Hornbook on Torts
Authors:
Dobbs, Dan B. / Hayden, Paul T. / Bublick, Ellen M.
Edition:
2nd
Copyright Date:
2016
61 chapters
have results for The Law of Torts
Chapter 1. Defining Tort Law 79 results (showing 5 best matches)
- Crime, Tort, Contract and Property designate the traditional great fields of the common law. The preceding sections have indicated that tort law has affinities with both the law of crimes and the law of contracts. Tort law also has affinities with the law of property.
- The relationship between tort law and criminal law is largely explained by their respective purposes. The purpose of criminal punishment is primarily to vindicate the state’s interests in deterring crime and imposing justice. The purpose of tort liability is in no way inconsistent, but its emphasis is different—it is primarily to vindicate the individual victim and the victim’s rights and secondarily to confirm and reinforce public standards of behavior. Tort law thus shares with criminal law the goal of deterring wrongful conduct, but tort law uses methods aimed at securing compensation of the individual victim.
- Third, the process of lawyering tort claims is, overall, enormously different from the process of, say, contract drafting or estate planning. Part of that difference lies in the fact that tort law is litigation law. Tort litigation usually entails a jury, so the members of the public are present to participate and view the professional judges and lawyers at work. The public presence transforms the private world of legal professionals and affects the way they think of themselves and the proceedings, so that the culture of decision-making in American tort law is indeed quite special. The jury’s role has made judges and lawyers especially sensitive in tort cases not only to procedures and remedies, but also to the problems of proof and evidence. One of the enduring concerns of the tort law process in the United States is the role of the jury in relation to the role of the judge. Other process differences are generated through a cluster of tort law institutions, including the contingent...
- The boundaries of tort law staked loosely in the preceding sections may suggest that torts cannot be a coherent field. It is not only large in itself, including all kinds of wrongs of which there are many if not infinite varieties; it also has family ties to criminal, contract, property, and regulatory law, not to mention alternative compensation schemes. The size and diversity of tort law is emphasized by the fact that lawyers do not specialize in tort law but only in some patch of it. Probably no lawyer could be said to “specialize” in a field so diverse that it includes medical malpractice, products liability, interference with contract, libel, privacy, sexual harassment, civil rights, malicious prosecution, and other torts. If size and diversity of tort law threatens to render it incoherent, so does the fact that tort law is always changing.
- But if the basic division between tort and contract continues to dominate legal thinking and research, that fact should not obscure the importance of contract, informal understandings, and even relationships between the parties in determining duties under the rules of tort law. When a contract is in the picture, tort law almost always treats the contract as important and worth examining; when purely economic interests are involved, they often give the contract precedence, allowing the agreement, rather than the rules of tort law, to control.
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Chapter 2. Aims, Policies, History and Methods of Tort Law 126 results (showing 5 best matches)
- In spite of the preeminent importance of case decision in the common law of torts, many statutes affect tort law today. Statutes may indirectly affect tort law by setting some standard that courts adopt; they may directly affect tort law by creating some claim or defense that would not otherwise be recognized or enforced by the judges. Even ordinances or administrative rules may have some effect in the tort process. Since about 1960, the United States Constitution, too, has been instrumental in creating tort rights by way of a federal statute recognizing civil rights torts. So statutory instruments today are part of tort law. Statutes in the United States, however, often differ from codes in that they do not attempt to provide a complete and coherent set of rules or principles. Instead, they prescribe very particular rules for particular situations.
- Courts and writers almost always recognize that another aim of tort law is to deter certain kinds of conduct by imposing liability when that conduct causes harm. The idea of deterrence is not so much that an individual, having been held liable for a tort, would thereafter conduct himself better. It is rather the idea that all persons, recognizing potential tort liability, would tend to avoid conduct that could lead to tort liability. They might sometimes engage in the conduct in question, but only if they would get more out of it than the tort liability would cost. Some critics believe that tort law fails to provide systematic deterrence. Even if the failure is not pervasive, it is certainly true that tort law fails to provide appropriate deterrence at least on occasion.
- In medieval England, the law of torts, like the law of crimes, had modest aims, principally to discourage violence and revenge. Today’s tort law has much grander aims. All of the aims are laudable, but sometimes one of them will conflict with another. The most commonly mentioned aims of tort law are (1) to compensate injured persons and (2) to deter undesirable behavior. Both of these aims, however, are subsumed in whole or part under even broader goals.
- Many of the technical or professional rules of tort law, the rules that affect litigation outcomes, however, are not known or understood by people in general. Even if they were known, the tort rules seldom determine outcomes of litigation by themselves. That is, the technical tort rules are almost never detailed enough to lead inexorably to a given conclusion except in extreme cases. Tort law directs people to use reasonable care under the circumstances, but it does not attempt to define in advance what counts as reasonable care in all possible circumstances.
- Tort law has tended to resolve many disputes in a way consistent with the first line of economic analysis. This means that in determining whether the defendant may be at fault, courts often take into account the benefits and costs of a particular activity. If the benefits are high and the injuries are small or rare, courts will often say that the defendant is not at fault and that he has committed no tort. The second line of economic thought can be seen in some instances, however. Workers’ compensation and some other alternatives to tort law, or example, hold the defendant liable even without fault. It may also be seen in the rule that employers who are not personally at fault are generally liable for the torts of their employees who are acting within the scope of their employment.
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Chapter 11. Importing Statutory Standards of Care: Negligence Per Se 158 results (showing 5 best matches)
- Maintaining the distinction—judicial freedom
- Negligence per se: statutes creating criminal sanctions but not tort rules
- Statutes disclaiming tort law effects
- [I]f a statute defines what is due care in some activity, the violation of the statute either conclusively or … presumptively establishes that the violator failed to exercise due care. But the statutory definition does not come into play unless the tort plaintiff establishes that the defendant owes a duty of care to the person he injured … because tort liability depends on the violation of a duty of care to the person injured by the defendant’s wrongful conduct…. [A]lthough the legislature can and sometimes does create a duty of care to a new class of injured persons, the mere fact that a statute due care does not in and of itself create a duty enforceable by tort law.
- Statutes from outside tort law
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Chapter 3. Tort Law in Practice 114 results (showing 5 best matches)
- With some torts, insurance costs may have a dramatic effect on the care exercised. That may be the case with professional malpractice. And if tort law is less a matter of deterrence and more a matter of reinforcing values that the community and the defendant already accept, insurance probably does not undermine tort law’s effects. These and other reasons suggest that tort law may retain a residual effect on conduct even in a system dominated by liability insurance. But anyone can justifiably entertain the suspicion that the more insurance serves the goal of compensation, the less it will serve the goal of deterrence.
- Insurance affects more aspects of tort law than can be readily summarized. What has been said, however, should be enough to indicate that tort law does not operate in a sterile laboratory. Its hope for compensation and its hopes for deterrence, for corrective justice and for social utility, are all among the aspects of tort law affected by the presence of liability insurance.
- The relationship of state law to federal law and to the law of other states is the topic of treatises on federal jurisdiction and conflicts of law. The points sketched in this section show that tort law today operates in a complex environment. Lawyers are required not only to take into account the interaction of statutes and common law decisions, but the interaction of state and federal law as well.
- . Federal statutes have not adopted any general tort law, and if they attempted to do so they would be constitutionally questioned. Federal statutes create or deeply affect tort law only when they are related to some field constitutionally placed in the hands of the federal government, rather than the states. For example, the Congress has created statutory tort law for the protection of constitutional and other federal rights. Federal statutes also grant—and limit—tort claims against the federal government itself. limits on the tort liability of the federal government, yet otherwise rely upon state law to prescribe the tort rules.
- Tort law as practiced by professionals operates in settings and under conditions that determine much about the impact the formal rules will have on the parties. The characteristics of trials and appeals are among those conditions, and several traits of the trial and appeal system directly affect the way tort law works.
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Preface 13 results (showing 5 best matches)
- This hornbook is intended to provide a single-volume overview of contemporary tort law. It covers all of the traditional ground of tort law as well as a number of wholly new legal issues, including the fast-growing economic torts. Our aim is to help readers understand the general rules and flavor of contemporary American tort law through recent cases, statutes, and illustrations. While the approach is comprehensive, it is also judicious. Readers who prefer a more exhaustive examination of the topics and a fuller list of citations in support of various rules can turn to our four-volume treatise, Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts (2d ed. 2011 & Supp.).
- Dan B. Dobbs, Paul T. Hayden, and Ellen M. Bublick, The Law of Torts (2011 & Supp.): (volume number) Dobbs, Hayden & Bublick, The Law of Torts (section) (2d ed. 2011 & Supp.).
- Changes in tort law between the last edition of the Prosser & Keeton hornbook in 1984 and the first edition of this book in 2000 were immense, and certainly included changes in attitudes of judges and legislators. From the first volume of this hornbook in 2000 to the work today, changes have been more incremental, but also pervasive and important. For example, in intentional torts, the Restatement Third of Torts: Intentional Torts to Persons created a new tort of purposeful infliction of bodily harm. Whether courts will embrace the new tort, and with what limitations, is a matter for coming legal development, and lawyers are well-advised to be alert to the new possibilities. Moreover, all-or-nothing doctrines such as assumption of the risk have continued to fade away, and are increasingly discarded as separate defenses and instead incorporated into comparative fault defenses. While legislatures continue to limit the liabilities of many favored groups, common law duties of care are...
- Throughout all of these issues, this book does not consciously attempt to advance any particular approach to, or theory of, torts. It attempts, instead, to point to overriding policy goals, economic analysis, and concerns of accountability, as well as to practical problems in administering tort law. But the book is not any of those things. It is today’s tort law. If we have a view about economic analysis vs. corrective justice or utilitarianism vs. some “moral” approach, it is probably that all of these approaches and their variations have offered, and will offer, a good deal to courts and advocates alike.
- Fowler V. Harper, Fleming James, Jr. & Oscar S. Gray, The Law of Torts (2d ed. 1986): Harper, James & Gray.
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Chapter 4. Direct and Intentional Interference with the Person 289 results (showing 5 best matches)
- Tort and crime
- Other consequences of the categorization as an intentional tort
- . What constitutes intent may vary based on the context. Torts can define intent for the purpose of common law actions differently than they do in the insurance context or the context of workers’ compensation. The Restatement of Intentional Torts to Persons specifically encourages courts to consider the “specific policies and principles governing the relevant context.” Having done so, tort doctrine and collateral legal rules on intentional torts “might significantly differ.”
