Torts Outline

Prof. Blomquist, Spring 2011

TORTS

CHAPTER 1

AN OVERVIEW

· tort law is a vehicle of legal redress for victims of physical injury or damage to tangible property

· on occasion, it provides compensation or other relief for such diverse forms of harm as emotional distress, impairment of reputation, and non-tangible economic injuries

· tort law encompasses many distinct causes of action- including e.g. claims for defamation, invasion of privacy, negligence, and false imprisonment

New rights and remedies

· new torts are elevated to legal status as ideas change concerning the duties persons owe to one another

Common law and statutory law

· tort law is a common law subject= its principles often have been articulated not by legislatures, but by courts

· non-statutory common-law principles articulated by courts impose legal obligations which are binding upon all members of the community

Primarily state law

· for the most part, tort law is a creature of the state, rather than the national, government

· the state power to define the conditions under which a person will be subject to tort liability for causing harm to another, is restricted only by the relatively limited demands of the federal constitution and fed. legislative enactments that preempt contrary state provisions

The Restatement of Torts

· written by the American Law Institute

· articulates the mass of tort law that has emerged from the courts

· widely influential

· goal was to restate the principles governing torts

Public policy

Public policy arguments:

1) Liability should be based on fault

· only if the D’s conduct is blameworthy should liability be imposed

· the term fault is used in torts where harm is the product of intentionally tortious conduct or failure to exercise care

2) Liability should be proportional to fault

· limits the fault principle

· liability should not be levied on an individual tortfeasor, even if fault is shown, if doing so would expose the defendant to a burden that is disproportionately heavy or perhaps unlimited

· where the tortious conduct of two or more persons contributes to the production of harm, liability for the loss should be allocated among the actors in accordance with the degree to which their conduct has precipitated the damage

3) Liability should be used to deter accidents

· tort law should discourage persons from engaging in those forms of conduct which pose an excessive risk of personal injury or property damage

4) The costs of accidents should be spread broadly

· use mostly in products liability cases

· the financial burden of accidents may be diminished by spreading losses broadly so that no person is forced to bear a large share of the damages

5) The costs of accidents should be shifted to those best able to bear them

· a loss will be less severely felt if it is placed on one with substantial resources than on one with limited wealth, and therefore losses should be shifted to those financially able to bear them

6) Those who benefit from dangerous activities should bear resulting losses

· certain activities- e.g., owning a dog that may bite or using explosives- entail a serious risk of harm to third persons even if care is exercised by the actor

· fairness requires that those who enjoy the benefits of such conduct should bear resulting losses, even in the absence of fault

· promotes socially responsible decisions (x purely personally beneficial decisions)

7) Tort law should foster predictability in human affairs

· persons should not be forced to act at their peril, uncertain as to what the law requires of them or what they may expect of others

· tort rules prospectively enacted by the legislature are preferable to those retroactively created by the judiciary

8) Tort law should facilitate economic growth and the pursuit of progress

· 20th century- increased support for holding businesses accountable for the losses they cause

9) Tort law should be administratively convenient and efficient, and should avoid intractable inquiries

· tort rules should be shaped so that dollars spent on accident compensation are efficiently employed

· legal standards should not be so complex or uncertain that their application entails an undue expenditure of judicial resources or imposes unnecessarily high litigation costs on parties

10) Tort law should promote individual responsible and discourage the waste of resources

· tort law should encourage individuals to employ available resources to protect their own interests, rather than depend upon others to save them from harm

11) Courts should accord due deference to co-equal branches of government

· although courts have traditionally created and updated the common law, certain questions are best left to the legislature because of its ability to gather facts through the legislative hearing process, to craft comprehensive solutions to broad-ranging questions, or to represent the will of the public on highly controversial issues

12) Accident victims should be fully compensated

· there is a strong public interest in insuring that accident victims obtain the financial resources needed to overcome the injuries they have sustained

· proponents argue that this policy argument should prevail over fault, proportionality and other policy arguments

– until the middle of the twentieth century, the rules of tort law grew from decisions made by analogy; today, the decisions are based on policy arguments

THREE CATEGORIES OF LIABILITY

I. Actions for intentionally inflicted injury (including a diverse array of intentional torts)

II. Actions based on failure to exercise care (including claims under the doctrines of negligence and recklessness)

III. Actions in which liability is imposed without regard to the actor’s state of mind or exercise of care (strict liability)

I. Intentionally inflicted injury

Vosburg v. Putney (Wisc. 1891).

· Facts. Plaintiff brought an action against Defendant to recover damages for assault and battery. Both Plaintiff (14-years old) and Defendant (11-years old) are students. Plaintiff and Defendant were sitting opposite each other across an aisle in school. Defendant reached across the aisle and slightly kicked Plaintiff in the shin. At first Plaintiff did not feel it. However, a few minutes later, Plaintiff felt a violent pain and cried out loudly. A few days before this incident, Plaintiff had hurt t