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West Virginia University School of Law
Cady, Thomas C.

Tort Outline

1. Introduction pp1-23 text

What is a tort?

A civil wrong not arising from contract
A general term regarding financial compensation for property damage

Tort law establishes the guidelines for who can sue, what they can sue for, whom can be sued, what must be established to recover compensation, what kinds of damages are recoverable, and the available defenses.
Goals of tort law:

1. Compensation: Monetary awards to help the injured victims.
2. Deterrence: Monetary penalties to encourage safer conduct.
3. Avoid undue burdens on economy: Torts are a stop gap insurance policy.
4. Administrative Efficiency
5. Fairness

The Spectrum of Culpability

Fault based———————————————||———–No Fault

Intentional Harm ß Recklessness ß Negligence à Strict Liability

ß Intentional —-ß||à—-Unintentional———à—–à———–à

Intentional Torts: Highest Culpability

Willfulness: a purpose or desire to cause harmful or offensive contact with another

This is the starting point for establishing intent.

Most intentional torts are also crimes.
Punitive damages available.
Ex. Battery where one person intentionally strikes another.

Recklessness: High Culpability

Invoked where conduct shows a conscious disregard of a high risk of harm.
Punitive damages available.
Ex. A drag race where a participant hits an innocent bystander.

Negligence: Medium Culpability

Unreasonable conduct that creates foreseeable risk of harm.
Evaluated against a social norm based on what a reasonable person would have foreseen and done under the circumstances.
Compensatory damages designed to make the plaintiff whole. No punitive damages.
Ex. A car accident where the driver accidentally rear ends the car in front.

Strict Liability: Low Culpability

Based on causation without regard to whether the defendant’s conduct can be characterized as involving fault.
Knowledge or foresight of the risks involved is required in some strict liability claims.
Ex. Manufacturing defects that can’t be avoided which somehow cause an injury.


equested, and the legal theories the plaintiff will rely on.
§ Motions: A document filed with the court and served on the other party requesting some action by the judge. (i.e. a motion to dismiss for failure to state a claim)
§ Answer: The defendant files an answer to the complaint that admits or denies facts and sets forth affirmative defenses.
IV. Pre-trial Procedure
§ Investigation
§ Discovery- see p. 28.
· Discloses all the facts and info to both parties to prepare for trial.
§ Motions- see p. 29-31
· Summary judgment- when the evidence is so one sided that a jury could only reach one conclusion.
§ Settlement Negotiations- see p. 31
· Can occur at anytime during this process. Only a small number of claims go to trial. Most settle out of court.
§ Pre-trial conference- see p. 32
· Parties meet, usually after discovery, to organize the trial.
V. Trial
Part 1