Principles of Tort Law
Author:
Shapo, Marshall S.
Edition:
4th
Copyright Date:
2016
70 chapters
have results for Principles of Tort Law
Chapter Twelve. Intentional Infliction of Emotional Distress 56 results (showing 5 best matches)
- Tort law is a relatively flexible kind of law, but courts always seek to ground their decisions in principle. Given that goal, a particular puzzle posed by the intentional infliction tort lies in its relative lack of principle. One commentator has sought to rationalize this phenomenon by suggesting that it is essential to the doctrine because it “provide[s] the basis for achieving situational justice.”
- The bedrock of tort law protection for human dignity lies in the traditional intentional torts of assault, battery and false imprisonment. The assault tort, in particular, vindicates the emotional interest in being free from apprehension of a harmful or offensive physical conduct. However, increased understanding in the twentieth century of the realities of emotional life, and perhaps a more aspirational attitude on the part of courts, led to a belief at mid-century that the law should give further protection to emotional interests than the traditional theories provided.
- The law had in fact been doing this for a generation and more, without placing particular doctrinal labels on results. For example, in various jurisdictions, courts granted recovery for emotional distress caused by extremely culpable conduct on the part of bill collectors. Other courts permitted recovery for anguish caused by the mishandling of dead bodies. With these and other decisions in mind, Dean Prosser ventured a synthesis of case law that would give recovery for a tort defined as “intentional infliction of emotional led to a Restatement section, discussed just below. The tort has now won almost universal acceptance among American courts.
- There is a tradition in the common law of sexual harassment that the “view … apparently, [is] that there is no harm in asking,” a phrase cemented in the literature in an article by a Harvard law professor who became a well-regarded judge. Calvert Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv. L. Rev. 1033, 1055 (1936). Presenting an elaborate set of variations on this philosophy were a number of “anti-heartbalm” statutes, many of them passed in the 1930s, which outlawed such actions as seduction, breach of promise to marry, and alienation of affections. See infra, ¶ 14.03. Yet, outright lying or nondisclosure may support an action, especially when the deceiver falsely claims that he does not have sexually transmissible disease, or withholds his knowledge that he has one. See infra, ¶ 17.02.
- Id. (referring to W. Prosser and W. P. Keeton, The Law of Torts, § 12 at 64 (5th ed. 1984)).
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Section One. Tort Law and Its Purposes 127 results (showing 5 best matches)
- One essay uses a “spell” cast by the fictional character Harry Potter to assess the rationales of tort law. The spell “eliminates the administration costs of the tort system” by simply “transfer[ring] a sum of money equal to the cost [of any injury] from the bank account of the injurer to the account of the victim.” Scott Hershovitz, Harry Potter and the Trouble with Tort Theory, 63 Stan. L. Rev. 67, 70 (2010-11). In suggesting that this is not an optimal solution, the author focuses in part on the “collateral benefits” of tort law that would not be achieved by Potter’s spell. These include, among other things, information that the tort system makes available to claimants who “want answers” and to the public generally about the causes of accidents, see, e.g., id. at 80. They also include the benefit of “people’s satisfaction at seeing justice done through the tort system,” id. at 83. A principal target of the author is the inadequacy of economic analysis to capture the real world of...
- Tort law continues to progress along lines that flow from its common law roots. Judge-made law necessarily develops on a case-by-case basis. However, lawyers also have an instinct for codification and systematizing. A set of significant enterprises aimed at reducing the principles of tort law to literally blackletter text are the successive Restatements of Torts. These volumes—the original Restatement of Torts was published in the 1930s —are a product of the American Law Institute (ALI), an organization of judges, practicing lawyers and law professors. The 951 sections of the current full set, the Restatement (Second) of Torts, aim to provide guidance to courts faced with difficult issues in this area of the law. The ALI has now begun a Restatement (Third), whose first major project deals with products liability.
- Tort law is not simply a collection of rules and doctrines. The administration of its legal principles exists within what is sometimes called the “tort liability system,” a term that describes the institutional structures and processes by which courts and other agencies resolve disputes about personal injuries. That system shares important practical elements with other litigation processes generally, notably the adversarial tradition that is common to all litigation. Distinguishing features of tort law include the facts that a very high percentage of tort cases that come to trial is tried to juries, and that jury verdicts in tort cases seem to generate a relatively high amount of media coverage. By comparison with other systems of injury law like compensation systems and regulation, but in common with litigation generally, tort law provides an individualized form of justice. The court resolves a concrete dispute between named parties—often, just two parties. ...of...
- A relatively controversial rationale for tort law is loss spreading. The basic theory is that it is just to distribute among many others what may be the overwhelming burden of loss to an injured person. Law can effect this distribution by “spreading” the monetarily quantifiable part of that burden in the price paid by other users of the good or service that caused the injury, who presumably have benefited from that product or activity. Critics of loss spreading attack it as being judicial arrogation of a role that only legislatures should undertake, that of redistributing wealth on the basis of principles of justice or equity.
- An interesting question about the function of tort law concerns its regulatory aspects. In a remarkable pair of essays in 1959 and 1960 Leon Green advanced the idea that tort law is “public law in disguise.” Although this idea might seem to envision an expanding dominion for tort law, it also has provided grounds for legislators and courts to stop that expansion. Illustrative are so-called “tort reform” statutes and judicial decisions that effectively limit tort liabilities, for example legislation that puts ceilings on amounts that can be recovered for pain and suffering and court rulings that reduce awards for such damages. Accompanying this development has been something of a paradox: As a young scholar has recently noted, “many of the same states that have enacted the most restrictive limits on punitive damages and noneconomic damages in … tort suits against doctors and product manufacturers” also “authorize[ ] emotional distress damages and treble damages under … consumer...
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Chapter Seven. Battery 73 results (showing 5 best matches)
- The tort of battery is simple in its general definition but profound in its theoretical implications. It is, indeed, one of the most powerful tools in the torts arsenal. One of the bedrock principles of the law of torts is that one shall not touch another intentionally without the other’s consent, implied if not express, and without a privilege to do so.
- Once a court characterizes a touching as a battery, the defendant will be liable for a relatively broad range of consequences. The court put the principle in rather general terms, saying that “[t]he rule of damages in actions for torts” was “that the wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him.” Courts sometimes apply even to negligence cases a principle of liability for unforeseeable consequences, utilizing the so-called “eggshell skull” rule, which makes a defendant “take his victim as he finds him,” including the victim’s unusual susceptibilities to injury. All we need emphasize here is that those who commit “intentional torts” are liable for unforeseeable harms.
- The labeling of an act as an “intentional tort” may have other important practical consequences. One such result, which often may cut against plaintiffs, is to place a case within statutes of limitations for assault and battery, which tend to be relatively short, rather than those for negligence. Another, which invariably would cut in favor of plaintiffs, is that the intentional tort label will help to support a claim for punitive damages, which are occasionally awarded in tort cases in addition to compensatory damages. Punitive damages are designed to provide a punishment function in tort law, as well as to achieve more deterrence of especially culpable conduct than compensatory damages might achieve. ...note, however, that a plaintiff seeking a punitive award is likely to have to show that the defendant’s conduct fell within the common connotations of the term “intent.” That is, the plaintiff may have to prove purpose, or even malice in its common meaning, rather than fulfilling...
- A small but interesting subset of cases involving intentional tort theories and legal characterization has developed under the Federal Tort Claims Act (FTCA). That legislation permits suits against the United States Government for the torts of its employees, but specifically excludes claims based on several intentional-type torts, including “assault” and “battery.”
- An even less direct form of contact may also satisfy the requirements of the tort. In one well known case, the defendant allegedly pulled a chair out from under the plaintiff as she began to sit down. The court implicitly accepted that the plaintiff’s fall to the ground was a contact for purposes of the law of battery.
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Section Nine. Multiple Tortfeasors 39 results (showing 5 best matches)
- A German scholar has described the problem of “alternative causes” as arising “in the case of multiple activities, where each of them alone would have been sufficient to cause the damage, the probability of both of them causing the damage is equally very high and all the other prerequisites for liability are given, but it remains uncertain which one in fact caused it.” Helmut Koziol, Comparative Law—A Must in the European Union: Demonstrated by Tort Law as an Example, 1 J. Tort Law No. 3, 1, at 13 (2007). He presents as a good model for solving the problem the “compromise” achieved in the Principles of Tort Law of the European Community, which say that in such a situation, “each activity is regarded as a cause to the extent corresponding to the likelihood that it may have caused the victim’s damage.” Principles of European Tort Law art. 3:103(1)(2005).
- Finally, there is the argument that in “mass tort” cases involving large numbers of plaintiffs, advocates of liability without proof of “an individual causal connection” simply “expect too much from the tort system.” One commentator analyzes this set of questions from the standpoint of whether liability without such proof is compatible with an “instrumental,” policy oriented view of tort law rather than one founded in a party-centered theory of corrective justice. He suggests that wariness about allowing recovery without a showing of individual causation is “fully compatible with an instrumental theory of tort law” and concludes that the solution to the injustice suffered by claimants who cannot prove individual causation “is better left to alternative compensation systems,” created by legislation and administered by agencies, than to courts.
- The arguments against various forms of joint and multiple liabilities stem from the justice-centered concern that these doctrines enable a plaintiff to impose liability on a defendant for an injury, or a portion of an injury, that that defendant has not caused. Opponents of joint liability contend that the remedy departs from a most basic principle of tort law: the plaintiff has the burden of proof to show that the defendant’s culpable conduct caused the injury. They argue that it is especially unjust that under true joint liability, a defendant might well be held for an entire loss if its joint tortfeasors were insolvent or unreachable. Critics have also complained that
- Some difficult problems of justice in tort law arise when more than one party has been negligent or sold a defective product, and the plaintiff seeks to fix responsibility in tort on each of these multiple parties. In many of these cases, the plaintiff’s theory is that each defendant contributed to the specific injury. In some cases, particularly in the area of products liability, the plaintiff argues that each defendant should be liable because its product was probabilistically involved in the plaintiff’s injury on account of its involvement in many similar injuries.
- The issue of whether to impose joint liability, or to apply analogous theories like the “market share” theory, has featured some of the most contentious arguments in tort law, because of the stark contrast between the competing claims of justice offered by both parties.
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Section Ten. Duty and Proximate Cause 52 results (showing 5 best matches)
- See id. at 717–23. In a series of books, Professor Alan Calnan has been wrestling with a problem that he defines this way: “The tort concept of duty lacks integrity in virtually every popular sense of the term.” Alan Calnan, Duty and Integrity in Tort Law 1 (Carolina Academic Press 2009). For Calnan, “to maintain its philosophical integrity,” Anglo-American tort law—rooted in the classical liberalsim of ancient Greence and Rome, “must … follow the principles of distributive and corrective justice and promote the values of liberty, equality, and due process.” Id. at 107. Negligence law, in particular, presents particular integrity problems, stemming in part from the fact that negligence rules are both “more rigid than mere standards,” but also are “considerably more flexible than normal duty rules.” Id. at 47. Part of the “lingering uncertainty” for negligence law arises from another set of tensions: On one view. the duty of reasonable care “stands ever ready to condemn... ...of...
- Id. at 801–02. See also Peter F. Lake, Common Law Duty in Negligence Law: The Recent Consolidation of Consensus on the Expansion of the Analysis of Duty and the New Conservative Liability Limiting Use of Policy Considerations, 34 San. D. L. Rev. 1503, 1528 (1997) (describing the views of American courts generally as “follow[ing] a moderate type of legal realism,” based on the belief “that duty turns on considerations of policy or other considerations,” and not “adopt[ing] anything like an extreme rule (a skeptical approach to tort law”).
- Restatement (Third) of Torts: Liability for Physical Harm § 29 (2010).
- The most noteworthy case concerning chains of odd consequences—perhaps the most famous of all tort cases—is but it is probably best to analyze it on the basis of Judge Cardozo’s summary for a majority of the New York Court of Appeals. The plaintiff, who had paid for a ticket on the defendant’s railroad, was standing on the platform waiting for a train. A different train came along, and a man carrying a package tried to board it as it began to move out of the station. The defendant’s guards tried to help the man get on the car, presumably extending their aid in a negligent way. In this process, the man lost control of his package, which fell to the rails. The seemingly innocuous package, which contained fireworks, exploded. As Cardozo summarized it, “[t]he shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries.”
- Id. at 615, quoting Prosser, Torts 248 (4th ed. 1971).
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Chapter Sixty-Five. Duty to Act 42 results (showing 5 best matches)
- Alon Harel & Assaf Jacob, An Economic Rationale for the Legal Treatment of Omissions in Tort Law: The Principle of Salience, 3 Theoretical Inquiries in Law No. 2, art. 4, at 2 (2002).
- The most interesting jurisprudential question in this area is whether courts should impose tort liability on someone who fails to aid another person with whom the defendant has no pre-existing relationship and to whom the defendant has not undertaken to furnish aid, when the effort to help would not imperil the defendant himself. The common law rule is simple: there is no duty to provide aid for a stranger, no matter how emergent that person’s peril. There would be unanimity that one should not be liable in tort for not giving money to a starving stranger, although there might be sharp disagreement about one’s moral duty in such a situation. The sorts of hypotheticals often used to illustrate the common law rule are similarly heartrending. For example, courts presumably would not impose tort liability, although they might indulge in strong moral condemnation, against a person who does not aid a baby as the baby crawls toward a cliff and falls off.
- An intriguing set of controversies in tort law arises with respect to liability for failure to act. Courts have classified the cases in several categories, with the most challenging theoretical issue being whether there should be a duty to rescue someone in peril when the defendant has no prior relationship with that person and has not undertaken to aid him. With a few exceptions, current law imposes no duty in that situation.
- The reasons usually given for this rule reside in notions of individualism fixed in Anglo-American jurisprudence. Some commentators have argued that to impose a duty would be a violation of the defendant’s right to personal freedom, and some have even suggested that the imposition of liability would violate the Thirteenth Amendment’s prohibition against slavery or involuntary servitude. In any event, under common law a plaintiff who is not able to show a legally recognized relationship or an undertaking generally cannot succeed in a tort action for failure to act.
- A broad range of case law has developed, under common law and state and federal statutes, on the duties of governments and public officials to protect individuals from harm inflicted by third parties. A famous example is the Supreme Court’s decision in the heart-wrenching case of
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End Notes 210 results (showing 5 best matches)
- Henry Smith argues that an important basis for tort law lies in information cost theory, which he ties to the “heavy reliance on moral duties in torts.” Modularity and Morality in the Law of Torts, 4 J. Tort Law Issue 2, article 5, at 30. His analysis includes the use by tort law of “modular structures to manage complexity.” Id. at 31. He parallels tort and property in the sense that they “chop[ ]” up the world of interactions between parties into manageable chunks—modules—that are semi-autonomous.” Id. at 2. He suggests that tort law “tends to rely on simple, highly available moral intuitions that are good candidates for natural rights” and that “the heavy reliance on moral duties in torts makes the law of torts simpler and more robust than it if rested on cost-benefit analysis.” Id. at 30. He asserts that “[i]nformation cost theory points to a more traditional theory of torts, which as in the case of property looks a lot like the common denominator of Kantian, corrective justice...of
- Professor Geistfeld seeks to rationalize the “important attribute of negligence liability” that “[t]he legal valuation of harm for purposes of reasonable care differs from the monetization of injury for purposes of compensatory damages.” Mark Geistfeld, The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability, 121 Yale L.J. 142, 190 (2011). One foundation for Geistfeld’s analysis is his assertion that “[i]f tort law formulated the standard of reasonable care as a matter of economically cost-justified safety precautions, dutyholders would not incur their full compensatory obligations to rightsholders.” His argument depends in part on “empirical studies” finding “that judges and juries interpret reasonable care as requiring safety precautions in excess of the economically cost-justified amount when the risky conduct threatens serious bodily harm.” Id. at 187. Premising that “tort law is primarily concerned with the prevention of injury as opposed to the redress
- Professor Chamallas describes an evolution in case law in which “civil rights principles have migrated into tort law,” “now operat[ing] as a modest supplement to civil rights protection provided by state and federal statutes.” Martha Chamallas, Discrimination and Outrage: The Migration from Civil Rights to Tort Law, 48 Wm. & M. L. Rev. 2115, 2180 (2007). She suggests an extension of the definition of outrageous conduct that would employ a “transition from honor to dignity” which would focus the inquiry of “whether the defendant’s conduct, as a whole, had the effect of seriously harming the plaintiff by targeting her as a second-class citizen who did not deserve to be treated with equal respect and consideration.” She explains that “[u]nder this approach, the discriminatory aspect of the harassment is part of what qualifies it as outrageous conduct and sets it apart from less virulent forms of incivility, rudeness, and disrespect.” Id. at 2176–77.
