Acing Tort Law
Author:
Ghosh, Shubha
Edition:
3rd
Copyright Date:
2017
24 chapters
have results for acing tort law
Chapter 1. Overview 33 results (showing 5 best matches)
- Tort law and contract law:
- Tort law and criminal law:
- You should be aware of the Coase Theorem and what it says generally. You should see how it relates to the law and economics policy analysis more broadly. But you should also be aware that the law and economics analysis focuses largely on the efficiency of tort law, that is, on the effects of tort law on making society as wealthy as possible. There is no consideration of fairness. As a result, many policy analyses have emerged that are critical of law and economics; they point to the role of tort law in promoting fairness and social justice. For example, some argue that victims of accidents tend to be poor, members of under-represented minorities, or women, and therefore tort liability should be responsive to the concerns of these groups. Some law and economics thinkers have responded to these arguments by saying that it is better to resolve issues of fairness and justice through means other than tort law, such as civil rights legislation or welfare policies. Again, you should be...tort
- Tort law and property law:
- Your Torts class might emphasize the law and economics analysis of compensation and deterrence. At a very broad level, there are two parts to the law and economics analysis of tort law. The first is in support of tort liability and states that if one person causes harm to another, then the person causing harm should compensate the injured party. This argument is often referred to as “cost internalization.” The second part of the analysis is in opposition to tort liability and states that if the law incorrectly imposes liability on a person then beneficial conduct may be deterred.
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Introduction 8 results (showing 5 best matches)
- The rest of the book provides a how-to guide for different doctrinal areas of tort law. Intentional torts, negligence, and strict liability are the three categories of tort claims that a plaintiff can rely on to obtain recovery for injury. One of the skills you will learn is how to make arguments for treating a tort claim as an intentional tort claim, a negligence claim, or a strict liability claim. Chapter Two presents intentional torts (and defenses to intentional torts). Chapters Three through Six present the law of negligence. Chapter Seven presents the law of strict liability.
- This book is structured as follows. Chapter One gives you an overview of torts. The goal is to provide a big-picture outline of how to approach a torts problem, a discussion of the principal policies that underlie tort law, and a discussion of how tort law relates to other areas you will encounter in your first-year courses: contracts, property law, criminal law, and civil procedure. You will be able to see how torts fits into your study of law broadly and to recognize the major issues that come up in the field. As you will find, torts cases often present fact situations in which both sides can provide arguments for their position under the law. One of your jobs as a burgeoning attorney is to identify and discuss these positions in terms of the black-letter law that a case or a statute tries to provide. However, the resolution of a torts dispute, especially when both sides may have plausible doctrinal arguments, requires you to go to the next level of policy to argue who has the...
- orts is the subject first-year students either hate or love. Baffling cases involving, among other things, meat hooks, falling planks, burning hayricks, flying barrels, childish kicks to the shins, and, as one of my former students described, “railroads gone wild,” all lead to frustration for law students, especially those seeking a sense of what one needs to know to master the subject of torts. Appreciating the challenge the subject provides to legal reasoning, policy analysis, and understanding legal process is the first step in mastering the field. This book is designed to make you understand the structure of torts and help you see that tort law is about more than railroads, falling scales, or other sources of personal injury. Studying torts is about understanding the common law process and the litigation system, with all its frustrations and successes.
- The goal is to provide you with a set of guidelines by which to identify and analyze torts problems. The guidelines, which can often be reduced to checklists, will not only help you succeed in Torts exams and in most classroom discussions but will also sharpen your legal reasoning skills and allow you to identify torts-related issues in more advanced courses and in actual legal practice. This book is not a treatise on torts doctrine or on the history of the field. Several excellent books approach tort law from those angles. Instead, you should think of this study aid as a “how-to” book. Specifically, its aim is to show you how to approach torts issues as they come up in the various legal problems you will encounter in a first-year Torts class and beyond.
- Once a plaintiff establishes a legal entitlement to recover for an injury because the defendant has committed an intentional tort, negligent tort, or strict liability tort (or some combination of these three), then the plaintiff can obtain a remedy for the conduct of the defendant. Chapter Eight explains what these remedies are. Chapter Nine moves to more specialized topics in negligence and strict liability, specifically the question of defenses that a defendant can raise against the tort claims brought by the plaintiff. Chapter Ten presents the subject of vicarious liability, which deals with questions of when someone can be liable for the torts committed by someone else, such as an employer for the torts committed by an employee or a parent for the torts committed by a child. Finally, Chapters Eleven, Twelve, and Thirteen present three areas of advanced torts: products liability, reputation-based torts (such as defamation), and business torts. These three areas bring together...
