Hornbook on Torts
Authors:
Dobbs, Dan B. / Hayden, Paul T. / Bublick, Ellen M.
Edition:
2nd
Copyright Date:
2016
57 chapters
have results for dobbs torts hornbook
Preface 9 results (showing 5 best matches)
- This hornbook is intended to provide a single-volume overview of contemporary tort law. It covers all of the traditional ground of tort law as well as a number of wholly new legal issues, including the fast-growing economic torts. Our aim is to help readers understand the general rules and flavor of contemporary American tort law through recent cases, statutes, and illustrations. While the approach is comprehensive, it is also judicious. Readers who prefer a more exhaustive examination of the topics and a fuller list of citations in support of various rules can turn to our four-volume treatise, Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts (2d ed. 2011 & Supp.).
- Dan B. Dobbs, Paul T. Hayden, and Ellen M. Bublick, The Law of Torts (2011 & Supp.): (volume number) Dobbs, Hayden & Bublick, The Law of Torts (section) (2d ed. 2011 & Supp.).
- This edition presents the second iteration of this one-volume hornbook. For the first edition, Professor Dobbs originally intended to write a new version of the Prosser & Keeton treatise, of which he was a co-author. However, the law had changed so much since that hornbook was last edited in 1984, he decided the revision game was not worth the candle; it was better instead to write an entirely new book from the ground up. His efforts became the first edition of this book.
- Changes in tort law between the last edition of the Prosser & Keeton hornbook in 1984 and the first edition of this book in 2000 were immense, and certainly included changes in attitudes of judges and legislators. From the first volume of this hornbook in 2000 to the work today, changes have been more incremental, but also pervasive and important. For example, in intentional torts, the Restatement Third of Torts: Intentional Torts to Persons created a new tort of purposeful infliction of bodily harm. Whether courts will embrace the new tort, and with what limitations, is a matter for coming legal development, and lawyers are well-advised to be alert to the new possibilities. Moreover, all-or-nothing doctrines such as assumption of the risk have continued to fade away, and are increasingly discarded as separate defenses and instead incorporated into comparative fault defenses. While legislatures continue to limit the liabilities of many favored groups, common law duties of care are...
- W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, & David G. Owen, Prosser & Keeton on Torts (5th ed. 1984): Prosser & Keeton.
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Chapter 41. Economic Torts and Economic Loss Rules 115 results (showing 5 best matches)
- Even some intentional torts may be protected by the economic loss rule in some instances. See 3 Dobbs, Hayden & Bublick, The Law of Torts § 615 (the paragraph
- Economic loss rules barring negligence claims would almost always bar strict liability claims as well. These usually occur in product-defect cases. In a few instances, intentional tort claims for pure economic loss have been barred by the rules. See 3 Dobbs, Hayden & Bublick, The Law of Torts § 686 (2d ed. 2011 & Supp.).
- See 3 Dobbs, Hayden & Bublick, The Law of Torts §§ 650 (banks’ liability or not) & 712 (same in context of computer hacking) (2d ed. 2011 & Supp.). Both the card issuer and the identity thief, of course, are, directly or indirectly, making representations to third persons about the identity of the thief and about the plaintiff’s credit.
- See 3 Dobbs, Hayden & Bublick, The Law of Torts § 686 (2d ed. 2011 & Supp.).
- As to what counts as “other property,” see 2 Dobbs, Hayden & Bublick, The Law of Torts § 449 (2d ed. 2011 & Supp.).
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Chapter 43. Misrepresentation and Falsehoods 112 results (showing 5 best matches)
- Restatement (Second) of Torts § 552B (1977) (excluding benefit of the bargain damages). It is also possible that the plaintiff’s comparative fault will reduce the award in negligent misrepresentation cases when it would not do so in intentional fraud cases. See 3 Dobbs, Hayden & Bublick, The Law of Torts § 672 (2d ed. 2011 & Supp.).
