
· Statutes will be used wherever they apply: 2 theories
o 1. Class-Harm analysis: A statute can be used for a private action if P falls within a class of people intended to be protected by the statute and experienced the type of harm the statute intended to avoid
o 2. Common law borrowing for a good reason: Tort law is based on common law (reasonable care standard)
o However, sometimes it makes sense to make that standard more concrete and therefore borrowing the statute for purposes of defining common law negligence
§ Case: Helling v Carey (custom—malpractice)
· Plaintiff suffered serious injuries because her doctor failed to diagnose her condition through a simple test
· The standard procedure was not to give the test to anyone under 40
· Although the normal rule is that custom is determinative the court found the Defendant liable because the damage was so severe it offset the cost of administering the test
Martin v. Herzog (statute)
· Plaintiff drove without his car lights on
· There is a statute making it unlawful to drive without lights
· Issue: the defendant wanted the jury to use the statute violation as a prima facie evidence of contributory negligence
· Usually, the statute sets the standard of care for negligence
· Holding: A violation of a statute is negligent, unless the negligence was not a proximate cause of the injury, then it will be considered contributory
Stachniewicz v. Mar-Cam Corp.
· P brought suit against D, a bar owner, for injuries that P sustained as a result of a barroom brawl
· Oregon statute: prohibits bar owners from the sale of liquor to patrons who were visibly intoxicated and from allowing loud noises and disorderly conduct in their bars
· Issue: Is a violation of a statute negligence per se when the injury results in the type of harm which the statute is designed to prevent and to the class of persons to be protected?
· Holding: Yes, however the court has to examine the appropriateness of the standard of the statute as a measure of care for civil litigation under the circumstances