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Chapter 2. Intentional Torts: 35 results (showing 5 best matches)
- In all seven intentional tort claims, the plaintiff must show that the defendant had intent. It is important to remember that intent under tort law is very different from intent in criminal law. Under criminal law, the defendant must have had a guilty mind. In tort law, we are not concerned with moral guilt or culpability. Instead, tort law is concerned with a much narrower and more concrete problem: did the defendant act in a way that shows a purpose to cause a consequence, or knowledge that a consequence will very likely occur? This approach is consistent with both the compensation and deterrence goals of tort law. The plaintiff can legally force compensation for injury from a defendant who had purpose or knowledge about a bad consequence that is legally sanctioned. It is fair and efficient for tort law to require such compensation because the injury resulted from no fault of the plaintiff, but rather from the defendant’s purposeful or knowledgeable conduct. Furthermore, by making...
- As a further illustration of how intent works in tort law, consider the defense of insanity, which is relevant in criminal law but not, in general, a defense in tort law. In tort law, as long as the plaintiff can show that the defendant acted either deliberately or with knowledge that the consequences would occur with substantial certainty, then the defendant’s mental state is irrelevant. Suppose a defendant is delusional and thinks the plaintiff is trying to kill him. If the defendant confines the plaintiff in a room, then the defendant is liable for false imprisonment. His delusional state is irrelevant to the fact that he intentionally confined the plaintiff against the plaintiff’s will and with the plaintiff’s awareness. The defendant has committed the intentional tort of false imprisonment.
- It is important to note that tort law does not make a defendant liable simply for having a bad purpose. Rather, liability is based on intention, or on the purpose (or knowledge) of a certain consequence that is covered by one of the seven intentional torts. What does it mean for the defendant to intend the harm? A plaintiff can show intent under tort law in one of two ways, either through deliberate conduct that caused certain consequences, or through knowledge that certain consequences would occur with substantial certainty. To illustrate, consider the tort of false imprisonment. It requires intentional confinement of a person against the person’s will and with the person’s awareness of the confinement.
- Your Torts class might cover the topic of nuisance, a cause of action that is shared by tort law and property law. Nuisance is often compared with trespass to land because both deal with injuries to real property. Trespass is an intentional physical invasion of land. Nuisance, by contrast, entails an interference with the use of land. If someone stands right at the border of your property and repeatedly makes a loud, disturbing noise that keeps you awake, there is no trespass to land (because there is no physical invasion), but there is a nuisance.
- Keep in mind that the standard for intent is the same for all seven intentional torts, but that the intentional torts differ in terms of their constituent elements and the type of injury each remedies. In general, the seven intentional torts can be divided into personal injury torts and property torts. The personal injury torts are battery, assault, false imprisonment, and intentional infliction of emotional distress. The property torts are trespass to land, trespass to chattels, and conversion.
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Chapter 11. Products Liability 22 results (showing 5 best matches)
- The Restatement (Third) of Torts summarizes juridical developments in tort law from the 1980s and 1990s. These changes should be understood in conjunction with the discussion of the law above. Since this area of law continues to change, please consult with your instructor about particular rules that would apply to your jurisdiction and to your particular course.
- Preemption can be a very complicated analysis because it requires careful attention to federal statutes and to state tort law. Break down the preemption analysis into the following steps. First, see if the federal statute or regulation expressly states that no state tort claim can be brought. If there is express language, then there is express preemption. Second, see if the federal statute or regulation defines a safety standard. If it does, then ask whether the state tort claim imposes a standard that conflicts with the federal one. If the state claim does conflict, then the federal standard trumps, and the plaintiff cannot bring the state claim.
- might be a factor in considering the reasonableness of the defendant’s conduct or the reasonableness of a product design. But in general, compliance with a statute is not dispositive. And again, if the statute at issue is a federal one that preempts the tort claim, either expressly or implicitly, then the state tort claim is dismissed because federal law trumps all state law.
- To understand what it means for a product to be defective, it is useful to understand a brief genesis of the strict products liability claim. In most jurisdictions, the strict products liability claim developed from the contract claims for breach of express or implied warranties. Under contract law, the purchaser of a product, and in some instances user of the product, had a claim for breach of an express or implied warranty that was part of the contract for sale of the product. Breach of the warranties would be shown by the failure of the product to meet the consumer’s expectations of how the product was supposed to function. Some courts expanded the contract claims to be brought as tort claims, with the resulting damages available under tort law (see Chapter Six). Other courts analogized the sale of
- This defense arises whenever a federal safety standard, such as one under the Consumer Product Safety Commission, Food & Drug Administration, or other federal agency, is at issue. Under the defense of preemption, a plaintiff cannot pursue a state tort claim because it conflicts with federal law and creates a contrary safety standard.
