Torts – Fall 2006 Outline – Professor Sarah Buel
I. Torts Generally
a. Definition of a tort: There is no single definition of “tort.” The most that can be said is that: (1) a tort is civil wrong committed by one person against another; and (2) torts can and usually do arise outside of any agreement between parties – generally not contract disputes.
b. Tort law is largely based on common law. As a result, torts may be transformed through the courts.
i. Definition of common law is the body of law derived from judicial decisions, rather than from statutes or constitutions.
c. All law is social policy
d. The overall purpose of tort law is to compensate Πs for unreasonable harm which they have sustained.
e. Functions of Tort Law (to use when making policy argument):
i. Corrective justice: make an injured person whole
ii. Optimal deterrence: prevent future tortuous actions; want to deter excessively risky behavior.
iii. Loss distribution: insurance company may pay, then pass on costs to customers; better than victim bearing entire cost.
iv. Compensation: Get money for harm done. Different from corrective justice; it focuses more on monetary recovery.
v. Redress for social grievances: When a Π will forego the collection of damages if the liable ∆ will make changes to there policies to right their wrongs. Considered especially in cases against large institutions (e.g. consent decree with police department.) Tough to enforce.
f. General categories of torts:
i. Intentional Torts
1. Torts where the ∆ desires to bring about a particular result.
ii. Negligence
1. The ∆ has not intended to bring about a certain result, but has merely behaved carelessly.
iii. Strict Liability
1. Where the ∆ is held liable for his or her action even though he did not intend to bring about the undesirable result, and even though he behaved with utmost carefulness.
iv. Significance of the categories
1. The three categories differ concerning ∆ liability for far-reaching, unexpected, consequences. The more culpable ∆’s conduct, the more far reaching his liability for unexpected consequences – so an intentional tortfeasor is liable for a wider range of unexpected consequences than is a negligent tortfeasor.
2. The measure of damages is generally broader for the more culpable categories. In particular, ∆ is more likely to be required to pay punitive damages when he is an intentional tortfeasor than when he is negligent or strictly liable.
II. Trial Court Procedures in Torts Cases
a. First que
says that even after P has presented all evidence, P has not shown sufficient basis for holding D responsible under the law.
j. If motion for directed verdict is denied, D then presents case*. Reversible error is same as when P presents case.
k. P has opportunity to rebut evidence given by D.
l. P or D may move for directed verdict*. To grant directed verdict the court must take the strongest legitimate view of the evidence in favor of the non-moving party.
i. Even if inclined to believe that there is only one reasonable outcome, the judge may deny directed verdict.
m. P and D make closing arguments*.
n. After closing arguments, the judge instructs the jury on the law they are to apply*. Most fertile opportunity for trial court error.
o. After jury returns verdict, winner files for judgment on the verdict and the loser can move for judement notwithstanding the verdict (JNOV) or for a new trial*. Also, parties can file motions for remittitur or additur to increase or decrease unreasonable damages*.