- Liberalism and Tort Law: On the Content of the Corrective-Justice-Securing Tort Law of a Liberal, Rights-Based Society, 2006 U. Ill. L. Rev. 243, 244.
- An essay by Peter Cane compares judicial lawmaking and legislation in the tort field. Taking Disagreement Seriously: Courts, Legislatures and the Reform of Tort Law, 25 Oxford J. Legal Stud. 393 (2005). Cane says that “[f]or resolving disputes, courts are preferable to political processes mainly for pragmatic reasons,” id. at 410, noting that “[c]ourts necessarily legalize norms because they resolve disputes in accordance with the demand for consistency,” id. at 417. However, he stresses that for “legalization of norms,” the “pluralism and openness” of the “political processes” “give them a relative advantage (in theory, at least) over judicial processes.” Id. at 411. He contends that “[i]n principle, political processes ought to be preferred to judicial processes as a way of managing intractable disagreements about values and about the functions and effects of law.” Id. at 414.
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Chapter Thirty-Six. Private Nuisance 71 results (showing 5 best matches)
- In modern American law, the general principle of has largely become transmuted into the concept of “an abnormally dangerous activity” described in the Second Restatement of Torts,
- Courts and commentators have referred to various moral considerations in discussing the application of substantive nuisance principles and remedy rules. An argument insistently advanced for plaintiffs is that they are relatively powerless in the face of defendants, typically firms that conduct polluting activities. In their extreme form, arguments of this sort may have an absolutist character, implying that everyone is entitled to pure and noise-free air in his own environment. Although that idea may seem unsophisticated in a crowded society, it probably is a partial core of the law of nuisance, given the very existence of nuisance as a tort to remedy interference with “use and enjoyment” of land.
- According to another judicial reading of history, “the English concept of nuisance” as a property concept became transmuted by American courts into something that was “not merely an infringement of property rights, but a wrong against both person and property—a tort.” The struggle over nuisance law continued as commercial development brought increasing conflict with residential uses—and sometimes even as commercial uses clashed. To be sure, the emergence of nuisance as a tort did not swing the door wide to litigation in America, for the courts began to tighten the sphere of cases in which they would grant injunctions against nuisances, or, alternatively, the cases in which they would find nuisances at all. Yet, there also developed a body of doctrine that associated nuisances with the full spectrum of tort culpability, ranging from “intentional” conduct to strict liability. We now briefly summarize the common law counterparts of these concepts.
- Prosser provided a memorable caution to those seeking to define nuisance: “[t]here is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’ ” With this warning in mind, we proceed to examine some of the main elements of nuisance doctrine. Insofar as possible, to facilitate analysis, this section seeks to separate discussion of the substantive tort from remedies, which are discussed below; however, it will appear that the “tort” and the “remedies” are difficult to separate in practice.
- Today an important theory in suits for “environmental torts,” nuisance is only one of the law’s responses to the general problem of environmental injuries to which tort law has addressed itself for many years. From a societal point of view, the problem is a large and complex one, featuring intense rivalries between classes of parties. Plaintiffs typically are persons who have an ongoing attachment to land and the surrounding ambient air and to flowing streams or coastal waters, an attachment that sometimes is difficult to capture entirely in money valuations. Defendants frequently are producers of useful goods with high social value whose productive activities create negative consequences, such as air and water pollution, to surrounding parcels of land.
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Chapter Fifty-Four. Settlement 34 results (showing 5 best matches)
- An important group of problems related to apportionment of damages arises when one member of a set of defendants settles with the plaintiff but another—or others—go to trial. If the plaintiff prevails against a defendant who chose to go to a verdict, the principal questions concern whether that defendant can get credit on the verdict for all or part of the settlement. Although the principles courts have applied to these issues are not part of the substantive law of torts, they illuminate the workings of the litigation system that develops that law.
- We will analyze a few recurrent situations of this kind, and then discuss the legal policies that courts apply to the question of what rights settling and non-settling defendants have with respect to plaintiffs, and to each other. The very factually oriented nature of the categories analyzed here implies the difficulty of formulating abstract principles. In all of the situations discussed below, which are functionally defined and sometimes overlap, one defendant, D-1, has settled, and one defendant, D-2, has not. In all of these cases, the settling defendant is no longer a party in the litigation because of the settlement. Although the judge must know of any settlement and how much it is for, practice varies on whether the jury knows about a settlement, a matter the cases do not always reveal.
- Obviously, another technique would be simply to reduce the judgment by the amount of the settlement. This result appears in a case with some doctrinal complexity, arising from the overlap of tort and contract theories, in which a university administrator sued for events associated with a failure to renew his contract. He claimed against a department chairman for libel and interference with contract and also sued the university for breach of contract as well as libel and interference with contract. The plaintiff settled with the university on the breach of contract action for $5,000. In a subsequent trial, the court gave directed verdicts for the university on the claims for libel and interference with contract and for the department chairman on the libel claim. A jury then rendered a verdict for the plaintiff against the chairman on the interference claim for $15,000.
- The general problem that confronts courts in deciding settlement issues includes several elements of policy, including concerns about equity, considerations of individualized justice and efficient judicial administration. Courts sometimes favor rules designed to assure that the plaintiff is fully compensated for his injuries through a combination of the jury award plus any settlement, but does not get a “windfall.” On other occasions, they will allow the plaintiff a sum from the jury award and the settlement together that totals more than the assessed injury costs, reasoning in part that the money paid in settlement is theoretically gratuitous, and that the officially sanctioned award is the only legally compelled payment. Faced with the difficulty of putting cases into neat boxes of principle, courts will try to figure out what result provides the most equitable solution. They will also pay attention to whether a rule seems likely to promote settlement, thus taking pressure off the...
- One of the strongest arguments against allowing credits to non-settling defendants, or at least for placing limitations on those credits, is that to the extent that a credit is allowed, the non-settling defendant escapes the effects of its culpable conduct. Since the true social costs of that defendant’s negligence would not be imposed on it, forcing it to internalize those costs, the allowing of credit would undermine the law’s efforts to achieve appropriate levels of deterrence.
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Chapter Twenty-Two. Statutory Violations 39 results (showing 5 best matches)
- Tort law originated as common law and has continued to build on that foundation. However, legislatures have enacted statutes with substantial impact on the domain of tort law, including its safety and compensation goals. Every state has removed a large portion of workplace injuries from the sphere of tort through the mechanism of workers’ compensation statutes, and many states have enacted statutes that codify or change the common law in particular areas of torts, for example, products liability.
- Safety legislation establishes categories of forbidden conduct in advance of that conduct, whereas courts adjudicate specific cases of injury in light of particular circumstances existing at the time of the injury. Because legislation generally outranks judge-made law, statutes that set precise standards concerning tort liability are superior to common law rules. However, the issues discussed in this chapter often arise because it is unclear whether the legislature intended the statutes at issue to affect the common law, or what effect it intended them to have.
- In this chapter we consider the effect in tort actions of a defendant’s violation of a statute that regulates safety. These laws are as diverse as criminal and quasi-criminal statutes for the regulation of traffic, federal and state legislation that regulates occupational safety and health, and federal statutes regulating the design of motor vehicles and the flammability of fabrics.
- Legislatures may create tort causes of action where none had existed before. For example, a safety statute may specifically enable individual citizens to sue for violations of its provisions, in addition to giving power to public agencies to enforce the statute. Legislatures also may modify existing rights under tort law. For example, some state legislatures have redefined theories of liability in products liability cases, and have put dollar maximums, or “caps,” on the amount of damages a plaintiff may recover for medical malpractice.
- Sometimes courts will infer from a statute a legislative purpose to allow persons to sue for violations of the statute even though it does not specifically create a tort cause of action on behalf of private individuals. A Supreme Court decision set out a four-part test to determine whether courts should imply a private right of action from a federal statute: (1) whether the plaintiff is a member of “ ‘the class for whose benefit the statute was enacted’ ”; (2) whether there was “any indication of legislative intent, explicit or implicit, either to create … a remedy or to deny one”; (3) whether a judicially implied remedy would be “consistent with the underlying purposes of the legislative scheme”; and (4) whether “the cause of action [is] one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law.” it provides a good summary of the sorts of factors that courts...
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Section Thirteen. Relation to Contract Law 45 results (showing 5 best matches)
- There has been a hard-fought struggle over the proper scope of a tort for intentional interference with contract—in many instances over whether it is desirable to have such a tort. The ground of battle is much the same philosophically as that in cases pleaded in tort in which only the contracting parties are the litigants. Again, the plaintiff invokes principles of fairness. Again, the defense draws on the idea that in a free economy, the only appropriate damages for the consequences of any breach of a contract are contract damages, and that it is inappropriate to bring tort into the picture.
- From a broad perspective, the battles over the interference tort reflect a more general struggle in tort law. Although most analysts weigh a variety of considerations in examining tort decisions, one may identify two polar positions. On one side is the position that courts often do and should restrict liability to acts that produce inefficient results and to illegal conduct. On the other is the view that tort law does and should operate in terms of a moral calculus that is more capacious, if less precise.
- The Supreme Court concluded that “a tort recovery [was] unavailable” to the plaintiff, and affirmed an appellate court judgment that reversed the plaintiff’s judgment on its tort claim. Summarizing judicial and scholarly criticism of its adoption of the doctrine of bad faith denial of contract, the court referred to the differing purposes of tort and contract remedies. In that connection, it quoted a precedent’s description of contract law as “ ‘encourag[ing] efficient breaches, resulting in increased production of goods and services at lower cost to society.’ ” The court generally expressed concern about the difficulty of “distinguishing between tortious denial of a contract’s existence and permissible denial of under the terms of the contract.” Moreover, it spoke of the “confusion” in interpretation of the bad faith doctrine, as well as the “excessive damage awards” that had resulted from its earlier recognition of the tort.
- A substantial body of tort-oriented law has developed around various instances of the failure to perform contractual obligations. Principal defendants on this stage have been insurers that are accused of failing to defend or refusing to settle lawsuits brought against their insureds.
- the California court overruled its prior recognition of the bad faith tort. The occasion was a suit by an accounting firm against an oil company for terminating the plaintiff’s services, which were originally secured by an engagement letter signed by a law firm that at the time was counsel to the oil company. The jury found in favor of the plaintiff on a count for breach of contract, and, responding to questions, also said that the defendant had “denied the existence of the contract and … acted with oppression, fraud, or malice.” Giving a relatively small verdict for the breach of contract, the jury awarded a much larger amount in punitive damages, apparently on the tort theory of bad faith denial of the contract.
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Chapter Sixty-Seven. Constitutional Defamation Law 38 results (showing 5 best matches)
- The policy tensions that surround the law of defamation generally are at an especially high point in the arguments over the application of First Amendment principles to the tort. On one side is concern over the “chilling” effect of a defamation law that is relatively liberal to plaintiffs; on the other are complaints about the tendency of restrictive liability rules not only to permit irresponsible media persons to tarnish reputations, but to reduce the inclination of able but sensitive people to engage in public life.
- Justices Black and Douglas adopted a polar position during the Court’s fashioning of constitutional libel law. They contended, in the strongest version of this argument, that because of the potentially destructive effects of libel law on the media, members of the press and broadcasters should have complete immunity from defamation suits.
- The Supreme Court has constitutionalized the law of defamation under the First Amendment, initially embedding in it a group of privileges to defame persons who are in the public eye and then refashioning the boundaries of culpability standards concerning allowable damages for private individuals. We begin with some history, and then describe the classifications that the Court’s developing jurisprudence has imposed on the law.
- Before 1964, many jurisdictions imposed liability for defamation without fault. Thus, anyone who published material that injured another’s reputation, even without actual or constructive knowledge of its falsity, could be held for libel, at least if the defamatory meaning of the communication were “actionable per se.” Plaintiffs also could receive punitive damages on a showing of “common law malice”—“ill will or fraud or reckless indifference to consequences.” The privileges to defame consisted essentially of the absolute privileges for legislators, participants in judicial proceedings and some governmental executives, and the common law qualified privileges that resided in such factors as the publisher’s interest or the recipient’s interest in the defamatory material, or the interests of both in the matter to which the defamatory communication pertains.
- The case law that has grown from the seeds of presents several principal compartments of analysis. The initial question concerns the status of the plaintiff as a public or private person. If the plaintiff is a public official, or a public figure at least for purposes of the defamatory material, then the defendant publisher may take advantage of the test. If the plaintiff is a private individual, then he must bring his case within the culpability test as well as the damage rules of
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Section Twelve. Damages in Tort Law 65 results (showing 5 best matches)
- The subject of damages is the business end of tort law. It is a topic of fierce debate, in part because of the difficulty of establishing coherent principles, both philosophical and practical, for the award and review of damages. This chapter and the next one analyze theories of compensatory damages for personal injury in two major categories. The one discussed in this chapter, “economic loss,” represents the pecuniary consequences of personal injury that have direct marketplace equivalents. These include medical bills, lost earnings and household services.
- This discussion of the technical effects of the contributory negligence of both deceased persons and living plaintiffs in tort actions involving death leads us to focus on the basic purposes of tort law. The theory that a survival action is the property of the decedent, transferred to his or her personal representative, is appealing. If a person suffers terribly for a time but then lives to sue, all courts would agree that a jury should be able to value that suffering in that person’s own tort action. It would seem that the fortuitous fact that a person has died after a period of suffering should not deprive his representative of the opportunity to sue for that suffering, an opportunity that would have been the decedent’s if he had lived.
- A broad critique from feminist and critical perspectives suggests several “pathways” by which “considerations of race and gender” influence tort law, generally as well as specifically in the area of damages. In addition to “explicit gender and race classifications and categories,” these include “devaluation of plaintiffs and their interests because of race or gender,” “unconscious stereotyping and cognitive biases” and “seemingly neutral dichotomies describing types of injuries and types of damages that privilege certain tort claims and recoveries and impose special restrictions on others.”
- In a policy perspective very different from that of economic analysis, the question of what appropriate compensation is for personal injury resolves itself into an issue of human dignity. When one views the subject from this perspective, the substantive basis for tort may overlap with the rationales for damages. For example, a medieval Jewish text indicates that the same injury arguably could support different levels of compensation depending on how the injury was inflicted. One rabbi indicated in a commentary that if someone slapped another person, he would have to pay him 200 , but that if he hit him with the back of his hand he would have to pay 400 . That authority, Rabbi Judah, declared: “This is the general principle: it all depends on a person’s dignity.” This difference in the level of damages suggests that it is as if two rather similar offensive acts were two different torts because of their differing impact on dignitary interests. The rabbinical commentary illustrates how...
- , Richard Abel, A Critique of Torts, 37 U.C.L.A. L. Rev. 785 (1990). Cf. Stephen Sugarman, Tort Reform Through Damages Law Reform: An American Perspective, 27 Sydney L. Rev. 507, 518 (2005), suggesting that because “high earners are the very best ones positioned to obtain extra insurance to protect wages not covered by social insurance,” it “might be quite sufficient” to limit tort recoveries to the 75th percentile of average earnings, “or perhaps [to] two or three times the average weekly wage.”