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Chapter 10. Multiple Defendants 21 results (showing 5 best matches)
- hen multiple defendants are found liable for a tort claim, three special issues arise. First, tort law allows recovery against one of many defendants for the entire judgment in favor of a plaintiff. The single defendant subsequently must proceed against the other defendants for their individual contribution. Recovery against one of many defendants is known as joint and several liability, which you should distinguish from joint liability and several liability. Second, tort law allows recovery against a party who is responsible for or in control of the defendants who actually committed the tort. This concept is known as vicarious liability and applies most often in the area of employment law, where the employer is liable for the torts of an employee when they occur in the scope of employment. Third, the issues of joint and several liability and vicarious liability can raise special concerns under comparative negligence. This chapter will help you navigate these three issues.
- Before we discuss each of these cases of vicarious liability, let us make clear some important distinctions. First, make sure you understand the difference between vicarious liability and joint and several liability. Under joint and several liability, each defendant has acted in a way that is tortious; the law makes it easier for a plaintiff to sue one of the defendants for the entire judgment. Under vicarious liability, a defendant is found liable not for doing anything tortious but rather for being in a relationship involving responsibility or control over the person who actually committed a tort. You can think about vicarious liability as a derivative liability: a defendant is held liable if the person over whom he has responsibility or control committed a tort. Even though these two kinds of liability are different, they can work in tandem. For example, in a partnership, one partner is vicariously liable for the torts committed by another partner. But a partnership can also give...
- Many jurisdictions grapple with the issue of how to handle claims of intentional torts against some defendants and negligence against others. Some jurisdictions treat all tort claims under a proportionate fault approach. Others have adopted statutes to treat intentional tort claims differently than negligence claims for the purposes of apportionment.
- Joint and several liability is not a tort claim. Rather, you should understand it as a legal device for bringing suit against one party for injuries caused by a group of individuals. Keep in mind the three instances where joint and several liability arise. Also keep in mind that in each of these instances, the plaintiff still has to establish a tort claim, whether based on intent, negligence, or strict liability.
- Under vicarious liability, a defendant is held liable for the torts committed by someone over whom they have control or for whom they have responsibility. Unlike with joint and several liability, the defendant can be held liable for doing nothing at all. Vicarious liability arises in four situations: (i) the vicarious liability of an employer for the torts committed by an employee in the scope of employment; (ii) the vicarious liability of a hiring party for the torts committed by an independent contractor who is engaged in an act for which duties are nondelegable; (iii) in some jurisdictions, the vicarious liability of a parent for the intentional or malicious act of a child; and (iv) in some jurisdictions, the vicarious liability of the owner of an automobile for the torts committed by a permitted driver of the vehicle. Keep in mind that as in all tort cases, the plaintiff can recover only once for an injury suffered. So, the plaintiff can recover either against the person who...
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Chapter 6. Negligence: Recoverable Damages 6 results (showing 5 best matches)
- Your Torts class will mention briefly survival and wrongful death actions. All states have created these actions by statute. These statutes were enacted to reverse a harsh common law rule that held that all tort claims die with the victim. In other words, if a victim of a tort died, then no one could bring a tort claim against the tortfeasor.
- A wrongful death action allows a survivor to bring a suit for the wrongful death of the tort victim. This action allows the survivor to recover damages for injuries that the survivor has experienced as a result of the death of the tort victim. Only a certain set of survivors can bring the suit. They are limited by statute in most instances to the legal spouse and children of the victim. The survivor bringing the suit will raise the relevant tort claims against the tortfeasor and is subject to the same defenses that the tortfeasor would have had against the deceased tort victim. We will discuss these defenses in greater detail in Chapter Nine. A wrongful death statute will sometimes limit the types of damages that can be recovered, but they usually include loss of economic support, loss of consortium, and economic injuries that resulted from the wrongful death.
- Survival and wrongful death actions are mechanisms that allow the estate or a surviving relative of a tort victim to bring claims after the tort victim has died.
- Some jurisdictions do not allow recovery for hedonic damages separate from recovery for pain and suffering; other jurisdictions do. Most jurisdictions have some limits on loss of consortium, or the emotional loss suffered by a spouse, child, or parent from the loss of companionship arising from either the death or injury of the tort victim. A loss of consortium claim can always be raised by the legal spouse or child of a tort victim. Some jurisdictions, however, limit when a parent can bring a loss of consortium claim.
- This chapter is divided into two sections. The first deals with survival and wrongful death actions, a legal mechanism for relatives of a tort victim to recover damages. The second deals with the types of recoverable damages a plaintiff has to show in order to establish the fourth element of negligence.
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Appendix C. Exam Checklists 47 results (showing 5 best matches)
- Coase Theorem: Parties will negotiate to recover harm and therefore if transaction costs are low, tort law is irrelevant. However, if transaction costs are high, then tort law should try to impose liability and damages the way the parties would if they could negotiate.