- See 3 Dobbs, Hayden & Bublick, The Law of Torts §§ 687–88 (2d ed. 2011 & Supp.) (reflecting these alternative aims in the benefit of bargain and out of pocket measures of damages). Misrepresentation may also be a relevant fact in other torts, in which case physical harm and other damages may be appropriate. Id. § 663.
- See 3 Dobbs, Hayden & Bublick, The Law of Torts ch. 43 (2d ed. 2011 & Supp.).
- See 3 Dobbs, Hayden & Bublick, The Law of Torts § 667 (2d ed. 2011 & Supp.).
- Johnson v. Healy, 176 Conn. 97, 405 A.2d 54 (1978); as to damages measures, see 3 Dobbs, Hayden & Bublick, The Law of Torts §§ 687–92 (2d ed. 2011 & Supp.).
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Chapter 37. Defamation 109 results (showing 5 best matches)
- Restatement (Second) of Torts § 611 cmt. e (1977). For an evaluation of the Restatement position, see 3 Dobbs, Hayden & Bublick, The Law of Torts § 548 (2d. ed. 2011 & Supp.).
- See 3 Dobbs, Hayden & Bublick, The Law of Torts § 649 (2d. ed. 2011 & Supp.).
- See 3 Dobbs, Hayden & Bublick, The Law of Torts § 523 (2d. ed. 2011 & Supp.).
- The topic is developed at greater length in 3 Dobbs, Hayden & Bublick, The Law of Torts § 521 (2d. ed. 2011 & Supp.).
- For greater detail, see 3 Dobbs, Hayden & Bublick, The Law of Torts § 523 (2d. ed. 2011 & Supp.).
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Chapter 33. Products Liability 93 results (showing 5 best matches)
- Restatement Third of Torts (Products Liability) § 2, cmt. f (1998). This substantive rule may be defeated by evidentiary requirements imposed in federal courts, and in many state courts. See 2 Dobbs, Hayden & Bublick, The Law of Torts § 463 (2d ed. 2011 & Supp.).
- A product manufacturer or distributor can limit implied warranties of merchantability, subject to the Uniform Commercial Code and other statutes. However, a manufacturer cannot disclaim liability for personal injuries, as opposed to commercial loss. See UCC § 2–719(3); Restatement Second of Torts § 402A, cmt. m (1965); Restatement Third of Torts (Products Liability) § 18 (1998); 2 Dobbs, Hayden & Bublick, The Law of Torts § 472 (2d ed. 2011 & Supp.).
- The defendant may be subject to liability for harms to users of the product as well as bystanders injured by the product. See 2 Dobbs, Hayden & Bublick, The Law of Torts § 471 (2d ed. 2011 & Supp.).
- Cf. 2 Dobbs, Hayden & Bublick, The Law of Torts § 462 (2d ed. 2011 & Supp.) (unknowable dangers and design defects).
- See 2 Dobbs, Hayden & Bublick, The Law of Torts § 462 (2d ed. 2011 & Supp.).
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Chapter 36. Alternative Systems for Compensating Injury 86 results (showing 5 best matches)
- Air Transportation Safety and System Stabilization Act of 2001, Pub.L. No. 107–42, 115 Stat 230. The Victims’ Compensation portion is Title IV. The statute excludes tort claims for those who assert a claim to the fund and caps tort claims for those who do not. See 3 Dobbs, Hayden & Bublick, The Law of Torts § 510 (2d ed. 2011 & Supp.).
- See 2 Dobbs, Hayden & Bublick, The Law of Torts § 317 (2d ed. 2011 & Supp.).
- See 3 Dobbs, Hayden & Bublick, The Law of Torts § 506 (2d ed. 2011 & Supp.).
- See 1 Dobbs, Hayden & Bublick, The Law of Torts § 29 (2d ed. 2011 & Supp.).