- For a thoughtful defense of the dual intent position, see Nancy J. Moore, Intent and Consent in the Tort of Battery: Confusion and Controversy, 61 Am. U. L. Rev. 1585 (2012). For a thoughtful discussion about balancing harms regulated and costs imposed in the intentional tort framework, see Keith N. Hylton, Intent in Tort Law, 44 Val. U. L. Rev. 1217 (2010) (“The intent rules of tort law function as a pricing mechanism that ensures optimal regulation of injury-causing activity. Optimal regulation avoids underdeterrence of harmful conduct and overdeterrence of beneficial activities.”).
- Trespassory torts
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Chapter 36. Alternative Systems for Compensating Injury 225 results (showing 5 best matches)
- Social Security as a model for tort law change?
- Compare A. Mitchell Polinsky & Steven Shavell, The Uneasy Market for Products Liability, 123 Harv. L. Rev. 1437 (2000) (suggesting that market forces and regulation can reduce the need for product liability law to encourage safety), and Stephen D. Sugarman, Doing Away with Tort Law, 73 Cal. L. Rev. 556 (1985), with William M. Landes & Richard A. Posner, The Economic Structure of Tort Law (1987), Guido Calabresi, The Cost of Accidents: A Legal and Economic Analysis (1970), and Gary T. Schwartz, Reality in the Economic Analysis of Tort Law: Does the Tort Law Really Deter?, 42 UCLA L. Rev. 377 (1994).
- Mass torts and class actions advantages
- The traditional view
- . Deep-seated criticisms assert that the tort way of resolving disputes, providing compensation, and seeking deterrence is so inadequate that alternative systems should be sought out. A number of different systems are actually now in place. They do not displace the tort system over a wide spectrum. Instead, they supplement it in providing some degree of relief for injury when tort law provides none or an inadequate amount, or providing a more efficient (and less individualized) system for administering compensation. In fact, these compensation systems are so vast that tort law might be seen as a supplement to some of them. The alternatives in place generally provide caps or limits on compensation. Some alternatives are limited welfare systems, providing for emergency medical care In mass tort cases, the bankruptcy court has also become a kind of alternative for administering relief. Alternative dispute resolution (ADR), emphasizing party control of the dispute, mediation, and...
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Chapter 9. The Negligence Action: an Introduction 128 results (showing 5 best matches)
- Strict liability for trespassory torts?
- The first torts book was Francis Hilliard, The Law of Torts (1859). See G. Edward White, Tort Law in America 16 (1980). Most of Hilliard’s book was devoted to topics other than negligence—libel, malicious prosecution, and nuisance, for example.
- . A great deal of the common law of tort migrated to America with colonization. Even as the American Revolution was being launched, English judges were still debating tort cases by debating the direct vs. indirect distinction. After Independence, the Constitution allocated Admiralty jurisdiction, with its potential for covering maritime torts, to the federal government. Otherwise, tort law was the province of the states, which usually made formal provision for reception of the English common law as the basis of their own legal systems. The sparse American authority on torts in the generation or so after adoption of the Constitution seems to indicate that courts were routinely thinking primarily in terms of fault or negligence.
- Growing into modern tort law
- See G. Edward White, Tort Law in America 16 (1980); Robert J. Kaczorowski, The Common-Law Background of Nineteenth-Century Tort Law, 51 Ohio St. L. J. 1127 (1990).
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Chapter 22. Liability of Government Entities, Officers and Employees 343 results (showing 5 best matches)
- Governing substantive law
- Common-law tort claims compared to § 1983 claims
- Abolition of blanket immunity
- The qualified immunity
- Under the Fourteenth Amendment, states may not deny “equal protection of the laws” to any person, and must not “deprive any person of life, liberty, or property, without due process of law.” Similar clauses in the Fifth Amendment apply to the federal government. For § 1983 cases arising under the Fourteenth Amendment, see 2 Dobbs, Hayden & Bublick, The Law of Torts § 76 (2d ed. 2011 & Supp.).
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Chapter 6. Intentional Interference with Tangible Personal Property: Trespass to Chattels and Conversion 238 results (showing 5 best matches)
- Not only do the formal theories converge in bailment cases; the underlying concerns of tort law, contract law and property law do so as well. The bailor owns the chattel bailed, or at least has a right to immediate possession. Tort law traditionally respects his possession-ownership rights in permitting him to recover against a bailee who negligently damages the goods and against one who converts them by non-return or otherwise. It also permits the bailor to recover the goods themselves, thus respecting his property interest. Contract, express or implied, however, is the foundation of the bailment. Even a brief account of conversion in bailment cases must thus consider the effects of the bailment contract on the tort recovery and the protection of the bailor’s property interests.
- Property and tort issues
- Broad statement of the economic loss rule
- It is true that a court indirectly determines something about your property rights when it decides that my conduct did or did not violate those rights, but conduct is the central focus of the inquiry. So in a sense, the two kinds of cases cannot be wholly separated. Yet the first kind of case, with its concern for determining conflicting interests in property, must be mainly understood through the law of personal property and the Uniform Commercial Code, not through the law of torts.
- . Trespass was the proper form of action under earlier common law only when the interference with land, chattel, or person was direct and physical. Under this rule, the defendant who locked the door to a room where the plaintiff’s goods were located might not be guilty of a trespass, although he might be liable in an action on the case for the intentional interference. The forms of action have long since been abolished, so the distinction between trespass and case (as forms of action) are no longer important. The defendant who places poisoned meat before the plaintiff’s dog, intending that the dog will eat it, is no doubt liable if the dog does eat, even though he does not put the meat in the dog’s mouth or otherwise touch the dog. With the abolition of the forms of action, it is not confusing to call the defendant’s tort a trespass where he has caused physical harm or physical interference with the owner’s rights.
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Part VIII. Dignitary and Economic Torts 16 results (showing 5 best matches)
- Examples of pure economic torts
- The meaning of pure economic torts
- The special role of contract—an “economic loss rule.”
- Dignitary torts
- . The distinction between stand-alone dignitary or economic harm and physical harm to persons and property is not merely an idle classification. Both the explicit rules and the guiding policies of dignitary and economic torts usually differ radically from the rules of negligence and the rules of trespassory torts like battery. The mode of legal analysis also differs in most cases. For example, negligence is seldom the basis for liability in dignitary and economic torts. In terms of guiding policy, free speech considerations, which are not an issue in ordinary physical harm torts, will often be significant or even determinative in the case of dignitary torts based on non-commercial communications by the defendant. And in economic tort claims, courts are increasingly concerned to preserve a large, sometimes a very large role for contracts, to the exclusion of tort claims.
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Chapter 33. Products Liability 432 results (showing 5 best matches)
- Federal statutes may preempt state law, either expressly or impliedly. Even where Congress has not included an express preemption clause, implied preemption may occur if a federal statute or set of valid regulations either (1) occupies the regulated field (“field preemption”) or (2) conflicts with state law (“conflict preemption”). Where preemption is found, the federal law entirely displaces state law. Federal lawmaking culture is oriented to regulation, not to private tort rights, and only a few federal statutes create private tort claims for personal injury. In many instances when state tort rights are displaced, no new comparable federal tort right is substituted. Instead, the manufacturer is subjected to regulation without being subjected to liability. Consequently, a defendant who violates the preemptive federal statute, as well as the defendant who complies with it, may be immunized from all tort liability.
- Strict liability in tort
- (2) Breach of warranty
- Restatement Third of Torts (Products Liability) § 2, cmt. f (1998). This substantive rule may be defeated by evidentiary requirements imposed in federal courts, and in many state courts. See 2 Dobbs, Hayden & Bublick, The Law of Torts § 463 (2d ed. 2011 & Supp.).
- The Supreme Court has held that the absence of a regulation on anti-lock brakes is not itself a declaration that manufacturers are free to omit anti-lock brakes. Thus the federal motor vehicle regulations do not preempt a tort claim based on the absence of anti-lock brakes. But the exact words and policy of the statute or regulation matter, and the Supreme Court has also held that a federal regulation requiring airbags on some vehicles but not others left manufacturers of others free to omit that protection, and preempted any state law requirement to the contrary. On the other hand, the Court has held that where a statute expressly preempts local “law or regulation” relating to boat safety, the preemption only applies to positive enactments such as regulations or statutes and does not prevent states from recognizing common law tort liability for unreasonably unsafe boat motors.
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Chapter 29. Emotional Harm 262 results (showing 5 best matches)
- The First Restatement of Torts
- Overlapping causes of action
- The Second and Third Restatements of Torts
- . As elsewhere in the law of torts, intent can be shown either by evidence that the defendant acted with a purpose or desire to accomplish the harm, or by evidence that such harm was substantially certain to occur. In the Restatement, as in most states, reckless or willful attitude will also suffice to meet the requirement.
- Flood of litigation
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Chapter 28. Wrongful Death and Survival Actions 110 results (showing 5 best matches)
- However, an historical explanation for some of the rules can be found in primitive English law. The English idea was that there was no private tort action for a felony because the tort action merged in the felony, which was to say that the felon’s property was forfeited to the Crown, which was unwilling to share any of the assets with the felon’s victim.
- Persons in a similar position to a family member who “had been in fact or would be maintained by the deceased” may also recover for the decedent’s wrongful death. European Group on Tort Law, Principles of European Tort Law Art. 10:202 cmt. 2 (2005).
- Common law rules
- European Group on Tort Law, Principles of European Tort Law Art. 10:202 cmt. 4 (2005).
- Surviving the tortfeasor’s death
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Chapter 41. Economic Torts and Economic Loss Rules 233 results (showing 5 best matches)
- Restatement (Third) of Torts: Products Liability § 21 (1998) (“harm to persons or property includes economic loss if caused by harm to: (a) the plaintiff’s person; or (b) the person of another when harm to the other interferes with an interest of the plaintiff protected by tort law; or (c) the plaintiff’s property other than the defective product itself”).
- Limitations: Third party beneficiary under contract law
- Even some intentional torts may be protected by the economic loss rule in some instances. See 3 Dobbs, Hayden & Bublick, The Law of Torts § 615 (the paragraph
- Scope of the chapter
- The traffic cop function—economic loss rule directs the claim to the most appropriate rules
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Chapter 46. Unfair Competition: Trademarks, Trade Secrets and Publicity Rights 135 results (showing 5 best matches)
- . Trade secret protection is lost when the secret becomes publicly or widely known, either because of the plaintiff’s divulgence or in spite of the plaintiff’s best efforts to keep it secret. Furthermore, the defendant is free to develop the same information covered by a trade secret, so long as he does not take advantage of a breach of confidence or commit an independent tort to do so. In particular, he is free to analyze or reverse-engineer the plaintiff’s products and to acquire the secret in that manner if he can. These rules reflect disadvantages of trade secret ownership compared to patents. They also reflect the fact that trade secrets are property protected by tort law mainly in the limited sense that tort law will impose liability for breach of confidence or some independent tort.
