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Wayne State University Law School
Dillof, Anthony M.

Fall 2012
Chapter 1 – Tort Law: Aims, Approaches, & Processes
1.   What is Tort Law?
o    Tort: Conduct resulting in harm to (not a failure to improve) a “natural” interest (not one established by a statute).
·         Way to defend pre-statutory rights, those not granted by legislature, rather those initially recognized by courts through common law
·         Common Law – boundaries are not defined by statute.
·         Holes/Gaps are placed in it by state, but again, not constrained by it.
·         Basic goal of law to resolve a dispute in advance by tort law due to its breadth.
o    Harm is required
·         (D)'s wrong results in a harm to another person (or entity, such as a corporation), that the law is willing to say constitutes a legal injury.
·         Also said as injured person having a cause of action.
o    Torts, Crimes, & Contracts
·         3 different areas of law
·         Compared to criminal law:
§  Some torts are also crimes
§  Harm to the individual/entity is tort law, not society which is criminal law
·         Compared to Contract Law
§  Contract law is law of advantage, not the level of harm as in Torts
o    Non-Tort Systems
·         Alternatives to tort law to cover injuries
·         Worker's compensation
·         Insurance
2.  The Aims & Approaches in tort Law – Justice & Policy, Compensation & Deterrence
o    Purpose of Tort Law
·         Helps society learn rules – see it in perspective as a means to an end
·         Helps extend rules & extrapolate them
§  In any area of law, open questions or unsettled matters should be settled consistently with the general purpose of that area of law
·         Helps you critique rules – Evaluate law against its states purposes!
§  Its supposed to be doing something aligned to its goals, how is it doing just the opposite?
o    (3) Main functions or goals of tort law:
·         Compensating persons sustaining a loss or harm as a result of another's conduct
·         Placing the cost of that compensation on those who, in justice, ought to bear it, but only on such persons, in accordance with one or more of the jurisprudential considerations mentioned above and
3.      Preventing future losses and harm
o  Some Broad (and conflicting) Aims
·         Dan B. Dobbs, The Law of Torts §§8-11 & §13
§  Section 8 – Justice, Policy, & Process Aims of Tort Law
·         Morality/corrective justice – attempts to hold (D) liable for harms they wrongfully caused & no others.  Liability is imposed when and only when it is “right” to do so.
·         Corrective Justice 0 Making the harmed party whole again by making the (D) liable.
·         Fairness between parties
·         Wrongdoers undoing wrongs to their victims
·         Attempts to hold (D) liable only when it seems fair or “right” to do so
·         Social utility or policy – social policy, good for all of us view.  Words toward good of society.
·         Social Policy – not just the individual focus as corrective justice, but focusing on what is good for society as a whole
·         Prevent losses through deterrence – Deterrent effect of tort law services the social policy by making our society safer
·         Economic Efficiency – social policy that is sometimes used to help derive tort law rules, when economic efficiency points toward a particular rule.
·         Encourage activities through belief is safety/compensation if injured
·         Transfer funds to need injured persons
Social Utility
Fairness, equity, desert, etc
Increasing wealth, productivity, etc.
Immediate parties
Society as a whole
In light of past interactions
In light of future consequences
·         Process Values – Rules made with legal process in mind.
·         Process Values – secondary to the 2 main aims above
·         Process considerations motivate us to create rules that can be fairly and effectively administered
·         Rules that are not too cumbersome or difficult for judges or juries to understand or apply or rules which cannot be fairly and consistently administered from case to case may be rejected because of process considerations
·         Whatever else you're trying to do, make sure you have rules to do it that are practical, promote consistency, & are not overly expensive to litigate, too complex to apply, or create unreasonable evidentiary demands, etc.
·         Should there be a legal rule: “it is a tort to ride a bike on a sidewalk with density of people sidewalk that exceeds 1 person / 12.5 sq ft vs 1/8 sq ft when wet” or “award compensation whenever would be just and fair” –> 1st is too tight & impractical and the 2nd is too loose.
·         Potential Conflicts – Justice v. Policy
§  Section 9 – Ideas of Corrective Justice
·         Fault & Corrective Justice
·         Strict Liability & corrective justice
·         Uniting the potential for gains & losses
·         Fault Again
§  Section 10 – Compensation, Risk Distribution, Fault
·         Risk distribution or loss spreading
·         Limited acceptance of risk distribution arguments
·         Moral & policy reasons for limiting compensation to cases of fault – judges feel heavily committed to a system of corrective justice and turn to social policy only when they feel social policy & corrective justice coincide at least in part.
§  Section 11 – Fostering Freedom, Deterring Unsafe Conduct; Economic Analysis
·         Deterrence – idea that all persons, recognizing potential tort liability, would tend to avoid conduct that could lead to tort liability.
·         Deterrence in corrective justice & social policy systems
·         Economic analysis
·         Efficiency – considerations of costs & utilities for the greatest net good for the community.  Contrasted with fairness or justice.