- The original idea, see Robert Cooter & Stephen D. Sugarman, A Regulated Market in Unmatured Tort Claims: Tort Reform by Contract, in New Directions in Liability Law 174 (Walter Olson ed.1988), was not about mass torts, but can be adapted to deal with the mass tort problem. See Peter H. Schuck, Mass Torts: an Institutional Evolutionist Perspective, 80 Cornell L. Rev. 941 (1995).
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Chapter 6. Intentional Interference with Tangible Personal Property: Trespass to Chattels and Conversion 72 results (showing 5 best matches)
- See 2 Dobbs, Hayden & Bublick, The Law of Torts §§ 260 & 261 (2d ed. 2011 & Supp.).
- Cross v. Berg Lumber Co., 7 P.3d 922 (Wyo. 2000). The “waiver of tort rule,” its peculiar terminology, and its practical effects are explained in 1 Dan B. Dobbs, Law of Remedies § 5.18 (2d ed. 1993).
- See 1 Dan B. Dobbs, The Law of Remedies § 5.15 (2d ed. 1993) (lost profits and other consequential damages).
- As to creditors’ unconstitutional use of legal process see § 6.14; 1 Dan B. Dobbs, Law of Remedies § 5.17(2) (2d ed. 1993); as to malicious prosecution see Chapter 39.
- See Dan B. Dobbs, The Law of Remedies § 4.2(3) (2d ed. 1993) (replevin as a means to recover converted property).
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Chapter 42. Interference with Contract and Economic Interests 91 results (showing 5 best matches)
- Economic harm that results from physical or dignitary harm is distinguished from economic harm that stands alone, not the result of tortious physical or dignitary injury. See 3 Dobbs, Hayden & Bublick, The Law of Torts § 605 (2d ed. 2011 & Supp.).
- Lumley v. Gye, 2 El. & Bl. 216, 118 Eng. Rep. 749 (Q.B. 1853), discussed in 3 Dobbs, Hayden & Bublick, The Law of Torts § 632 (2d ed. 2011 & Supp.).
- 3 Dobbs, Hayden & Bublick, The Law of Torts §§ 631–37 (2d ed. 2011 & Supp.).
- Kirkland v. Tamplin, 285 Ga.App. 241, 645 S.E.2d 653 (2007) (improper means such as fraud or defamation are required to support an action for interference with contract; merely persuading one to breach is not enough). On this requirement in interference with prospects cases, see § 42.7. On the requirement in prospective advantage cases, see 3 Dobbs, Hayden & Bublick, The Law of Torts § 638 (2d ed. 2011 & Supp.).
- Quelimane Co., Inc. v. Stewart Title Guar. Co., 19 Cal. 4th 26, 960 P.2d 513, 77 Cal. Rptr. 2d 709 (1998); Foster v. Churchill, 87 N.Y.2d 744, 665 N.E.2d 153, 642 N.Y.S.2d 583 (1996); Mills v. C.H.I.L.D., Inc., 837 A.2d 714 (R.I. 2003); see 3 Dobbs, Hayden & Bublick, The Law of Torts § 644 (2d ed. 2011 & Supp.).
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Chapter 25. Limiting Liability for Non-Action 44 results (showing 5 best matches)
- relates to modern approaches to undertakings, see 2 Dobbs, Hayden & Bublick, The Law of Torts 412 (2d ed. 2011 & Supp.).
- On the shifting-responsibility concept, see 1 Dobbs, Hayden & Bublick, The Law of Torts § 213 (2d ed. 2011 & Supp.).
- where the defendant does nothing toward performance, can create a duty, see 2 Dobbs, Hayden & Bublick, The Law of Torts § 411 (2d ed. 2011 & Supp.); Restatement Third of Torts (Liability for Physical and Emotional Harm) § 42, cmt. e (2010) (gratuitous promises as well as gratuitous actions that reduce danger may be the basis for demanding reasonable care for the plaintiff’s physical safety).