- See Id. § 37. Accounting for profits permits a recovery of the gains obtained by the defendant as a result of the tort and presents special problems of measurement. See 2 Dan B. Dobbs, Law of Remedies § 6.4(4) (2d ed. 1993).
- . Unfair competition is a general term that includes deceptive trade practices, acts such as trademark infringement, and appropriation of trade values or rights in publicity. All of these are torts under common law rules. Some are enhanced or limited by statutory provisions. Both state and federal law recognize claims against defendants for (1) using marks or identifiers for goods or services that are confusingly similar to identifiers the plaintiff has the right to use; (2) dilution of the plaintiff’s trademark, for example, by associating it with something undesirable; and (3) the publication of false advertising (and sometimes false statements outside of advertising). Three other kinds of claims are quite distinct. These are intellectual property claims that emphasize content of the plaintiff’s rights in confidential information, inventions, and works of authorship, protected respectively by the states’ laws of trade secrets, by federal patent law, and by federal copyright law.
- See 4 Dobbs, Hayden & Bublick, The Law of Torts § 741 (2d ed. 2011 & Supp.).
- See 4 Dobbs, Hayden & Bublick, The Law of Torts § 712 (2d ed. 2011 & Supp.).
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Chapter 42. Interference with Contract and Economic Interests 211 results (showing 5 best matches)
- Limitations on the tort—relation to named torts
- Overlapping or duplicative torts
- Nature of the prima facie tort
- See 2 Harper, James & Gray, The Law of Torts § 6.10 (3d ed. 2006 (with Supps.)); but cf. Flagstaff Affordable Housing Ltd. P’ship v. Design Alliance, Inc., 223 P.3d 664 (Ariz. 2010) (seemingly doubting the generality of the stranger version of the economic loss rule and suggesting that the cases against liability are best explained as products of rules internal to particular torts).
- Peculiarities of the torts
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Chapter 27. Prenatal and Birth-Related Injury 114 results (showing 5 best matches)
- . Courts have sometimes emphasized viability of the fetus for purely formal or conceptual reasons that are quite divorced from the purposes of tort law. The idea is that until the fetus is viable, there is no “person” apart from the mother. Any harm done is harm to the mother. In personal injury cases, however, that argument misses the point entirely. Whatever may have been the case when injury was inflicted, it set in motion a chain of events that caused injury to a living and suffering human being. Both compensation and deterrence goals of tort law counsel a rule allowing the child to recover for the tort in personal injury cases and one allowing the parents, or at least the mother, to recover when the fetus does not survive or the child dies of the injury. The status of the fetus at the time of injury has no bearing on the status of the plaintiff, who is a living human being, harmed by the defendant’s torts.
- . When the fetus is exposed to hazardous materials because of the mother’s or father’s exposure in the workplace, workers’ compensation laws are potentially implicated. Those laws generally provide for standardized compensation to workers injured on the job as the exclusive remedy; tort claims are forbidden. When a child asserts a claim that she was injured in utero by her mother’s exposure to hazardous materials on the mother’s job, the question is whether the child’s claim in tort should be barred by the workers’ compensation rules. The answer in the handful of cases on point has uniformly been that the claim is not barred by the workers’ compensation exclusive remedy rules.
- See Grubbs v. Barbourville Family Health Ctr., P.S.C., 120 S.W.3d 682 (Ky. 2003) (involving pregnancies of 22 and 24 weeks at the time information about fetal condition was acquired; although rejecting the tort action for lack of injury, the court approved a breach of contract action against physicians who breach contract obligations to diagnose and report correctly); Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985). Georgia insists that the claim does not “does not fit within the parameters of traditional tort law” and that only the legislature can recognize it. Etkind v. Suarez, 271 Ga. 352, 519 S.E.2d 210 (1999).
- Thus some advocate changes in the requirements of causal evidence in toxic tort cases, see Margaret A. Berger, Eliminating General Causation: Notes Towards a New Theory of Justice and Toxic Torts, 97 Colum. L. Rev. 2117 (1997), while others advocate changes in regulation and compensation systems. See Anita Bernstein, Formed by Thalidomide: Mass Torts as a False Cure For Toxic Exposure, 97 Colum. L. Rev. 2153 (1997).
- . To eliminate the exclusive remedy rule is not to impose liability upon employers for fetal injury. The child, like anyone else claiming tort damages against the employer, will be required to show negligence or, possibly, abnormally dangerous activities. The fact that an employer’s business uses dangerous chemicals does not necessarily mean that the employer is negligent. Only if dangerous chemicals are unnecessary or if feasible precautions against injury are ignored, is negligence established. In addition, federal antidiscrimination law requires employers to allow women equal access to jobs, including jobs that may endanger a fetus. If the employer’s only supposed negligence is in permitting a fully informed pregnant woman to work around dangerous materials, the federal antidiscrimination rule probably protects the employer against tort liability.
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Chapter 8. Consent 169 results (showing 5 best matches)
- The consent principle is general in its scope, firm in its acceptance, and central in its significance. It makes the plaintiff’s right of autonomy the centerpiece of the law on intentional torts and to some extent other torts as well. Nevertheless, a cluster of subsidiary rules and definitions both enlarge and constrain its application:
- Statutes traditionally criminalized sexual relations with minors under a stated age, in effect depriving those minors of the power to consent. Courts carried these criminal statutes over into tort law, holding that the seducer of an under-age minor would be liable in tort, since the consent would be ineffective. and certainly they have not been the basis for major tort litigation for a long time.
- Neither rule is apt. The obvious solution, and the one adopted by the Second Restatement, is that deterrence and punishment for the illegality is to be left to the criminal law; tort law may thus proceed under its ordinary rules, which means that the plaintiff’s consent is a bar just as it is in any other case, subject to two qualifications.
- See 2 Dobbs, Hayden & Bublick, The Law of Torts §330 (2d ed. 2011 & Supp.).
- Why should the plaintiff be barred from recovery on the basis of manifested consent when she has not actually consented? In the usual case, the main reason is that the defendant who acts on a reasonable understanding of appearances is simply not a wrongdoer. The consent does not relieve him of liability for a tort; he is not a tortfeasor at all.
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Chapter 5. Intentional Interference with Real Property: Trespass to Land 169 results (showing 5 best matches)
- The old common law writ called directly or indirectly generated six torts—battery, assault, and false imprisonment on the personal side, trespass to land, conversion, and trespass to chattels on the property side. All of those torts entailed a direct application of force; that is, they invaded or threatened to invade the plaintiff’s physical security of person or property. See § 2.8.
- A second possible case of theoretical strict liability occurs if the trespasser exploits the land or its resources in the innocent and reasonable belief that he is entitled to do so. But in that case the trespasser himself has made a gain from the trespass and liability for that enrichment derived from another’s property is appropriate, quite apart from tort law and regardless of his innocence.
- The Restatement treats interference with the flow of surface waters as a nuisance issue, not a trespass issue. Restatement Second of Torts § 833 (1979). Interference with one’s rights to water of course raises an entirely different issue. See Id. §§ 850–864. Water rights are now an important form of property law and subject to considerable regulation.
- One who intentionally enters or causes tangible entry upon the land in possession of another is a trespasser and liable for the tort of trespass, unless the entry is privileged or consented to. Physical harm to the land is not required. The gist of the tort is intentional interference with rights of exclusive possession; no other harm is required. In modern law, the defendant is a trespasser not only if he intentionally enters or causes entry, but also if he refuses to leave or remove his goods from the land when he is under an obligation to do so; hence a refusal to leave is equivalent to entry for this purpose. One who has consent to be on the land may become a trespasser by exceeding the consent. the surface may also be a trespasser.
- Trespass is one of the two major tort claims that aim to protect plaintiffs from interference with interests in land; the other is nuisance. The topic of nuisance is worthy of separate treatment and gets a chapter of its own in this treatise. But it can be difficult to explain modern trespass law without references to nuisance, and many cases implicate both claims. Accordingly, a brief exploration of some of the differences and similarities between the two causes of action follows here, and references to nuisance appear at several points in succeeding sections of this chapter.
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Chapter 43. Misrepresentation and Falsehoods 319 results (showing 5 best matches)
- Restatement (Second) of Torts § 552B (1977) (excluding benefit of the bargain damages). It is also possible that the plaintiff’s comparative fault will reduce the award in negligent misrepresentation cases when it would not do so in intentional fraud cases. See 3 Dobbs, Hayden & Bublick, The Law of Torts § 672 (2d ed. 2011 & Supp.).
- See 3 Dobbs, Hayden & Bublick, The Law of Torts §§ 687–88 (2d ed. 2011 & Supp.) (reflecting these alternative aims in the benefit of bargain and out of pocket measures of damages). Misrepresentation may also be a relevant fact in other torts, in which case physical harm and other damages may be appropriate. Id. § 663.
- . While some tort duties are imposed independent of the parties’ relationship, others are imposed of the parties’ relationship. For example, a defendant may owe a special tort duty to a plaintiff because the defendant is perceived by the courts to be a fiduciary. All the torts covered in this part of the chapter—bad faith, economic duress, and wrongful discharge—can involve fragments of the fiduciary duty. This chapter outlines the gist of the torts, leaving more exhaustive coverage to other works.
- E.g., JP Morgan Trust Co. Nat’l Ass’n v. Mid-America Pipeline Co., 413 F.Supp.2d 1244 (D. Kan. 2006); LaSalle Nat’l Leasing Corp. v. Lyndecon, LLC, 409 F.Supp.2d 843 (E.D. Mich. 2005) (Michigan law); Laeroc Waikiki Parkside, LLC v. K.S.K. (Oahu) Ltd. P’ship, 115 Haw. 201, 229, 166 P.3d 961, 989 (2007) (“there is no tort of bad faith outside the context of insurance claims”); Gorski v. Smith, 812 A.2d 683, 710 (Pa. Super. 2002) (“Where a duty of good faith arises, it arises under the law of contracts, not under the law of torts”); see Stephen S. Ashley, Bad Faith Actions Liability & Damages § 11.2 (available on Westlaw with updates) (“the courts have … uniformly declined to extend the cause of action for bad faith beyond the insurance context”).
