Torts Outline Mortazavi 2013
Torts Outline Mortazavi 2013
I. INTRODUCTION TO TORTS
1. What is a tort? A civil wrong not based in contract
1) origins: British common law
2) three types: intentional, negligence, strict liability
3) Purpose:
Preserving the peace: we want to provide civil redress for people; forming
alternative form of redress; allow vindication for people wronged by torts,
even where damages are not at issue
Compensation: designed to make the plaintiff whole; KEY; assumed to try to
look at corresponding damages to injury; not necessarily efficient because of
high transaction costs
Alternative systems: workers comp, insurance
Deterrence: deterring dangerous behavior (not clear that tort is the most
efficient way of doing so) (ex: loss of chance doctrineafraid of doctors that
avoid addressing someones chance of survival)
If damages are unforeseeable, deterrence is limited: how can you deter
someone from having an accident?
Corrective Justice (Cardozo): Tort should function as a mechanism that allows
individuals to sue their wrongdoer (vindication)
Loss Distribution: tort is about allocating risks to parties who are in the best
position to assume liability
Strict liability: for parties who have more control, more wealth, spread
costs equally and efficiently
Which way of allocating loss generates the most overall, societal
wealth? What is the most efficient use of funds?
Accountability: a way to hold large inst. Actors, corps, parties for which
individuals have very little ability to seek redress, to have a form of redress
Limiting Govt: if we didnt have torts, we would need statutes to regulate
every little thing;
Tort as alternative to agency capture: when an agency has lobbying
interest and have undue influence over a particular industry
C. CAUSATION ELEMENT
1. Introduction to Causation / But-For Test & Proof Problems; Loss of Chance
Actual cause: when an actors carelessness actually causes injury to the other; butfor test:
Skinner v. Squarewas presence of phantom zone on switch a but-for cause of
Skinners electrocution and death? NOcircumstantial evidence did not establish
only plausible explanation; plaintiffs failed to show burden of proof by preponderance
of the evidence
Loss of Chance of Survival: Falcon v. Memorial Hospital
-Trial ct. found for defendant, reasoning that because the 37% chance of survival was
not more than 50%, defendant could not be liable for plaintiffs wrongful death.
-Higher ct. changed outcome by altering the INJURY: not wrongful death, but loss of
chance of survival
-0% chance v. 37% chanceit is more likely than not that she lost a chance at
survival
-only applies to human life
98% of the time, loss of chance will arise from med mal cases
Needs to decrease chance of survival by clear amount
Must go to specific deterrence rational: dont want to have situations where
people create
Here, any number of things could have happened (vultures picking, nobody
would have found him anyway, etc.)
Punitive Damages
In general: awarded in dignitary and intentional tort actions; for negligence, must be
more than garden variety
Standard for punitive damages in negligence cases:
1) Party knew or had reason to believe that his/her act of negligence was
about to inflict injury (wanton disregard)
and
2) that he or she continued his/her course of conduct with conscious
indifference to the consequences (deliberate indifference)
Mathias v. Accor Economy Lodging, Inc: bed bug case: punitive damages are
appropriate for the policy reason of deterrence
General rules set out by Posner for awarding punitive damages: if conduct
1) is not likely to be prosecuted criminally
2) causes minor injuries (
3) poses serious harms that may be difficult to detect
4) is undertaken by pernicious defendants
What is excessive?
Tort Reform: robust review of punitive damages
1) statutory fixes: caps
2) constitutional limits: 14th amendment due process (D has a right not to be subject
to excessive punitive damages)
Intent Revisited
Unintended Consequences & Knowledge
Vosburg v. Putney: boy kicks schoolmate in the kneed while at school during
class hours; causes plaintiff school mate to be permanently lame; defendant
boy claims he did not intend to cause injury
--Court holds that the requisite intent for battery is not to cause
injury or harm, but merely intent to cause unlawful contact
--also confirms egg shell skull rule: tortfeasor responsible for all
injuries caused even if intent of extent of injury is not there
Cole v. Hibberd: defendant kicked friend playfully in the rear: ISSUE: is
defendant liable for battery if she did not intend to harm plaintiff?
--Court holds that intent to cause contact, not intent to injury,
constitutes battery
--Defendants conduct would be considered offensive to a reasonable sense of
personal dignity
--In general: to satisfy intent element in intentional torts, there must be an
intent to bring about offensive contact or an intent to act with
knowledge that offensive contact is substantially certain to be
produced
In re White: defendant white intended to shoot William Tipton but missed and
hit victim instead; ISSUE: was Whites conduct intentional toward victim if
defendant did not actually intend to shoot him
--Court held White liable because of DOCTRINE OF TRANSFERRED
INTENT: although defendant must intend a contact with another
person that is harmful or offensive, the individual who actually
B. ULTRAHAZARDOUS ACTIVITIES
Certain types of harm are subject to strict liability: no inquiry into fault
PRIMA FACIE ELEMENTS OF STRICT LIABILITY
Absolute duty on part of D to make condition safe
D has failed to make condition safe
Ds conduct was actual and proximate cause of injury
Generally applied to
Keeping of wild animals (Domesticated animals known to be dangerous
treated as wild animals)
Use of explosives and/or radioactive materials
Keeping of reservoirs
IN GENERAL: Ultrahazardous activitiy involves substantial risk of serious harm to
person or property no matter how much care is exercised (fireworks)
Restatement factors to determine whether an activity is abnormally dangerous:
Existence of a high degree of risk of some harm to the person, land or chattel
of others (probability)
Likelihood that the harm that results from it will be great (scale)
Inability to eliminate the risk by the exercise of reasonable care
Extent to which the activity is not a matter of common usage
Inappropriateness of the activity to the place where it is carried on
Extent to which its value to the community is outweighed by its dangerous
attributes (dont want to deter socially beneficial activities)
Defenses:
Statutes of limitations
Govt immunity test
Assumption of risk
V. PRODUCTS LIABILITY
Specificity
Proper placement
Large/visible enough
In the right languages
DEFENSES:
Assumption of risk: complete
Causation (usually only form of redress for manufacturing defect)