Black Letter Outline on Torts
Author:
Kionka, Edward J.
Edition:
5th
Copyright Date:
2013
21 chapters
have results for torts
Perspective 39 results (showing 5 best matches)
- The moral of this story is, don’t give your torts course any less effort than you give to your other courses on the theory that you can “cram” for torts in your spare time. Remember—to the extent that some tort concepts are relatively easy to grasp, more will be expected of you. But much of tort law is no less difficult than anything else you are taking. It just seems so.
- Although based on limited observation, I believe that there is a wide variation among torts professors in the way in which they organize their torts courses. An analysis of the 20–some torts casebooks currently in print provides additional circumstantial evidence for this thesis. There are vast differences in the order in which they cover the different parts of the subject, and there are philosophical differences as well. Some casebooks seem to be predominantly “practice” oriented, organized around the specific torts themselves. Others use particular themes in whole or in part (e.g., fault concepts, economics, jurisprudential issues).
- This book reflects the coverage of the typical first-year torts course, which emphasizes the torts involving injuries to persons and property. It includes all the topics that are ordinarily covered in the first year torts course, which includes all of that subcategory and sometimes defamation and misrepresentation. There are other torts in the subcategory of “non-physical harm” which I have omitted on the ground that they are almost never taught in the first-year torts course: misuse of legal procedure (Dobbs’ Hornbook, Chapter 30); interference with family relations (Dobbs’ Hornbook, Chapter 31); and injuries to economic relations, sometimes called “business torts” (Dobbs’ Hornbook, Chapters 32 and 33).
- As previously noted, torts professors necessarily teach some civil procedure. Tort law cannot properly be understood except in the context in which it operates. Tort rules are born of litigation in the context of the American version of the adversary system. This may seem obvious, but its consequences are not.
- In addition to civil procedure, other subjects have an important relationship to tort law. Be alert to these relationships. For example, the institution of insurance, and especially liability insurance, has had a major impact on tort law. The law of agency is often used in determining rules of vicarious tort liability—sometimes when it doesn’t fit. And the law of evidence can have a significant bearing on certain fact issues which may be critical to the resolution of tort law issues. Obviously you should not attempt to study these topics in any depth, but pay attention when they come up in your torts course and try to understand as much as is necessary to see the relationship.
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Part Three: Negligence 49 results (showing 5 best matches)
- At one time, the general common law rule was that husband and wife were each immune from tort liability to the other spouse for torts committed during coverture. More than half the states have now abolished this immunity. R.2d § 895F. Many of the remaining states (a few of which have statutes expressly preserving it) recognize exceptions, as for suits brought after the marriage has been terminated, intentional torts, torts occurring in a business activity, and suits against persons vicariously liable for the spouse’s tort.
- One who has deficient mental capacity is not for that reason alone immune from tort liability. R.2d § 895J. Particularly in torts involving physical harm, the incompetent D is held to the same standard as a normal person. However, D’s mental condition may be relevant in determining whether any tort has been committed.
- In the Federal Tort Claims Act (FTCA), the United States has waived its tort immunity for personal or property damage “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C.A. § 1346(b). See R.2d § 895A.
- 3. Distinguished From Intentional Torts
- H. Duty: Tort and Contract
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Part One: Introduction 45 results (showing 5 best matches)
- “Torts” is the general legal classification encompassing a number of different civil causes of action providing a private remedy, almost always in the form of money damages, for an injury to P caused by the tortious conduct of D. Each tort is separately named and defined, and each tort action has its own rules of liability, defenses, and damages. The injured person must find a tort action or theory that fits the facts of his case in order to pursue this remedy. Some rules or principles are common to various torts or groups of torts, but there is no universal formula for tort liability. The law of each tort must be separately examined.
- The concept “tort” is elusive. The word is not used in common speech. Yet tort law is one of the most important parts of our modern legal system. Although it describes one of the major pigeonholes of the law, the concept “tort” cannot be usefully defined. Any definition sufficiently comprehensive to encompass all torts is so general as to be almost meaningless.
- Is there a general principle of tort liability? Or are there only the laws of the individual “torts,” a miscellaneous and more or less unconnected collection of nominate civil actions grouped together merely for convenience of reference? So far, no such general principle has been recognized, except that the concept “negligence” is used in many different torts. Tort law remains as it developed through case-by-case evolution, a system of more or less independent named torts, each with its own more or less unique rules.
- Almost any imaginable conduct may, in the right circumstances, be a source of injury to another and therefore is potentially tortious. But not every injury is actionable in tort. It is commonly said that conduct is tortious if, but only if, that conduct violates some duty imposed by law. But this test is meaningless, since it is tort law that determines which duties are actionable in tort. Therefore, no meaningful definition of “tort” or “tortious conduct” is possible, apart from the specific liability rules of the individual torts themselves.