- . A restitutionary recovery may be available as a claim independent of tort or as one kind of remedy given in tort cases where appropriate. Other tort remedies are seldom recoverable for economic duress. However, a few economic threats may warrant the full range of tort relief, including any damages that exceed the defendant’s wrongful gains and that thus exceed restitution. While only restitutionary remedies would be awarded in most cases, characterizing economic duress as a tort thus leaves the courts free to award compensatory consequential damages or even punitive damages in a proper case.
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Chapter 32. Strict Liability for Animals and Abnormally Dangerous Activities 149 results (showing 5 best matches)
- Strict liability is imposed upon a defendant without proof that he was at fault. In other words, when liability is strict, neither negligence nor intent must be shown. Strict liability is routinely imposed for breach of contract, but is not so common in tort law. The liability of a master for torts of a servant, seen in the last chapter and justified either on grounds of fairness or economic analysis, is a species of strict liability so far as the fault-free master is concerned. An even older form was found in early tort law, which, according to traditional views, imposed strict liability for all direct and forcible harms to person or property and perhaps for the spread of fire as well. In the mid-19th century, fault became the normal basis for tort liability, but pockets of strict liability remained.
- The classification of an animal as wild is an issue of law for the court. Restatement Third of Torts (Liability for Physical and Emotional Harm) § 22, cmt. b (2010).
- Restatement Second of Torts §§ 519 to 520 (1977); Restatement Third of Torts (Liability for Physical and Emotional Harm) § 20 (2010) (formulating the rules differently but with much the same thrust).
- See Restatement Second of Torts § 509(2) (1977); Restatement Third of Torts (Liability for Physical and Emotional Harm) § 23, cmt. g (2010) (strict liability limited to risks that are characteristic of the risks posed by abnormally dangerous activities or by animals).
- The Third Restatement omits the special provision, recognizing that the point is covered by the general scope of risk principle. However, the special sensitivity of the plaintiff suggests that the plaintiff is as much a part of the riskiness as the defendant, a ground for denying strict liability in the first place. See Restatement Third of Torts (Liability for Physical and Emotional Harm) § 29, cmt. l (2010).
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Chapter 40. Interference with Family Relationships 72 results (showing 5 best matches)
- . Courts and legislatures have been moved in part by the conclusion that these torts lent themselves to blackmail and to vindictiveness pursued by a spouse whose marriage is over and who seeks merely to inflict harm. With the advent of no fault divorce everywhere and the decriminalization of adultery in many states, these torts also came to seem illogical and inimical to the reforms enacted in divorce and criminal laws. Beyond this, the torts have become offensive because they have, sometimes quite explicitly, treated a spouse as the property of the other spouse and because they are thoroughly inimical to the freedom of all human beings to choose their associations and to choose to depart dangerous, stultifying, or deeply unhappy homes. These torts could also operate unjustly by punishing the defendant for conduct to which both participants consent. Finally, some of the cases turned on nothing more than words that were by no means false and thus punished speech. The grounds for...
- Tort law and the family: background
- Independent torts
- . One important group of cases arises when a parent or other family member kidnaps a child following a divorce and a lost custody battle. Most courts dealing with the issue have recognized the action brought by the custodial parent against the non-custodial parent or family members who aid and abet the kidnaping. It has been said that tort claims better serve “both to prevent child-snatching and to pick up the pieces if it does occur” than any of the alternative sanctions such as those provided by the Uniform Child Custody Jurisdiction Act, or by kidnaping or contempt prosecutions. The view, however is not unanimous. A Minnesota case is the principal authority rejecting the action against a parental kidnaper. The Minnesota court did so on the theory that it would not be best for the child to undergo such litigation. Supporters of this view have suggested that statutes enhancing power over the kidnaper who flees the jurisdiction, ...with other litigation against the kidnaper, may...
- Common law view of relationships
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Chapter 35. Apportionment of Liability among Parties 206 results (showing 5 best matches)
- Zhu Wang, Research on Apportionment of Tort Liability—A General Theory of Apportionment of Tort Liability Among Multiple Parties (2010) (discussing the idea as a model for Chinese tort law).
- Which causes of action to include as a policy decision
- Id. The Restatement supports the general view that the fault involved in intentional torts is to be compared with the fault in negligent torts, see Restatement (Third) of Torts: Apportionment of Liability § 1 (2000), even though it rejects the rule of several liability where the negligent actor creates a specific risk of intentional harm.
- . The issue most often arises in the case law in terms of employers. Employers who provide workers’ compensation benefits to employees are generally immune to tort liability, so they are not liable in tort even if they negligently injure an employee. The injured employee is still free to sue others, such as product manufacturers who contribute to her harm. The question is whether the fault of such a defendant should be judged in comparison to the fault of the immune employer or whether the fault of the employer should be ignored. The fault of the product manufacturer or other defendant may be relatively small in comparison to that of the employer, but relatively large (or total) if the employer’s negligence cannot be considered. Where liability is several only, this issue can be critical. The Uniform Act treats the employer who pays workers’ compensation and who is immune under workers’ compensation laws as a released person, counting the employer’s responsibility in the total and...
- Relatedly, crediting the nonsettling tortfeasor in the light of the settling tortfeasor’s payment is considered with other apportionment materials in Dobbs, Hayden & Bublick, The Law of Torts § 491 (2d ed. 2011 & Supp.).
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Chapter 37. Defamation 561 results (showing 5 best matches)
- Restatement (Second) of Torts § 611 cmt. e (1977). For an evaluation of the Restatement position, see 3 Dobbs, Hayden & Bublick, The Law of Torts § 548 (2d. ed. 2011 & Supp.).
- The history of libel and slander also makes a narrower point. Defamation law long antedated the development of general negligence law. Liability for defamation under the common law rules thus did not depend upon proof of negligence. Equally, an ordinary negligence action ordinarily cannot be maintained for loss of reputation. Defamation law is also wholly unrelated to those intentional torts like battery and assault that are derived from the writ of trespass and that entail direct application of force. The law of defamation, true to its unhappy history, developed its own complex rules unrelated to the law of negligence and intent.
- Zenger’s acquittal did not establish a free press in the Colonies, but it has ever since been a rallying point against the scheme of criminal punishment for truthful words. Since the 19th and 20th centuries, defamation law has been largely private and civil. The states received a good deal of English law on the subject of defamation. In particular, the American courts thought from the beginning that written defamation is to be treated differently from oral defamation; the categories that limit liability for slander do not apply when the defamation is in writing. Although the private or tort law of defamation aims to protect reputation and good name, some of its particular rules seem derived from the roots of defamation in sin, sedition, dishonor, and punishment.
- See Lyrissa Barnett Lidsky, Defamation, Reputation, and the Myth of Community, 71 Wash. L. Rev. 1, 18 (1996); 3 Dobbs, Hayden & Bublick, The Law of Torts § 574 (2d. ed. 2011 & Supp.)(admissibility of evidence that people believed or reacted negatively establishes harm).
- The topic of defamatory credit reports is developed more fully in Dobbs, Hayden & Bublick, The Law of Torts § 536 (2d ed. 2011 & Supp.).
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Chapter 14. Actual Harm & Factual Cause 215 results (showing 5 best matches)
- E.g., Richard Epstein, A Theory of Strict Liability, 2 J. Leg. Stud. 151 (1973), reprinted in Richard Epstein, A Theory of Strict Liability (1980); Wex Malone, Ruminations on Cause-in-Fact, 9 Stan. L. Rev. 60 (1956), reprinted in Wex Malone, Essays on Torts 160 (1986); Robert N. Strassfeld, If …: Counterfactuals in the Law, 60 Geo. Wash. L. Rev. 339 (1992); Richard Wright, Causation in Tort Law, 73 Cal. L. Rev. 1735 (1985); Symposium on Causation in the Law of Torts, 63 Chi.-Kent L. Rev. 397 (1987); Arno Becht & Frank Miller, The Test of Factual Causation (1961).
- David W. Robertson, Williams Powers, Jr., & David A. Anderson, Cases and Materials on Torts 158–59 (1989); see Joseph W. Glannon, The Law of Torts 127 (1995).
- The court treats the case as if only one shot struck the plaintiff and only one tortfeasor could have fired. However, the plaintiff was struck elsewhere by another shot that caused minor harm. That raises the possibility that the case could be handled under an indivisible injury rationale, although Prosser and the Restatement might regard this as a case of two injuries and therefore not to be blessed with the indivisible injury treatment. See Restatement Second of Torts § 433A(1)(a) (1965); Prosser & Keeton on the Law of Torts § 41 (5th ed. 1984).
- David W. Robertson, The Common Sense of Cause in Fact, 75 Tex. L. Rev. 1765, 1780 (1997). For a critique of the Restatement Second’s substantial factor test, see also Geoffrey Rapp, Torts 2.0: The Restatement 3rd and the Architecture of Participation in American Tort Law, 32 Wm. Mitchell L. Rev. 1011 (2011).
- Cowart v. Widener, 697 S.E.2d 779 (Ga. 2010). Where causation depends upon medical or technical matters outside the usual knowledge of the trier, and where it is required but not produced, the court may hold that causal proof fails as a matter of law. See Randall v. Benton, 802 A.2d 1211 (N.H. 2002) (evidence insufficient to show that, had psychiatrist complied with standard of care, decedent’s suicide would have been prevented). The difficulties of producing acceptable evidence in complex, toxic tort cases, can be substantial. Consequently, it has been suggested that as a matter of policy some relief from the burden would be appropriate in special cases. See Margaret A. Berger, Eliminating General Causation: Notes Towards a New Theory of Justice and Toxic Torts, 97 Colum. L. Rev. 2117 (1997). On the proof required in such cases, see Restatement Third of Torts (Liability for Physical and Emotional Harm) § 28 cmt. c (2010).
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Chapter 7. Defenses to Intentional Torts 294 results (showing 5 best matches)
- Criminal law self-defense rules
- The state has a general duty to protect children and it may remove children from the custody of abusive or neglectful parents. It may also criminally prosecute parents who abuse their children. As to the civil liability of parents under tort law, parents are still generally immune from liability in tort to their children in some states. Where the parental tort immunity has been abolished or limited, parents may still be privileged to carry out specific acts that, but for the privilege, would count as a tort. In particular, parents and those who act in the place of parents, are privileged to apply a degree of force or to impose confinement upon their minor children, a rule largely correlative with the parents’ duty to provide for their children.