- Fairness, not efficiency, is goal of tort law.
- Tort law should try to pursue justice by compensating victims who are underprivileged or otherwise underrepresented because of race or gender.
- Nonfeasance or omission: A defendant does not have a duty to rescue another person. In general, failure to rescue someone does not give rise to liability under negligence or tort law more generally.
- The law of products liability constitutes three tort-based claims: negligence, strict products liability, and misrepresentation.
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Chapter 12. Reputation-Based Torts 12 results (showing 5 best matches)
- In approaching reputation-based torts, you should distinguish between defamation and privacy. Within each of these, separate the common law elements of each tort from the constitutional issues. This approach structures the discussion of the torts in this chapter.
- The privacy torts were developed by courts in the early part of the twentieth century in response to concerns over intrusions into the private sphere by private persons and the media. Tort law protects this private space through four causes of action. Each cause of action illustrates issues of the standard of care and the role of the First Amendment in protecting speech interests.
- he reputation-based torts include defamation and the four torts protecting privacy: (i) false light, (ii) public disclosure of private facts, (iii) intrusion, and (iv) right of publicity. These torts are treated separately because they involve more intangible injuries than the harms to person or to property that have largely been the focus of the torts we have discussed in previous chapters. These torts have different elements, but share injury to personality or reputation as a common concern. In terms of standard of care, these torts illustrate a hybrid of strict liability and negligence in a way we will make clear as we explain the details of each tort. These torts also implicate constitutional issues, particularly First Amendment protections for speech and the press.
- The reputation-based torts consist of defamation and four individual tort claims that fall under protection of privacy.
- CHECKLIST FOR REPUTATION-BASED TORTS
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Chapter 8. Tort Remedies 19 results (showing 5 best matches)
- There are two types of tort remedies: injunctions and damages. Damages are divided into two types: compensatory and punitive. Damages are the more common type of remedy in tort law because of the goals of compensation and deterrence.
- An injunction is a remedy imposed by the court ordering the defendant to affirmatively do something or to refrain from doing something. In the area of tort law, injunctive relief is rare except for the intentional tort of trespass to land and for some advanced areas, such as products liability, defamation, or business torts. For example, in a products liability case, a court might order a company to recall from the marketplace a product that has been found defective. In a defamation case, a court may order a newspaper to publish a correction to an article that contained false and defamatory information. In a business tort case, a court may order a company not to use a trade secret or other proprietary information that had been misappropriated from a competitor. We will discuss these more advanced examples in Chapters Eleven through Thirteen. In the more basic personal and economic injury tort cases, the remedy of an injunction does not make much sense because the court is trying to...
- In response to concerns that juries determine punitive damages on irrational factors, many states enumerate a list of factors that are designed to guide the jury in setting punitive damage awards in a manner that is consistent with the policies of tort law. The list of factors varies from state to state but typically includes factors like the magnitude of the harm, the number of victims, the extent to which the defendant profited from the tort, and the economic condition of the defendant.
- nce a plaintiff has proven a tort claim against a defendant, the court will provide a remedy for the plaintiff’s injuries. The three forms of tort liability—intentional, negligent, and strict—are legal bases for recovery from the defendant. But regardless of which legal basis the plaintiff is able to establish, the tort remedy will be designed along the legal rules presented in this chapter.
- Compensatory damages are an award of money calculated to put the plaintiff in the position he would have been in had the tort not occurred. This definition is abstract because it is based on a hypothetical notion of the accident not having occurred. In practice, compensatory damages are related to the damages that have to be shown in order to make a claim of negligence or strict liability, as discussed in Chapters Six and Seven. For intentional tort claims, compensatory damages are based on the nature of the intentional tort. For example, if the intentional tort claim is a battery, compensatory damages will be set to compensate for the physical harm caused by the defendant’s touching. If the intentional tort claim is based on harm to property, then compensatory damages will be based on the injury to property. Similarly, if the intentional tort claim is based on mental harms, compensatory damages will be based on the costs of these mental harms.
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Chapter 13. Business Torts 8 results (showing 5 best matches)
- he legal regulation of business is generally discussed in Contract Law and Property classes. Some of the more substantive business torts are dealt with in more advanced courses such as Business Organizations, Securities, and Intellectual Property. But your Torts class may cover the basic business torts towards the very end of the course. These basic business torts can be divided into two categories: those that deal with information in a business relationship and those that deal with interferences with a business relationship, both formal ones involving contract and informal ones. In analyzing each tort, focus on its component elements and the main issues each raises.