- Restatement Second of Torts § 314, Illus. 1 (1965). See also Restatement Third of Torts (Liability for Physical and Emotional Harm) § 37 & 38 (2010) (covering the same ground, also making it clear that the defendant does not escape liability if he has himself created a risk of physical harm).
- Restatement Third of Torts (Liability for Physical and Emotional Harm) § 39 (2010); Restatement Second of Torts § 321(1) (1965).
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Chapter 21. Liability of Health Care Providers 47 results (showing 5 best matches)
- § 21.5 & 21.6. In some cases, predetermined guidelines set by a government agency might be adopted as standards. See 2 Dobbs, Hayden & Bublick, The Law of Torts § 295 (2d ed. 2011 & Supp.).
- See 2 Dobbs, Hayden & Bublick, The Law of Torts § 296 (2d ed. 2011 & Supp.).
- See 2 Dobbs, Hayden & Bublick, The Law of Torts §§ 305 & 306 (2d ed. 2011 & Supp.).
- See, e.g., McGathey v. Brookwood Health Services, Inc., 2013 WL 3958299 (Ala. 2013) (obvious negligence). On res ipsa loquitur in malpractice cases, see 2 Dobbs, Hayden & Bublick, The Law of Torts §§ 305–306 (2d ed. 2011 & Supp.).
- See 2 Dobbs, Hayden & Bublick, The Law of Torts § 463 (2d ed. 2011 & Supp.) (excluding expert testimony in products liability cases).
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Chapter 44. Economic Harm to Intangible Interests by Conversion or Spoliation 25 results (showing 5 best matches)
- See 3 Dobbs, Hayden & Bublick, The Law of Torts § 709 (2d ed. 2011 & Supp.).
- Independently of tort rules, restitution doctrine refuses to permit restitution for breach of contract where the defendant’s only remaining obligation is to pay the plaintiff money. See, e.g., 3 Dan B. Dobbs, Law of Remedies § 12.7(5) (2d ed. 1993). The effect of this rule is to limit the plaintiff to the contract price and to prevent recovery of whatever gains the defendant made by reason of his breach.
- See Dan B. Dobbs, An Introduction to Non-Statutory Economic Loss Claims, 48 Ariz. L. Rev. 713, 722 (2006).
- Assumpsit, to use the name of an old form of action, would lie for money received by the defendant that belongs to the plaintiff. See 1 Dan B. Dobbs, Law of Remedies § 6.1(1) (2d ed. 1993).
- For example, a constructive trust may be imposed on a bank account, although the account is not a separate accumulation of money but only a bookkeeping credit to the owner. See Dan B. Dobbs, Law of Remedies § 6.1(4) (2d ed. 1993).
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Chapter 38. Privacy 41 results (showing 5 best matches)
- See 3 Dobbs, Hayden & Bublick, The Law of Torts § 581 (2d ed. 2011 & Supp.).
- E.g., Hamberger v. Eastman, 106 N.H. 107, 206 A.2d 239 (1964); Roach v. Harper, 143 W.Va. 869, 105 S.E.2d 564 (1958). Statutes provide an independent ground for relief in the case of wiretapping. See 3 Dobbs, Hayden & Bublick, The Law of Torts § 584 (2d ed. 2011 & Supp.).
- See 3 Dobbs, Hayden & Bublick, The Law of Torts § 584 (2d ed. 2011 & Supp.).
- Gist of the tort
- Scope of the tort
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Chapter 14. Actual Harm & Factual Cause 38 results (showing 5 best matches)
- 1 Dobbs, Hayden & Bublick, The Law of Torts § 190 (2d ed. 2011 & Supp.).
- 1 Dobbs, Hayden & Bublick, The Law of Torts § 194 (2d ed. 2011 & Supp.).
- 1 Dobbs, Hayden & Bublick, The Law of Torts § 195 (2d ed. 2011 & Supp.).
- 1 Dobbs, Hayden & Bublick, The Law of Torts § 190 (2d ed. 2011 & Supp.).
