TORTS
BRUCE BERNER
SPRING 2012
Tort – wrongs recognized by law as grounds for a lawsuit
Harm required
3 common questions:
1. What conduct counts as tortious or wrongful?
2. Did the conduct cause the kind of harm the law will recognize?
3. What defenses can be raised against liability if the defendant has committed a tort?
Two approaches:
1. Morality or Corrective Justice (individual compensation)
2. Social Utility or Policy (looks at what is good for society)
Prosser v. Keeton
– Prosser was the owner of a watch that was stolen and sold to Keeton. Keeton had no reason to believe that it was stolen. When Prosser saw Keeton with the watch, he demanded it be returned. Keeton refused. Prosser sued for return of the wat
– Different approaches:
o Formal/Mechanical/Technical: Keeton did not obtain title because thief could not transfer title. Keeton is a converter, liable to Prosser
o Justice: Neither person was guilty of wrongdoing.
o Social policy: Economic concerns – ramifications if every buyer has to investigate the thing in which they intend to buy. Keeton should be given title.
Holden v. Wal-Mart
– Holden, who had previous knee problems, stepped into a hole in a Wal-Mart parking lot and fell. She then had knee replacement surgery with $25,000 in medical bills. The doctor testified that she wouldn’t have had to have the surgery, if not for the fall, for another 5-10 years.
– Holden received $3,600 in damages and appealed for inadequate compensation
– What should tortfeasor be liable for?
o Wal-mart held to be 60% negligent (percentages based on evidence)
o Plaintiff can be contributory negligent (in effect, reduces liability of tortfeasor)
Torts – mostly judge-made common law at the state level
Policy considerations – may be good policy arguments for competing sides
3 Bases of Tort Liability
1. Intentional Torts
2. Negligence
3. Strict Liability
Public Policy Issues and Balancing of Interests
Familiar Concepts (Check Blackboard for complete list)
Defendant/Tortfeasor – the “wrongdoer”/perpetrator of the harm
Plaintiff – person seeking compensation
Cause of Action – P’s claim
Compensatory damages
§ Loss of earning capacity
§ Reasonable medical expenses
§ Pain and suffering
Punitive Damages – imposed by court to punish tortfeasor (when conduct is particularly
Egregious
Prima facie Case – valid case “on its face”
Elements of the case – what plaintiff must establish and prove
Sine qua non – but for
Motion to dismiss or Demurrer – plaintiff does not plead sufficient facts to show good
claim
Motion for summary judgment – showing that in light of facts, the law compels judgment
for the moving party
Objections to evidence – relevance/prejudicial?
Motion for Directed Verdict – judge considers evidence in light most favorable to non-
moving party – granted if jury could not differ on conclusions as to be drawn from evidence
Motion for new trial – often not granted
Proposed instructions and objections to instructions – instruction must represent correct
state of the law; must not mis-emphasize or mislead the jury
Motion N.O.V. (notwithstanding the verdict) – virtual renewal for directed verdict
Interplay of Process and Substance
Personal and Social Costs of Injury
Insurance and Compensation Schemes
*What may plaintiff recover?
– Loss of earning capacity (future earnings)
– reasonable medical expenses
– pain and suffering (includes mental)
– In some cases, punitive damages
Contingency Fee (attorney’s fees):
– Losing party does not pay winning party’s fees
– Percentages from 25-40%
– Fees cannot be unreasonable, excessive, or unconscionable (ABA Model Rules of Professional Conduct)
– Many states regulate contingency fees
Criminal law is about vindicating public harms (punishment), Tort law is about vindicating individual harms (compensation)
Battery (and other terms) have differe
t or that the action was willful or wrongful in any way – didn’t allege fault
– No fault found – must have it to show liability
– *Ideas from case
o Injury can occur without fault
o Fault is generally required to establish tort liability (unless it is strict liability)
o Provides procedural information related to dismissing a case
o A deficient complaint may be dismissed without a jury trial
– What facts can you use to prove fault?
o Boy said “I’m going to run into you”
o Boy has maniacal grin on face
o Boy has shown hatred for Van Camp in past, etc.
Notes following case
1. Interplay between substantive law and procedural law
– unethical to allege things that cannot be proved just to get a case to the jury
2. Historically
– liability for direct harm (trespass) unless an excuse or justification
– fault required for indirect harm
– ?: expressly rejects
3. Must be evidence that shows fault or where the jury can imply fault
4. Tort law is made by various states and judges – state, common law
6. a. H – establishes liability; b. tree near sidewalk – only way to establish liability according to McAfoos case: D must have known tree was rotten and would fall over
B. Elements of Battery
Types of Tort Claims (conceptual breakdown)
– The interests they protect
o Protect against physical injury to person or property
o Protect against dignitary and emotional harm
o Protect against emotional harm
– The levels of Culpability they require
o Impose liability for serious wrongdoing (intent or malice)
o Negligence (lack of reasonable care)
o Guilty of no fault (strict liability)
