Study Group Review

11/6/11

General Introduction to Tort Law

Tort: civil wrong not arising out of contract; generally all non-contract civil litigation except:
some statutory systems create civil liability but are neither contract not tort some torts such as those arising from defective products originate in contracts Mainly concerns the rights of private parties to obtain monetary compensation from those who have caused them injury or damage. Tort Law can be subdivided into two main groups: 1) ACCIDENTAL law: imposes strict liability or negligent liability A) STRICT liability is imposed regardless of the degree of care the defendant took B) NEGLIGENCE liability is only imposed with proof of some kind of carelessness 2) INTENTIONAL torts liability is imposed upon proof of the defendant's intention to invade the legally protected interest of another.

Four general elements of tort:

1) 2) 3) 4) Duty - the general duty to comply with a standard of care Breach of Duty - failure to comply with the applicable standard of care Causation Damages

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Functions of Tort Law

A) Corrective Justice and Civil Redress a. Theoretically: a face to face correction of injustice where injurer directly remedies injury for plaintiff b. Restore moral balance; because a bodily injury cannot be restored through the courts, money is the next best thing, although it may be considered a poor substitute. c. Applies most definitively to intentional wrongdoers d. May not correct injustice so much as just providing redress because i. large corporations can spread the burden among a wide pool of non -participants ii. People with liability insurance do not bear the burden e. Redress rather than corrective justice: i. Still mainly concerned with moral imbalance between P & D ii. Does not attempt to fully compensate victim via $$ iii. Focused on recognition 1) Of wrongly caused injury 2) Victims' needs for vindication that they have been wronged B) Optimal Deterrence a. Deter excessively risky behavior b. Not all risky behavior is worth deterring; otherwise endless safety procedures i. Virtually every activity covers some risk ii. There is a line beyond which Tort law allows risks and losses because some injuries are not worth avoiding; if not, everything would be strict liability iii. Negligence requirement distinguishes the two c. What values should be promoted to avoid losses is not addressed in optimal deterrence theories i. Some evaluate on purely economic basis of cost of prevention vs. cost of deterrence ii. Others feel that method of evaluation too impersonal d. Some look at social costs/ benefits to quantify deterrence costs / impact; qualitative argument C) Loss Distribution a. One of the functions of tort liability is to promote the broad distribution of losses i. Liability insurance through Ins. company ii. self-insure by spreading costs among product iii. Don't want to get ahead, but HAND Formula belongs in here b. Loss distribution rationale contains no stopping point i. Imposing liability through lawsuit is expensive and ineffective ii. Other systems can more easily and cheaply distribute loss - so why use tort? D) Compensation a. Must be looked at as addressing a wrong, rather than purely compensating misfortune b. The availability of compensation encourages people to take socially productive risks; safety net c. Compensation only occurs under certain circumstances - when other conditions of tort liability are met; requires more than simply P suffering an injury d. "Liability is not imposed to provide compensation to victims, rather victims are provided compensation in order to serve the other gals of tort law such as corrective justice and deterrence. Of it were otherwise, then the basis of liability would b the suffering of misfortune, not the commission of a tort by another." E) Redress of Social Grievances a. Against large, impersonal corporations b. Populist method that allows ordinary people to put authority on trial c. This factor realistically can't stand on its own.

Hammontree v. Jenner D had epileptic seizure and drove his car into P's shop causing property damage and personal injury; D had long history of epilepsy and had been taking dilantin and then phelantin to control; Dr. Hyatt testified that D's condition was largely under control; D had not had a seizure in years. DMV was aware of D's condition. P dropped negligence claim during the trial and objected to giving negligence instructions in closing
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P dropped negligence claim during the trial and objected to giving negligence instructions in closing arguments; P then waived closing arguments to jurors

Objective: P wants the court to override the established law of the state; to make drivers strictly at fault similar to manufacturers; argues , like manufacturers, drivers with histories of conditions are the only persons in the position to know of possible defects; only s/he can anticipate the hazards and conditions that may put others at risk.
Holding: Court declines P's argument analogizing drivers and manufacturers. Court says this policy does not apply and it's wrong to automatically distribute costs to insurance carriers. Making the requested change creates a complicated set of issues for fixing responsibility. If that's the route that these cases should go, it should be up the legislature to establish that. Finally, the suggested change does not except drivers who have a sudden debilitation for which they had no prior knowledge nor warning. Synthesis: Procedure in tort cases Importance of jury Importance of motion practice Strict liability vs. negligence Strict liability is a rule; negligence is a standard Under SL the P wins, under negligence P loses. Doctrine v Policy Which rule applies? Policy helps us decide.

Damages: Tangible: medical costs, loss of opportunity; loss of income. Projections of losses may be difficult; future money valuation, accurate vision of medical needs must be well calculated because you can only sue once and it must cover all needs. Intangible: pain & suffering costs; if law seeks to restore P to previous whole, inasmuch as possible, these costs must be considered; they may also serve a punitive role,.

Collecting on Judgments Can be difficult; unless D has substantial assets, efforts to execute the ruling are often less than fruitful and expensive. If parties have little to no assets, blood != stone.
Attorney's Fees In most countries, losing parties pay atty's fees. In US, that was feared to deny "differently monied" people the ability to pursue justice. Many attys work on contingency. Appellate Focus: Only about 2% of cases go to trial and a small percentage of those are appealed. Appellate decisions are therefore a small but very influential section of law. As opposed to contracts, attys generally enter tort situations after the fact, often when one party is angry; usually no continuing interest to keep them civil; often tortuous events happen in a hotly disputed, very brief instant.

NO-FAULT SCHEMES Workers compensation, other legislatively-designed compensation systems (Black Lung Disease, Childhood Vaccines, 911 and BP Spill) Often guarantee limited compensation but deny P the right to sue in tort Major advantages: cheaper to administer and dont overload the courts. Major disadvantage: might not satisfy our desires for corrective justice and/or might underdeter Black Lung Disease:
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Black Lung Disease: Must prove that miner has BLD, completely incapacitated, and definitely got it from coal mining. Then compensation is from last employer at a percentage of pay rate plus medical payments. Consistencies btw BLD & Worker's Comp Scheduled income replacement benefits Full medical expenses recoverable No intangible loss recovery Periodic payments Funded by employer contribution Severely limit tort suits

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