- This tort is analogous to intentional interference with contract except for the lack of a valid contractual relationship. The elements of this tort are: (i) existence of an economic relationship between the plaintiff and a third party that has the possibility of resulting in future economic gain to the plaintiff; (ii) knowledge by the defendant of the existence of the relationship; (iii) intent by the defendant to interfere with the economic relationship; (iv) actual interference; and (v) damages to the plaintiff caused by the interference. The defenses discussed under intentional interference with contract apply to this tort as well.
- The elements of injurious falsehood are: (i) a false statement of a kind calculated to damage a pecuniary interest of the plaintiff; (ii) publication to a third party; (iii) malice in the publication; and (iv) special damages suffered by the plaintiff. Elements (i), (iii), and (iv) make the claim apply to harmful speech as opposed to statements that might be made in media coverage or reporting. Although this tort, like defamation, implicates First Amendment issues, no separate First Amendment analysis has developed for this tort because the elements are quite difficult to show. Consequently, the tort creates liability for a very narrow range of statements and for statements that are of questionable value under the First Amendment.
- This tort is also referred to as disparagement and covers false and harmful statements made about someone’s business or products, as opposed to someone’s personal reputation. Such a statement may, by inference, also be the basis for a defamation claim.
- CHECKLIST FOR BUSINESS TORTS
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Chapter 3. Negligence: Duty of Care 17 results (showing 5 best matches)
- n most Torts courses, the negligence cause of action will take up a large percentage of class time. In United States torts law, negligence has been the primary claim that arises in litigation, and the reasonableness standard is pervasive in the law. Negligence is emphasized because it’s a flexible cause of action, allowing many legal claims to be brought under its broad standard. As a result, there is a lot of case law on negligence. This book, like your course, divides up negligence into its pieces. We will talk very briefly about how the pieces fit together.
- The most famous special duty rule under the law of negligence is the “no duty to rescue” rule. Under this rule, a defendant does not have a duty to rescue a plaintiff who is in distress. Sometimes the rule is stated in terms of there being no duty to act. You may also hear the rule phrased in terms of no tort liability for nonfeasance or omissions by the defendant.
- Nonfeasance or omission: A defendant does not have a duty to rescue another person. In general, failure to rescue someone does not give rise to liability under negligence or tort law more generally.
- Public policy: In general, there is no duty of care owed to a particular plaintiff by a public utility or a governmental entity if the entity does not take reasonable steps to protect the public. Legal liability in these situations is limited to obligations owed under contract and to intentional tort claims.
- Emotional harm: In general, a defendant does not owe a duty for emotional harm that a bystander suffers when he witnesses a tort committed by the defendant. The exception is if a bystander is in the zone of danger created by a defendant’s conduct and witnesses a close relative being injured by the defendant. To be in the zone of danger, the bystander must almost be physically injured by the defendant. A close relative includes a parent, a sibling, or an offspring.
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Chapter 5. Negligence: Factual and Legal Causation 13 results (showing 5 best matches)
- Your Torts class might study the issues of uncertainty and statistical evidence as they arise in the area of factual causation. These issues are difficult and can be daunting. Many courts have shied away from the issue of uncertainty and tort law, rejecting doctrines such as loss of chance. This book will not go into this topic because of a current trend in the law to move away from these issues by requiring more from the plaintiff before allowing a case to proceed or allowing the plaintiff to succeed on the merits. If your class goes into these topics in more detail, focus on how these topics arise in the context of factual causation: except in rare circumstances, we cannot know with certainty what caused a plaintiff’s injury. In complex torts cases, there may be multiple factors at work. Tort law deals with this uncertainty by placing the burden on the plaintiff to bring in enough supporting evidence that the total weighs slightly more heavily than the total supporting evidence of...
- Note that the directness test reinforces the compensation and deterrence policy goals of tort law. If a plaintiff’s injuries can be traced to a defendant’s unreasonable conduct, then the defendant should compensate the plaintiff. If there is no direct connection, then the plaintiff has to obtain compensation for the injuries from some source other than the defendant. Furthermore, if a defendant knows that they will be liable for all direct consequences of their unreasonable conduct, then this potentially broad liability serves as a strong incentive for the defendant to act reasonably. An unreasonable defendant may hope that a superseding cause will be found to cut off their liability. But since by definition a superseding cause is unforeseeable, cutting off liability with a superseding cause does not interfere with the deterrence goals of tort law.
- Scientific testimony is often important in factual causation cases. The use of scientific testimony will be crucial, for example, in a toxic torts case (involving hazardous substances) or in a products liability case (involving faulty tires or faulty brakes). In such cases, the issue of factual causation will pit expert against expert and will require the judge or the jury to weigh the competing scientific testimony. Your Torts class may talk in more detail about the use of scientific testimony in torts cases. If you do not cover this issue in your Torts class, you will cover it in an Evidence class. You should, however, be aware of how the issue arises in the context of factual causation. We will discuss the issue of scientific evidence more under the sub-issue of uncertainty below.