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Chapter Fifteen. Frontier Theories 22 results (showing 5 best matches)
- The category of “prima facie tort” provides one outlet for plaintiffs who cannot fit their cases within established tort categories, such as defamation, fraud, or negligence. One decision described prima facie tort as “a backup concept which, while it may overlap with other sources of tort law, is primarily significant when other sources of law fail to provide guidance to courts in dealing with a given type of dispute which generates a tort claim.” Courts have used varied lists of elements to spell out the requirements of the tort. One decision catalogued the elements of prima facie tort as: “(1) intentional infliction of harm, (2) causing special damages, (3) without excuse or justification, (4) by an act or series of acts that would otherwise be lawful.”
- Like every other branch of law, tort law requires structure. A principal method for providing structure to the law is through the use of doctrine. The principal doctrinal grist for the mill of torts is stored in a few basic theories: frequently used intentional tort categories like assault, battery and false imprisonment; the spacious doctrine of negligence; and theories of strict liability, which subdivide principally into theories covering abnormally dangerous activities and those applied to defective products.
- To solve the problem of justice that he perceived would arise if the court denied recovery, Judge Breitel fashioned a classification that would impose liability “where the conduct is purposively corrupt by conventional standards, intentional as to consequences, or utilizes vicious means.” When a plaintiff showed this kind of behavior, he said, “the law will allow general recovery for foreseeable harm to established protected interests,” including “reputation in trade or occupation.” The court of appeals reversed Judge Breitel’s decision for the appellate division, finding that Morrison’s case was essentially one for defamation, and thus barred by the short statute of limitations for defamation. tort is not established law even in New York, however, should not obscure the effort of Judge Breitel’s opinion to create a “non-category tort.” The challenge for courts in situations of this kind is to provide “modes of solution … where the claim rests on elements each of which, considered...
- There is some overlap among these frontier theories of tort law, which share the goal of trying to open a wedge for meritorious injury cases that do not fit within established torts. An element that clearly distinguishes the prima facie tort is its requirement of “disinterested malevolence.” One may contrast, in this regard, the non-category theory advanced in , in which the defendant’s purpose was to make money for itself, uncaring what the effects were on the plaintiff, rather than intending to spite the plaintiff. The use of judgmental language in like “purposively corrupt” and “vicious means” somewhat distinguishes that theory, in turn, from the relatively cool tone of section 870’s reference to conduct “generally culpable and not justifiable under the circumstances.”
- However, in some situations courts have decided that the traditional torts categories are insufficiently responsive to the demands of justice made by claimants. One court referred to “the wise notion that no system of law can completely describe all claims deserving relief.” It is for this reason that courts have employed loose classifications—sometimes called non-categorical torts—that provide safety nets for claimants who cannot bring their allegations within the traditional doctrines. This discussion briefly summarizes some of these frontier theories, or quasi-theories.
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Chapter Sixty-One. Bystanders 42 results (showing 5 best matches)
- A major competing formulation to categories pivoting on particular relationships and proximity to the accident focuses on the concept of foreseeability. In a decision that held sway in California for some years, the court fixed partly on this factor, saying that liability should turn on “the neutral principles of foreseeability, proximate cause and consequential injury that generally govern tort law.” A later decision, summarized above, found this test “amorphous,” declaring that “the only thing that was foreseeable” from the earlier precedent was “uncertainty” in the law.
- The court declared that “[t]he overwhelming majority of ‘emotional distress’ which we endure … is not compensable.” Carried to an extreme, this argument might erase a substantial amount of well-established tort law. However, there is a nucleus of common sense in the observation that courts cannot extend the category of tort “victim” indefinitely in a world filled with sadness and suffering.
- There are counterarguments, to be sure, linked to the obvious point that each family member is an individual as well as part of a unit. The emotional interests that bystanders often seek to vindicate are interests quite distinct from the interests in bodily and emotional integrity for which tort law routinely awards compensation to directly injured persons, and quite as meritorious. Responding themselves, defendants will point out that both justice and economic common sense require courts to draw lines that cut off liability in long chains of events, even where those events would not have occurred were it not for the defendant’s negligence. One practical, if arguably harsh, place to draw the line is at the person who is the direct victim of an accident. Opposing that entirely restrictive rule, the refinements explored in this chapter—factors of relationship, geography and time, and severity of distress—represent judicial efforts to capture the nuances of justice.
- One reason offered to support restrictions on liability is that witnesses to accidents who suffer injuries would not reasonably expect a tort recovery. However, there is likely to be little data on the relevant expectations. Thus, the question turns back to intuitive notions of fairness, on which there will be differences of opinion among courts as there will be among lay persons. It would appear that the concepts of justice and fairness are often rooted in more specific concerns like those discussed below.
- One factor that enters into any case involving extended chains of consequences is insurance. To be insurable, risks should be calculable, requiring a reasonable level of statistical certainty about the kinds of claims likely to be made. Perhaps, over time, insurers could establish actuarial tables that would take into account bystander recoveries. Yet, there is another factor that may generate issues concerning the presence of insurance in this kind of litigation. This is that insurance premiums are a medium for passing on the costs of injuries to the general public, which in effect pays those costs through the prices charged by insured sellers of goods and services that create accident risks. The question of whether it is appropriate to justify tort liability on that basis is a question of justice.
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Acknowledgments 10 results (showing 5 best matches)
- This book, and my study of tort law, represent a family project. A half century ago, in a gem of a letter, my father wrote me, “When I studied law, it was my ambition to fight injustice.” Because tort law provides such a fine measure of our views about injustice, and justice, those words are a polestar for me.
- Thousands of students have served as sounding boards for my ideas about torts, and in turn have contributed ideas to me. Of the few dozen who have been my student assistants over the years, I particularly thank Cristina Carmody Tilley, formerly editor-in-chief of the Northwestern University Law Review, for helpful initial criticism of the manuscript.
- Many other people have provided creative irritants and general inspiration. These include my colleagues at Texas, Virginia, and for thirty-seven years now at Northwestern, as well as the extended community of torts teachers across the country. I have profited always from discussions with them—sometimes fierce verbal battles—and those conversations have set rigorous standards for me. Without attempting to list individuals by name, I note my obligations to dozens of men and women whose criticism, challenges, and praise have contributed to my development as a teacher and scholar. Before I became a law professor, my teachers at the University of Miami School of Law, among them Richard Hausler and Minnette Massey, provided memorable instruction.
- It was my particular good fortune to begin professional life with two of the titans of the twentieth century in the field of torts, Leon Green and Page Keeton. Each—Green as my teacher at Miami and colleague at Texas, and Keeton as my dean and colleague at Texas—nurtured me in a way that would be fortunate for any young teacher.
- case and other hypotheticals at dinner. Both now accomplished analysts—Nat of law and Ben of science—they have been teaching me about the fundamentals of my subject since they were very young.
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Section Five. Strict Liability and Analogues for Environmental Damage 33 results (showing 5 best matches)
- The rule of gradually found its way into American law, particularly with reference to activities on the land that had explosive or polluting results. The general concept won a place in the Restatement of Torts in 1938 under the label of “ultrahazardous activity.” Sections 519 and 520 of the Restatement Second, published in 1977, articulated the principle under the heading of “abnormally dangerous activities.”
- We note that in cases involving environmental harms, a staple theory for imposing liability or justifying injunctions has been the complex doctrine of nuisance. The Restatement’s summary of nuisance law, analyzed below, Thus, strict liability as a subclassification of nuisance, as well as an independent theory of tort liability, is part of the framework of legal doctrine for “environmental torts.”
- The dispute over whether strict liability should be applied to particular activities is symbolic of broader arguments about the role of tort law in modern life. These arguments often pit rationales of individual fairness and broader notions of loss-spreading against economic analyses hinged on efficiency.
- Lawyers are accustomed to thinking of fault as the principal basis for tort liability. However, there is a long-standing argument about what the basis of liability was at the dawn of the common law. The question is whether fault or strict liability—liability without fault—was the main foundation then for shifting injured parties’ losses to injury-causing actors.
- Robert Keeton, Conditional Fault in the Law of Torts, 72 Harv. L. Rev. 401, 441 (1959).
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Preface 3 results
- This book principally aims to capture the core of tort law for law students. It provides a critical summary and discussion of issues that, during a half century of torts teaching, have seemed to me the most troublesome to those first wrestling with the subject. In significant part, it deals with issues about which students most consistently seek aid during term time and especially when examinations are imminent.
- Because lawyers speak in terms of legal doctrine, I write in those terms. But because a principal function of lawyers is to penetrate doctrine to reality, I also have sought to go behind the labels of theory to what courts do in fact. And because American lawyers tend to relate law to policy, I seek to identify the bases of tort law in those policy considerations that most often appear to engage courts, both consciously and subconsciously. Tort law is a fascinating study. It is a means of dispute resolution, a body of rules for governing conduct, and a social symbol. I hope that this book captures these aspects of the law in a way that is informative to students, and indeed, to lawyers and judges.
- I have sought to maintain a tight focus on the things that appear to count the most in tort law. Although I have paid my basic debts to scholarship, I have tried to give a fairly spare treatment of the law. With that goal, I have sought to select authorities aimed at evocative and graphic illustrations of the most challenging problems in the field.
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Section Two. Intentional Torts 22 results (showing 5 best matches)
- The assault tort is as basic a tort theory as there is, yet it is perhaps the least litigated of the major tort doctrines. A practical reason that it is not often a focus of lawsuits is that the tort, by itself, typically will not afford an economic basis to accept a case for claimants’ lawyers who operate on contingency fees. Yet an analysis of the elements of the tort reveals bedrock qualities that symbolize how tort doctrines reflect tensions that infect all of injury law: tensions between personal dignity and freedom of movement; between objective and subjective tests; and concerning how far the law should go in protecting “mental,” as contrasted with purely “physical” interests.
- One should note, however, that under this formula the plaintiff need not feel or exhibit fear, although much of the common law emerged from cases where the plaintiff in fact was afraid or feared the defendant. The reason for allowing a tort action for intentionally caused apprehension, absent actual fear, lies in the dignitary foundations of the assault tort. Over the course of centuries, the law came to protect the interest in mental security, to a point that it would award damages for violation of the interest in being free from the perception that one is about to be touched against one’s will. The tort of assault, therefore, is actually a modern creature in terms of our collective psychological life as well as the history of the law.
- Like other tort doctrines, the law of assault must resolve competing social interests. We want to protect people against apprehensions of unwanted touchings, but we do not want jovial persons to shrink back in their shells at the prospect of a lawsuit for friendly gestures. In setting firmly in place a tort that protects a mental interest, the law of assault strikes something of a balance that favors the desire to avoid perception of an unwanted contact and limits the manifestation of even sincere joviality.
- As is so with all the torts, assault does not have an absolutely standard definition. In fact, there is a particular confusion of labeling associated with the tort because frequently the term “assault” operates in the public and journalistic minds to denote a physical touching. Technical tort definitions, however, use the terminology of “battery,” discussed below,
- Allied to these considerations is the problem of proof. It is easier for a court to enforce a liability rule if the defendant has actually made an overt movement, rather than having only glared or even uttered a threat. This is not to say that if a very mean-looking person glares menacingly or speaks threateningly to an ordinary or rather timid individual, that may not cause significant emotional effects. A good example is the case of men who make vulgar remarks to women passersby. There may be reasons why a legislature might wish to make this grounds for civil liability, but under the traditional judicial definition it does not qualify as the tort of assault. In balancing the competing social interests that the tort of assault tries to sort out, the law has concluded that the plaintiff must prove an act.
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Chapter Fifty-Six. Statutory Violations and “Cause” 24 results (showing 5 best matches)
- The subject is an especially fascinating one, because it requires consideration of the public policies inherent in the statutes that are violated, and of other public policies that are often employed in torts decisions, as well as traditional concepts of negligence and of “causation.” What is important, in the end, is that courts keep in mind not only the “purpose” of a particular statute, but the purposes of the law of torts.
- William Landes & Richard Posner, Causation in Tort Law: An Economic Approach, 12 J. Legal Studies 109, 131 (1983).
- Courts employ a variety of concepts and terms to solve cases in which defendants contend that their statutory violations do not merit tort judgments because plaintiffs’ injuries did not fall within the purpose of the statute. Often, courts use the terminology of causation, although that idea is frequently not well-suited to solution of the problem.
- However, such statutes do not explicitly impose tort liability against statutory violators who are behaving carefully in fact, and indeed do not even refer to that possibility. Therefore, it might be argued to be an unjust application of strict liability to impose a tort judgment on someone who was in fact driving carefully, because the legislative intention was to create a census of motor vehicles for various administrative and revenue-raising purposes, with perhaps only an incidental goal of enhancing highway safety. A rebuttal argument would draw on the idea that the driving of unregistered vehicles is likely to be statistically associated with careless driving. The plaintiff would contend that it is appropriate to impose liability even in a case lacking specific evidence of negligence or a focused statutory purpose because of the strong social interest in safety that is effectively promoted by the statutory rule.
- Restatement (Second) of Torts §§ 286, 288 (1965).
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Chapter Nineteen. Doctrine and Terminology of Negligence 89 results (showing 5 best matches)
- See, e.g., ABA Committee on the Tort Liability System, Towards a Jurisprudence of Injury: The Continuing Creation of a System of Substantive Justice in American Tort Law, 4–85—4–115 (M. Shapo Rptr. 1984).
- Restatement (Third) of Torts: Encompassing Fairness as Well as Efficiency Values
- Professor Porat ventures a complex analysis of “misalignments in tort law,” situations in which “the risks that are accounted for in setting the standard of care are different from the risks for which liability is imposed and damages are awarded.” Ariel Porat, Misalignments in Tort Law, 121 Yale L.J. 82 (2011). A sample of the five types of cases of this phenomenon he mentions is the case in which “the amount of damages awarded to the victim … is significantly affected by her lost income: the higher the lost income, the larger the damages.” Id. at 86. With respect to efficiency, since “in most tort situations an injurer cannot anticipate whether his victim will be high-income or low-income,” “[t]he question of whether lost income should be a relevant factor in setting the standard of care is … superfluous: the standard of care should be set according to the potential harm of the average person.” Id. at 104. Having dismissed “efficiency-based considerations” as “offer[ing] a...
- See, e.g., Louis Kaplow, The Optimal Probability and Magnitude of Fines for Acts That Definitely are Undesirable, 12 Int’l Rev. L. & Econ. 3 (1992). Economic theory identifies many other issues relevant to the definition of negligence, on which we touch only briefly here. One important theoretical question is whether the populations subject to the law are neutral about risk or averse to risk. See e.g., A. Mitchell Polinsky & Steven Shavell, The Optimal Tradeoff Between the Probability and Magnitude of Fines, 69 Am. Econ. Rev. 880, 883–85 (1979). Another issue of particular relevance to tort law concerns the opportunity to secure insurance against potential liability. See, e.g., Fleming James, Jr. & John V. Thornton, The Impact of Insurance on the Law of Torts, 15 Law & Contemp. Prob. 431 (1950).
- A variety of issues has arisen about the effect of disabilities on the standard of care. The law has given persons with physical disability some margin for error. A draft of the Restatement (Third) says that “[t]he conduct of an actor with physical disability is negligent only if it does not conform to that of a reasonably careful person with the same disability.” It observes that as is the case with children, “tort law tailors the negligence standard to acknowledge the individual situation of the actor.”
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Chapter Fourteen. Varieties of Intentional Torts 19 results (showing 5 best matches)
- The torts discussed in the preceding chapters are among the most litigated in the intentional tort categories, along with certain torts in the defamation category, torts under some of the headings of invasion of privacy, and the tort of intentional inference with contractual relations. This chapter focuses on a few other torts that require intentional conduct.
- An interesting set of torts—sometimes labeled the “heartbalm” actions—arises from sexual imposition and from romance gone wrong. These torts include the actions for seduction and breach of promise to marry, and the torts of alienation of affections and criminal conversation.