- In a very general sense, tort law is the private or civil counterpart of criminal law. Indeed, in the early stages of the common law, tort and crime were not separate concepts. There was one law of “wrongs.” Today they are entirely distinct, but there are tort actions which roughly correspond to many crimes, and the same act may be both a tort and a crime—or one or the other but not both. The principles of liability of analogous torts and crimes are not necessarily the same, and should not be confused.
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Part Eight: Survival and Wrongful Death 10 results (showing 5 best matches)
- T or F At common law any causes of action in tort that a person might have had expired at his death because tort actions are personal. However, a defendant’s heirs remained liable for his torts even after his death.
- All jurisdictions have more or less modified the common law rule, almost always by statute. About one-third of the states provide that either (a) all tort actions or (b) all tort actions except defamation survive the death of either P or D. The rest have a wide variety of inclusions and exclusions.
- A. Survival of Tort Actions
- c. Statutory Torts
- A. Survival of Tort Actions
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Capsule Summary 20 results (showing 5 best matches)
- Misrepresentation is often an element of different torts and other causes of action. However, there is a tort action called “misrepresentation” (formerly deceit), where D in the course of some transaction makes a false statement to P (or another), P acts in justifiable reliance on the statement, and thereby sustains pecuniary loss. (If P sustains physical harm, then one of the other tort actions will lie.)
- At common law, all causes of action for personal torts abated with the death of either the tortfeasor or the person injured. That rule has been changed by statute so that today, most tort actions survive the death of either P or D, regardless of the cause of death. Among the statutes, there is a wide variety of inclusions and exclusions.
- Statutory torts.
- Many jurisdictions allow punitive damages against an employer for any tort committed by his employee for which the employer is vicariously liable, provided the employee’s tort will support them. Other jurisdictions refuse to allow them against the employer unless (a) the employer authorized the doing and the manner of the act, or (b) the employee was unfit and the employer was reckless in employing him, or (c) the employee was working in a managerial capacity, or (d) the employer or one of his managerial agents ratified or approved the act.
- results from the tort involved that such damages are normally to be anticipated and hence need not be specifically alleged. Today, such damages are more often categorized as “noneconomic loss” because they are losses not directly measured in dollars.
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Appendix D. Glossary 40 results (showing 5 best matches)
- In tort law, the term “injury” includes the invasion of any interest which is protected by tort law. R.2d § 7(1). It is broader than terms such as “harm” and “physical harm,” since it includes torts against relational and other intangible interests. See R.3d Liability for Physical & Emotional Harm § 4.
- A type of defense to tort liability which negates the tort on the ground that D had a legal right to act as he did. R.2d § 10. See Typically, privileges are found in the intentional torts, defamation, and privacy.
- constitutional tort
- A rule of tort law recognizing an obligation running from D to P, the violation of which gives rise to a tort cause of action.
- A doctrine that provides D a complete defense to conduct that otherwise would be an actionable tort, such as the family immunities, charitable immunity, and sovereign immunity. Unlike a privilege, an immunity does not negate the tort and must be raised as an affirmative defense or it is waived. R.2d §§ 895A–895J.
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Capsule Summary Part 2 94 results (showing 5 best matches)
- “Torts” is a general classification encompassing several different civil causes of action providing a private remedy (usually money damages) for an injury to P caused by the tortious conduct of D. Each tort cause of action is separately named and defined, each with its own rules of liability, defenses, and damages. There is no useful general definition of “tort” or “tortious conduct.”
- Tort law is primarily judge-made law, and no American jurisdiction has yet adopted a tort “code.” However, tort law is being increasingly modified by statute.
- One with deficient mental capacity is not for that reason alone immune from tort liability. Particularly in torts involving physical harm, the incompetent D is held to the same standard as a normal person. However, D’s mental condition may sometimes be relevant in determining whether any tort has been committed.
- Consent is a defense to almost any tort, but it is applied most frequently to the intentional torts.
- Traditionally, ordinary contributory negligence was not a defense to an intentional tort or to D’s reckless conduct (but contributory reckless conduct was a defense to the latter). In most comparative negligence jurisdictions, P’s contributory negligence will reduce his recovery even though D’s conduct was reckless, but perhaps not if D’s conduct was an intentional tort.
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Part Four: Causation 11 results (showing 5 best matches)
- Causation problems are common to many different torts (and to all torts involving physical harm).
- i. Intentional Torts; Strict Liability
- 3) Criminal Conduct or Intentional Torts by Third Persons
- Causation problems are among the most difficult, conceptually, in tort law. They may be analyzed in two categories:
- sue D in tort if D’s only tort was creating the risk that resulted in the occasion for the response, and sometimes also risks associated with the condition of the premises.