- David W. Robertson, Williams Powers, Jr., & David A. Anderson, Cases and Materials on Torts 158–59 (1989); see Joseph W. Glannon, The Law of Torts 127 (1995).
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Chapter 10. Duty and the Ordinary Standard of Reasonable Care under the Circumstances 77 results (showing 5 best matches)
- See 1 Dobbs, Hayden & Bublick, The Law of Torts § 142 (2d ed. 2011 & Supp.).
- See 1 Dobbs, Hayden & Bublick, The Law of Torts § 133 (2d ed. 2011 & Supp.).
- E.g., Sheehan v. Roche Bros. Supermarkets, 448 Mass. 780, 863 N.E.2d 1276 (2007) (recognizing rule); Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381 (2006) (“care commensurate with the nature of the risk, foreseeability of injury, and fairness in the circumstances”); Mobile Gas Serv. Corp. v. Robinson, 20 So.3d 770 (Ala. 2009) (“[C]are commensurate with the dangers involved … is the same degree of care and vigilance which persons of skill and prudence observe under like circumstances.”); see 1 Dobbs, Hayden & Bublick, The Law of Torts § 141 (2d ed. 2011 & Supp.).
- Muse v. Page, 125 Conn. 219, 4 A.2d 329 (1939); Mem’l Hosp. of S. Bend, Inc. v. Scott, 261 Ind. 27, 300 N.E.2d 50 (1973); Restatement Third of Torts (Liability for Physical and Emotional Harm) § 11(a) (2010); Restatement Second of Torts § 283C (1965).
- Restatement Third of Torts (Liability for Physical and Emotional Harm) § 11(c) (2010); Restatement Second of Torts § 895J (1979).
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Chapter 7. Defenses to Intentional Torts 83 results (showing 5 best matches)
- See 1 Dobbs, Hayden & Bublick, The Law of Torts § 95 (2d ed. 2011 & Supp.).
- Restitution is measured by the value of what the defendant received, not by the loss of the plaintiff. In this context, however, the value received by the defendant would not be the entire value of all property saved but what reasonable people would pay for the right to destroy the plaintiff’s property (under eminent domain or otherwise). See 1 Dan B. Dobbs, Law of Remedies § 4.5(1) (2d ed. 1993).
- Unreasonable force as intentional tort
- Most of the cases involve criminal prosecutions, not tort claims, so the legal ideas on this subject are principally generated in the criminal process, which as noted above This process of change in criminal statutes is likely to encourage courts to adopt a corresponding rule for self-defense in tort cases. Consequently the tort rule on retreat in a given jurisdiction may be discovered lurking in the implications of criminal statutes.
- The state has a general duty to protect children and it may remove children from the custody of abusive or neglectful parents. It may also criminally prosecute parents who abuse their children. As to the civil liability of parents under tort law, parents are still generally immune from liability in tort to their children in some states. Where the parental tort immunity has been abolished or limited, parents may still be privileged to carry out specific acts that, but for the privilege, would count as a tort. In particular, parents and those who act in the place of parents, are privileged to apply a degree of force or to impose confinement upon their minor children,
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Chapter 26. Duty to Protect from Third Persons and from Self-Harm 24 results (showing 5 best matches)
- Many cases have tried to resolve the matter on scope of liability (proximate cause) grounds, which is problematic. See 2 Dobbs, Hayden & Bublick, The Law of Torts § 413 (2d ed. 2011 & Supp.).
- See Union Carbide & Carbon Corp. v. Stapleton, 237 F.2d 229, 69 A.L.R.2d 1206 (6th Cir. 1956) (emphasizing employee’s reliance, expectation, and the affirmative action of the employer in requiring physical exams); Coffee v. McDonnell-Douglas Corp., 8 Cal. 3d 551, 503 P.2d 1366, 105 Cal. Rptr. 358 (1972) (pre-employment exam, relationship of the parties created when defendant undertook the examination); Dornak v. Lafayette General Hospital, 399 So.2d 168 (La. 1981) (pre-employment exam). As to the physician’s personal duty to the pre-employment examinee, see 2 Dobbs, Hayden & Bublick, The Law of Torts § 286 (2d ed. 2011 & Supp.).
