Margaret Taylor
Torts
Fall 2015
Introduction to Torts
When should an actor whose conduct causes harm to the person of property of the other be subject to civil liability?
The choice between Negligence and Strict Liability
Negligence: D pays for the harm that they caused
Two definitions of negligence
Tort of Negligence (five elements)
Breach of the Duty of Due Care (2nd Element)
Strict Liability: Liability without Culpability
Overview of Elements of a Negligence cause of action
Proximate Cause
Historical overview of the development of the negligence standard
Pre-industrial Revolution England:
“Writ of Trespass”
D’s conduct caused direct harm to P
Strict liability
Judged by the Court of the Chancellery
Writ of Trespass on the Case
D caused indirect harm to P
P had to show the D was culpable for harm
Similar to modern negligence standard
Around the time of the Industrial Revolution
Tort law was changed so that P was required to prove that D acted EITHER intentionally or negligently
Culpable conduct
The full range of choices: the culpability continuum: the full range of options to answer the question of when an actor who causes harm should be liable (ranging from easier to harder establish liability)
Strict Liability: No culpable conduct is required
Negligence: D failed to exercise reasonable care
Recklessness: D exercised willful or wanton misconduct
Intentional Tort: D wanted to harm or was reasonably certain harm would result
Immunity: D is not liable
**** DO NOT USE UNLESS RELEVANT
Procedural Posture: How a factual disagreement in court becomes a legal argument (issue) in an appeal
Three common legal issues raised upon appeal
Did the trial court correctly decide the dispositive motions?
Did the trial court give correct instructions?
Did the trial court rule correctly on admission of evidence?
Generally, the jury rules on issue of fact and the judge on questions of law
Only errors in application of the law can be raised upon appeal
Common procedural motions
Motion to dismiss for failure to state a claim (“Demurrer”)
The facts in the complaint, accepted as true, are insufficient for P to have a valid case
Motion for summary judgment
If there are no disputed issues of material fact, the moving party is entitled to judgment as a matter of law
During the trial, P has the burden of persuasion of all elements by a preponderance of the evidence
Motion for a directed verdict (motion for judgment as a matter of law)
No reasonable jury could decide the case in favor of the non-moving part, even with construing the evidence in light most favorable to them.
After the Trial
Judgment notwithstanding of the verdict (JNOV)
Judgment as a matter of law
If granted, court issued a verdict opposite of that of the jury
Motion for a new trial
Verdict is “against the weight of credible evidence”
If granted, removed for a new trail
No Duty to act for the protection of others
Misfeasance, nonfeasance and the theoretical justification for the “no duty” rule
Tort Law of Inertia: a Person at rest has the right to remain at rest
Misfeasance v. Nonfeasance
Misfeasance = creating risks; D’s affirmative risk creating conduct creates a duty to protect others from harm that comes with that risk
Nonfeasance = failing to protect against risks created by others. No duty unless a special relationship exists
**Always assess whether D owes a duty simply because he engaged in risk-creating conduct that created a foreseeable risk of harm first, before you look at the relationship between P & D**
See note 7 on page 216***
When a person has not engaged in risk-creating conduct, he still may be liable due to 4 exceptions:
Conduct-based exceptions
ess need not be causally linked to the physical impact
Zone-of-Danger Test
P can recover from NIED if:
P was in the “zone of danger” from physical impact
AND P actually did fear said physical impact
Contemporaneous awareness of P’s presence in the zone of danger
Supplements, but does not supplant, impact rule
Bystander claims and the Dillon v. Legg “foreseeability” analysis
D is liable for NIED on a bystander to their tortious act when the bystander is “foreseeable”
Dillon v. Legg 3 Factor Foreseeability Analysis
P must be located near the scene of the accident
P’s emotional distress must be the result of contemporaneous observation of the accident
P and the victim must be closely related
Additional Limitations
Resulting physical manifestations
Rejection of the Eggshell P rule for NIED claims not parasitic to physical injury
Duty of Landowners & Occupiers (“Premises Liability”)
The Common Law Trichotomy
P’s status determines D’s duty-Question of fact, to be determined by jury
Two Types
Business Visitor: One who enters for a purpose directly or indirectly connected with the business dealings of the possessor
Public Invitee: One who is invited to enter or remain on the land as a member of the public for the purpose for which the land is held open
Duty Owed to an invitee: Reasonable care under the circumstance
Encompasses liability for conditions when D knows or by the exercise of reasonable care would discover the condition
Warning does necessarily insulate from liability