- The common law rules for deadly traps, at least in the form of spring guns, may be modified indirectly because a number of statutes proscribe the use of spring guns altogether, with a provision of criminal penalties for a violation. While criminal-law rules do not automatically carry over into tort law, they often do. Criminal statutes against spring guns might be construed to abolish any privilege to use such guns, although that reading might leave other deadly mechanical devices available to the landowner under common law rules.
- Farmers Ins. Exchange v. State, 175 Cal.App.3d 494, 221 Cal.Rptr. 225 (1985). The police power locution is likely to be used when the plaintiff’s claim is grounded explicitly on the constitutional right to just compensation for taking of property, while the language of necessity is likely to be used when the plaintiff’s claim is grounded in common law tort.
- . The tort law standard is objective in the sense that it refuses to justify the use of force on the basis of bizarre perceptions. A chipper “good morning” from an acquaintance would not be perceived by a reasonable person as a harbinger of an imminent attack; thus a defendant who tries to use self-defense to justify a punch in the greeter’s nose would not succeed on that argument. But while the tort-law standard requires objective reasonableness, the facts actually known to the defendant are taken into account. Thus if the attacker knew that this seemingly friendly acquaintance had earlier threatened to stab him at their next meeting, the picture changes entirely and the defensive punch might be seen as entirely reasonable. A similar conclusion would follow if the attacker knew that this acquaintance has in the past exploded in violence after smiling and saying, “Good morning.” That is, the facts known to the defendant and all the perceptions of events that reasonably grow out of...
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Chapter 16. Fault of the Plaintiff 264 results (showing 5 best matches)
- Causation and Remoteness of Damage
- Current status of the defense
- According to the Restatement Third of Torts, the factors for assigning liability are both fault and “the strength of the causal connection between the person’s risk-creating conduct and the harm.” Restatement Third of Torts (Apportionment of Liability) § 8 (2000).
- 1 Dobbs, Hayden & Bublick, The Law of Torts § 231 (2011 & Supp.) (for a discussion of these cases as well as policy rationales suggested by courts).
- Reasons for the rule
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Chapter 21. Liability of Health Care Providers 441 results (showing 5 best matches)
- Use of federal standards in state law
- Role of state-law malpractice
- Statutes and their subsidiary regulations are a major presence in nursing home operation and litigation. At a minimum, they are part of the regulatory structure under which government agencies attempt both to finance nursing care and to bring that care up to minimal standards. The structure, the concepts, and the language of the statutes are heavily influenced by the regulatory culture out of which they grew, sometimes leading to imperfect coherence as documents of tort law. Statutes may create a private right of action; may be given negligence per se effect; or may restrict or revise remedies or impose procedural obstacles.
- See Providence Hospital, Inc. v. Willis, 103 A.3d 533 (D.C. 2014); McMillan v. Durant, 312 S.C. 200, 439 S.E.2d 829 (1993). As to standard of care for nurses, see 2 Dobbs, Hayden & Bublick, The Law of Torts § 301 (2d ed. 2011 & Supp.).
- § 21.5 & 21.6. In some cases, predetermined guidelines set by a government agency might be adopted as standards. See 2 Dobbs, Hayden & Bublick, The Law of Torts § 295 (2d ed. 2011 & Supp.).
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Chapter 19. Expanded Duties of Care: Carriers, Innkeepers and Fiduciaries 97 results (showing 5 best matches)
- Robert J. Kaczorowski, The Common-law Background of Nineteenth-Century Tort Law, 51 Ohio St. L. J. 1127, 1158 (1990), explains the difference: passengers and guests are not inanimate objects but can instead help take care of themselves.
- See, e.g., Booth v. Quality Carriers, Inc., 276 Ga.App. 406, 623 S.E.2d 244 (2005); see also 2 Dobbs, Hayden & Bublick, The Law of Torts § 260 (2d ed. 2011 & Supp).
- See 3 Harper, James & Gray, The Law of Torts 509 (2d ed. 1986).
- See 2 Dobbs, Hayden & Bublick, The Law of Torts § 265 (2d ed. 2011 & Supp.).
- See 3 Dobbs, Hayden & Bublick, The Law of Torts §§ 696 to 699 (2d ed. & Supp.).
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Chapter 18. Statutes of Limitation and Federal Preemption 145 results (showing 5 best matches)
- The defense
- See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). There is a continuing, divisive, and wide-ranging jurisprudence of preemption, which sometimes leads to the conclusion that tort law has not been displaced and that the claim can proceed. E.g., Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187 (2009). In a single case, a federal statute may be found to preempt some of the plaintiff’s state tort claims, but not others. See, e.g., Elam v. Kansas City S. Ry. Co., 635 F.3d 796 (5th Cir. 2011) (Interstate Commerce Commission Termination Act preempts plaintiffs’ negligence per se claim based on a state statute, but not their ordinary negligence claim in which they alleged that the railroad negligently failed to provide adequate warning of a train’s presence at a crossing). A statute may also be found to preempt claims by certain plaintiffs but not others. See, e.g...
- 1 Dobbs, Hayden & Bublick, The Law of Torts § 245 (2d ed. 2011 & Supp.).
- . As noted above, federal preemption occurs in a number of tort-law settings. For example, federal regulations govern the speed of railroad trains under some circumstances. These regulations have been construed to preempt state law. So the plaintiff injured by a fast-moving train is defeated when the railroad can show that the speed of the train complied with the limits set by the federal government, regardless of whether the speed was unreasonable in the given locality. Similarly, a plaintiff hit by a train at a railroad crossing who claims that the railroad was negligent for failing to install adequate warning signs at a railroad crossing will lose completely on preemption grounds if the court finds that federal regulations specified the kinds of warnings that should be installed, at least where federal funds were used as well, and the defendant did install such warnings. Preemption has been a major issue in the field of products liability, and gets longer and separate treatment...
- Noncompliance with a preemptive federal statute bars the state-law claim but may leave the defendant subject to federal criminal or administrative penalties that do not assist the injured plaintiff. In Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001), the plaintiffs injured by the defendant’s medical product alleged that the defendant had secured permission to market the product by fraud on the federal regulatory agency, the FDA. The Court held that the tort claim was preempted because it would conflict with administration of the law by the federal agency, noting that the FDA itself could impose civil penalties, pursue criminal sanctions, or seize the products.
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Chapter 10. Duty and the Ordinary Standard of Reasonable Care under the Circumstances 342 results (showing 5 best matches)
- See Richard Epstein, The Path to the T.J. Hooper: The Theory and History of Custom in the Law of Tort, 21 J. Leg. Studies 1 (1992) (especially helpful on the question of who is to be bound by a custom).
- See David E. Seidelson, Reasonable Expectations and Subjective Standards in Negligence Law: The Minor, The Mentally Impaired, and the Mentally Incompetent, 50 Geo. Wash. L. Rev. 17 (1981); Allen Linden, Canadian Tort Law 132 (5th ed. 1993); Restatement Third of Torts (Liability for Physical and Emotional Harm) § 10 (c) cmt. f (2010).
- . Finally, some authorities have suggested that tort liability will provide proper incentives to those “in charge” of the insane person to control his conduct. This point does not seem quite right. If one in charge is negligent in failing to control the insane person, he will be liable for his own negligence. If incentive is obtainable in the law of negligence, liability of the caretaker for his own negligence should be more effective than liability of the insane person himself. If the caretaker is not negligent but on the contrary has exercised optimum care to control the insane person, there is no reason to give him incentives to do more.
- Civil law alternatives
- Reckless, willful or wanton conduct—common law
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Chapter 15. Scope of Liability (Proximate Cause) 270 results (showing 5 best matches)
- When the defendant is held liable for the preexisting condition itself and not merely for aggravation of it, it is not because of the thin-skull rule but the indivisible injury rule. See 1 Dobbs, Hayden & Bublick, The Law of Torts § 192 (2d ed. 2011 & Supp.).
- The backside of the general rule that insulates the defendant from liability in cases of unforeseeable intervening criminal acts is that if a criminal or intentional intervening act is foreseeable, or is part of the original risk negligently created by the defendant in the first place, then the harm is not outside the scope of the defendant’s liability—or as most courts still put it, the criminal or intentional act is not a superseding cause. The rule has been applied in civil rights claims as well as in common law tort claims.
- See Denis Binder, Act of God? Or Act of Man?: A Reappraisal of the Act of God Defense in Tort Law, 15 Rev. Litig. 1 (1996).
- See 3 Dobbs, Hayden & Bublick, The Law of Torts §§ 489 & 490 (2d ed. 2011 & Supp.).
- Restatement Second of Torts § 442B (1965). See also Restatement Third of Torts (Liability for Physical and Emotional Harm) § 34 cmt. d (2010) (“When an actor is found negligent precisely because of the failure to adopt adequate precaution against the risk of harm created by another’s acts or omissions, or by an extraordinary force of nature, there is no scope-of liability limitation on the actor’s liability.”).
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Chapter 25. Limiting Liability for Non-Action 140 results (showing 5 best matches)
- See Richard Epstein, A Theory of Strict Liability, 2 J. Leg. Studies 151, 198 ff. (1973); Philip W. Romohr, A Right/Duty Perspective on the Legal and Philosophical Foundations of the No-Duty-to-Rescue Rule, 55 Duke L.J. 1025 (2006); James A. Henderson, Jr., Process Constraints in Tort, 67 Cornell L. Rev. 901 (1982); Saul Levmore, Waiting for Rescue: An Essay on the Evolution and Incentive Structure of the Law of Affirmative Obligations, 72 Va.L.Rev. 879, 938 (1986); David A. Hyman, Rescue Without Law: An Empirical Perspective on the Duty to Rescue, 84 Tex. L. Rev. 653 (2006); Marin Roger Scordato, Understanding the Absence of a Duty to Reasonably Rescue in American Tort Law, 82 Tul. L. Rev. 1447 (2008).
- . To recognize a duty of care based on the defendant’s undertaking is fully consonant with modern tort thinking, but, as always, the duty issue ultimately turns on the courts’ sense of policy and justice. Consequently, even if the defendant has undertaken to act for the plaintiff’s safety, the court may conclude that a duty of care is unwarranted on the facts of the particular case. In a Massachusetts case, a tenant promised the landlord that the tenant would clear snow and ice from the property. The plaintiff was employed on the property, though not by the tenant. She fell on a patch of ice. Since the tenant owed no common law duty to clear the ice, the plaintiff relied upon the tenant’s promise to the landlord. But the defendant’s promise to the landlord was not intended for the benefit of third persons and Massachusetts has a strong policy against imposing snow-clearance duties. So not surprisingly, the court refused to permit the tenant’s promise to create a tort duty.