- The rule that no one owes a duty to control others is a particular instance of the general rule that nonfeasance is not a tort unless there is a duty to act.
- See Restatement Third of Torts (Liability for Physical and Emotional Harm) § 19 & cmt. e (2010); § 25.2.
- Restatement Second of Torts § 344 (1965).
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Chapter 29. Emotional Harm 67 results (showing 5 best matches)
- See 2 Dobbs, Hayden & Bublick, The Law of Torts § 388 (2d ed. 2011 & Supp.).
- See 2 Dobbs, Hayden & Bublick, The Law of Torts §§ 386–87 (2d ed. 2011 & Supp.).
- E.g., Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 25 Cal.Rptr. 2d 550, 863 P.2d 795 (1993); see 2 Dobbs, Hayden & Bublick, The Law of Torts § 394 (2d ed. 2011 & Supp.).
- Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789 (D.C. 2011); see Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 47 (2012); Dan B. Dobbs, Undertakings and Special Relationships in Claims for Negligent Infliction of Emotional Distress, 50 Ariz. L. Rev. 49 (2008); §§ 29.14–29.15.
- For a careful examination of this category see Dan B. Dobbs, Undertakings and Special Relationships in Claims for Negligent Infliction of Emotional Distress, 50 Ariz. L. Rev. 49 (2008). See also Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 47(b) (2012) (liability for negligent conduct that causes serious emotional disturbance when the conduct “occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional harm”). This category has been viewed as a particularly important avenue for future development of the tort. See Martha Chamallas, Unpacking Emotional Distress: Sexual Exploitation, Reproductive Harm, and Fundamental Rights, 44 Wake Forest L. Rev. 1109 (2009).
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Chapter 22. Liability of Government Entities, Officers and Employees 63 results (showing 5 best matches)
- Government contractors may enjoy immunity as well. See 2 Dobbs, Hayden & Bublick, The Law of Torts § 352 (2d ed. 2011 & Supp.). The leading case is Boyle v. United Technologies Corp., 487 U.S. 500, 108 S. Ct. 2510, 101 L. Ed. 2d 442 (1988).
- For § 1983 cases arising under the Eighth Amendment, see 2 Dobbs, Hayden & Bublick, The Law of Torts § 79 (2d ed. 2011 & Supp.).
- See, e.g., United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting); Taber v. Maine, 67 F.3d 1029 (2d Cir. 1995) (Calabresi, J.). See also 2 Dobbs, Hayden & Bublick, The Law of Torts § 340 (2d ed. 2011 & Supp.).
- The statute leaves a remedy against the employee in claims for violation of the constitution or a federal statute “under which such action against an individual is otherwise authorized.” 28 U.S.C.A. § 2679 (b)(2)(A) & (B). As to civil rights claims against federal officers, see § 22.14; 2 Dobbs, Hayden & Bublick, The Law of Torts § 356 (2d ed. 2011 & Supp.).
- claim is analogous to the § 1983 claim against state officials, and subject to the same immunities. See 2 Dobbs, Hayden & Bublick, The Law of Torts § 356 (2d ed. 2011 & Supp.).
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Chapter 45. Legal Malpractice 17 results (showing 5 best matches)
- See 4 Dobbs, Hayden & Bublick, The Law of Torts § 724 (2d ed. 2011 & Supp.) (breach of fiduciary duty by lawyers); 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 15:2 (2009 ed.) (hereinafter Mallen & Smith, Legal Malpractice).
- See 4 Dobbs, Hayden & Bublick, The Law of Torts § 724 (2d ed. 2011 & Supp.).