- ...bills but also in the loss of a promising career as a professional football player. Should the defendant be liable for all the millions of dollars the plaintiff suffers as a result of the defendant’s unreasonable conduct? If a defendant’s unreasonable conduct results in an entire highway shutting down or an entire town burning to the ground, should the defendant be liable for all those injuries, as well? The requirement of legal causation places some boundaries on the scope of the defendant’s liability to the plaintiff. Keep in mind that other legal rules also serve this boundary function. The duty rules discussed in Chapter Three exclude, in some cases, emotional injury and pure economic loss from the scope of a defendant’s liability. In the next chapter, on recoverable damages, we will discuss rules about what types of damages the plaintiff can recover. The requirement of legal causation is another example of how a defendant’s liability is limited by the law for purposes...
- emember that the plaintiff’s case for negligence has four elements: duty, breach, causation, and damages. This chapter turns to the third of these four elements: causation. In order to establish causation, the plaintiff essentially has to show that there is a connection, or nexus, between the defendant’s breach and the harm that the plaintiff suffered. Absent such a connection, or nexus, there is no reason to hold the defendant liable for the plaintiff’s damages. Suppose that a defendant negligently set a fire and that a strong wind caused the fire to blow onto a plaintiff’s land, damaging his property and person. What caused the harm to the plaintiff? Was it the fire or was it the wind? If the defendant was negligent but the harm was not the result of the defendant’s unreasonable conduct, then holding the defendant liable is inconsistent with the compensation and deterrence goals of tort law.
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Chapter 4. Negligence: Breach Through Unreasonable Conduct 9 results (showing 5 best matches)
- If the ordinance is relevant to the facts of the case and O did violate the ordinance, then the violation would establish unreasonableness as a matter of law. If the ordinance is relevant, then the ordinance would also establish a duty on the part of O under tort law. P’s family would in addition have to show causation and damages to make the
- , 132 E.R. 490 (1837), the English common law case often viewed as establishing the reasonableness standard in tort law, the court stated that a reasonable person is a person of ordinary prudence within a community, and that it’s up to members of this community, as represented through a jury, to determine whether a defendant should be liable. In
- It’s important to remember that the Hand Formula isn’t a numerical calculation. The formula is meant to guide conduct in an intuitive and flexible way. The formula also focuses attention on what is relevant for determining whether a particular conduct is reasonable or not: costs and the likelihood of harm. In addition, tort law is a very practical enterprise for determining when a defendant should compensate a plaintiff for harm, and the Hand Formula provides a suitably practical way of answering that question of compensation. For these reasons, the Hand Formula is often seen as the heart of reasonableness analysis and a helpful tool to structure and analyze legal arguments. The formula, however, has been criticized for reducing legal liability to a matter of costs and benefits while ignoring legal rights. In the case of the security guard, for example, the Hand Formula ignores any rights to be safe in one’s home as protected under the law. If it is not cost-effective to provide...
- P’s family brings a suit against O, the owner of the abandoned building. The law suit is for negligence and is based on the following ordinance enacted by the City of Tarses three years before the events described:
- Sometimes a statute might govern a particular conduct. Statutes against speeding, requiring the maintenance of land or personal property, and requiring security are all examples of relevant statutory law that may set a standard for reasonableness. Under the doctrine of negligence
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Title Page 4 results
Copyright Page 1 result
Chapter 14. Torts Arising from the Legal Process 8 results (showing 5 best matches)
- The torts discussed in this chapter should be compared with a Rule 11 sanction under the Federal Rules for Civil Procedure (and comparable rules under state law). A Rule 11 sanction is not a tort claim, but rather a penalty that can be imposed by a judge in a civil proceeding to punish a litigant who has submitted a frivolous pleading. The standards for a Rule 11 sanction are also presented below.
- Both of the previous two torts require the termination of a civil or criminal proceeding in favor of the accused before the tort claim can be pursued. However, a party may be subject to abuse of the legal process before the termination of a proceeding or despite lack of success in a trial. For example, a party might subpoena an individual simply to harass them. Or an individual might be subjected to false arrest and imprisonment. In some of these cases, the injured party might raise the claim of false imprisonment or some other tort. In general, however, the tort claim of abuse of process allows a party to obtain recovery for damages arising from the use of legal process brought for an improper purpose. The elements of such a claim are: (i) the initiation of a legal process, such as an attachment or an arrest; (ii) absence of a reasonable basis for the proceeding; (iii) improper purpose of the party bringing the proceeding; and (iv) damages suffered by the plaintiff.
