Torts
Part One—An overview of Modern Tort Liability
I. Introduction
A. Tort law is a vehicle of legal redress for victims of physical injury or damage to tangible property
B. A tort is a civil wrong for which there is a legal remedy
C. How does a tort differ from a criminal case?
1. Criminal suits are brought by the state or city prosecutor
–Torts are brought by an individual or group or on the behalf of others
2. Criminal charges are imprisonment or fines
–Torts remedy is damages or specific performance
3. Can be both a tort and a crime
4. Criminal BoP is beyond a reasonable doubt
–Tort BoP is preponderance of the evidence on every element of the wrong (statutes of limitation does begin for a child until turns 18 yrs old in torts)
D. Federal Common Law of Tort Law—if convinced certain tort is a problem in several states then fed. Gov. will format a fed. Common law to cover these torts problems to make it more uniform
1. Primarily state law
2. Restatement of Torts
3. Prosser hornbook
E. 12 Public Policy Considerations in tort law
1. Liability should be based on “fault”—only where Δ’s conduct is blameworthy should liability be imposed
2. Liability should be proportional to fault—where two or more tortfeasors liability should be allocated among them in accordance w/ the degree to which their conduct has caused the damage
3. Liability should be used to deter accidents—discourage persons from engaging in the forms of conduct that pose an excessive risk of personal injury or property damage
4. The costs of accidents should be spread broadly
5. The costs of accidents should be shifted to those best able to bear them
6. Those who benefit from dangerous activities should bear resulting losses—even in absence of fault
7. Tort law should foster predictability in human affairs
8. Tort law should facilitate economic growth and the pursuit of progress
9. Tort law should be administratively convenient and efficient, and should avoid intractable inquiries—tort rules should be shaped so that the dollars spent on accident compensation are efficiently employed
10. Tort law should discourage the waste of resources—should encourage individuals to employ available resources to protect their own interests, rather than depend on others to save them from harm
11. Courts should accord due deference to co-equal branches of gov’t—certain questions are best left to the legislature
12. Accident victims should be fully compensated—strong public interest in insuring that accident victims obtain the financial resources needed to overcome the injuries they have sustained
II. Basic Types of torts
A. Intentionally Inflicted Injury
1. Intent
a. Have purpose of doing wrongful act
b. Knowledge that Δ’s actions will lead to a wrongful act—substantial certainty
c. Don’t need to have both, only one or the other
2. Children and mentally incompetent are liable for their intentional torts
B. Actions Based on Lack of Care—negligence
1. Breach of a duty to exercise reasonable care on the behalf of another
2. Conduct which foreseeably subjects another to an unreasonable risk of harm is negligent
3. No intent
4. Recklessness is more blameworthy than negligence—difference is a matter of degree
5. Contributory Negligence, comparative Negligence, and Comparative fault
6. Assumption of the Risk
C. Strict Liability Conduct
1. Dispenses w/ foreseeably of injury and blameworthy conduct
2. There are defenses—assumption of the risk and comparative fault
3. Absolute liability—some cases where there are no defenses
D. Reasons for Classifications
1. Scope of liability—the greater the culpability, the more willing the court is to award greater compensatory damages
2. Punitive or Exemplary Damages—awarded to punish the Δ for more blameworthy conduct
3. Defenses—based on which type of tort was committed
4. Respondeat Superior—usually for negligence
5. Immunities—vary based on the category of tort action
6. Worker’s Compensation—only for negligent actions, not intentional torts
7. Insurance possibilities—not for intentional torts
8. Statutes of limitations—varies w/ the type of tort
9. Discharge of Bankruptcy—tort liability can be discharged through bankruptcy proceedings unless conduct was “willful and malicious”
E. Introduction to Insurance
1. Critical to Tort law—not all Δ have liability insurance
2. Whether Δ has insurance cannot be entered into evidence b-4 a jury
3. Policies are limited in amount of coverage provided—can become important for settlements
4. Coverage under general liabilities may be extended to other people—spouses, children, ect.
5. Some forms of harm (intentional) are restricted under liability insurance
6. Liability insurer has a duty to defend and to pay up to policy limit if have to—also good faith duty to settle w/in policy limit if evidence points against Δ
7. Some policies are self liquidating
8. Insurer has power to accept or reject settlements on behalf of insuree
9. Underlitigating—attempting to plead and prove negligence in a case involving intentional harms
10. First party insurance—all those who buy the insurance pay for the losses that occur (life-insurance, medical insurance, fire insurance, and collision coverage for cars)
11. No-fault Insurance—car owners give up the right to sue others for certain types of harm in exchange for the victim’s own insurance company paying for the damages
a. Victims receive more money (doesn’t go to the lawyers)
b. Victims are compensated quicker (don’t have to wait for trial)
I. Basic Intentional Torts
A. The concept of intent—state of mind about consequences or results and exactly what must be intended varies w/ the tort in issue
1. Intent to Injure
a. Two varieties of intent
i. Purpose—depends on Δ’s subjective wishes and exists when the Δ acts w/ the purpose of causing the consequence which the law forbid
1. Basic Elements
a. Conduct must be intentional or reckless
b. Conduct must be extreme or outrageous (based on cultural ideals)
c. There must be a causal connection btw the wrongful conduct and the emotional distress
d. The emotional distress must be severe
2. Must meet all four elements b-4 can go to a jury
3. Emotional distress is extreme and only where the distress is so severe that no reasonable person could be expected to endure it
4. Motivation may be important in assessing whether liability will be imposed
5. Liability does not extend to mere insults, indignities, threats, annoyances, or other trivialities, although abusive language may at some point go beyond the merely insulting and warrant liability
a. Carriers, Innkeepers, and Utilities have higher liability b/c of their monopoly status
b. May be liable for abusive language if Δ is exploiting a known sensitivity of Π
c. A creditor may take reasonable steps to collect a dept, even though the effort may cause severe mental distress
d. Some states have statutes that create a civil remedy for insulting words tending to provoke a breach of the peace
6. Bystanders and Third Persons
a. Rest. Torts 46(2)—where extreme conduct is directed at a 3rd person, the actor is liable if intentionally or recklessly cause emotional distress
i. To a member of the person’s immediate family who is present
at the time
ii. To any other person who is present at the time, if such distress results in bodily harm
b. Presence may not be necessary—if the nature of Δ’s conduct or the relationship btw the victim and the Π establishes a high probability or substantial certainty that the Π would suffer from mental distress
D. False Imprisonment—unconsented, intentional confinement w/in fixed boundaries as a result of the Δ’s unlawful use of force, threat of force, or assertion of legal authority
1. Π must be aware of the confinement or must have suffered harm as a result of it
2. Intent requirement—must be an intent to confine
3. Confinement is not complete if the Π knows of a reasonable means of escape—must take advantage of it if it would entail only a “slate inconvenience” or a mere “technical invasion” of another’s property
4. Modes of Confinement
a. Imposition of physical barrier
b. Use of force
c. Threatening the immediate application of force to the Π’s person