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Part Seven: Damages For Physical Harm 14 results (showing 5 best matches)
- Statutes often cap damages in tort cases against governmental units, or in certain statutory tort actions or compensation systems.
- Many jurisdictions allow punitive damages against an employer for any tort committed by his employee for which the employer is vicariously liable, provided the employee’s tort will support them. Other jurisdictions
- Nominal damages are a trivial sum (e.g., one dollar) awarded to a litigant who has established a cause of action but has not established that he is entitled to compensatory damages. R.2d § 907. Some tort actions (e.g., negligence) do not support nominal damages.
- Damages for personal injuries involving physical harm are generally not subject to federal income taxation. However, other kinds of tort damages are taxable, such as damages for purely emotional injuries and punitive damages.
- As a result of recent tort reform legislation, about half of the states place statutory caps (e.g., $250,000) or other limits on the amount of noneconomic damages recoverable, either in personal injury actions generally or in medical malpractice cases only. In some jurisdictions, these statutes have been held unconstitutional; in others, not.
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Appendix A. Answers to Review Questions 13 results (showing 5 best matches)
- it were enforceable generally, it would not be under b, c, and d. This type of agreement will be enforced in cases of intentional torts (b), and, in some jurisdictions, reckless torts (c). It is also unenforceable if P was reasonably ignorant of its provisions (d).
- PART TWO: INTENTIONAL TORTS
- II. LIABILITY RULES FOR INTENTIONAL TORTS
- dispossession, or any physical contact which impairs the chattel’s condition, quality, or value, is a trespass. If the tort is based on physical contact, there must be some actual damages, but any dispossession is a trespass for which nominal damages may be awarded.
- III. DEFENSES TO LIABILITY FOR INTENTIONAL TORTS: PRIVILEGES
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Part Two: Intentional Torts 35 results (showing 5 best matches)
- Certainty of harmful consequences is the basis on which we distinguish intentional torts from negligent or reckless conduct. If the harmful result is intended or certain to occur, the tort is intentional. If D’s conduct merely creates a foreseeable risk of harm, which may or may not be realized, his conduct is either negligent or reckless depending upon the magnitude and probability of the foreseeable risk.
- Transferred intent is an expanded rule of proximate cause applicable to and among the five intentional torts which are the progeny of the parent trespass action—assault, battery, false imprisonment, trespass to land, trespass to chattels. D’s intent to commit any one of these torts automatically “transfers” and supplies the intent necessary to any of the other torts in this group. It also transfers from X (D’s intended victim) to P (D’s actual but unintended victim). E.g., assume that D acts with the intent to injure A, but at the same time (or instead) injures P. D is deemed to have committed an intentional tort upon P, even though D was unaware of P’s existence or presence or of any risk of harm to P. R.3d Liability for Physical & Emotional Harm § 33, comment
- If P consents to the contact, D is privileged to make it and there is no tort. (This is generally true of all intentional torts.) Consent may sometimes be assumed. In a crowded society, some unpermitted contact is inevitable and customary. And consent may be assumed because of some preexisting relationship between P and D.
- The doctrine of transferred intent does not apply, at least so far as D’s intent was only to commit some other intentional tort. R.2d § 47. However, D’s intent to commit this tort against A will support a claim by P, even though D was unaware that P would be exposed to D’s conduct.
- “Privilege” is the general term applied to various defenses in which special circumstances justify conduct which would otherwise be tortious. In other words, even though P proves facts that establish prima facie the elements of some tort, D can prove other facts that establish some privilege that renders D’s conduct nontortious. There are recognized privileges to many different torts; but the most important and commonly used ones apply to the intentional torts.
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Part Five: Special Liability Rules for Particular Activities 69 results (showing 5 best matches)
- Certain activities are governed by special tort liability rules. In some cases, these rules are merely special applications of the general principles of tort liability, previously discussed. In other cases, these rules expand or contract the duty that D would otherwise have had under those general principles.
- One (D1) who, while acting on behalf of another, commits a tortious act and thereby subjects himself to tort liability to P may also thereby subject the person on whose behalf he is acting (D2) to tort liability to P. It is said that D2 is
- If an employee’s injury occurs in the course of, and arises out of, an employment covered by a workers’ compensation act, his remedy under the act is his exclusive remedy against his employer, even if for some reason the particular injury is not compensable. He has no common law tort action against his employer, except in rare instances when (a) the employer’s conduct amounts to an intentional tort or certain criminal violations, or (b) P is an illegally employed minor. In such cases P may elect between the workers’ comp and tort remedies. But if the injury-producing facts fall outside the scope of the act, the employee may have a common-law or statutory tort claim against the employer. Several federal statutes create workers’ remedies which, of course, are not barred by any state workers’ compensation statutes. State discrimination laws or wrongful termination laws may also apply, and are not barred by the workers’ compensation statute.
