I) Tort Law: Aims, Approaches, and Processes (p. 2-20)
A) What is Tort Law? (2-3)
Much of the law of torts is concerned with three questions: (3)
i) What conduct counts as tortious or wrongful?
ii) Did the conduct cause the kind of harm the law will recognize?
iii) What defenses can be raised against liability if the defendant has committed a
tort?
B) The Aims and Approaches in Tort Law—Justice and Policy,
Compensation and Deterrence (3-11)
1) Some Broad (and Conflicting Aims) (3-9)
Two systems of thought under which tort law is based:
i) corrective justice: liability only imposed when the defendant wrongfully caused
a harm
-most tort law cases decided within this school of thought
-potentially because legislatures may be better at determining social
policy and because there is no deterrent effect if an award is inevitable
regardless of fault
ii) social policy/economic efficiency: liability imposed in a way that will benefit
society as a whole; not concerned with justice to the individual
Coase Theorem: It doesn’t matter who you impose liability on, you get the same result. So impose the cost on who can most cheaply/efficiently bear it.
Another goal in resolving tort cases is process considerations.
-want participants in the judicial system to feel the justice is done
-rules should be formulated tightly enough that judges are accountable (can’t fit
every case under the rule) but not so tight that no other case will fit under it
-rules should also be formulated that they might practically be used by
lawyers
2) Applying Some Approaches (9-11)
Prosser v. Keeton (made-up example case)
C) Implementing Tort Law Purposes with Damages Awards (11-20)
Damages as a remedy are much more common than injunctions
Holden v. Wal-Mart Stores, Inc. (Nebraska, 2000):
Previously handicapped woman said her condition was worsened after tripping in a hole in defendant’s parking lot. Jury determined 60% fault on defendant and awarded $6000; plaintiff recovered $3600. The court determined the awards damage was reasonable, as it did not “shock the conscience.”
The burden of proving damages falls on the injured person; once proven, the following can be recovered:
i) lost wages or earning capacity
ii) medical expenses
iii) pain and suffering endured (including psychological and emotional)
-can cover both past and probably future losses
Punitive damages are only allowed where tortfeasor has acted maliciously or willfully or wantonly
Negligence (approximate definition): conduct that inflicts an unreasonable risk of harm upon others
-compensatory dam
nvolved, or only external conduct are all things that might enter into the equation.
ii) Causation. Can only be legally responsible if actually caused a harm.
iii) Fixing the scope of responsibility. One may not be responsible for every harm occurring due to their negligence.
iv) A duty to take responsibility. Even if defendant did not act reasonably, not every problem is within the defendant’s scope of responsibility.
3) The General Formula for Negligence Cases (114)
Plaintiff must allege and prove facts establishing five elements:
i) The defendant owed plaintiff a legal duty;
ii)The defendant, by behaving negligently, breached that duty;
iii) The plaintiff suffered actual harm;
iv) The defendant’s negligence was an actual cause of this harm; and
v)The defendant’s negligence was a “proximate cause” of this harm.
The burden of proof is very important; always have this in your mind
-typically lies with the plaintiff
-sometimes we shift the burden of proof
-where the proof seems to be uniquely in the capacity of the other side
-if the facts are particularly known to them