- However, some scholars have advocated the revival of elements of the heartbalm torts. Jane Larson, for example, argued for the recognition of a tort of “sexual fraud,” which she defined as “an action of intentional harmful misrepresentation for the purpose of gaining another’s consent to sexual relations.” Proposing a “reasonable victim standard,” which she said would not penalize defendants for “good faith mistakes, … sincere promises not fulfilled, or even … typical lover’s nonsense,” she contended that such a tort would remedy the “devaluation of seduced women’s experiences.” William Corbett contended that there should be a revival of the torts of criminal conversation and alienation of affections. He pointed, by analogy, to the rise in actions permitted for injuries to various economic relationships, including the tort of wrongful discharge. He also noted that “[w]omen bear the brunt of the economic and life opportunity costs” from adultery.
- The parallel tort of bringing a wrongful civil suit requires the plaintiff to show that the defendant acted “without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based.” For this tort, one source says that it is enough for probable cause if the defendant “reasonably believes in the existence of the facts upon which the claim is based, and either … correctly or reasonably believes that under those facts the claim may be valid under the applicable law” or “believes to this effect in reliance upon the advice of counsel, sought in good faith.”
- evolved into a cause of action on behalf of a woman for a violation of her chastity “so long as her consent was coerced either through force or fraud.” By comparison, the tort of criminal conversation simply required the plaintiff to show that the defendant “had sexual relations with the plaintiff’s spouse,” and the tort of alienation of affections required a spouse to show that the defendant had destroyed the love and affection in a marital relationship. Many state legislatures, concerned about some of the consequences and implications of these torts, passed statutes that outlawed some or all of these actions in two waves of legislation, primarily in the 1930s and the 1970s.
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Chapter Seventy-Two. Assessing Intangibles 51 results (showing 5 best matches)
- Arguments over the issue of tort damages for intangibles are part of the more general theoretical debates about whether tort law is preferable to a general social legislation approach, or to complete reliance on first party insurance. The question ultimately involves policy preferences.
- Flannery v. United States, 297 S.E.2d 433, 437–38 (W.Va.1982). One commentator, using as an example the case of a woman blinded because of the negligence of another, has offered this distinction: “The question to be asked … is not whether the tort made the plaintiff less happy, but whether the defendant breached a duty of care, which includes among its grounds the value of the happiness that the plaintiff can derive from the use or her body.” Christopher Essert, Tort Law and Happiness, 36 Queen’s L. J. 2, 28 (2010)
- See Abdul-Qadir Zubair, An Outline of Islamic Law of Tort 65 (Islamic International Contact, Lagos 1990) (as to damages for qimi, “non-fungible things,” with respect to items for which there is no legislatively fixed sum, it is for judges to decide on “fair and reasonable compensation,” and this “is particularly so with claims for loss of amenities and pain and suffering”).
- Fear is a fairly standard item of tort damages. Besides generating factual issues concerning damages, fear may also be viewed as presenting a question of substantive law, defined as whether the defendant had a duty to the plaintiff with respect to the possibility that the defendant’s tortious conduct would cause fear. Some air crash cases present dramatic examples of an issue of damages for fear that at least implicitly presents a question of substantive law. This kind of issue often arises under the technical heading of survival statutes, which have been construed to provide a claim to the personal representative of a dead person for injuries the decedent suffered between the time of a tortious injury and death. The plaintiffs in these cases seek damages representing the fear suffered by victims of fatal crashes when there is evidence that the decedents probably had a few seconds before the crash to consider their fate.
- Maimonides, The Book of Torts, Treatise IV, ch.1, at 160 (vol. IX of Yale Judaica Series 1954) (pain as one of a catalog of five items of “effects of … injury” for which compensation must be paid).
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Chapter Sixteen. Defense of Property 33 results (showing 5 best matches)
- The majority’s affirmance of the plaintiff’s judgment relied on a broad principle, announced in the Restatement of Torts, that one is not privileged to use deadly force to defend property “unless the intrusion threatens death or serious bodily harm to … occupiers or users.” This principle forbade the employment of “mechanical device[s]” like spring guns, which would utilize deadly force an owner could not use if he were present; the application in
- Although the law of merchants’ privilege is general, as most tort rules must be, it does communicate a practical set of standards. Advice may begin with the most general and cautious suggestion: “Be certain or risk a false arrest suit is a good rule to follow when catching a shoplifter.” It will include other recommendations of varying specificity, such as the suggestion that particularly gentle treatment be given to elderly persons because of the risk of heart attacks. Sometimes advice may run to several pages of suggested do’s and don’ts. This range of recommendations reflects the effort of tort law to provide to business persons a spectrum of signals that are relatively clear and understandable, while balancing important customer interests.
- The privilege grows out of a constant, if usually bloodless war. Shoplifting represents a substantial source of property loss inflicted on merchants by crime, and this branch of the law represents a balancing of two strong and well-defined interests. The old common law rule placed almost all of its emphasis on the plaintiff’s dignitary interest and little on the defendant’s property right. It permitted the imposition of liability for false imprisonment if no theft had been committed, even though a merchant detained a suspected shoplifter on reasonable grounds. The California case of decided in 1936, modified this rule with its holding that a merchant may use probable cause as a defense to false imprisonment if the detention was reasonable. The court expressly grounded this new principle on the idea that one should balance the merchant’s need to provide reasonable protection for his property against the suspect’s right to be free from restraint of his person.
- With respect to the issue of deadly force, the prevailing standard essentially creates a per se rule in favor of liability and against the privilege to defend property. One opposing policy argument emphasizes that there are times when property interests are virtually inseparable from dignitary interests. One may picture, for example, a case of deadly force used by an owner of a small store who has built up the business over many years and who would say, more than metaphorically, that his life is the store. In this case, the plaintiff is an intending burglar, seriously injured by a deadly device set by the owner after a string of burglaries that threatened the existence of his business. This illustration arguably weakens the case for a per se rule. It suggests, indeed, that it would be appropriate to judge defense of property as many issues in tort law are judged: by a reasonableness test. ...given, such a test would throw into the balance the weight of the defendant’s interest in his...
- A particularized privilege against claims for intentional torts arising from defense of property, principally related to suits brought for false imprisonment or under the label of false arrest, is the privilege to detain those suspected of pilfering goods.
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Chapter Fifty-Seven. Intervening Criminal Acts and Other Tortious Behavior of Third Parties 45 results (showing 5 best matches)
- Brady v. Hopper, 751 F.2d 329, 331 (10th Cir.1984). Professor Volokh counterposes privacy against affirmative tort duties in Tort Law vs. Privacy, 114 Colum. L. Rev. 948 (2014). Referring to decisions “cautious in expanding the Tarasoff duty,” he says that in some cases involving people’s “personal information about themselves and their activities,” courts “do rely on privacy concerns in reaching results that amount to a finding of no duty as a matter of law or in limiting the scope of the duty,” thus creating “the building blocks from which a broader privacy-protecting tort law doctrine may be built.” See id. at 935-38.
- Martha Chamallas, Gaining Some Perspective in Tort Law: A New Take on Third-Party Criminal Attack Cases,14 Lewis & Clark L. Rev. 1351, 1353, 1399 (2010).
- A specialized problem in extended causation/duty cases involves intervening criminal acts and other tortious behavior of third parties. In many of these cases, the plaintiff sues A for an injury that B criminally inflicted on the plaintiff. The class of defendants in cases of this sort is quite varied, including people who legally possess firearms, psychotherapists whose patients assault others, and landlords on whose premises attacks take place. The plaintiff claims that the defendant contributed to the risk of the crime or tort that B committed, or failed to minimize a risk about which the defendant knew or should have known.
- Judge Scalia concluded that “the NRA was entitled to the benefit of the general rule of nonliability at common law for harm resulting from the criminal acts of third parties.” In part, he fixed on the “extraordinary and unforeseeable” nature of the “chain of events” in the case, which he summarized as including the employee’s “storage of the weapon, a burglary of the annex, a search of [the employee’s] desk, discovery of his hidden closet key, a search of the closet, discovery of the gun and ammunition, use of the gun in a robbery, [the decedent’s] resistance to the robbery, and the ultimate murder of the [the decedent] by someone not a party to the original burglary.” This summary presents a graphic illustration of extended chains of consequences of the sort that inspire judicial findings of unforeseeability and refusals to impose liability.
- Although recognizing the social interest in maintaining the confidentiality of the therapeutic relationship, the court concluded that the plaintiffs could state a claim “for breach of a duty to exercise reasonable care to protect” the decedent. Against the need for confidentiality, the court weighed “the public interest in safety from violent assault,” and it focused in significant part on the fact that in this case there was a threat to a “foreseeable victim.” Epitomizing its view of the law, the court declared that “[t]he protective privilege ends where the public peril begins.”
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Chapter Sixty-Nine. Media and Privacy 50 results (showing 5 best matches)
- William L. Prosser, Privacy, 48 Calif. L. Rev. 383, 392–98 (1960). A broad critique of Prosser’s classification system in this article, which is limited to the “public disclosure” tort and the torts of intrusion, false light and appropriation, appears in Neil M. Richards and Daniel J. Solove, Prosser’s Privacy Law: A Mixed Legacy, 98 Cal. L. Rev. 1887 (2010). The authors view Prosser as representing himself too modestly as a collector of cases when he in fact held relatively conservative “normative views of privacy law that influenced the way he classified the torts” and aimed to steer that branch of the law “in a more cautious and limited direction than it had taken previously.” Id. at 1890. One major concern of these authors is that “current tort-based conceptions of privacy are limited” in “their failure to recognize confidentiality” in an Internet world as “more individuals disseminate information through blogging and social networking techniques.” See id. at 1918-21.
- The branch of tort law labeled “privacy” includes several different, if sometimes overlapping, types of cases, some of which parallel traditional defamation jurisprudence. The privacy categories include publications of embarrassing facts that people generally would agree are private; fictionalized publications that use true events as points of departure; the publication of material, technically accurate, in a way that gives a false impression; the commercial appropriation of people’s identities or images for which they have given no permission; and physical intrusions on personal affairs by such means as electronic eavesdropping.
- However, one cannot ignore the roots of even property-related privacy claims in dignitary interests that increasingly have been protected by tort law. Moreover, with respect to cases arising from news stories and features, where defendants argue that the news value of a publication outweighs dignitary concerns, it is worth noting that the psychological conditioning of judges may produce reactions of outrage at offensive and embarrassing publications about confidential features of personal life. This reaction may be especially strong in cases involving dignitary privacy interests where media defendants work with long lead times from initial reporting to publication. In this sense, law establishes some boundaries to both art and judgments of newsworthiness.
- Closely related to “fictionalization” is the so-called “false light” tort, which has features of both traditional defamation and privacy. Some jurisdictions have rejected the false light doctrine, citing the substantial “overlapping” of the tort with defamation and expressing concern about the added pressure that allowing false light claims would place on First Amendment rights of publishers. Those permitting actions for “false light” have emphasized the distinction between that tort—“a cause of action based upon injury to plaintiff’s emotions and his mental suffering”—and defamation, “a remedy for injury to plaintiff’s reputation.”
- In his opinion for the Court, Justice Marshall observed that “where the government has made certain information publicly available, it is highly anomalous to sanction persons other than the source of its release.” The Court drew on its earlier decision, in which it had invalidated a tort award against a television station. That defendant had broadcast the name of a victim of rape and murder whose father sued on the basis of a state law that made it a misdemeanor to publish the name or identity of rape victims. In that case, the Court focused on the fact that the information had been available in official court records.
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Chapter Twenty-Three. Professional Standards of Care 36 results (showing 5 best matches)
- Tort law faces a difficult task in setting standards of care for professionals. There has been particular controversy about the definition of reasonable levels of conduct for physicians. The social and monetary stakes are high in litigation over alleged medical malpractice, and the ferocity of argument about the effects of law on medicine reflects those stakes.
- Although some question the efficacy and justice of tort law as a shaper of professional conduct, there is certainly reason to believe that tort standards influence the behavior of doctors, just as they influence the conduct of people in many other forms of activity. The case for legal control of physicians’ conduct is evident in statistical estimates that thousands of episodes of negligent medical care occur every year. Another dimension of the problem, however, inheres in the risk that overly stringent standards—or standards too vague to inform practitioners when liability will be imposed—will leave doctors confused and unable to use their best judgment, sometimes even driving them from their practices altogether. It is against this complex background that courts must fashion legal doctrine.
- A related harmonizing principle in this area is that while physicians with access only to limited resources cannot be expected to utilize the most sophisticated equipment, doctors also must know their own limitations. This principle also suggests that when a rural physician, for example, is in a position to refer a patient to a more sophisticated facility, he or she should do so. However, given realities of geography and poverty, as a practical matter courts must sometimes bend the principle to allow a physician with relatively limited skills or resources to do his or her best in the setting of a particular case.
- An important practical problem concerning expert testimony arises from a group of competing concerns. On the one hand, particularly in small communities, the pool of available experts may be tiny and as a practical matter closed to the plaintiff, because of a reluctance of physicians to opine that other doctors have erred. Even in the wider world, specialists may be unwilling to testify against colleagues who they encounter at professional conferences and whose good will they particularly value, for example, for the purpose of securing referrals. For these reasons, courts are likely to give latitude to witnesses who do not possess a particularized kind of expertise, so long as they are licensed physicians. On the other hand, one must consider the potential unfairness of judging a specialist by a different standard of care than that which her training has bred into her as the standard of her specialty. It is a cardinal principle of jurisprudence, which carries over into medical...
- Although informed consent doctrine has developed significantly in the years since its invention in the early 1970s, basic negligence law remains the central theory in medical malpractice litigation. Negligence comprehends a wide range of activities and modes of operation, and it adjusts its standards to those varieties of conduct, including professional activities. A fundamental ingredient of a physician’s standard of care is the doctor’s level of information, and the legal standard includes a requirement that doctors keep up with developments in their fields, however general or specialized they may be. The negligence standard also applies to diagnosis and to a doctor’s selection of a procedure or of a course of treatment. Moreover, negligence law judges the physician’s effectiveness in communicating the risks and benefits of treatment to a patient, overlapping substantially with informed consent theory in that regard. Finally, the negligence standard applies to the performance of...
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Chapter Eight. Intrusion 28 results (showing 5 best matches)
- The utilitarian analysis of the intrusion tort leads to a fundamental generalization that recurs throughout the law of torts. This is that, in deciding whether a tort has been committed, the court must balance various interests, sometimes rating individual interests as paramount but often preferring social interests to individual ones. A rather stark example illustrates where courts will draw the line in favor of individual interests. This is the case of reporters who wiretap or use other means of electronic eavesdropping to acquire information about politically important people. It might provide significant informational benefits to the political process if the law refused to permit tort suits for that type of prying. However, courts are likely to award damages in such cases—even without reference to the statutory prohibitions on such conduct—because they consider the individual interests that are harmed, taking into ...costs of the invasion, to be more important than the social...
- The developing tort of intrusion, sometimes classified under the more general label of “invasion of privacy,” represents a judicial effort to define personal spheres or zones that the law deems off limits to others. The key elements of the tort, which may vary somewhat from jurisdiction to jurisdiction, include the following: (1) intentional conduct that (2) intrudes upon (3) a sphere or zone of privacy in (4) a way that the law deems especially offensive.
- As to the intent element, it may be difficult in practice to distinguish the intention to commit an act the consequence of which is to fulfill the other elements of the tort—that is to intrude on a sphere of privacy in a way that is in fact offensive—from an intention to do something offensive. The basic definition of intention in the intentional torts requires that the defendant intend an act that violated a norm. The case law on intrusion does not focus on this problem, but one might expect courts to straddle the issue. While they might focus on the question of whether the defendant’s act in fact was offensive, they might require a showing of some knowledge by the defendant that his behavior was a serious violation of standards of decent conduct.
