Steven Smith
Tort Outline
Fall 2013
I. Torts, What is it?
A. Torts is the issue that someone or something has caused harm and is looking to the law for relief (civil)
1. Torts means “wrongs”: a miscellaneous collection of legal issues that need to be taught, which may not fit specifically in contracts, property, criminal law, etc.
2. primary concern is whether one whose actions harm another should be required to pay compensation. Tort law plays a pivotal role in filling the gaps where state disability and insurance leave them.
3. accidents give rise to disputes, law is concerned with resolving the dispute.
B. Hammontree v. Jenner:
1. Issue of Strict Liability
a) Plaintiffs’ shop hit by Defendant’s car, injury and property damage
b) Defendant was unconscious due to epileptic seizure
c) Court finds issue of negligence, not strict liability because:
(1) Strict Liability is non-fault liability
(2) negligence is fault based liability
(3) Torts is a common-law subject (sets precedent)
(4) 0
C. Torts Cases follow Civil Procedure:
a) File Complaint (Plaintiff)
b) Defendant files response (or files motion to dismiss based off of unsound legal theory)
c) Commence Discovery (after this defendant can file for summary judgment if they think evidence found in discovery may prove their innoncence)
d) Motion for Summary judgment (leads to judgment if passed, trial if denied_
e) Motion for Directed Verdict (occurs during trial)
(1) could be based on written evidence, witnesses, etc.
(2) if judgment denied, parties make closing arguments
(3) judge instructs jury in the law
(4) jury responds with a verdict
f) Fundamental divide in tort law: should liability require a show of negligence?
II.Views of Law
A. Rule – book based
B. Common – Law
1. Means based off of precedent, previous cases, body of rhetoric for resolving disputes
2. rules may not be canonical, could be things that were said, generalizations that appear ot be rules
3. gives ability to create exceptions, change mind based on circumstances, change based on changing times, etc.
III. Tort System has primarily taken a negligence approach to the problem of accidents since the 19th century (fault-approach)
A. Prima Facia case:
1. refers to requirements or elements a plaintiff needs to allege and prove (more probably than not) in order to have a chance of recovery. (bare minimum requirements)
a. if fails, they lose. if they succeed, don’t necessarily win – because defendant can have affirmative defenses. This will be sufficient to allow them to win, though.
i. Elements:
1. Duty (of care)
2. breach of the duty (carelessness/negligence)
3. causation (broken into two subcategories)
a. actual cause (cause-in-fact)
b. proximate cause (legal cause)
4. injury
2. Plaintiff has burden of production and burden of persuasion.
3. For this class, Torts is broken into:
a) negligence
(1) failure to use the care that a reasonable person would use under the circumstances
(a) lawyers will typically identify an untaken precaution that should have been done
b) causation
(1) legal cause
(2) injury
c) injury
d) (duty doesn’t always play a part for the plaintiff to show/prove) No Duty veto.
B. Fundamental Divide of Negligence has been between Negligence approach and Strict Liability approach
1. Strict Liability: non-fault liability
2. Negligence is fault-based liability
a) Holmes says that we do not want to discourage people from actively moving around, non-fault would not incentivize anyone to be safe
3. Torts law questions:
a) questions of fact go to Juries
b) questions of law to judges
IV. Negligence- what is it?
A. Adams v. Bullock
1. 12 year old boy with 8ft wire burned when swinging it makes contact with trolley wire below parapet.
2. Trial and appellate courts found for petitioner on basis of negligence
3. Supreme Court of NY reverses decision
a) Question posed: is whether they were negligent a question of fact or of law?
(1) based on the evidence presented, could a jury reasonably find that the trolley company was negligent?
(a) Cardozo says no.
(2) to hold it liable upon the facts exhibited would be to charge it as an insurer (aka strict liability)
(3) This accident was not something that was to be reasonably foreseen, which fulfills the duty of an insurance company to cover regardless of negligence.
(4) Reasonable care in the use of a destructive agent imports a high degree of vigilance.
b) Judge Cardozo engages in common logic : the case could not be foreseen hinges on this fact.
c) Looks at untaken precautions (carelessness)
(1) Plaintiff will identify the things that should have been done
(2) Defendant will respond to those items
4. Results in the “Reasonable Person Standard” Conduct evaluated against an external standard of care
a) California Jury Instructions
(1) Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under
found no negligence
d) Appeals reversed, finding that bargee being on board could have mitigated some negligence.
e) Posner took this analysis very seriously, used it as the basis for much of negligence.
3. Questions on Learned Hand Test:
a) is it the law? law is what lawyers argue and juries are instructed.
b) juries are instructed negligence “reasonable person” not the actual test
c) typically we want reasonable safety, not absolute safety.
d) juries could be implicitly conducting analysis without explicitly stating such.
(1) ex: ford pinto case – jury was appalled that Ford put money amounts on loss of life, suggests that learned hand approach does not capture the way jurors think, nor that we desire actors to make a cost-benefit analysis.
B. Bolton v. Stone
1. Cricket: magnitude of the injury x probability of injury occurring < cost of implementing safety measures
2. English court essentially states, risks are inherent and if a minimal risk sometimes happens, we accept that in living. No reason to do cost-beneit analysis, if there is substantial risk – it is not worth playing cricket there.
C. Judge-Developed Rules (Holmes favored this approach)
1. Baltimore and Ohio RR v. Goodman – U.S. Supreme Court 1927 (pgs 60-74)
a) Holmes states that Plaintiff (decedent Goodman) is responsible for his own death in taking no further precaution in crossing a RR.
b) believes that when a standard of conduct question is in order, and the standard is clear, it should be laid down by the Courts once and for all.
(1) The common law, where court’s experience lacks, a jury of 12 should supplement. If court sees the jury oscillating on an idea where the facts keep repeating, then the Court should make up its mind.
2. Pokora v. Wabash RR (pgs 60-74 notes)
a) Confined Goodman to its facts, found that Pokora took reasonable precaution by using his faculties before crossing railroad, and that getting out would actually probably cause more danger than listening and looking, therefore remands Pokora for further proceedings in accordance with opinion.
