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Wayne State University Law School
Gable, Lance

Theory of tort liability
Aims of tort law: 2 schools of thought
                                                              i.      Corrective Justicc: Moral Responsibility
1.      Hold defendants liable for harms they wrongfully caused and NO others
2.      Define cases in which the law may justly hold one party liable to compensate another
3.      Justification:
a.       Compensate
b.      Create fairness and justice
c.       Create stability and social order
d.      Deterrence
e.       Retribution
                                                            ii.      Social Utility or Policy
1.      “good-for-all-of-us view”
2.      Social Utility: Dominant concern NOT justice to the individual BUT provide a system of rules that, overall, works toward the good of society
3.      Social Policy: Process- social policy that is inward looking. Focus on preserving the litigation system. RULES MADE:
a.        with the legal process itself in mind.
b.      judges and juries can understand and apply in a practical way, 
c.       they must NOT leave too much to the judge’s or the juries discretion.
Potential conflicts:
                                                              i.      First 2 ways of looking at tort law are usu regarded as antithetical to each other .
                                                            ii.      Decisions made that favor EITHER justice to the individual OR social policy, one of the two loses.
                                                            iii.      Justice and Policy often point to the same result, but not always
                                                           iv.      Efficiency in turn is CONTRASTED with Fairness or Justice
Tort law Devolved from Case Law à Common Law
Developed through litigation, not through statutes, whether the wrong was intentional or unintentional
Tort – conduct that amounts to a legal wrong and that causes harm for which courts will impose civil liability.
Primarily tort law is Retrospect, GOAL: compensate the plaintiff for the HARM that was done to them in the past.
Shift the loss from the plaintiff onto the defendant
Common Questions in Tort law:
What conduct counts as tortuous or wrongful?
Did the conduct cause the kind of harm the law will recognize?
What defenses can be raised against liability if the defendant has committed a tort?
Valid Cause of Action? Must show Fault.
Van Camp v. McAfoos
3 yr. old rides tricycle into lady on the sidewalk severing her Achilles. Woman claims that boy is at fault bc of her right to walk down a public sidewalk with

what the victim thought in that situation, BUT what a reasonable person would have thought.
Snyder v. Turk
Defendant, a surgeon was charged with battery when he pulled the nurse down toward the patient the surgeon was operating on and yelled at her.
HOLDING: Reasonable minds could conclude that Defendant intended to commit an offensive contact. D is subject to liability for battery WHEN he acts intending to cause a harmful OR offensive contact AND when a harmful contact results. Contact which is offensive to a reasonable sense of personal dignity IS offensive contact.
Cohen v. Smith
Hospital staff nurse had been informed that he was not to touch the patient upon her request due to RELIGIOUS BELIEFS. The nurse failed to respect those wishes. Woman filed suit against the hospital for battery.
RULE: offensive contact is said to occur when the contact “offends a reasonable sense of personal dignity.”
HOLDING: protecting personal integrity has always been viewed as an important basis for battery. Consequently the defendant is liable NOT