- The intrusion doctrine deals with a fascinating variety of interests, and there are many ways to characterize the basis for plaintiffs’ claims. At an abstract level, the tort protects dignity and personhood. More concretely, courts may focus on property interests, although analysts have distinguished from the intrusion tort a separate “appropriation” tort. That theory permits a person to sue when the defendant in effect takes a valuable commercial right, as in the case where the defendant uses the plaintiff’s photograph without his or her permission. A New York civil rights statute, originally enacted in 1903, creates a cause of action for “us[ing] for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without” obtaining consent. The intrusion tort goes into less concretely definable territory than the appropriation tort, although those who view the world in strictly economic terms may view the cause of action for intrusion as...
- Although law enforcement officers have a broader warrant than private citizens to intrude on people’s privacy, there are limits. Illustrative is a holding denying summary judgment to a male parole officer who claimed qualified immunity for his direct observation of a female parolee giving a urine sample. In this constitutional tort case based on a theory of unreasonable search, the court said that there was a fact issue as to whether the defendant’s conduct violated the plaintiff’s “established constitutional right to bodily privacy.” The court invoked a department of corrections regulation saying that “[a]ll unclothed searches will be performed by … correctional officers of the same sex as the inmate and in a place providing privacy.”
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Chapter Thirty-Seven. Public Nuisance 26 results (showing 5 best matches)
- The line between public nuisance and private nuisance may well be uncertain and subject to interpretation, but the key to public nuisance is the violation of rights—be they in air, water, or streets—that are open to all. Moreover, courts confronted with public nuisance issues will take into account policy considerations that may go beyond the efficiency concerns on which many analysts of private nuisance have focused. For example, a nude dancing cabaret might turn a profit that outweighed the devaluation it caused to neighboring properties, but many courts would find that its adverse effects on public sensibilities created a public nuisance. Analogously, the fact that some courts take conservation principles into account indicates that there is more political content to this doctrine than one might ordinarily find in the private law of torts.
- Michael Rustad and Thomas Koenig set public nuisance within the framework of the “public health ” doctrine in Reforming Public Interest Tort Law to Redress Public Health Remedies, 14 J. Health Care Law & Pol. 331 (2011). They join issue with the criticisms of the use of public nuisance doctrine by state attorneys general in the book by Donald Gifford, Suing the Tobacco and Lead Pigment Industries: Government Litigation as Public Health Prescription (2010). Rustad and Koenig expect “cross-border litigation” to “evolve further because” “ ‘[t]he nature of global business operations and the transport of toxic substance augurs for an increasing number of public health epidemics created in the Twenty-First Century.’ ” Id. at 344, quoting Thomas C. Galligan et al., Tort Law Cases, Perspectives and Problems 630 (2007). They say that “[p]ublic health ...interest,” id. at 366, in an era in which “injuries will increasingly take the form of public health catastrophes where the injuries may...
- 1. That the plaintiff’s suit is for “economic loss,” to which tort law is not generally sympathetic.
- See Osborne Reynolds, Public Nuisance: A Crime in Tort Law, 31 Okla. L. R. 318, 337 (1978).
- As is already evident, the very term nuisance signifies a legal thicket—one might almost say itself something of a nuisance to lawyers—full of difficult definitional issues. The doctrine of private nuisance, discussed just above, occupies only part of the thicket. The term also applies to the very different concept of “public nuisance,” which originated in a “common law criminal offense” that “involved an interference with a right common to the general public,” such as the obstruction of a public highway, the keeping of diseased animals, or the storage of high explosives in an urban area. “[T]he use of the single word ‘nuisance’ to describe both the public and the private nuisance” led to a public nuisance analysis that was “substantially similar to that employed for the tort action for private nuisance.” However, there remain significant differences between the two theories. This chapter summarizes the doctrine of public nuisance.
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Chapter Sixty-Eight. Fact and Opinion 34 results (showing 5 best matches)
- The fact/opinion cases place in the spotlight an important theoretical problem associated with the law of defamation, namely, defining the social product of communication. Consider, for example, the obstacles that would confront an effort to do a thoroughgoing economic analysis of that question, which would require the analyst to value the social loss in the communications foregone because of a libel law that was relatively favorable to plaintiffs. A threshold problem is that it would be practically impossible to estimate how many, or what kind of, stories did not get written or broadcast because of the threat of liability. Beyond that, it is not likely that economists, or courts, would be able to place a dollar value on those opportunity costs; rather, the social benefit derived from communication relatively free from the threat of litigation tends to be an article of faith and not of numbers. This reality provides an interesting parallel between tort law and the constitutional law...
- The case law reveals the difficulty of crafting blackletter principles on whether a publication is fact or opinion. The problem of fashioning standards is inherent in the prismatic quality of language itself, as well as the diversity of contexts in which language appears. A crucial, if abstract, set of concepts lies in the notions of core meaning and verifiability : if a statement has a relatively definable common meaning and is capable of some kind of empirical verification, it will be deemed fact. By contrast, if what it communicates in context is that it is an expression of the personal views of the writer, and it does not imply an underlying set of verifiable data, then courts will hold that it is opinion.
- Some of the most slippery issues in libel law involve the question of whether an allegedly defamatory communication was one of fact or opinion. Statements of opinion are not subject to suits for defamation. Given the requirement that a defamatory statement be one that is false, a principal reason for immunizing statements of opinion is that one cannot prove that an opinion is true or false. Especially given the constitutionalization of libel law, the topic is important both philosophically and practically, implicating prized values on both sides. The value of reputation is clear; equally obvious is the importance of free discussion on public issues. The “fact/opinion” controversy replicates concerns of both publishers and plaintiffs that we have discussed under more general headings of defamation law.
- The policy debates over the fact/opinion distinction replay and elaborate those concerns at the heart of the arguments over defamation generally, as well as those central to the constitutionalization of defamation. Accompanying the “eleva[tion] to constitutional principle” of “the distinction between fact and opinion” is judicial warfare over the societal values represented by the distinction. On the one hand, courts must take into account the potential “chilling” of public speech threatened by the ability of plaintiffs to sue on vague or hyperbolic language or criticism. On the other hand, they must consider the risk to reputation that lies in the ability of publishers to employ innuendo that implies reputation-damaging facts.
- Id. at 998. A Michigan court makes a very broad argument, embodying a similar point of view, in ruling against Jack Kevorkian in a case involving language that on its face imputes criminal conduct. Kevorkian, who the court described as “possibly the best known and most controversial proponent of assisted suicide,” sued on statements by officials of the American Medical Association. The defendants had asserted that Kevorkian “serve[d] merely as a reckless instrument of death” and engaged in “criminal practices,” attributed “continued killings” to him, and called him “a killer.” The court opined that “with respect to the issue of assisted suicide, plaintiff is virtually ‘libel proof.’ ” Beyond that, it said that even if the statements were defamatory, they were “either nonactionable rhetorical hyperbole or must be accorded the special solicitude reserved for protected opinion.” The court observed that the plaintiff’s “very celebrity (or notoriety, if you will) derives... ...of...
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Section Eight. Proof and Causation 29 results (showing 5 best matches)
- An examination of problems of proof in tort law also involves an often-mentioned distinction, that between the roles of judge and jury. It is accepted among lawyers, in a very general sense, that juries find the facts and courts apply the law. However, that distinction sometimes becomes blurred. Courts not only reserve the power to make some screening judgments about the facts, they may sometimes turn over to juries mixed questions of fact and law. Of course, in a trial without a jury, the judge is the fact finder as well as the exclusive arbiter of the law.
- Decisions on sufficiency of the evidence also require consideration of the underlying rationales and goals of substantive tort law, including compensation and deterrence. Courts confronted with close evidentiary questions may give plaintiffs relatively broad leeway to prove a case in order to further the compensatory purposes of tort law. A special case of this sort of judicial approach appears in the liberal evidentiary standards that courts apply to the Federal Employers Liability Act (FELA), which governs claims for negligence by railroad workers. That legislation exhibited a definite plaintiffs’ tilt, for example eliminating the defense of assumption of risk and substituting a comparative fault standard for the rule that contributory negligence was a complete defense.
- The traditional classification of trial functions, which allocates questions of “law” to the judge and issues of “fact” to the jury, initially awards to the judge the decision of whether there is a sufficient factual question for jury determination. In making that determination about whether there is a triable issue, courts are making a judgment of legal policy. For example, when a court directs a verdict in a tort case, it is saying that as a matter of judicial administration, it would be inefficient to allow the case to go to a “fact”-finder because the chances are unacceptably slim, if not nonexistent, that the fact finder could find probable negligence and probable causation. The proof rules thereby enable judges to exercise some control over their workloads, and make it possible to avoid the expense of trials by cutting off claims that very probably would not succeed.
- The court may also be enforcing a rule of justice based on a conclusion—often implicit—that it would violate due process to let a jury find negligence. The court might believe that any finding of negligence in the case would be arbitrary—a decision based on whim and on no more than a roll of the dice—or, just as bad in terms of outcome, an inaccurate reading of the numbers on the dice. When courts decide defendants’ directed verdict motions, which typically present the appellate tort issues on this subject, they will seek to avoid arbitrary judgments by requiring that the nonmoving party, the plaintiff, present a plausible reason for his assertions of negligence and causation in order to advance to the jury.
- In sum, the proof rules help to define the ambit of the substantive law by providing relatively liberal or restrictive gateways to enforcement of liability rules. Thus, at the same time that they help courts to review “facts,” the proof rules also shape “the law.”
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Chapter Fifty-One. Apportionment Among Multiple Defendants 31 results (showing 5 best matches)
- The results of litigation in this area will turn in part on the exact language of the exclusivity provision at issue, but an important ground of decision will be the policy considerations involved in the delicate balance between workers’ compensation and tort law. On the one hand, courts that deny third-party claims concern themselves with maintenance of the so-called “quid pro quo” in the hypothesized bargain between employers and employees that underlay workers’ compensation legislation. On the other hand, there may be some situations in which allowing third party tort actions will produce a more desirable level of deterrence to culpable behavior.
- However, a majority of the Supreme Court permitted Lockheed to bring a third party action for indemnity, quoting a much-cited statement by Professor Larson that the issue of whether third parties could sue employers for indemnity was “[p]erhaps the most evenly-balanced controversy in all of workers’ compensation law.” The Court drew on a precedent for the proposition that there was “ ‘no evidence … that Congress was concerned with the rights of unrelated third parties, much less of any purpose to disturb settled doctrines of [tort] law affecting the mutual rights and liabilities of A dissent lamented that the decision would “greatly expand[ ] the liability to which the government may be subjected on account of injuries to its employees.” In any event, despite the majority’s decision, the “evenly-balanced” nature of this issue is more intellectual than quantitative, since the clear weight of state decisions immunizes the employer against third-party tort actions.
- An important pocket of immunity against suits for apportionment, which bars third party suits against employers, arises from the exclusivity provisions of workers’ compensation statutes. The root of the legal problem is that workers’ compensation legislation prohibits employees, who receive compensation payments from their employers under the statute, from bringing tort actions against their employers. The exclusivity of this remedy was part of the legislative bargain that facilitated the passage of workers’ compensation laws; in that pragmatic political deal, employees in effect traded for a relatively assured recovery of compensation benefits by sacrificing their opportunity to sue for the less certain but sometimes more lucrative recoveries that are possible in tort.
- Although clearly employees covered by workers’ compensation cannot sue their employers in tort, third parties who have had to defend tort actions by employees of other firms have tried to sue those employers for indemnity or contribution, alleging that those employers’ conduct was a sole, or active cause of the injury. However, most courts have not been hospitable to these suits by tortious third parties against workers’ compensation employers. These courts stress both the language of the exclusivity provisions of the compensation statutes, and the idea that employers’ duties run only to their employees and not to the third party plaintiffs. Courts denying third party actions against employers have also stressed the sharp distinction between workers’ compensation and negligence law, bluntly observing that workers’ compensation “has nothing to do with the concepts of negligence.”
- An intramural argument in the California Supreme Court displayed both advantages and disadvantages of a comparative regime in situations where the liability of multiple parties is grounded on both negligence and strict liability. The contrasting opinions appeared in a case in which a jury had found a supermarket 80 percent responsible under “both negligence and strict liability principles” and the manufacturer of a shopping cart to be 20 percent responsible, “grounded solely on strict liability principles.” The majority opinion, employing the hybrid concept of “common law comparative indemnity,” justified its choice on grounds of fairness and “basic equitable considerations.” ...precision that form of apportionment made possible by contrast with “an inflexible pro rata apportionment pursuant to … contribution statutes.” The majority declared that the differences between negligence and strict liability were “more theoretical than practical.” Specifically referring to cases involving...
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Section Four. Defenses to Negligence Claims 27 results (showing 5 best matches)
- The controversy over whether courts should refuse to enforce exculpatory clauses because of “public policy” features a particularly vigorous set of arguments involving competing rationales. A crucial aspect of the dispute has to do with what is meant by individualized justice in the tort context. Courts dealing with this issue must define for themselves the ethical bases of tort law in order to determine whether a decision achieves a just result.
- An initial set of issues related to defendants’ attempts to “contract out” of tort liability for injuries concerns notice of the terms of the agreement. Because courts are likely to look critically at efforts to bar a liability that otherwise would exist under the general law, they will require defendants seeking to enforce exculpatory agreements to show that the agreement is clear and conspicuous.
- As to clarity of meaning, a product seller that wishes to disclaim liability for harms caused by negligence is well advised to name that theory of liability in the disclaimer clause of the sales contract. In a case involving industrial machine components that did not work properly, the seller’s printed form had a provision headed “Warranty” that limited its liability “to the purchase price of the defective item” and said that “in no event are we to be liable for any loss of profits or special or consequential damages.” In the buyer’s suit for losses attributed to performance failures of the components, the court refused to enforce the exculpatory language with respect to tort damages based on allegations of negligence.
- The most direct way for potential tort defendants to avoid liability for negligence is to have prospective plaintiffs explicitly assume the risk of injury, by agreeing in advance that they will not sue for injuries, even those that occur because of the defendant’s culpable conduct. A procedural result of enforceable agreements of this sort—often called exculpatory clauses—is that they may make possible a summary judgment for defendants, obviating the need to conduct a trial in order to determine the culpability of either party. Variations on exculpatory clauses appear in disclaimers and limitations of liability in contracts for goods and services.
- Some subtle problems lie behind the simple requirements of clarity and conspicuousness. They concern, among other things, the question of whether the plaintiff in fact understood that exculpatory language negated the opportunity to bring a tort suit for culpable conduct or a defective product. This obviously ties into the matters of clarity and conspicuousness, but it also raises the issue of how to judge exculpatory clauses in cases where the plaintiff has relatively limited knowledge or expertise. Although courts may only occasionally invalidate disclaimers in agreements between business firms, they are more likely to be hostile to such clauses in consumer contracts.
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Chapter Forty-Nine. Proof of Causation and Scientific Evidence 71 results (showing 5 best matches)
- The requirements for proving scientific causation are likely to be more lenient in workers’ compensation cases than in tort litigation, with courts responding to the nature of workers’ compensation law. That legislation aims to provide compensation to workers injured in the scope of their employment without proof of fault on the part of the employer.
- Although some analysts rigorously isolate this conception of “cause in fact” from other matters, others believe that in the real world of litigation there is a reciprocity between the “proof rules” and the substantive rules and policies of tort law. Continuing a theme developed in earlier chapters, we note that the relative rigor or leniency of proof rules may affect the tendency of the substantive law to restrict or expand the possibility of recovery. The remarks of two distinguished lawyers provide an interesting contrast. Thomas Henderson, a plaintiffs’ advocate, has insisted that “policy considerations” may support liability judgments “even where scientific inquiry and knowledge are not certain or not complete.”
- A class of cases that generates many modern causation issues has featured problems involving so-called “toxics”—chemicals and fibers to which plaintiffs attribute illness. A major set of issues with respect to such substances—whether claims are brought under functional labels of “products liability,” “environmental torts,” or “toxic torts,” or more traditional theories of negligence, nuisance, or strict liability—relates to the plaintiff’s exposure to the substance. Courts examine a variety of proofs and factors to try to separate valid claims from those based on inadequate science. This evidence includes physical evidence such as X-rays, testimony about the duration and intensity of exposure, and expert opinions about the statistical association of certain kinds of overt pathology and particular levels of exposure.
