A. Definition – A tort is almost impossible to define; you can just talk about its characteristics.
a. It is a civil wrong and not a criminal wrong.
b. The breach of a legal duty
i. The court or legislature will have told you that such a duty exists
c. Largely developed by case law.
d. Harm is always required
1. Compensation of injured plaintiffs
a. We often can’t restore people to their state prior to injury, so we throw money at them.
2. Deter tortious conduct
a. Both specific and general deterrence
b. In rare cases this might manifest itself in the form of an injunction.
3. Impose the costs of liability on those that ought to bear them, but only those persons.
4. Minimize transaction costs
C. Jurisprudence – Legal philosophy; what is or should be the philosophical bases of the principals and rules.
1. Morality or corrective justice – society trying to balance the scale; the current community’s idea of fairness. Micro justice
2. Social utility or policy – Developing systems that benefit everyone, which helps everyone work better, i.e. workers compensation. Macro-Justice.
3. Procedural efficiency – A rule should be a workable rule; one that can be administered as efficiently as possible.
4. Risk distribution – The risk of any one injury is being distributed; the risk is spread out over a broader group.
5. Deterrence – To discourage or prevent others in acting similarly.
6. Economic efficiency – to handle situations in the most cost effective means reasonably available
7. Process Goals / Rules – formal versus in-formal rules. Rigidity versus discretionary exercise of fairness.
D. Oder of Processing
1. Collectability – if you can’t collect, then you go home.
2. Damages – are they sufficient enough to make it worth your while
a. Compensatory damages can be recovered for
i. lost wages or lost earning capacity
ii. medical expenses
iii. pain and suffering (including mental and emotional pain)
ii. Enforcement of liability will encourage those responsible for the insane person to restrain him – a deterrence argument/social policy argument.
iii. Liability negates the possibility that sane person will pretend insanity – a procedural argument/process argument.
iv. The difficulty of resolving the sanity/insanity issue – process.
v. Anomaly of an insane person with abundant wealth depriving another of his rights w/o compensation – a morality/corrective justice argument.
7. Extended liability principle – a ∆ who commits an intentional tort is liable for all damages caused, not merely those intended or foreseeable.
8. The rule of 7’s.