- Griva v. Davison, 637 A.2d 830 (D.C. 1994) (violation of ethic rule can constitute a breach of fiduciary duty to the client); see also Ronald D. Rotunda & John S. Dzienkowski, Legal Ethics—The Lawyer’s Deskbook on Professional Responsibility § 1–9(c)(3) (2010–11 ed.) (discussing many complexities about the uses of ethics rules in civil cases); 4 Dobbs, Hayden & Bublick, The Law of Torts § 724 (2d ed. 2011 & Supp.).
- Most states allow recovery of punitive damages against lawyers in legal malpractice cases, but only where the lawyer engages in particularly egregious misconduct. See 4 Dobbs, Hayden & Bublick, The Law of Torts § 731 (2d ed. 2011 & Supp.). For a discussion of punitive damages generally, see id. § 483. Liability for punitive damages that were lost because of the lawyer’s negligence in the underlying case is discussed in § 45.12.
- See 1 Dan B. Dobbs, Law of Remedies § 3.10(1) (2d ed. 1993); 3 Mallen & Smith, Legal Malpractice § 21:14 (2009 ed.).
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Chapter 39. Misusing Judicial Process 54 results (showing 5 best matches)
- An aggrieved plaintiff may be able to bring a federal constitutional or civil rights claim under narrow circumstances. See 3 Dobbs, Hayden & Bublick, The Law of Torts § 597 to 600 (2d ed. 2011 & Supp.).
- Bankston v. Pass Road Tire Ctr., Inc., 611 So.2d 998 (Miss. 1992); Lester v. Buchanen, 112 Nev. 1426, 929 P.2d 910 (1996); Restatement Second of Torts § 653, cmt. g; see Dan B. Dobbs, Belief and Doubt in Malicious Prosecution and Libel, 21 Ariz. L. Rev. 607 (1979) (arguing that the citizen-accuser should be free to rely on officers to make the appropriate decision).
- See Dan B. Dobbs, Belief and Doubt in Malicious Prosecution and Libel, 21 Ariz. L. Rev. 607 (1980).
- Dan B. Dobbs, Belief and Doubt in Malicious Prosecution and Libel, 21 Ariz. L. Rev. 607 (1979).
- The abuse of process tort could readily be integrated with the malicious prosecution and wrongful litigation torts, but the traditional view treats them as separate torts with distinct elements. If the plaintiff can show instigation of a suit for an improper purpose without probable cause and with a termination favorable to the now-plaintiff, she has a malicious prosecution or a wrongful litigation claim, not a claim for abuse of process. Conversely, if the plaintiff cannot show those elements, she may still have a good abuse of process claim.
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Chapter 15. Scope of Liability (Proximate Cause) 32 results (showing 5 best matches)
- When the defendant is held liable for the preexisting condition itself and not merely for aggravation of it, it is not because of the thin-skull rule but the indivisible injury rule. See 1 Dobbs, Hayden & Bublick, The Law of Torts § 192 (2d ed. 2011 & Supp.).
- See 3 Dobbs, Hayden & Bublick, The Law of Torts §§ 489 & 490 (2d ed. 2011 & Supp.).
- E.g., Solomon v. Shuell, 435 Mich. 104, 457 N.W.2d 669 (1990); Tri-State Wholesale Associated Grocers, Inc. v. Barrera, 917 S.W.2d 391(Tex. App. 1996); Restatement Third of Torts (Liability for Physical and Emotional Harm) § 32 (2010); Restatement Second of Torts § 445 (1965).
- Restatement Second of Torts § 442B (1965). See also Restatement Third of Torts (Liability for Physical and Emotional Harm) § 34 cmt. d (2010) (“When an actor is found negligent precisely because of the failure to adopt adequate precaution against the risk of harm created by another’s acts or omissions, or by an extraordinary force of nature, there is no scope-of liability limitation on the actor’s liability.”).