- if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
- Several scientific disciplines provide knowledge that may be useful in solving tort causation problems, but conflicting testimony of scientists often generates factual disputes as well as arguments about the qualifications of witnesses and about the validity of the science itself.
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Section Eleven. Defamation and Invasion of Privacy 48 results (showing 5 best matches)
- The tort of defamation provides remedies for publications that injure reputation—called libel in the case of written publication or broadcast communication, and slander for spoken words. This chapter focuses principally on the law of libel, although it refers to some specific requirements of slander doctrine.
- See infra, Chapter 67 (generally describing the constitutionalization of defamation law); Chapter 68 (fact/opinion distinction in defamation). See also ¶¶ 69.01–03, 69.06 (discussion of the same policy conflicts with respect to “privacy” torts).
- The tort has a long and complicated history, and its modern rules are themselves complex. This chapter establishes a basic framework of definitions and discusses principal areas of controversy. It is helpful, at the outset, to summarize the fundamental requirements of the tort:
- A threshold requirement for defamation actions is that the communication at issue must be false. Some true statements about people—for example, dredging up unsavory material from their pasts—may lower their esteem in the community. However, although such publications may be actionable under another heading—principally the “public disclosure of private facts” branch of the tort of invasion of privacy —they are, by definition, not defamation because they are true. We also note that, although damages for defamation may include mental suffering, the underlying interest protected by the tort is one of reputation, rather than emotional integrity.
- This language appears in the leading case on the absolute immunity of federal officials, Barr v. Matteo, 360 U.S. 564, 575 (1959), which has been qualified as applying only to “discretionary” functions, see Westfall v. Erwin, 484 U.S. 292, 297–98 & n. 4 (1988). Congress subsequently reinstated the immunity of federal employees for “negligent or wrongful act[s] or omission[s] … within the scope of his office or employment,” at the same time providing an action against the Government under the Federal Tort Claims Act for such torts. 28 U.S.C.A. § 2679(b)(1).
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Section Six. Products Liability 59 results (showing 5 best matches)
- Given the pragmatic nature of tort law as it has developed, it is not surprising to find that it has created these parallel tracks of strict liability, making a separate category for products on the basis of a particular concern with such factors as deficiencies in consumer information and the promotional activities of sellers.
- Several courts have referred to the hurdles that warranty law presents to injured consumers as reasons for the adoption of strict liability. These features of warranty law include the requirement that consumers must give relatively prompt notice to sellers of their injuries, as well as the fact that in many cases, the application of statutes of limitations for warranty will favor sellers more than tort statutes of limitations. Moreover, often devastatingly from the consumer point of view, warranty law allows sellers to use and limitations of remedies, although the Uniform Commercial Code makes limitations of damages “for injury to the person in the case of consumer goods … prima facie unconscionable.”
- Professor John Fabian Witt discovers a “deep irony” in the transformation of principles of scientific organization of the workplace into rationales for products liability in Speedy Fred Taylor and the Ironies of Enterprise Liability, 103 Colum. L. Rev. 1 (2003). Witt describes a history in which “managerial engineers” focused on corporations as the best place to focus internalization of accident costs in the workplace. Associated with this idea was the development of accident insurance financed by firms, ultimately codified in law as workers’ compensation legislation. One effect of this was to “subtly inscribe[ ] into law a norm of managerial control even as it extended new benefits to wage earners.” See id. at 46, citing a previous work. But another effect of the idea that “employers were in a better position than employees to prevent work injuries” was that some observers began to think that “perhaps firms were likely to be in a better position than any number of other...
- After more development of the warranty theory, a much-cited scholarly synthesis, published by Dean Prosser in 1960, identified the strict liability underlying implied warranty as a separate legal phenomenon and advocated the reclassification of that form of liability into the tort category. In the same year there came a landmark in the decisional history, which fashioned warranty theory into a solid foundation for the doctrine that came to be called strict liability in tort. This was in which the New Jersey Supreme Court, using the then traditional contract terminology of “implied warranty of merchantability,” granted recovery against the non-privity manufacturer of a car that ran off the road, causing personal injuries.
- The central formulation of the strict liability theory for products appeared in section 402A of the Restatement (Second) of Torts, published in 1965. In full text, this section declares that
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Chapter Forty-Five. Res Ipsa Loquitur 64 results (showing 5 best matches)
- Courts also are likely to be wary of a sympathetic tendency to stretch tort law into a compensation system for heart-rending injuries, even in the absence of fault. A type of language that often commends itself to courts rejecting res ipsa in such situations is that the defendant’s liability should not be that of an “insurer.”
- 45.05 Res Ipsa, the Substantive Standard of Care, and the Policies of Tort Law
- ¶ 45.05 RES IPSA, THE SUBSTANTIVE STANDARD OF CARE, AND THE POLICIES OF TORT LAW
- We summarize here some important connections between res ipsa—in form a proof rule—and substantive legal standards as well as the policies underlying tort law.
- See Restatement (Second) of Torts § 328D(2), (3) (1965) (the court must “determine whether the inference may reasonably be drawn by the jury or whether it must necessarily be drawn,” and it is “the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached”).
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Section Seven. The Boundaries of Fault 33 results (showing 5 best matches)
- The three broad storehouses of private law—torts, property, and contracts—provide different angles of potentially useful analysis on the subject of private necessity. We have reviewed various tort theories that plaintiffs might use to justify liability in a -type case. If one examines the problem from the point of view of property law, a threshold question is to whom to assign the dominant property right concerning use of the dock. If it is the dock owner, he presumably should be able to get compensation. If the ship owner has the dominant right, it should not have to pay for the damage, a result bolstered by the fact that the ship is worth more than the dock.
- See Robert Keeton, Conditional Fault in the Law of Torts, 72 Harv. L. Rev. 401, 410–18 (1959).
- A further alternative would be to analogize the case to conversion, the intentional tort to personal property that requires a deliberate appropriation by the defendant of the plaintiff’s property for the defendant’s use. The theory would be analogical only, because the dock presumably was real property. In any event, since the defendant’s conduct did not ruin the dock entirely, the element of the conversion tort that requires a complete appropriation of the property or of its value would presumably defeat a claim based on such a theory. A weak cousin of conversion, the less demanding tort of trespass to chattels, might also serve as an analogy. However, the damage to the dock was substantial enough to make that analogy a pallid one, since trespass to chattels usually applies to relatively trivial interferences with property.
- Beyond these efforts to make sense of tort doctrine are broader policy questions about when it is appropriate to impose liability without a showing of fault. It may be useful here to refer to two types of legislative no-fault solutions to significant social problems of injuries caused by activities. One of these, workers’ compensation, is a universally adopted, comprehensive system that eliminates fault from the compensation inquiry. The other is no-fault legislation in the area of vehicle accidents, enacted in many states, which at least partially eliminates the tort liability action for injuries caused by vehicles, and substitutes insurance payments principally from the insurer of the person injured rather than the insurer of the injuring party.
- Confronted with a problem of justice—an injury inflicted by conduct that was deliberate but not negligent, the court in effect created a doctrine of private necessity. In analyzing that legal feat, it is useful to ask how the court might have tried to rationalize the outcome for the plaintiff in terms of traditional tort doctrines other than negligence.
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Table of Contents 148 results (showing 5 best matches)
Chapter Eleven. False Arrest 11 results (showing 5 best matches)
- For a brief general discussion of the rationales of tort law, see supra, ¶ 1.04.
- An especially serious issue under section 1983, analogous to the constitutionalized law of false arrest under that statute, concerns police use of deadly force to stop a fleeing person who allegedly has committed a felony. The Supreme Court’s decision under section 1983 in illustrates how constitutional law—in particular the constitutional right against unreasonable search and seizure—provides an extra layer of law upon tort doctrine. A police officer, summoned on a “prowler inside call,” fatally shot a teenage boy who was fleeing the scene in a situation in which the officer was “reasonably sure” that the boy was not armed. Under state law, the action would have been legal, for a state statute permitted officers to “use all the necessary means to effect [an] arrest” if the suspect fled after the officer gave notice of his “intention to arrest.”
- False arrest is a tort category that applies to “an unlawful assertion of police authority over a person resulting in a restraint on his liberty.” Actions for false arrest often are twinned with claims for false imprisonment, of which the gist is an unprivileged confinement. Indeed, allegedly false arrests are likely to involve confinements of the plaintiff against his or her will.
- The law of false arrest in state courts will vary with specific state rules, typically statutory rules, on the privilege to arrest. The arrest rules depend significantly on the severity of the plaintiff’s claimed offense, on whether the arresting officers have a warrant, and on the reasonable beliefs of the officers. Some illustrative examples of state rules are these:
- The great body of law developed under 42 U.S.C. section 1983, which allows private persons to sue state and local officials for violations of constitutional rights, is a principal modern source of rules governing suits for alleged police misconduct in making arrests as well as other police misfeasance. The decisions reflect the tensions between the liberty interest of arrestees and society’s interest in order.
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Chapter Forty-Four. Circumstantial Evidence Generally 19 results (showing 5 best matches)
- The general rules of circumstantial evidence exhibit an important linkage of standards for proof of negligence with the rationales for tort law. For example, proof rules tie in with the goals of achieving fairness in injury disputes and of providing realistic signals for controlling behavior. To take two abstract hypotheticals, the proof rules teach us that it would be insufficient grounds to impose tort liability on A for B’s injury only because A was B’s employer at the time he died, or on X for no more reason than the fact that X’s machine was in the vicinity of Y at the time of an injury.
- Another lesson of the case relates to the behavior-influencing aspect of tort law. If there was no evidence that the fall of the plaintiff’s decedent was attributable to the defendant’s construction or maintenance of its bridge and sidewalk, then any safety measure the defendant might take in response to a liability judgment would not save lives lost in the way that the decedent lost hers. The proof rules thus embody a deterrence-based logic as well as a fairness-based view of compensation, demanding a reason that links conduct to an injury, even if the conduct is arguably substandard in the abstract.
- in which a woman’s body was found floating in a creek, specifically illustrates the connection between evidentiary rules and tort rationales. The court’s denial of recovery suggests a judgment that it would be unfair, in the name of compensation, to conclude that only because of the proximity of an accident victim to a defendant’s property or activities, negligence probably occurred and that negligence probably caused the injury. Because there is no probable connection between the defendant’s conduct and the accident, it would be arbitrary to construct such a connection.
- 44.04 Circumstantial Proof and Tort Rationales
- ¶ 44.04 CIRCUMSTANTIAL PROOF AND TORT RATIONALES
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Index 189 results (showing 5 best matches)
Summary of Contents 28 results (showing 5 best matches)
Chapter Ten. False Imprisonment 24 results (showing 5 best matches)
- The tort of false imprisonment obviously applies to certain acts of public law enforcement officials and to similar acts of private security personnel, but it also may arise in a variety of informal settings, including encounters between people who know each other well. A short working definition of false imprisonment is an (1) intentional, (2) unconsented and unprivileged (3) confinement of another, (4) who either knows of the confinement or is harmed by it.
- The false imprisonment tort protects the interest of persons to go freely through the world, subject to legal restrictions on their entry into particular places. This interest in physical freedom has a corresponding foundation in personal dignity, an interest that receives protection from all of the intentional tort categories.
- As is so with the intentional torts generally, false imprisonment requires a showing that the defendant acted without consent or privilege. Some authorities classify consent under the general heading of privilege, In practice, the privilege issue in false imprisonment typically arises from the question of whether a confinement is an appropriate means of public or private law enforcement. Thus, the element of unlawfulness directly enters false imprisonment cases under the heading of lack of privilege. Indeed, the fact that a detention is in violation of legal rules—for example, those rules prohibiting unlawful arrests—may effectively make it an unprivileged act.
- Further support for the false imprisonment tort appears in the theory of deterrence. Particularly in cases involving defendants like public officers or employees of business establishments, the threat of money damages provides a measure of behavior control. A correlative of this point, which also applies to the other intentional torts, is that the existence of a legal remedy presumably would reduce the inclination to engage in self-help of people who believe their dignity has been offended.
- The tort requires an intentional act on the part of the defendant. In line with the intent element of such other intentional torts as battery, the action for false imprisonment requires only that the defendant intended to confine the plaintiff, rather than that he intended to act unlawfully. Thus, one court rejected the argument of a sheriff and a county that their holding of the plaintiff in a detention center for 114 days was not a false imprisonment because the plaintiff had not shown that “they intended to confine [him] wrongfully.” The court reasoned that to accept the defendants’ argument “would condone wrongful confinement of undetermined length provided that the defendant, while intending to commit the acts that restrain plaintiff’s freedom, does not intend
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Chapter Seventeen. Consent 21 results (showing 5 best matches)
- The intentional torts, generally speaking, require that the defendant’s behavior be unconsented by the plaintiff. Some courts will view lack of consent as part of the substantive definition of the tort, while others will treat consent as an affirmative defense. This chapter focuses on the issue of how to define consent, whatever the pleading requirement.
- Restatement (Second) of Torts § 892(1) (1977).
- Restatement (Second) of Torts § 49, comment a, illus. 2 (1965).
- Some courts may not even make a rigorous distinction between outright misrepresentation and nondisclosure. An example is a case in which the defendant did not reveal to the plaintiff that he suffered from a sexually transmissible disease, genital herpes. The court at one point characterized the plaintiff’s complaint as alleging that the defendant had “negligently or deliberately fail[ed] to inform her” of his disease. However, in the court’s summary of the reasoning that led it to uphold the complaint, it referred to the defendant’s “misrepresentation that he was disease-free.” It thus appears that in cases involving battery-like torts, courts will not necessarily draw a sharp line between misrepresentation and nondisclosure with respect to fraud as vitiating consent.
- Consent is willingness, or assent. It may be communicated by language or manifested by a physical act. An interesting case, involving an immigrant at a port of entry, indicates how one may objectively manifest assent although she has subjective reservations. This plaintiff sued for an “assault,” which in current technical tort terminology would be a claim for battery, because she was vaccinated although she protested to the surgeon who was vaccinating people that she already had been vaccinated. The surgeon said there was no vaccination mark on her arm, and the plaintiff, perhaps resignedly, held up her arm to be vaccinated. The court effectively held this act to be consent, barring the action.
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Chapter Fifty-Nine. Negligently Inflicted Emotional Distress 34 results (showing 5 best matches)
- An important problem that involves the duty question is whether plaintiffs suing for negligence should be able to recover for emotional distress. Almost all states have adopted the tort of intentional infliction of emotional distress, but only a minority of courts have been willing to recognize an independent cause of action for emotional distress alone against defendants who are no more than negligent. In struggling with this issue, the courts have fashioned a rather complicated body of law.
- See id. at 604 (Gonzalez, J., concurring). For a critical analysis of the strategic “underlitigation” of tort claims because of insurance exclusions, see Ellen S. Pryor, The Stories We Tell: Intentional Harm and the Quest for Insurance Funding, 75 Tex. L. Rev. 1721 (1997).
- The majority rule is summed up in Restatement (Second) of Torts § 436A (1965) (no recovery for “emotional disturbance alone” when defendant’s conduct “is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance”).
- For analysis of that tort, see Chapter 12 supra.
- The language of liability insurance policies may critically affect the strategy of pleading in cases where the plaintiff alleges only emotional distress. In the Texas videotape case, for example, the plaintiff’s lawyers may have chosen to plead only negligent infliction of emotional distress, rather than to invoke the intentional infliction tort, because they believed that the principal source from which the defendant would be able to pay a judgment would be his family’s homeowners’ liability policy. As a concurring judge in that case noted, such policies in Texas “cover[ ] only accidents and careless conduct and exclude[ ] intentional acts.”