- On the shifting-responsibility concept, see 1 Dobbs, Hayden & Bublick, The Law of Torts § 213 (2d ed. 2011 & Supp.).
- H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896 (1928). For a discussion of how relates to modern approaches to undertakings, see 2 Dobbs, Hayden & Bublick, The Law of Torts 412 (2d ed. 2011 & Supp.).
- Restatement Second of Torts § 314, Illus. 1 (1965). See also Restatement Third of Torts (Liability for Physical and Emotional Harm) § 37 & 38 (2010) (covering the same ground, also making it clear that the defendant does not escape liability if he has himself created a risk of physical harm).
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Chapter 31. Vicarious Liability for Physical Harms 179 results (showing 5 best matches)
- Respondeat superior is not the only kind of vicarious liability. Conspirators, those who act in concert, partners, and joint enterprisers are all vicariously liable for the acts of each other committed as part of their agreed-upon activity. See 2 Dobbs, Hayden & Bublick, The Law of Torts § 435 (2d ed. 2011 & Supp.).
- In many cases, perhaps most, an employee’s intentional torts are purely personal acts and thus not within the scope of employment. An employee strikes a customer because of his personal grudge. Nothing more appearing, the tort is the employee’s tort and the employer is not liable. In recent years the reported cases have often involved sexual assaults or other sexual behavior of an employee. Intentional sexual torts, like other violent conduct, is often personal to the employee, so that the employer is usually not found liable.
- Some public employers are also subject to vicarious liability for employee torts. See, e.g., Mary M. v. City of Los Angeles, 54 Cal.3d 202, 814 P.2d 1341, 285 Cal.Rptr. 99 (1991); Melin-Schilling v. Imm, 149 Wash.App. 588, 205 P.3d 905 (2009). In actions brought under the Federal Tort Claims Act, however, only the government employer is liable for the torts committed by the employee within the scope of employment. See §§ 335 & 351. The same is true under many state tort claims acts. See, e.g., Vaughn v. First Transit, Inc., 346 Or. 128, 206 P.3d 181 (2009). Further, respondeat superior liability of the employer is unavailable when a plaintiff seeks damages from a municipality under federal civil rights laws. Monell v. City of New York, 436 U.S. 658 (1978); see § 22.16.
- Tort law is assuredly imperfect, but it usually attempts to hold individuals accountable for their wrongs and only for their wrongs. Although pockets of strict liability exist, such liability is relatively rare. Consequently, vicarious liability under the doctrine of respondeat superior, which is strict in the sense that it holds an employer liable without the employer’s personal fault, seems to require some explanation.
- Young B. Smith, Frolic and Detour, 23 Colum. L. Rev. 444, 456 (1923); see also George L. Priest, The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law, 14 J. Leg. Stud. 461, 47–83 (1985).
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Chapter 38. Privacy 135 results (showing 5 best matches)
- Gist of the tort
- . Given a reasonable expectation of privacy, the intentional and highly offensive intrusion that defeats the expectation is itself tortious. If that intrusion is carried out under color of law, it may violate the standards of the Fourth Amendment or Due Process clause and be actionable as a civil rights tort under § 1983. Intrusions that would not be highly offensive to a reasonable person are not actionable under the tort. One factor that may be relevant to evaluating offensiveness to a reasonable person is the value of the social interest in disclosure that rivals the privacy interest. In addition to a highly offensive intrusion, the Restatement’s version of this tort requires intent, presumably intent to commit the act that the court considers an intrusion. A knowing and reckless falsehood known to lead to the intrusion may be adequate.
- Perhaps most of the cases of false light are cases of defamatory communications, appropriation of name or likeness, intrusive invasion of privacy followed by publication of matters wrongfully gained in the intrusion, or some other tortious activity. In all of these cases the plaintiff would be entitled to recover for the harms done by placing her in a false light, even if there were no separate false light tort. Consequently, a serious question is raised whether the false light tort is a helpful addition to the armory or merely another piece of baggage that gets in the way. In addition, the false light claim always involves publication or publicity and hence is either entitled to some kind of constitutional and common law free speech protection or else is merely an evasion of those constitutional protections.
- E.g., Hamberger v. Eastman, 106 N.H. 107, 206 A.2d 239 (1964); Roach v. Harper, 143 W.Va. 869, 105 S.E.2d 564 (1958). Statutes provide an independent ground for relief in the case of wiretapping. See 3 Dobbs, Hayden & Bublick, The Law of Torts § 584 (2d ed. 2011 & Supp.).
- Scope of the tort
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Chapter 44. Economic Harm to Intangible Interests by Conversion or Spoliation 89 results (showing 5 best matches)
- Rejecting the tort claim
- Independently of tort rules, restitution doctrine refuses to permit restitution for breach of contract where the defendant’s only remaining obligation is to pay the plaintiff money. See, e.g., 3 Dan B. Dobbs, Law of Remedies § 12.7(5) (2d ed. 1993). The effect of this rule is to limit the plaintiff to the contract price and to prevent recovery of whatever gains the defendant made by reason of his breach.
- See, e.g., Giles v. General Motors Acceptance Corp., 494 F.3d 865 (9th Cir. 2007) (at least where a duty is imposed by law independent of the contract duty, an economic loss claim can proceed in tort, permitting a claim for conversion of funds).
- . Under the traditional common law rules, the action for conversion would lie only for interference with rights in tangible personal property. or for the use of the plaintiff’s ideas. In the same way, infringement of a copyright or trademark, interference with business opportunities, the “taking” of one’s personality or performance for commercial purposes, the misappropriation of trade secrets, and the misappropriation of ideas may all be torts, but under the traditional rule such actions could not constitute conversion. The rule limiting the conversion action is thus not necessarily a claim-destroying rule. Instead it is often merely a channeling rule, guiding claims for stand-alone economic harm to the most appropriate tort analysis.
- Recognizing the tort claim
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Chapter 34. Damages 187 results (showing 5 best matches)
- Tort reform
- Damages as an element of a claim in negligence but not intentional torts
- The arguments on both sides are considered in 3 Dobbs, Hayden & Bublick, The Law of Torts § 502 (2d ed. 2011 & Supp.).
- This interest is arguably absent when the defendant dies, as some courts have recognized in barring the recovery of punitive damages for personal injuries after the death of the defendant. See Vincent v. Alden-Park Strathmoor, Inc., 241 Ill.2d 495, 350 Ill.Dec. 330, 948 N.E.2d 610 (2011). Wrongful death statutes sometimes alter this result, either explicitly or as interpreted by courts. See 2 Dobbs, Hayden & Bublick, The Law of Torts § 375 (2d ed. 2011 & Supp.).
- These issues are all discussed at greater length in 3 Dobbs, Hayden & Bublick, The Law of Torts § 479 (2d ed. 2011 & Supp.).
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Chapter 23. Family Members and Charities 74 results (showing 5 best matches)
- Domestic violence torts
- History of parental immunity
- . General principles of tort law hold that each person is responsible for the harm he negligently causes. He is not relieved of liability for negligence merely because on other occasions he has behaved with charity and generosity towards others. From time to time, however, courts or legislatures appear to forget these principles and relieve certain defendants of liability for negligently caused harm on the ground that, although their conduct was negligent, the injury was inflicted in the course of kindness or charity. For example, guest statutes once relieved the negligent automobile driver of all liability to his guest. The guest was expected to be so grateful for the ride that the little matter of negligent injury should be forgotten.
- E.g., Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15 (1957) (relying on Married Women’s Property Act); Klein v. Klein, 58 Cal.2d 692, 376 P.2d 70, 26 Cal.Rptr. 102 (1962) (compensation for tort is the fundamental principle in the absence of compelling policy against it); Waite v. Waite, 618 So.2d 1360 (Fla. 1993); Boone v. Boone, 345 S.C. 8, 546 S.E.2d 191 (2001) (immunity was so repugnant that court would refuse to apply its normal choice of law rule to injury that occurred in Georgia, but would apply the South Carolina rule permitting spousal suits instead); Ellis v. Estate of Ellis, 169 P.3d 441 (Utah 2007) (rejecting immunity rationales, and holding that interspousal immunity has been abrogated for all tort claims by Married Women’s Act); Price v. Price, 732 S.W.2d 316 (Tex. 1987). Statutes abolish the immunity in some states. E.g., Haw. Rev. Stat. § 572–28; 750 Ill.Comp.Stat. 65/1; N.C. Gen. Stat. § 52–5.
- . Courts first developed a large number of exceptions or modifications that varied from state to state. Most adopted one or more of the following rules. They said that charities would be liable (1) to the extent they have assets that form no part of the charitable trust assets, for example, to the extent that liability was covered by insurance, or had assets not part of the charitable funds; (2) for their torts to strangers, that is, to persons who do not receive the benefactions of the charity; (3) for the torts of upper level management, including negligence in hiring or retaining dangerous employees; (4) to beneficiaries of the charity who actually pay for the services that cause harm, at least to the extent that a judgment can be enforced against non-charitable assets,
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Chapter 12. Breach of Duty 213 results (showing 5 best matches)
- Richard A. Epstein, The Path to the T.J. Hooper: The Theory and History of Custom in the Law of Tort, 21 J. Leg. Studies 1 (1992); cf. Richard A. Posner, Economic Analysis of Law § 6.3 (4th ed. 1992). (suggesting that as between industry and its customers, level of precaution taken by industry is “likely to be efficient” and hence that compliance with that custom should be a defense).
- David Barnes & Lynn Stout, The Economic Analysis of Tort Law 38 (1992), suggests something like this, reading the Hand formula to mean “victims suffer so that actors may prosper,” and suggesting that in non-reciprocal risk cases like the manufacturer-consumer case, using the Hand formula might have “distributional” implications.
- See Richard A. Epstein, The Path to the T.J. Hooper: The Theory and History of Custom in the Law of Tort, 21 J. Leg. Studies 1 (1992). Cf. Morgan v. Scott, 291 S.W.3d 622 (Ky. 2009) (internal standard of dealership forbidding test drives without a dealership employee in the car; failure to follow own guideline not dispositive).