§  Section 13 – Process Values in Tort Law
·         Process values are values we attach to the legal process itself, process of deciding disputes
·         Adopting, formulating, & applying tort rules
·         Process goals
·         Loose rule formulation that diminishes judicial accountability
·         Tight rule formulation that eliminates needed flexibility
·         Rules guiding lawyers' investigation and arguments
·         Rules failing to specify provable facts
                    Applying Some Approaches
·         Prosser v. Keeton
§  Facts: The original owner of a stolen watch brought suit against the man who purchased the watch from the thief, seeking its return.
§  Rule: The law may give the good faith purchaser title to property if there is a legitimate policy reason to do so, even if a thief could not give title.
§  Class Discussion over the (3) Judges opinions:
·         Allen: Prosser wins –> More formal, conceptual, mechanical.  No title, no watch.  Cut & dry.
§  Process Values – the way Allen analyzes is simplistic, he looks at property law.. Lack of title, therefore you lose.  Easy to apply in the future.
·         Bateman: Prosser gets nothing –> JUSTICE but also SOCIAL POLICY.  “Watch Owners” in plural looks beyond the immediate parties, thus this can be inferred as a social policy opinion.
§  Commerce argument – Cheapest cost avoider –> Social Policy
·         Compton: Prosser gets nothing –> SOCIAL POLICY.  Enterprise society demands exchange of goods be fostered to continuously promote commerce.  Argument for Prosser in favor of social policy – guarantees security of purchase.  You have to protect property owners in cases like this because people are less likely to be a property owner if you're afraid someone will steal if from you and you will not be able to get it back. 
§  Note: For every policy argument, learn to argue the flipside that still reinforces policy
·         Notes
·         Florida 2008 Session Law Service 20th legislature, 2nd Regular Session
·         Notes
§  Implementing Tort Law Purposes with Damages Awards
o    Holden v. Wal-Mart Stores, Inc.
o    Notes
Chapter 2 – Reading Torts Cases: Trial Procedures
1.   Looking for Facts, Rules, & Reasons
o    Reading cases to understand principles & predict law
o    Facts
o    Procedure & Procedural Issues
o    Substantive Issues
o    Holding & Rules
o    Reasoning
o    Application of Rules
o    Rules point lawyers to evidence required and arguments available
2.  Procedures at Trial
                    i.            Complaint
                  ii.            Motion to Dismiss or Demurrer
                iii.            Answer

rson is subject to liability for battery when he acts intending to cause a harmful or offensive contact, and when a harmful or offensive contact results.
§  Class Discussion:
·         Although no harm was caused, it was offensive (meeting the contact requirement)
·         No cases defining what “harm” is because in Torts, most harm is offensive or borderline harmful.  Criminal law looks at serious harm.
·         Cohen v. Smith
§  Facts: A woman sued her nurse and the hospital when, against her wishes, the nurse saw her unclothed and touched her naked body.
§  Rule: An actor commits a battery if he acts with an intent to cause harmful or offensive contact to another and such a contact results.
·         Mullins v. Parkview Hospital, Inc
§  Facts: A woman refused to consent to having students present during her hysterectomy at a teaching hospital, but the anesthesiologist allowed a student to intubate her anyhow; the patient was injured as a result and sued various parties for battery
§  Rule: In order to state a claim for battery, the plaintiff must show that the defendant acted intending to case a harmful or offensive contact with the plaintiff
·         Notes:
§  The intentional snatching of an object from one's hand is clearly an offensive invasion of his person as would be an actual contact with the body – Fisher v. Carrousel
§  No matter how trivial an incident, a battery is actionable, even if damages are only one dollar.
·         A.R.B. v. Elkin
§  Facts: Sister & Brother claimed and their father admitted numerous acts of sexual abuse, some involving physical touching of the plaintiffs.
§  Rule: Upon proof of battery/assault, the plaintiff is entitled to recover nominal damages plus “compensatory damages for bodily pain, humiliation, mental anguish, & other injuries that occur as a necessary and natural consequence of tortious conduct.
·         Notes
§  When a a battery is proved and the contact is offensive but not physically harmful, courts have traditionally permitted juries to award substantial damages even though the (P) has no pecuniary (monetary) loss.
·         Award is not limited to nominal damages and might reach 100s and even 1000s of dollars
§  Inflicting emotional distress is not often a tort in itself
·         When distress comes from trespassory tort (battery, assault, etc), damages for distress are readily recoverable.  Also known as parasitic damages.
                    Defining Intent
·         Morally, greater blame attached to intentional misconduct than to lesser degrees of fault, reflect in law of intentional torts.
·         Prima Facie Tort – One who intentionally causes injury to another is subject to liability to the other for the actual harm incurred, if his conduct is culpable and not justifiable.  The liability may be imposed despite the fact that the actor's conduct does not come within one of the traditional categories of tort liability. (R.2d 870)
·         Intentional Tort – act committed (or omitted) with a particular state of mind
·         Intent: desire to cause certain immediate consequences
§  Motive for conduct may aggravate, mitigate, or excuse the wrong.
·         A person acts with the intent to produce a consequence if:
        (purpose intent)The person acts with the purpose of producing that consequence; or
        (knowledge intent) The person acts knowing that the consequence is substantially certain to a result.