Torts Outline- First Semester
Tort System Policy
Introduction- Strict Liability
Definition: (Strict Liability) Liable without having to prove negligence.
Damages rules and the alternatives. Judicial law making.
Cases:
Hammontree v. Jenner- Strict liability
Issue: Is defendant, who drove into a store while having a seizure, strictly liable?
Holding: No, must proof that defendant was negligent.
Note 1: Court of appeal was asked to adopt strict liability to create an incentive for safety- then all you would have to be is prove that there was a crash. (Other alternative- establish negligence.) Wanted to use products liability as a precedent (cited Traynor) and court have declined to extend that rule to vehicle actions.
Note 2: Judge made law- Greenman illustrates the fact that there are 2 questions: 1.) What’s the better rule? 2.) Is it the judges job to adopt it v. legislature? Traynor thought that Greenman was able to be judicial made, but car cases would be too complex and should be left to the legislature (like Maloney).
Seffert v. Los Angeles Transit Lines (1961)- Pain and Suffering
Issue: Was the pain and suffering awarded to Seffert excessive?
Holding: No, it was not excessive. (It must shock the conscious)
Note 1: Pecuniary loss (wage and medical expense) and Pain and Suffering (no easy way to quantify it). Traynor dissent- you can’t measure or compensate for pain and suffering, yet juries are asked to do it, and he would have limited it to the $ equal to pecuniary loss. Now, it is limited- ($250,000 against doctors).
Note 2: The job of determining the pain is for the jury. Trial judge also has the discretion to toss out. Role of the appellate court is limited because they can’t see the actual witnesses and facts, so even if it “Shocks the conscious” of appellate court…
Note 3: Explains the strict liability rule and the limitation of pain and suffering. Changes Tort law- from being viewed as form of punishment of wrongdoers…to… the emphasis of the shifting of losses and the spreading of them throughout society. More people recover small amounts.
Changes in the Tort System
Fault System → Compensation of Losses
Writ → Industrial → Fault → Strict → Worker’s Comp/ → Insurance → Compensate
System Revolution System Liability Vicarious Liability Companies Victims
· Writ System → Negligence 1908
o “If a man throws a log into the highway, and in that act it hits me; I ma
· Negligence System- 1850
o Brown v. Kendell (1850)- landmark case of negligence. No liability found without fault, because the Δ shouldn’t bear the loss unless he is at fault.
o Adams v. Bullock- Learned Hand Test- L * P > B = negligence. This test primarily used by appellate courts; it must be done intuitively because it is hard to quantify amounts.
o Objective v. Subjective Test (don’t look at state of mind)
o Holmes added the Reasonableness Standard- Had to show that a reasonable person would act the same way. Imposed liability on actors who were not subjectively blameworthy.
o Res Ipsa Locutor-Initially grounded in the fault theory, but moved to a more stricter form of negligence liability.
o
· Holmes, in Common Law
“The general principle of our tort law is that an accident must lie where it falls, and this principle is not affected by the fact that the human being is the instrument of misfortune.” (p 6, Holmes in the Common Law)