- . Some criticisms of the Hand approach do not attack the underlying ideas of the formula so much as the claim that it promotes efficiency and appropriate safety incentives. In this group, some criticisms offer more or less technical variations or improvements on the formula. Others deny that tort law provides incentives at all and hence suggest that the Hand formula might be irrelevant unless it serves other purposes.
- Robert Cooter & Ariel Porat, Does Risk to Oneself Increase the Care Owed to Others? Law and Economics in Conflict, 29 J. Leg. Stud. 19 (2000). Restatement Third of Torts (Liability for Physical and Emotional Harm) § 3 cmt. b (2010) supports this view.
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Chapter 26. Duty to Protect from Third Persons and from Self-Harm 260 results (showing 5 best matches)
- Many cases have tried to resolve the matter on scope of liability (proximate cause) grounds, which is problematic. See 2 Dobbs, Hayden & Bublick, The Law of Torts § 413 (2d ed. 2011 & Supp.).
- State tort law may defeat claims like the one in on the basis of immunity. See Marshall v. Montgomery County Children Services Bd., 92 Ohio St. 3d 348, 750 N.E.2d 549 (2001).
- See Union Carbide & Carbon Corp. v. Stapleton, 237 F.2d 229, 69 A.L.R.2d 1206 (6th Cir. 1956) (emphasizing employee’s reliance, expectation, and the affirmative action of the employer in requiring physical exams); Coffee v. McDonnell-Douglas Corp., 8 Cal. 3d 551, 503 P.2d 1366, 105 Cal. Rptr. 358 (1972) (pre-employment exam, relationship of the parties created when defendant undertook the examination); Dornak v. Lafayette General Hospital, 399 So.2d 168 (La. 1981) (pre-employment exam). As to the physician’s personal duty to the pre-employment examinee, see 2 Dobbs, Hayden & Bublick, The Law of Torts § 286 (2d ed. 2011 & Supp.).
- The rule that no one owes a duty to control others is a particular instance of the general rule that nonfeasance is not a tort unless there is a duty to act.the no-duty-to-control rule has no logical application when the defendant is affirmatively negligent in creating a risk of harm to the plaintiff through the instrumentality of another or otherwise.
- Formal custody has been of controlling importance in the analysis of federal civil rights duties to protect from third persons. The Supreme Court has recognized that the custodial relationship imposes affirmative duties upon a custodian, both in the case of a prisoner In the the county department of social services took temporary custody of a small child, Joshua, because of evidence that he was being abused by his father. The department returned the child to his father under an agreement with the father that established the department’s right to monitor Joshua’s safety. The department in fact regularly sent a caseworker, but in spite of mounting evidence that he was being savagely beaten, the caseworker did nothing to regain control. Joshua’s father’s beatings finally produced profound brain damage and left Joshua confined for life in an institution for the profoundly retarded. The Court held, however, that the department did not have custody of Joshua even though it had the...
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Chapter 17. Assumption of the Risk 156 results (showing 5 best matches)
- Assumption of Risk and Consent in the Law of Torts: A Theory of Full Preference, 67 B.U. L. Rev. 213 (1987).
- See, e.g., Murphy v. North Am. River Runners, Inc., 186 W.Va.310, 412 S.E.2d 504 (1991); see also Restatement Second of Torts § 496B & cmt. b (1965) (allowing express waivers of “negligent or reckless conduct”). The Restatement Third would go one step further and accept a release of “intentional or reckless conduct” and even “an intentional tort.” Restatement Third of Torts (Apportionment of Liability) § 2 cmts. g & f (2000). It seems unlikely that many, if any courts, will extend acceptance of exculpatory clauses this far, at least when the intentional tort involves an intent to harm.
- See Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 807 A.2d 1274 (2002) (giving history of assumption of risk, including primary and secondary forms, citing many cases from various states). See also Dilan A. Esper & Gregory C. Keating, Abusing “Duty,” 79 S. Cal. L. Rev. 265, 292 (2006) (analyzing development of “primary” and “secondary” terminology). Torts scholar Fleming James appears to have invented the terminology as a matter of bringing some coherence to the law by distinguishing contributory negligence from the absence of duty, long before the widespread adoption of comparative fault principles. See Fleming James, Jr., Contributory Negligence, 62 Yale L.J. 691 (1953).
- See, e.g., Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 885 A.2d 734 (2005) (justifying stricter scrutiny because “exculpatory provisions undermine the policy considerations governing our tort system”); Plant v. Wilbur, 345 Ark. 487, 47 S.W.3d 889 (2001) (exculpatory contracts are “strictly construed against the party relying on them” because of the “public policy concern encouraging the exercise of care”); Fujimoto v. Au, 95 Haw. 116, 19 P.3d 699 (2001) (“Exculpatory contracts are not favored by the law because they tend to allow conduct below the acceptable standard of care.”).
- Restatement Third of Torts (Apportionment of Liability) § 2 (2000); Restatement Second of Torts § 496B (1965). Some courts limit the enforceability of releases to particular types of activity and hold releases in other contexts void for public policy reasons. See, e.g., Vodopest v. MacGregor, 128 Wash.2d 840, 913 P.2d 779 (1996) (releases generally valid only in the context of “adult high-risk sports activities”). Others have taken the opposite approach and have struck down releases in particular contexts, leaving them potentially enforceable outside those settings. See, e.g., Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) (even well-drafted releases void in the recreational-activity setting).
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Chapter 20. Premises Liability 323 results (showing 5 best matches)
- Restatement Second of Torts §§ 337 & 338 (1965). The Third Restatement, in a comment, is largely in accord on this point, requiring that a landowner be “aware of the existence and plight of a flagrant trespasser” before a duty of reasonable care arises. Restatement Third of Torts (Liability for Physical and Emotional Harm) § 52(b), cmt. g (2012).
- See McGettigan v. National Bank of Washington, 320 F.2d 703, 706 (D.C. Cir. 1963). Holmes’ decision in was rendered in the days before Erie R.R. v. Tompkins, 304 U.S. 64, 82 L.Ed. 1188, 58 S.Ct. 817 (1938). After the decision in , the federal common law of torts more or less ceased to exist, so it would now be difficult for the Court directly to overrule the
- E.g., Skinner v. South Carolina Dep’t of Transp., 383 S.C. 520, 681 S.E.2d 871 (2009) (landowner owed no duty to motorists with respect to naturally-occurring ruts on the shoulder of road that caused car accident); see Restatement Second of Torts § 363 (1965). Cf. Restatement Third of Torts (Liability for Physical and Emotional Harm) § 54(b) (2012) (for natural conditions on land that pose a risk of physical harm to those outside the land, the landowner has a duty of reasonable care if the land is commercial, but otherwise owes such a duty only if the he knows of the risk, or if the risk is obvious to him).
- Restatement Second of Torts § 339 (1965). See, e.g., Croaker v. Mackenhausen, 592 N.W.2d 857 (Minn. 2009) (applying the “reason to know” test, finding defendant had no reason to know of child’s trespass). “Reason to know” is not necessarily actual knowledge of the fact in question, but it is knowledge of specific facts that would lead to an inference of such a fact. See Restatement Second of Torts § 12 (1965).
- Restatement Second of Torts § 359 (1965); see Lopez v. Superior Court, 45 Cal.App.4th 705, 52 Cal.Rptr.2d 821 (1996). The Third Restatement places a landlord under a duty of reasonable care for any dangerous condition on the leased premises at the time the lessee takes possession, if the lease is for a purpose that includes admitting the public to the premises and the landlord has reason to believe that the lessee will admit persons onto the premises without rectifying the dangerous condition. Restatement Third of Torts (Liability for Physical and Emotional Harm) § 53(d) (2012).
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Chapter 45. Legal Malpractice 208 results (showing 5 best matches)
- See Credit Union Central Falls v. Groff, 966 A.2d 1262, 1271 (R.I. 2009) (“The attorney-client relationship is contractual in nature and the gravamen of an action for attorney malpractice is the negligent breach of a contractual duty.”); see also Horn v. Wooster, 165 P.3d 69 (Wyo. 2007) (“Although the standard of care element reflects the law of torts, we have consistently held the legal relationship between an attorney and his client is contractual in nature.”).
- See 4 Dobbs, Hayden & Bublick, The Law of Torts § 724 (2d ed. 2011 & Supp.) (breach of fiduciary duty by lawyers); 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 15:2 (2009 ed.) (hereinafter Mallen & Smith, Legal Malpractice).
- Griva v. Davison, 637 A.2d 830 (D.C. 1994) (violation of ethic rule can constitute a breach of fiduciary duty to the client); see also Ronald D. Rotunda & John S. Dzienkowski, Legal Ethics—The Lawyer’s Deskbook on Professional Responsibility § 1–9(c)(3) (2010–11 ed.) (discussing many complexities about the uses of ethics rules in civil cases); 4 Dobbs, Hayden & Bublick, The Law of Torts § 724 (2d ed. 2011 & Supp.).
- Most states allow recovery of punitive damages against lawyers in legal malpractice cases, but only where the lawyer engages in particularly egregious misconduct. See 4 Dobbs, Hayden & Bublick, The Law of Torts § 731 (2d ed. 2011 & Supp.). For a discussion of punitive damages generally, see id. § 483. Liability for punitive damages that were lost because of the lawyer’s negligence in the underlying case is discussed in § 45.12.
- See e.g., Collins v. Reynard, 154 Ill.2d 48, 607 N.E.2d 1185 (1992) (allowing pleading in the alternative); Pancake House, Inc. v. Redmond, 239 Kan. 83, 716 P.2d 575 (1986) (“Where the essential claim of the action is a breach of a duty imposed by law upon the relationship of attorney/client and not of the contract itself, the action is in tort”); Christensen & Jensen, P.C. v. Barrett & Daines, 194 P.3d 931 (Utah 2008) (clients wronged by their lawyers may sue based on negligence, breach of contract, or breach of fiduciary duty); see also Ray Ryden Anderson & Walter W. Steele, Jr., Fiduciary Duty, Tort and Contract: A Primer on the Legal Malpractice Puzzle, 47 SMU L. Rev. 235 (1994).
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Chapter 13. Proving Negligence Claims 151 results (showing 5 best matches)
- See, e.g., Blount v. Bordens, Inc., 910 S.W.2d 931 (Tex. 1995). For a fuller discussion of issues related to circumstantial evidence and presumptions from proof, see 1 Dobbs, Hayden & Bublick, The Law of Torts § 166 (2d ed. 2011 & Supp.)
