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University of South Carolina School of Law
Wilcox, Robert M.

Torts Outline
Definitions and Distinctions
Hammontree v. Jenner
When products cause injury strict liability is appropriate. The manufactures make profit from sales and should pay for injuriesPlaintiff wanted strict liability
Strict liability- liability without fault
Negligence- liability with fault, gives incentive for everyone to be careful
Purpose of Fault System is to reduce the number of accidents
Litigation Process
1. Complaint – pleadings
– Facts on which plaintiff relies
– Theory plaintiff wants applied to the facts (Cause Of Action)
2. Defendant move to dismiss (demurrer)
– Even if true facts do not lead to cause of action
3. Defendant files answer
– Admit or deny facts
4. Discovery
– Allow parties to acquire more info (depositions, interrogatories)
5. Motion for Summary Judgment
– Based on undisputed facts, one party is entitled to judgment as matter of law
6. Trial
– Bench trial – judge presides and is finder of fact
– Jury trial – either party can request jury
7. Motion for Directed Verdict
– After one party finishes argument
– Same as summary judgment, just more facts
8. Jury returns verdict
9. Request Judgment n.o.v. – judgment notwithstanding verdict
– One party thinks that based on facts no reasonable jury could rule against them
– There is no evidence to support the verdict
10. Judge enters judgment
11. Appeal
– Appellate must argue a mistake of law was made
– Cannot claim factual error
IV. The Parties and Vicarious Liability
1. Plaintiffs
– Death of plaintiff
-under common law, suit was terminated
-Survival Action- law suit survives death of plaintiff
(Able to recover anything the plaintiff would have recovered had survived)
1. Pecuniary losses by beneficiary
2. Beneficiaries non-pecuniary (pain and suffering)
3. Sometimes punitive damages
-Wrongful Death- brought by beneficiaries
(Plaintiff would have benefited if decedent had lived; losses caused by death)
1. Pecuniary losses by beneficiary
2. Beneficiaries non-pecuniary (lost companionship)
3. No damages for victims suffering
4. No punitive damages
2. Defendants
– Employer/ Employee: if at time of negligent act, tortfeasor acting in “scope” or “course and scope” or employment, then employer vicariously liable.
-Imputed Negligence: impute liability to another person due to relationship that exists.
-Intentional Torts- often held to be outside scope of employment unless are committed in furtherance of employers business. (Jurisdictions split)
-Right to Indemnity- if employer held vicariously liable he can sue employee.
Restatement of Agency-
Restatement of Tort-
Courts are split.
1. Affirmative Acts
a. General Rule: Duty to act with due care to protect foreseeable victims from foreseeable injuries.
b. Exceptions:
1. Utilities- fear of crushing liability led court to deny duty for injuries incurred during blackout by a tenant in common area.
2. Ommissions
a. General Rule: No duty to act even if possible to prevent great harm with little or no effort.
b. Exceptions:
1. Special Relationship to Victim- duty to aid or protect
I.e. parent/child; custodian; host/guest (alcohol)
2. Special relationship to injurer- duty to control, supervise, or warn (
3. Voluntary Undertaking (jurisdictions split)
i. claim only if worse off by defendant’s neg. in acting
ii. don’t care if worse of or not
iii. promises do count if person relies on what you said
4. Creation of Risk
i. wrongful- always to duty to act
ii. innocent- jurisdictions split
5. Statutory Imposition of Duty- 3 prong test, if silent, whether you can bring suit
i. Was the plaintiff one of class statute was enacted to protect?
ii. Would recognition of private

l split by noting that one must determine whether the jurisdiction uses common law category system or has changed it.
-If there are no categories- occupiers are treated as business invitees
(Duty to warn and make safe)
-If invitees and liscensees are lumped together
(Duty to warn and make safe)
-If there is category systems… see below.
should not be extended to social host b/c social host is ill equipped to handle responsibilities of their guest’s alcohol consumption. (Dram shop acts-imposed in about a third of the states, impose liability on tavern owners for serving to intoxicated persons if they cause injury as a result of their intoxication)The theory of negligence, however, is adequate for auto accidents. Drivers share roads and should allocate damages based on fault. Since defendant used reasonable care to control his seizures, negligence has not been found.Defendant was stricken by sudden illness (epileptic crashes into bicycle shop)
Unintended Injury
Strict Liability or Negligence-
Court wants to restore victim to the same condition they were in before the tort conduct.
to shift loss from an innocent victim to tortfeasor or insurance company. Main function of the Tort System Tort v. Crime- torts are committed by tortfeasors who wrongs an individual, while a crime is a wrong against society. Tort- involves the judicial enforcement of private civil obligations, excluding obligations based on contract or property, usually by awarding damages to compensate for injury.