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Chapter Thirty-Three. Comparative Fault 34 results (showing 5 best matches)
- A broader view of fairness, one that goes beyond achieving justice between the parties, suggests that comparative negligence will promote the most just social distribution of the costs of injuries. Those who see tort law through a corrective justice lens, focused on the moral claims of the individual litigants upon one another, may take issue with this position. However, some decisions indicate that, in addition to achieving individualized justice, the goal of fairly distributing accident costs among classes of litigants is also attractive to courts.
- Another set of contrasts uses the concepts of “additive” and “multiplicative” care: “In additive care, the care taken by one party can act as a substitute for the care taken by the other,” as in the case of auto accidents. By contrast, “[i]n multiplicative care, each party’s care does not act as a substitute for the other, but rather as a magnifier of it,” as in the case of asbestos and smoking. The solution uses “absolute” and “relative” concepts: “If the tort is commensurable and the nature of the care is additive, then the jury should be instructed to assess the percentage of negligence in absolute terms, i.e., how far was the party from taking reasonable care?” But “[i]f the tort is incommensurable or if the nature of care is multiplicative, then the jury should be asked to compute the percentage of negligence in relative terms, i.e, what percentage of reasonable care did each party take?”
- Others argue that liability rules have significant marginal effects on conduct even where injury-causing events occur swiftly, as in motor vehicle accidents. Indeed, some studies have reported that the adoption of no-fault legislation for vehicle accidents, which partly or completely eliminates tort litigation based on fault, is associated with a rise in fatal accident rates. These studies provide a sobering reminder of the economic axiom that as a form of activity (like careless driving) becomes less expensive, people will engage in it more. That theory suggests that contributory and comparative
- The main lines of the arguments about justice with reference to comparative doctrines are clear, although there are potential traps in terminology. At the level of policy, courts must decide how well comparative doctrines advance sometimes conflicting goals like fairness and deterrence, and must judge whether the extra quotient of justice achieved by comparative doctrines outweighs the value of doctrinal purity. Moreover, at the level of concept and associated terminology, it is important for courts to decide what it is they are comparing. To speak of “comparative liability” or “comparative responsibility” seems conclusory, for those terms announce a result rather than describing the things that are to be compared. To speak of “comparative negligence” raises the problem of how to compare negligence with strict liability. With respect to that difficulty, “comparative fault” is somewhat less objectionable from a linguistic standpoint. Particularly in cases where the theory of... ...of...
- The arguments for and against comparative negligence are rooted in differing views of policy. The elements of these disputes, both about whether comparative negligence is a good idea generally and concerning which model is preferable, include competing definitions of fairness, differing assumptions about the effects of law on primary conduct, and disagreements about the impact of comparative fault on the litigation process.
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Chapter Twenty-Seven. Informed Consent 45 results (showing 5 best matches)
- The “informed consent” idea is important for medical tort cases brought under both battery and negligence theories. As we have indicated, the basic concept of a battery is a very powerful tool in the law of torts. The heart of the definition of a battery is an unconsented touching, and as applied in medicine, this definition means that a physician who does a procedure on a patient without fully explaining the potential consequences may be liable for a battery because the physician has not elicited the patient’s informed consent.
- The rise of health maintenance organizations (HMOs) has produced a range of disputes in the realm of public policy that have spilled over into tort law. Under the lens of informed consent, a particularly important issue arises when cost-saving regimens instituted by HMOs create conflicts with the professional judgment of physicians about proper treatment. One commentator has suggested that if a doctor’s “clinical judgment of medically appropriate treatment differs from the HMO’s judgment of medically necessary treatment, the physician should inform the patient of this discrepancy.” Disclosure of that situation would allow the patient to “decide whether to forego the physician-recommended treatment and accept only the insurer reimbursable treatment, or to contest the insurer’s decision, or to pay for [the] additional treatment himself or herself.” Justification for this standard focuses on the materiality of the disclosure.
- It should be stressed that a “[t]he materality standard for disclosure does not incorporate a balancing test by which the court can weigh the risks of alternate treatments in deciding what information is material to the patient.” A striking application of this principle appears in a case involving allegations that an obstetrician was negligent in delivering a child vaginally without disclosing the alternative of a Caesarean section or the risks of either course of action. In a suit for injuries to the child, the trial court had found that the defendant had no duty to disclose the alternative of a C-section because the risks to a woman of that procedure were “more than [those] normally associated with the birth of a child.” Reversing, the appellate court said that if risks to either the mother or the child “would have been material to a reasonable patient in [the mother’s] position,” the defendant had a duty to disclose that information.
- The principal elements of informed consent doctrine, whether classified under a heading of negligence or battery law, require disclosure to patients of 1) the nature of a procedure or course of treatment, 2) the possible alternatives, 3) the material risks of the treatment, and 4) the anticipated benefits of the proposed course of conduct.
- sterilization procedure be successful may provide a way to particularize the principle to the individual, while retaining the “objectivity” of decisionmaking. In a case discussed above presenting that problem, the court noted that judicial opposition to “a subjective standard of causation” arose from distrust of the “hindsight” assertion by a patient about what she would have done if certain information had been provided to her. At the same time, the court declared that a jury did “not need the patient’s testimony to decide what a reasonable person” in the circumstances facing that patient would have done.
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Chapter Thirty. Implied Assumption of Risk: Generally 102 results (showing 5 best matches)
- The court of appeals reversed the trial court, saying that the appropriate legal standard was one of “reckless misconduct.” The appellate court specifically disagreed with what it characterized as the trial judge’s position that “there are no principles of law which allow a court to rule out certain tortious conduct by reason of general roughness of the game or difficulty of administering it.” It quoted a league rule that explicitly prohibited the defendant’s act, as well as citing disapproval by “general customs of football” of the “intentional punching or striking of others.”
- A contrasting viewpoint is that certain employees assume risks inherent in their employment as part of their jobs. A specialized version of this principle is the “fireman’s rule,” which, for example, bars suits by firefighters against building owners whose negligence caused a fire. Illustrative of the reach of the rule is a decision announcing the broad principle that a firefighter “assume[s] all … inherent risks” of fighting fires. The court applied this principle to bar recovery to a part-time fireman who jumped off the roof of a burning building after an explosion, and attributed his injuries to a defective product that allegedly caused the fire. Under this view that taking a firefighter’s job constitutes the acceptance of a risk package, voluntariness accompanies the plaintiff from his job application right into the burning building. Courts have applied analogous rules against police officers who sue for injuries arising out of the negligence of third parties.
- To round out this survey of defensive doctrines in sport and recreation cases, we reiterate that one of the most straightforward defensive maneuvers is to assert that the defendant simply was not negligent. One may apply this idea, for example, in the case of skiing dangers. Where ice is a fact of life on ski slopes, perhaps the most elegant explanation of results for defendants is to say that it is not a lack of due care to maintain ski slopes that are icy. This may be an even more direct way of presenting the case against liability than focusing on a hypothesized consent to “inherent danger” and a resulting lack of duty on the part of the defendant. Certainly, it provides an alternative way of looking at the subject and of rationalizing many decisions that refuse to impose liability in the context of sports and games, as well as of explaining many other cases across the range of tort law where plaintiffs encounter risk at some level of knowledge and choice.
- , in a sport where physical risk is common but violence is not sanctioned, appears in a California Supreme Court decision that refuses to impose liability for a “beanball,” a pitch delivered by a baseball pitcher who aims to throw toward the body of a batter. In this case, the pitcher for the plaintiff’s team had hit a batter on the team of the college defendant. The next inning, the defendant college’s pitcher—allegedly acting in retaliation—threw a pitch at the plaintiff, cracking his batting helmet and injuring him. The court concluded that the college could not be sued for “failure to supervise and control” its pitcher, saying that “[b]eing hit by a pitch is an inherent risk in baseball.” It acknowledged that a rule of Major League Baseball—emphasized by a dissenter—unqualifiedly condemned pitching “at a batter’s head” as “unsportsmanlike and highly dangerous,” an act that “should be—and is—condemned by everybody.” ...beanballs, are part of the game as it is normally played: “...
- Restatement drafters engaged in a spirited argument on the issue in the so-called “Battle of the Wilderness,” chronicled at Restatement (Second) of Torts, Tent. Draft No. 9 at 70–87 (1963).
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Chapter Twenty-One. Liability of Possessors of Land for Third Party Acts 32 results (showing 5 best matches)
- See Restatement of Torts: Apportionment of Liability § 1, cmt. c (2000) (“[t]his Restatement takes no position” on the issue of whether “a plaintiff’s negligence may serve as a comparative defense to an intentional tort”).
- The problem of “negligent security” is a particularly fascinating one in tort law because it brings to the surface the frequently lurking question of which social account is the most appropriate one to charge for an injury. Any judicial decision in cases of this sort implies a judgment about social accounting procedures. Sometimes courts will base that judgment upon the factor of the parties’ relative ability to avoid accidents. In other cases they will rest it on utilitarian concerns, reasoning, for example, that the greater good for a greater number of people will be served if the law does not require possessors of land to compensate a few victims of third party assaults.
- At least two tiers of general rules apply to the liability of possessors for injuries caused by third parties. One relatively general rule applies to business persons who hold their premises open to members of the public. This rule imposes liability for “physical harm caused by the accidental, negligent, or intentionally harmful acts” of third parties where the possessor has been negligent in failing to avoid or minimize the risks. Another set of rules, not limited to possessors of land but including them as potential defendants, imposes liability for crimes or intentional torts by third parties if the defendant negligently “created a situation which afforded an opportunity to the third person to commit such a tort or crime.” This liability arises if the possessor knew or should have known “that such a situation might be created and that a third person might avail himself of the opportunity to commit … a tort or crime.”
- Restatement (Second) of Torts § 344 (1965) (focusing on failure to exercise reasonable care by not discovering or warning about risks).
- Possessors of land owe a general duty of care to persons on their property, enforced in many states through a special set of rules that depend on the status of the visitor as invitee, licensee or social guest, and trespasser. Within the overall duty of due care, and also under the applicable categories of visitor status in particular jurisdictions, a specialized set of standards is developing to govern suits against possessors for injuries to visitors directly caused by others. Liability imposed under these rules has entered a relatively expansive phase, and is particularly worrisome to owners of business property because it involves their oversight of the activities of third parties. Writers have attached such labels as “negligent security” to this branch of torts.
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Chapter Thirteen. Fraud 20 results (showing 5 best matches)
- Restatement (Second) of Torts § 402B (1965); Restatement (Third) of Torts: Products Liability § 9 (1998).
- There is a broad spectrum of doctrines on which plaintiffs may base cases for representations that turn out to be false. The most culpable of these representations come under the heading of fraud, or deceit, on which this chapter focuses. Courts and commentators have spelled out the elements of fraud in various ways. One decision, which listed eleven elements, included the requirements that there be a false representation that has “to do with a past or present fact” and that the fact “must be material” and “susceptible of knowledge.” Another element of the fraud tort is that which has taken the label “scienter,” which this court summarizes as requiring that the defendant know that his representation is false, “or in the alternative, must assert it as of his own knowledge without knowing whether it is true or false.” The various definitions of the tort generally require that the defendant intend that the plaintiff rely on the representation and that the plaintiff did in fact rely and...
- Restatement (Second) of Torts § 551(2)(b)(1977).
- Restatement (Second) of Torts § 551(2)(e)(1977).
- Diverse rationales have been given for the law of fraud, ranging from those based in ethics and morality to those focused on economic efficiency. In a series of early articles, Dean Keeton emphasized an “ordinary ethical man” standard, saying in an article specifically focusing on nondisclosure that “it would seem that the object of the law in these cases should be to impose on parties to the transaction a duty to speak whenever justice, equity and fair dealing demand it.” Courts may be influenced in favor of plaintiffs who are in a particularly vulnerable position in a transaction where that position and the “superior information of the seller combine to present a compelling fairness case, given the seller’s knowledge of the buyer’s circumstances.” A different cluster of rationales for fraud law emphasizes efficiency, focusing on the economic cost of forcing buyers ...rationale overlaps with an ethical basis for the law: if buyers cannot trust sellers, they will expend inefficient...
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Chapter Sixty-Four. Economic Loss 42 results (showing 5 best matches)
- Courts also give tort awards for physical damage to property. An obvious example is damage to a vehicle caused by a collision. The decisions do draw various distinctions concerning the type of property damage for which they will allow tort recovery. As explained below, products liability is a field where these distinctions become particularly subtle. However, most courts refuse to give tort recovery where the injury consists of no more than internal damage to or a devaluation of a product purchased by the plaintiff.
- The distinction between personal injury and economic loss is important because plaintiffs who suffer personal injury can recover tort damages for a variety of losses stemming from that injury. The most common pecuniary consequences of personal injury for which tort damages are given include such items as medical bills, lost earnings, and the cost of household services. These are, truly, economic losses, but the fact that they result from personal injury makes them compensable in tort. Courts also routinely uphold tort awards for such intangible harms related to personal injury as pain and suffering.
- Although all courts give recovery for the quantifiable consequences of personal injury and for damage to property other than an allegedly defective product itself, courts are generally reluctant to allow tort suits for what they call “purely economic loss.” A typical example of economic loss for which courts will not impose tort liability is the sort of damages usually associated with breach of contract. Thus, courts are likely to reject tort suits against sellers of goods that do not perform well when buyers claim for “expectation loss,” like loss of profits, or other consequential damages like repair costs or losses associated with the idling of plant machinery.
- Viewed in a broad tort law perspective, the economic loss question is a sub-set of the questions discussed in previous chapters under the labels of “duty” and “proximate cause.” The question does fit within that matrix, because it involves a situation in which the defendant’s negligence or unreasonably dangerous product has been a but-for cause of a certain kind of harm to the plaintiff. Categorized that way, the economic loss question presents the familiar general problem of the need to fashion a limitation on liability. However, although not necessarily suggesting that it does not fall under that general inquiry, many courts have tended to view the economic loss issue as a separate realm unto itself without tying it to concepts of duty and proximate cause.
- Some courts have not found that view appealing. In a contrasting decision, the Eighth Circuit read Arkansas law to allow strict liability recovery in a case involving the sale of a used aircraft, which during the year after its purchase required major repairs and ultimately was found to be “so corroded as to be ‘economically unfeasible’ to repair.” In upholding a tort claim for what was described as the losses the plaintiff incurred “as a result of the plane’s failing to perform as expected,” the court focused on evidence “that the plane was in a defective condition and unreasonably dangerous.”
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Chapter Seventy-Three. Punitive Damages 47 results (showing 5 best matches)
- One may also view punitive damages as serving as a bridge between criminal law and torts. As a civil remedy, punitive awards provide some intermediate punishment and extra deterrence functions without the plaintiff having to meet the relatively stringent due process standards associated with criminal prosecutions. Yet, the fact that the foundations of punitive damages are civil rather than criminal carries the seeds of an argument against the remedy. This argument is precisely that the process for granting punitive damages provides insufficient procedural and evidentiary safeguards to those against whom these awards are, after all, used as punishment.
- A summary appears in Michael Rustad, Nationalizing Tort Law: The Republican Attack on Women, Blue Collar Workers and Consumers, 48 Rutgers L. Rev. 673, 689–92 (1996).
- One author views many courts’ award of punitive damages as serving “not only the goals of retribution and deterrence” but also a goal of “societal compensation”—“the redress of harms caused by defendants who injure persons beyond the individual plaintiffs in a particular case.” She suggests that “[t]he concept of societal damages dovetails with a primary goal of tort law: the compensation of individuals”—in particular, “those other than the plaintiff who have also been harmed by the defendant.” One kind of case in which societal punitive damages might be justified is the case in which an individual plaintiff sues for violations of “clearly established constitutional rights” that occur “pursuant to an official policy”—for example, strip searches by police officers. Another type of harms that would be remedied by societal punitive damages are injuries in the category where “it may be difficult to identify all of the parties who have been harmed by a specific defendant’s action.” One...of
- Apart from the raw statistics on the number and frequency of punitive awards, an important question is what the impact of claims for punitive damages is on “the actual processing of tort claims.” A study of 25,000 tort cases—every case filed in six Georgia counties over a four-year period—concluded that, on the whole, “the decision to seek punitive damages has no statistically significantly impact on most phases of the litigation process.” These findings applied to the question of whether cases were disposed of “by trial or by some other procedure, including settlement,” “whether a case that was disposed of by means other than a trial was more likely to have been settled,” and “whether a case that was disposed of by means other than a trial was more likely to have been disposed by a voluntary dismissal without prejudice so that it could be refiled.”