- For a fuller discussion of joint actors cases and superior knowledge as a rationale in res ipsa loquitor see 1 Dobbs, Hayden & Bublick, The Law of Torts § 174 (2d. ed. 2011 & Supp.).
- See Mark P. Gergen, The Jury’s Role in Deciding Normative Issues in the American Common Law, 68 Fordham L. Rev. 407 (1999); F. Patrick Hubbard, The Nature and Impact of the “Tort Reform” Movement, 35 Hofstra L. Rev. 437, 454 n.67 (2006) (“juries provide community input on norms of behavior by giving contextual specificity to wrongdoing”).
- Restatement Third of Torts (Liability for Physical and Emotional Harm) § 17 (2010) puts the point affirmatively, that the accident must be of the type that ordinarily occur as a result of negligence. Restatement Second of Torts § 328D (1965) uses the negative formulation. David Kaye, Probability Theory Meets Res Ipsa Loquitur, 77 Mich L. Rev. 1456, 1476 (1979).
- That Restatement criticizes some of the other common formulations including one most like that stated in the text above. See Restatement Third of Torts (Liability for Physical and Emotional Harm) § 17 cmt. b (2010).
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Chapter 39. Misusing Judicial Process 201 results (showing 5 best matches)
- The abuse of process tort could readily be integrated with the malicious prosecution and wrongful litigation torts, but the traditional view treats them as separate torts with distinct elements. If the plaintiff can show instigation of a suit for an improper purpose without probable cause and with a termination favorable to the now-plaintiff, she has a malicious prosecution or a wrongful litigation claim, not a claim for abuse of process. Conversely, if the plaintiff cannot show those elements, she may still have a good abuse of process claim. Specifically, the abuse of process claim permits the plaintiff to recover without showing the traditional absence of probable cause for the original suit and without showing favorable termination of that suit. The abuse of process claim may also permit the plaintiff to avoid the special-injury requirement applied in some wrongful litigation cases.
- An aggrieved plaintiff may be able to bring a federal constitutional or civil rights claim under narrow circumstances. See 3 Dobbs, Hayden & Bublick, The Law of Torts § 597 to 600 (2d ed. 2011 & Supp.).
- See DeVaney v. Thriftway Mktg. Corp., 124 N.M. 512, 953 P.2d 277 (1997) (eliminating the termination requirement and permitting counterclaims for wrongful civil litigation, as well as restructuring the wrongful litigation and abuse of process torts as a single tort called “malicious abuse of process”); see also Fleetwood Retail Corp. of New Mexico v. LeDoux, 142 N.M. 150, 164 P.3d 31 (2007) (modifying one aspect of , but retaining its essential reforms); Durham v. Guest, 145 N.M. 694, 204 P.3d 19 (2009) (tort does not require the plaintiff to prove that the defendant initiated judicial proceedings against the plaintiff, overruling on that point; plaintiff need only show some improper use of process in a proceeding).
- An important question arises when the defendant believes that he has reported the information accurately to the prosecutor but it is in fact false, so that by honest error the prosecutor is misled. The Restatement Second of Torts and most cases protect the defendant who honestly believes the information he has furnished the prosecutor, even if it turns out to be false. For example, if the defendant honestly identifies the plaintiff as the person who committed a crime, the plaintiff is not an instigator of the prosecution and not liable even though the identification is in fact false. In effect, this requires a knowing or reckless falsehood. The danger of penalizing one who cooperates with law enforcement is so great that it is appropriate to require more than negligence.
- . Damages awardable for malicious prosecution, wrongful civil litigation and abuse of process are dependent upon the facts and upon proof of losses, but when evidence shows the harm claimed, the principles of damages are essentially the same with all three torts. As with all torts, recovery is limited to those harms fairly attributable to the defendant’s wrongful acts. Compensatory damages for tangible losses or harm normally include reasonable attorney’s fees and other expenses incurred in defending the wrongful criminal or civil litigation damages for dispossession of or cloud on the title of property and for physical illness or pain resulting from the tort, subject to the usual limitations that they must result proximately from the wrong and that damages will not be awarded for speculative or conjectural items of loss. Punitive damages can be awarded against the tortfeasor, subject to all the rules governing such awards in the particular jurisdiction.
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Chapter 30. Nuisance 135 results (showing 5 best matches)
- Two increasingly clear perceptions facilitate a reasonably coherent understanding of nuisance law. First, if public and statutory nuisance cases are set aside for separate analysis, some paths can be marked in the remaining private nuisance tort. Second, private nuisance does not describe any particular conduct of the defendant, but rather a type of harm suffered by the plaintiff—impaired enjoyment of rights in land.
- See Restatement Second of Torts § 821D, cmt. e (1979). But that only means that in some cases courts will allow the plaintiff to have the advantage of the more favorable rules, usually the rules of the trespass regime. The problem of tree branches overhanging the plaintiff’s land is a good example. If treated as a trespass, the plaintiff could sue for trivial and even desirable intrusions of foliage or roots. If treated as a problem in nuisance law, the plaintiff would be limited to self-help remedies unless the incursions substantially reduced reasonable use and enjoyment of the plaintiff’s land. See §§ 5.6 & 5.7; Fancher v. Fagella, 274 Va. 549, 650 S.E.2d 519 (2007).
- See Marshall S. Shapo, Principles of Tort Law ¶ 36.04, at 195 (2003).
- Restatement Second of Torts § 821B (1979). Sometimes courts emphasize that a public nuisance interferes with the rights of a sizeable number of persons, a formula that may lose the idea of a public right.
- . A person who enters another’s land may be a trespasser, and liable for interference with the landowner’s right to possession, even if the land is not harmed. But if the invasion is accomplished with noxious odors or electromagnetic radiation, there is no trespass claim under traditional law, because there is no interference with possession. Instead, liability in such cases is for nuisance, which protects the landowner’s interest in the use and enjoyment of the At the same time, they have sometimes used the word to describe the tort but have then proceeded to apply at least some of the rules of nuisance.
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Summary of Contents 66 results (showing 5 best matches)
Table of Contents 325 results (showing 5 best matches)
Chapter 24. Professional Risk-Takers 89 results (showing 5 best matches)
- . Besides the limits implicit in the rule itself, some courts have begun to reject any special rule for firefighters, officers, and others who must confront danger. Where assumed risk has been abolished as a separate doctrine, and where the special landowners’ rules have been abolished as well, the formal supports for the doctrine are shaky. The Restatement Third of Torts takes “no position” on the firefighters’ rule or its scope, but notes that the Restatement’s adoption of a duty of reasonable care owed to licensees undercuts one traditional justification for the rule. Even where the landowners’ rules are retained, they offer no support for the firefighters’ rule as applied to injuries outside the land. For reasons like these, the Supreme Court of Oregon abolished the rule, or counseled a cautious or narrow use of the rule. The English House of Lords noted the American adoption of the rule and summarily dismissed the whole idea.
- . Some courts suggested that the safety officer would collect workers’ compensation or similar benefits from the public employer and that if the negligent defendant were required to pay tort damages, the defendant would pay twice, once indirectly as a taxpayer and again as a tortfeasor. One difficulty with this argument is that it was not applied in other instances of public employee injury. Even in its own terms, it did not work. The public employer who paid compensation benefits to the injured firefighter would in fact recoup some or all of the payments from the tort recovery against the negligent defendant.
- Intentional or reckless torts that occasion the officer’s presence
- In some cases the shift is explicit, as in Hack v. Gillespie, 74 Ohio St.3d 362, 658 N.E.2d 1046, 1049 (1996). For a newer take on rationales that support retaining at least a limited form of the firefighters’ rule, see Gerritt De Geest, Who Should Be Immune From Tort Liability?, 41 J. Legal Stud. 291 (2012).
- Restatement Third of Torts (Liability for Physical and Emotional Harm) § 55 illus. 4 (2012).
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Index 1065 results (showing 5 best matches)
Advisory Board 9 results (showing 5 best matches)
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Professor of Law, University of Virginia School of Law
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Acknowledgments 3 results
- For excellent help with many facets of research, editing, revising and cite-checking, Professor Bublick would like to thank John Salvatore, Nick Lucie, Jana Sutton, Tyler Broker, Brooke Bedrick and Matt Mittlestadt. Thanks also to the James E. Rogers College of Law library, under the Directorship of Mike Chirorazzi, and the assistance of top reference librarian Maureen Garmon. Finally, many thanks to the hard work and professionalism of the Arizona Law Review, particularly, Raisa Ahmad, Alexis Brooks, Margo Casselman, Adam Cirzan, Creighton Dixon, Brett Gilmore, Lindsey Huang, Dan Roberts, Elizabeth Robertson, Christopher Sloot, and Mitch Turbenson, for their able and speedy assistance with hundreds of pages of proofs. No teachers are as lucky as we for the talent, vitality and energy of their students. Finally, thanks to Dean Marc Miller and Associate Dean Chris Robertson for their support of research at the college and of this book in particular.
- Professor Hayden adds thanks to all the research librarians at Loyola Law School, under the leadership of Professor Dan Martin, and all the administrative assistants in faculty support, under the leadership of Pam Buckles.
- This book could not have been published without the dedicated work of many, many people, to whom we are deeply indebted. First and foremost, thanks are due to David Jacobs and Rose Hayden for their exhaustive review and edits of this full work. Thanks too to our fine colleagues at West Academic, who are a delight to work with, and make the whole process of writing and publishing a pleasure.
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Table of Cases 908 results (showing 5 best matches)
- Crain v. The Unauthorized Practice of Law Comm. of the Supreme Court of Tex........................................................ 967
- Certification of a Question of Law from the United States District Court, In re..... 524, 623
- Beck v. Law Offices of Edwin J. (Ted) Terry, Jr., P.C................................................ 1164
- Board of Regents of the University System of Georgia v. Riddle.............................. 576
- Monell v. Dep’t of Social Services of the City of New York..................... 89, 583, 586, 587
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Title Page 4 results
Half Title 1 result
Copyright Page 4 results
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- is a trademark registered in the U.S. Patent and Trademark Office.
- West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.
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- Publication Date: December 29th, 2015
- ISBN: 9781628101478
- Subject: Torts
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This single-volume hornbook provides a comprehensive overview of tort and injury law. The book covers all of the major topics in tort law. Topics include liability for physical injuries, as well as emotional, dignitary, and economic harms. This newly-updated edition includes citations to hundreds of cases and statutes decided over the last decade, as well as references to the Restatement (Third) of Torts.