- Note that some of these special rules may not apply to non-medical torts by hospitals and other health care providers, depending on the particular statute involved. However, some of these reforms apply broadly to larger classes of tort cases.
- At one time, the general rule was that there was no tort liability for negligent failure to perform a contract to repair or maintain the leased premises. Today, most jurisdictions follow R.2d § 357 and hold that the lessor’s contractual promise to repair subjects him to tort liability for negligence in failing to perform his contract resulting in an unreasonable risk of physical harm, whether the disrepair existed before or only after the lessee took possession.
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Appendix B. Practice Examination 2 results
- Assume that the following events (in both questions) take place in the mythical State of Calinois, which generally follows the prevailing common law of torts and the Restatement (Second) of Torts. Specifically, you may assume that Calinois has adopted the pure form of comparative negligence.
- Three practice examination questions that have actually been used on torts examinations are reproduced below. Try to complete each question in the suggested time, including reading, outlining, and writing your answer. Appendix C discusses some of the issues and rules you should have talked about. Don’t peek.
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Part Nine: Non–Physical Harm: Misrepresentation, Defamation, and Privacy 8 results (showing 5 best matches)
- Misrepresentation is often an element of different torts and other causes of action. However, there is a tort action called “misrepresentation” where D in the course of some transaction (usually a bargaining situation) makes a false statement to P (or another), P acts in justifiable reliance on the statement, and thereby sustains
- The tort action for invasion of privacy did not develop until the 20th century, stimulated by an 1890 Harvard Law Review article by Warren and Brandeis. At present, the tort encompasses four distinct wrongs (R.2d § 652A):
- T or F Ordinarily a person who suffers pecuniary loss as a result of another’s negligent misrepresentation may recover in an action in tort.
- T or F Under some circumstances one can prevail in a tort action for an innocent misrepresentation.
- The tort is complete when the intrusion occurs. No publication or publicity of the information is required.
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Appendix C. A Suggested Analysis of the Practice Examination Questions 7 results (showing 5 best matches)
- The question of Apple’s status (trespasser, licensee, or invitee) is irrelevant for purposes of the basic cause of action, since a landowner is liable to even a trespasser for intentional or reckless torts.
- 3. Contributory fault. As a general rule, contributory fault is not a defense or a damage-reducing factor in intentional tort cases. If this is one of those jurisdictions where it is, then whether Apple was contributorily negligent will be discussed below.
- In the event that, for some reason, the battery action fails, or if the plaintiff seeks to proceed on a non-intentional tort theory (e.g., to preserve defendant’s liability insurance coverage), plaintiff could proceed in the alternative on a negligence theory.
- The foregoing analysis applies primarily to Dunham’s negligence liability. In the case of intentional torts, broader proximate cause rules are applied. Therefore, in the battery action, there is little chance of a successful proximate cause argument. Defendant is liable even for unforeseeable consequences.
- criteria in tort law, that may not be the case if a
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Table of Contents 33 results (showing 5 best matches)
Half Title 1 result
Title Page 1 result
Appendix G. Index 23 results (showing 5 best matches)
Part Six: Strict Liability 4 results
- d. Federal Tort Claims Act
- parties, including a party that is strictly liable. R.3d Liability for Physical & Emotional Harm § 25; Restatement (Third) of Torts: Apportionment of Liability § 1.
- d. Federal Tort Claims Act
- According to the Restatement (Second) of Torts, P cannot recover if he “knowingly and unreasonably” subjects himself to the risk. R.2d § 515. The Restatement (Third) (which does not recognize assumption of the risk as a separate defense) provides that strict liability does not apply (a) if P suffers physical harm as a result of making contact with or coming into proximity to D’s animal for the purpose of securing some benefit from that contact or that proximity, or (b) if D maintains ownership or possession of the animal pursuant to an obligation imposed by law. R.3d Liability for Physical & Emotional Harm § 24.
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- Publication Date: September 20th, 2013
- ISBN: 9780314275523
- Subject: Torts
- Series: Black Letter Outlines
- Type: Outlines
- Description: Black Letter Outlines are designed to help a law student recognize and understand the basic principles and issues of law covered in a law school course. Black Letter Outlines can be used both as a study aid when preparing for classes and as a review of the subject matter when studying for an examination. Each Black Letter Outline is written by experienced law school professors who are recognized national authorities in their subject area. This Outline summarizes the basic blackletter rules of Torts in a way that allows students to appreciate how different parts of their course material fit together. Ideal for class preparation or as a review before exams!