- defendant who is found not liable in a tort or other civil action (or not guilty in a criminal prosecution) can bring a suit for malicious institution of civil proceedings (or malicious prosecution). In addition, if someone is hurt by the misuse of a legal proceeding (such as a subpoena or an attachment of property), then the victim can bring a claim for abuse of process. As you can imagine, a lawsuit to vindicate a lawsuit can lead to the propagation of litigation. The standards for bringing a tort claim arising from the legal process are consequently quite high.
- A claim for malicious institution of civil proceedings is considered an intent-based tort and has five elements. The plaintiff in the malicious institution proceeding must show the following: (i) the bringing of a civil proceeding against the plaintiff; (ii) termination of the proceeding in favor of the plaintiff; (iii) absence of a reasonable basis for the proceeding; (iv) improper purpose of the party bringing the proceeding; and (v) damages suffered by the plaintiff.
- CHECKLIST FOR TORTS ARISING FROM THE LEGAL PROCESS
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Appendix A. Exam Pointers 5 results
- If Torts is your last exam, congratulations! Take a break from law school for a while, but be ready to get back into things next semester. Enjoy a job well done!
- Stay calm and recognize that these are just a few hours during which you need to focus on the subject of torts.
- Organize the reading notes to see how your final answer will be structured. Choose whether to organize your answer by party or by tort.
- For each tort that you see, state and then discuss the elements that are at issue in the facts you are given.
- ere are some pointers to help you through the final examination for the course. This book should help you in reviewing most of the materials you have covered. There may be a few topics that this book does not cover but your Torts class did. Keep in mind that this book is a study aid and not a substitute for your class. Look to your class syllabus, casebook, and class notes first in preparing for the final. Use this book as a supplement to those materials.
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Table of Contents 18 results (showing 5 best matches)
Acknowledgments 2 results
- his project benefited from the support of former students and colleagues. Thanks first to Ayse Guner, SMU Dedman School of Law Class of 2008, and Timothy Martin, SMU Dedman School of Law Class of 2011, for excellent editing and proofreading skills. Both former students from my Torts class, they showed their knowledge of the field as well as their expertise in close reading and editing.
- The materials presented here went through classroom testing in several iterations of the Torts class, first at Georgia State College of Law and then at SMU Dedman School of Law. Thanks to the students in these classes for their questions and patience. Thanks to Professors Antonio Gidi, Zoe Robinson, and Alan Childress for helpful comments to improve content and presentation. Finally, thanks to Louis Higgins and colleagues from West Academic for letting me go forth with this project and for providing a home for my classroom materials that have been developed over the years.
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Chapter 9. Defenses to Negligence and Strict Liability Claims 10 results (showing 5 best matches)
- Traditionally, government and governmental actors could not be sued for tort claims. The rationale was to protect the sovereign from suits that would distract from governmental function. This immunity has now been abrogated through statutes at both the federal and state level. The Federal Tort Claims Act abrogates the immunity of the United States government for negligence claims unless the act being challenged is a discretionary function of the government, which means an act that is part of the policy-making function of the governmental entity or the actor. Most states have abrogated immunity for state and municipal government under statutes that follow the exception for discretionary conduct. Most states also allow tort claims for intentional torts or negligence unless the conduct falls under the discretionary function of the governmental entity or actor.
- Entities engaged in charitable or non-profit activities (such as schools, churches, and some hospitals) were traditionally immune from tort suits. This immunity meant that a charitable entity could not be sued for negligence or strict liability. The rationales for immunity included the concern that the threat of a suit might deter people from engaging in socially beneficial work, as well as a desire to protect the charitable entities from suit by beneficiaries of the charities who were unhappy with the entity’s work. The courts wanted simply to stay out of these disputes. Under modern tort law, however, most states have gotten rid of charitable immunity on the grounds that charitable entities can engage in conduct that causes harm, and the state wants to deter such activities. The treatment of charitable immunity varies greatly from state to state. No state offers blanket immunity for charitable entities. Some states retain immunity for volunteers who work for charitable entities....
- Traditionally, one spouse could not sue another for any tort claim. In the United States, the traditional rule also applied to suits against parents by children. The justification for these immunities rested on the need to protect family harmony; on the court’s deference to familial relationships, especially parenting decisions; and on a concern with frivolous litigation. Most states have abrogated this immunity in various ways. Some states allow suits between spouses when harm to property or intentional torts are at issue. Most states allow suits against parents by children for intentional torts but retain the immunity when the issue involves traditional parenting functions, such as discipline or child-rearing. Some courts are willing to abrogate the parental immunity in negligence cases when the parents have insurance and the insurance company is the actual defendant in the suit.