- Thomas A. Eaton et al., The Effects of Seeking Punitive Damages on the Processing of Tort Claims, 34 J. L. & Econ. 343, 345 (2005). This article includes a valuable review of the literature, id. at 346–49.
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Chapter Sixty-Three. Rescuers 27 results (showing 5 best matches)
- William M. Landes and Richard A. Posner, Causation in Tort Law: An Economic Approach, 12 J. Legal Studies 109, 133 (1983).
- An intrinsically interesting favorite of courts and commentators is the problem of a negligent party’s liability to rescuers, a category under which the law chalks up a variety of fact situations. A common element in the rescue cases is the same general situation that has fueled our discussions above of issues arising from extended chains of causal consequences, including “intervening cause” problems. The rescue problem fits neatly within the pattern of a defendant’s negligence followed by an injury that is indirect or unusual, which would not have occurred except for a series of events set in motion by the defendant’s conduct.
- Rossman v. LaGrega, 270 N.E.2d 313 (N.Y.1971) (reversing dismissal based on finding that plaintiff’s decedent was contributorily negligent as a matter of law).
- Id. at 437–38. One example of the idea that the rescuer does not have to show that the rescued person was “actually in immediate danger” is a case in which a trucker “disappear[ed] from sight” when a handrail collapsed on a machine he was using and “started yelling for help.” The court summarized state law on the proposition that “a plaintiff can recover via the rescue doctrine if the plaintiff reasonably believed the rescued person was in immediate danger.” It cites the plaintiff rescuer’s statement that the rescued man’s scream “was no ordinary cry for help.” Cales v. Halliburton Energy Svcs., Inc., 949 F.Supp.2d 1114, 1118-19 (N.D. Ala. 2013).
- As they do across the spectrum of decisions involving chains of consequences, courts and commentators have invoked a variety of rationales for allowing or denying recovery in rescue cases. Economic analysis has produced the idea that permitting recovery to rescuers will have desirable results from the point of view of resource allocation. Two leading commentators have said that “to the extent that rescue efforts are undertaken” and that rules favoring rescuer recovery “encourage[ ] such undertakings,” then “the number of accident victims, and hence the number of lawsuits, will be fewer than if recovery is not allowed.” We observe, however, that it is not clear that imposing liability in favor of rescuers will generate an appreciably greater amount of deterrence to negligent activity than simply imposing liability in favor of persons directly injured by culpable conduct.
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Chapter Twenty. Possessors of Land: Classifications 38 results (showing 5 best matches)
- The issue of the child trespasser provides a homely example of how the law resolves everyday interests in conflict. Although some people attach the term “attractive nuisance” to these cases, the problem of the child trespasser goes deeper than the phrase connotes. In trying to define the duties of landowners to unwanted young visitors, the drafters of the Second Restatement of Torts did not even focus on the idea that a site was attractive to children, although that may be said to be implicit in their formula; nor did they refer to the concept of nuisance, defined technically or otherwise. Rather, their initial emphasis was on the defendant’s knowledge or reason to know of the likelihood that children would trespass and of the “unreasonable risk of death or serious bodily harm” to children. They referred also, as another element generating liability, to the fact that trespassing children did not discover the dangerous condition or realize the risk because of their youth. Moreover,...of
- See, e.g., Mendez v. Knights of Columbus Hall, 431 S.W.2d 29, 32 (Tex.Civ.App.1968). One commentator, generally reflecting the invitee/licensee distinction, sharply distinguishes the duties of landowners by their “social role.” “Commercial actors such as supermarkets, hotels, landlords, and the like” “should not be able to get away with merely warning their customers, tenants, and so on about reasonably avoidable dangers on their premises…. By contrast, however, ordinary homeowners might well be viewed as appropriately satisfying their full obligation to act reasonably when they warn their guests of similar hazards in their homes.” Stephen D. Sugarman, Rethinking Tort Doctrine: Visions of a Restatement (Fourth) of Torts, 50 U.C.L.A. L. Rev. 585, 599 (2002).
- Restatement (Second) of Torts § 332(2) (1965).
- Restatement (Second) of Torts § 339 (1965).
- Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 51 (2012).
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Chapter Forty-Eight. Expert Evidence and Professional Negligence 18 results (showing 5 best matches)
- Those who support a rigorous requirement of expert testimony also express the concern that failure to enforce such a standard would permit claimants to succeed on no more than a showing that an injury occurred during the rendition of professional services. This, they argue, could turn a tort system that requires a showing of fault into a compensation system that disregards culpability.
- Generally, courts require plaintiffs in professional malpractice litigation to establish their cases by expert testimony. The major qualification to this principle is generally labeled the “common , and the lack of skill or want of care , as to be within the range of the ordinary experience and comprehension of even non-professional persons.” The court presented several examples of this kind of occurrence, including cases “where a gauze pad is left in the body of a patient following an operation,” or a surgeon’s knife slips in an effort to cut off a scalp tumor and “cut[s] off his patient’s ear.”
- In the background of the expert testimony issue is the question of how wide the gulf is between the specialized knowledge of professionals and that of other workers. Airline pilots, painting contractors, and grocery owners may ask whether there is a sufficient difference between their work and that of doctors and lawyers to justify a special requirement for proving professional negligence. The recurring issue in professional negligence litigation is whether, in given fact situations, lay persons are capable of knowing what due care is, and whether that standard has been met, without the explanation of an expert. That leads back to the questions of whether lay persons possess sufficient relevant knowledge—which includes the learning associated with the possession of a mental data base—and whether they can conceptualize the kinds of judgments fostered by sophisticated professional training.
- The main lines of the legal rules are pretty well laid out concerning the decision of when to require expert testimony in cases of professional negligence. But there will always be cases in the middle, between the obviously negligent amputation of the wrong limb and the subtle problem of identifying the correct spinal disk.
- The basic idea behind the general rule is that the activities of professionals involve matters so complex, and so demanding of expertise, that usually lay persons would not be able to determine whether, in fact, a defendant fell below the standard of care. No doubt also supporting the application of this rule is judicial concern that juror hostility to highly paid professionals, and sympathy for persons who allege that they suffered harm at the hands of such defendants, will translate into unjust verdicts.
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Chapter Thirty-Nine. Defect in Products Liability 66 results (showing 5 best matches)
- As is often so in tort law generally, a crucial question with respect to the determination of defect concerns the allocation of decisionmaking between court and jury. Dean Wade argued that ordinarily juries should not participate in decisions concerning policy matters, unless one of the factors he summarized as relevant to the defect decision had “especial significance.” An interesting Oregon decision on this issue dealt with the separation of the rim of a truck wheel from its interior portion when the wheel hit a rock in the highway. The majority distinguished the question of “what reasonable consumers do expect from the product,” which it termed a “basically factual question” for the jury, from the question of “how strong products had decided was “strong enough to perform as the ordinary consumer expects.” The court ruled against the plaintiff because of a lack of proof as to what consumers did expect, saying that to let the case go to the jury on that record would be to allow...
- Restatement (Third) of Torts: Products Liability § 2 (1998) (hereafter, Products Restatement). For a discussion of the concept of defect based on inadequate warnings, see infra, ¶ 39.05(B).
- The proposed inclusion of tobacco in that list appears in Restatement (Third) of Torts § 2, comment d (Proposed Final Draft April 1, 1997).
- The Restatement of Products Liability, the first project in the Restatement (Third) of Torts, has offered a three-part definition of defect, divided into categories of manufacturing defects, design defects, and products “defective because of inadequate instructions or warnings.” Its definition of a manufacturing defect, which captures a consensus, describes a product that “departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.”
- Restatement (Second) of Torts § 402A(1) (1965).
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Section Three. The Standard of Care in Negligence 20 results (showing 5 best matches)
- Courts have tended to use relatively specific standards, when they can, to define the appropriate level of care for particular kinds of activity. One instance of such standards, which we shall discuss in more detail in a later chapter, appears in the specialized categories that courts have developed concerning tort claims of visitors to land against possessors of the land on which the visitor was injured. Many states distinguish among categories of visitors—labeling them invitees, licensees, and trespassers—with the standard of care required of possessors varying according to the classifications.
- Directed verdicts have important implications for the structure of the judicial process as well as the costs of judicial administration. Besides saving some time and expense in trials, since directed verdicts keep cases from going to juries, the giving of a directed verdict underlines the different functions of judge and jury. By directing a verdict, the court has decided that, under the law, there is insufficient evidence to support the nonmoving party’s case. A central feature of that motion, then, is that it spotlights the role of judge as interpreter of the law, and of the jury as fact-finder.
- Courts also apply standards of varying degrees of specificity to different kinds of product manufacture. An example of highly fact-specific standards appears in the particularized body of law concerning the time frame during which distributors of blood and blood products knew, or should have known, of the potential for contamination by the HIV virus.
- Transportation activities have generated their own specific rules spelling out the negligence standard. Decisions involving motor vehicle accidents often derive their standard from statutes and regulations that set rules of the road. A rule with long historical antecedents has imposed a particularly high standard of care on common carriers. However, as the New York Court of Appeals said in a 1998 decision, “[t]ime has … disclosed the inconsistency of the carrier’s duty of extraordinary care with the fundamental concept of negligence in tort doctrine”—a single, “objective, reasonable person standard.” Although one rationalization for articulating a particularly high standard of care for common carriers was “the perceived ultra hazardous nature of the instrumentalities of public rapid transit,” the New York court opined that the single standard “is sufficiently flexible by itself to permit courts and juries to take into account the ultra hazardous nature of a tortfeasor’s activity.”...of
- A continuing procedural challenge for judges is to separate those cases that should not be litigated, because there is no legal support for the plaintiff’s allegations, from those that merit consideration by a fact finder, meaning that reasonable persons could differ on whether the defendant could be found negligent under applicable legal rules. For the student, this procedural foundation of negligence law means that it is necessary, while learning the substantive law, to absorb the meaning of the principal procedural motions used for testing complaints and evidence. These include the motion to dismiss, the motion for summary judgment, and the motion for a directed verdict. For the plaintiff’s lawyer, it usually requires an emphasis on the flexibility of negligence doctrine to defeat defense motions designed to keep cases from consideration by juries. For the defense lawyer, in most cases it requires stress on rigorous application of those motions. One cannot overestimate the...
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Chapter Thirty-Two. Classifying Defenses Based on Plaintiff’s Conduct 23 results (showing 5 best matches)
- Laurence Eldredge, in Restatement (Second) of Torts, Tent. Draft No. 9, at 73–74 (1963).
- Some analysts believe it would be wise to chalk up most “assumption of risk” defenses under the contributory negligence rubric. This solution would have the advantage of simplifying the law, making the only question whether the plaintiff’s conduct was unreasonable under the circumstances. This formulation of a single defense would override the view that there are certain kinds of plaintiff conduct that should be regarded as careless only when the plaintiff knowledgeably and voluntarily confronts danger—the traditional formula for assumption of risk. Those advocating retention of a separate assumption of risk defense might focus on such cases as those involving employee injuries in hazardous workplaces. With respect to those cases specifically, they would contend that because of the nature of such employment, the only plaintiff carelessness that deserves the label of contributory negligence is a voluntary and unreasonable confrontation with a particular danger.
- This set of classifications simply highlights the kinds of considerations that a court must take into account in dealing with conduct traditionally described—sometimes without sufficient analysis—as “contributory negligence” or “assumption of risk.” Under the approach advocated here, the first question the court should ask is whether the defendant fell below the standard of care the law prescribes for the activity at issue. Only if the answer to that question is yes, for if the defendant was not negligent the action will proceed no further, the court will ask whether the plaintiff fell below the standard prescribed for the plaintiff’s activity. Ordinarily, if she did not, she will win outright. If she did, then her action will be barred or her recovery will be reduced under comparative negligence. ...danger is one well-accepted to be inherent in that environment the court may hold that the defendant had no duty to the plaintiff, even if the defendant fell below the standard of care...
- The defendant falls below the standard of care and is therefore negligent, but the plaintiff acts unreasonably
- Questions that may be relevant to whether the plaintiff fell below the standard of care, sometimes implicating the nature of the defendant’s conduct, concern the particularity of the plaintiff’s knowledge of the danger and the meaning of “voluntary” acceptance of risk, an issue that forces judges to identify their behavioral and philosophical preconceptions about the nature of choice. In making decisions on these questions, judges may have to lay bare their premises about the reality of bargaining in conditions of relative scarcity, and about the morality of one party offering another a perilous bargain that the other feels constrained by economic circumstances to accept.
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Chapter Thirty-One. Contributory Negligence 20 results (showing 5 best matches)
- Restatement (Second) of Torts § 463 (1965).
- The contributory negligence issue generates many interesting problems concerning the distinction between fact and law, presenting the question of whether judge or jury is the better decisionmaker. Courts often refuse to rule as a matter of law that a plaintiff was contributorily negligent, reasoning that the jury should decide whether the plaintiff exercised reasonable care under the circumstances. Illustrative of the type of situation in which courts give the issue to the jury is a case in which the maker of a forage harvester argued that a farm worker was “negligent as a matter of law” because he did not comply with a safety caution in the operating manual. The court disagreed, saying that it would not hold an operating manual dispositive on the question of the plaintiff’s conduct. The court said that both “[t]he existence and appropriateness of the warning, as well as [the plaintiff’s] knowledge of the warning and his conduct,” presented jury questions.
- There are several rationales for the doctrine for contributory negligence, which are often implicit rather than explicit in the decisions. Courts presumably reason that over time, the message that careless behavior by accident victims will be penalized in tort litigation will tend to make people more careful for their own safety. Beyond that, there are intuitive reasons of fairness that motivate courts to bar or reduce the recovery of plaintiffs whose conduct falls below objective standards. When they employ the defense, courts simply are applying against careless plaintiffs the notions of corrective justice inherent in the imposition of liability on defendants for negligence.
- 31.02 Questions of Fact and Questions of Law
- ¶ 31.02 QUESTIONS OF FACT AND QUESTIONS OF LAW
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Advisory Board 9 results (showing 5 best matches)
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Earle K. Shawe Professor of Law, University of Virginia School of Law
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
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Copyright Page 2 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
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Table of Cases 56 results (showing 5 best matches)
- Board of Edu. of Farmingdale Union Free Sch. Dist. v. Farmingdale Classroom Teachers Ass’n, Inc. ....... 86, 90
- Howard v. University of Med. & Dentistry of N.J.................. 192
- Lynn v. City of New Orleans Dep’t of Police ....................... 65
- Purdy v. Public Adm’r of County of Westchester .................... 474
- Tarasoff v. Regents of University of California ........ 422, 423, 425
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- Publication Date: March 1st, 2016
- ISBN: 9781634604420
- Subject: Torts
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
-
Description:
This edition provides a wealth of new material drawn from summaries of and quotations from scholarly books and articles and case law. The subjects of this new material are rich in their range of topics. They include:
- The “precautionary principle”
- Summaries on tort rationales that range from references to Kantian philosophy and a riff on Harry Potter
- The relation of tort law to public law
- Varied materials on consent
- The duty question, including a summary of a recent Supreme Court case and scholarship in the area
- Material on privacy ranging from Prosser’s classification system to LGBT plaintiffs
- The roles of race and gender in calculations of damages
- A criticism of “tort reform” efforts
- Case law on the “baseball rule” with respect to spectator injuries.
- Matters of topical ‘headline” interest include smartphones as distractions and certain aspects of publication of photos on the Internet.
- Celebrities mentioned in items under different categories are Joan Rivers, Jesse Ventura, and Jim Boeheim.