- Comparative negligence is a defense that applies to both negligence and strict liability claims. Sometimes comparative negligence is referred to as comparative fault or comparative responsibility to reflect the fact that the court must determine relative liability of the plaintiff and defendant regardless of whether the strict liability or negligence of the defendant is at issue. Note that comparative negligence does not apply to intentional torts. No jurisdiction compares the relative fault of the plaintiff with the intentional act of the defendant. In other words, the negligence of the plaintiff is not a defense to an intentional tort claim. Furthermore, it is only the plaintiff’s unreasonable conduct that becomes relevant in a comparative negligence defense. Even if the plaintiff was engaged in conduct that was intentional or would be subject to strict liability, the defendant has to show why that same conduct was unreasonable for the purpose of a comparative negligence defense.
- defendant has several defenses against a plaintiff’s negligence and strict liability claims. These defenses can be broken down into two categories: defenses based on the plaintiff’s conduct and defenses based on the defendant’s status. Defenses based on the plaintiff’s conduct rest on the argument that the plaintiff either assumed the risk posed by the defendant’s conduct or that the plaintiff’s unreasonable conduct also caused or contributed to the injury. Defenses based on the defendant’s status rest on special rules that exempt certain actors from tort liability. This second set of defenses includes immunities for charities, immunities for members of a family, and immunities for state entities and actors.
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Appendix B. Example of a Comprehensive Exam 19 results (showing 5 best matches)
- Analyze all tort claims that Shelly could raise against Ricky based on these facts. Focus on the torts and cases discussed this
- Analyze all tort claims that Ricky could raise against Shelly based on these facts. Focus on the torts and cases discussed this semester. Your answer should assess any difficulties Ricky might face in successfully bringing the claims.
- Finally, there are traditionally several affirmative defenses to intentional torts, such as necessity, defense of self and property, consent, and insanity. None of these seem appropriate to the facts here. The success of S in raising these intentional tort claims may rest on her ability to make the
- This sample answer is provided as a guide for the type of analysis and writing that will be expected on a final exam. This essay is not intended to be a perfect answer, although it does a good job of hitting all the major issues and a good job of analyzing and applying the law. More use of the facts could have been made, particularly in discussing some of the privacy torts and interference with contract/prospective advantage. But if you study the question and answer carefully, you should get a sense of the type of analysis that will be expected.
- An outline’s purpose is to help you in organizing your thoughts and writing your answer. Your professor will not look at it when grading your answer. Therefore, you should outline your answer in a way that is helpful to you, rather than in a way that communicates to your professor that you know what you are doing. You do not need to write out the outline in detail, i.e., your answer outline need not set out all the elements of the specific legal issues. The example outline above presents some special points to emphasize under each tort (such as special damages under defamation). You may want to put more factual points based on the scenario into your outline; again, make your outline work for you. Either way, you should have the elements of the law either well inculcated into your head or laid out in your course notes and outline.
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Chapter 7. Strict Liability 7 results (showing 5 best matches)
- , UKHL 1 (1868). Although this decision has been largely rejected in the United States, it established a rule for strict liability whose spirit is recognized in aspects of U.S. tort law even if the letter is not followed exactly. The rule, sometimes called the “escape principle,” goes as follows:
- Early on, liability for abnormally dangerous activities was known as liability for ultrahazardous activities, and that phrase still appears in the case law. Courts applied strict liability on a case-by-case basis and imposed it in such activities as blasting, ballooning, and transporting flammable substances on the highway. Over time courts developed a multi-factor test for determining when an activity is deemed ultrahazardous. The Restatement (Second) of Torts summarized these factors in Section 520 under the label “abnormally dangerous activities,” which is the common term now and the one you should use.
- The Restatement (Third) of Torts, in Section 20, recommends a simplified version of the test based on factors (iii) and (iv):
- The Restatement (Third) factors summarize those that have proven important in how courts have determined whether an activity is abnormally dangerous. When dealing with an issue of what constitutes an abnormally dangerous activity, work through each test depending on what is covered in your particular Torts class.
- Strict liability is the third standard of care for tort liability. Strict liability imposes liability for harm caused by a defendant regardless of intent or unreasonable conduct.
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West Academic Publishing’s Law School Advisory Board 10 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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- Publication Date: August 30th, 2017
- ISBN: 9781683288183
- Subject: Torts
- Series: Acing Series
- Type: Exam Prep
- Description: This study aid features an innovative method of content organization. It uses a checklist format to lead students through questions they need to ask to fully evaluate the legal problem they are trying to solve. It also synthesizes the material in a way that most students are unable to do on their own, and assembles the different issues, presenting a clear guide to procedural analysis that students can draw upon when writing their exams. Other study aids provide sample problems, but none offers the systematic approach to problem solving found in this book combined with concise analytical summaries of the leading issues in tort law.