- See Restatement Third of Torts (Liability for Physical and Emotional Harm) § 29 (2010).
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Chapter 11. Importing Statutory Standards of Care: Negligence Per Se 52 results (showing 5 best matches)
- 1 Dobbs, Hayden & Bublick, The Law of Torts § 158 (2d ed. 2011 & Supp.).
- 1 Dobbs, Hayden & Bublick, The Law of Torts § 150 (2d ed. 2011 & Supp.).
- Negligence per se: statutes creating criminal sanctions but not tort rules
- . The distinction between these two kinds of statutes is important. On the one hand, courts are required to recognize a tort action when the statute creates the action; they are bound to follow a valid statute. On the other hand, if a statute provides nothing about tort law one way or the other, courts are free to either reject the statutory standard for tort law purposes, or to import the statutory standard into the common law of torts and to hold that violation of the standard is either negligence per se or evidence of negligence.
- Statutes disclaiming tort law effects
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Chapter 31. Vicarious Liability for Physical Harms 53 results (showing 5 best matches)
- Respondeat superior is not the only kind of vicarious liability. Conspirators, those who act in concert, partners, and joint enterprisers are all vicariously liable for the acts of each other committed as part of their agreed-upon activity. See 2 Dobbs, Hayden & Bublick, The Law of Torts § 435 (2d ed. 2011 & Supp.).
- See 2 Dobbs, Hayden & Bublick, The Law of Torts § 433 (2d ed. 2011 & Supp.).
- The employer is given a right of indemnity against the employee, but the right is seldom exercised. See 2 Dobbs, Hayden & Bublick § 425 (2d ed. 2011 & Supp.).
- In many cases, perhaps most, an employee’s intentional torts are purely personal acts and thus not within the scope of employment. An employee strikes a customer because of his personal grudge. Nothing more appearing, the tort is the employee’s tort and the employer is not liable. In recent years the reported cases have often involved sexual assaults or other sexual behavior of an employee. Intentional sexual torts, like other violent conduct, is often personal to the employee, so that the employer is usually not found liable.
- Some employees are only agents in the sense that they can make contracts or sell goods for the employer. As to these agents, the employer may be liable on the contract signed by the agent but not for the agent’s torts. Other employees, those who are expected to carry out physical tasks, are called The terms distinguish not only between servants and other agents, but also between servants and independent contractors. The master is vicariously liable in tort for the torts of servants committed within the scope of their employment, but the employer is not ordinarily vicariously liable for the torts of independent contractors.
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Chapter 34. Damages 60 results (showing 5 best matches)
- These issues are all discussed at greater length in 3 Dobbs, Hayden & Bublick, The Law of Torts § 479 (2d ed. 2011 & Supp.).
- See, e.g., Andersen v. Edwards, 625 P.2d 282, 288 (Alaska 1981); Weitz v. Green, 230 P.3d 743 (Idaho 2010); Restatement Second of Torts § 929 cmt.b (1979); 1 Dan B. Dobbs, Law of Remedies § 5.2(2) (2d ed. 1993).
- See 3 Dobbs, Hayden & Bublick, The Law of Torts § 485 (2d ed. 2011 & Supp.).
- Nev. Rev. Stat. Ann. § 42.007; Restatement Second of Torts § 909 (1979); see also Model Punitive Damages Act § 6; 1 Dan B. Dobbs, Law of Remedies § 3.11(6) (2d ed. 1993).
- As to punitive liability for post-injury conduct, see 2 Dobbs, Hayden & Bublick, The Law of Torts § 469 (2d ed. 2011 & Supp.).
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Chapter 8. Consent 36 results (showing 5 best matches)
- See 2 Dobbs, Hayden & Bublick, The Law of Torts §330 (2d ed. 2011 & Supp.).
- See 2 Dan B. Dobbs, Law of Remedies § 11.2 (2d ed. 1993).
- The consent principle is general in its scope, firm in its acceptance, and central in its significance. It makes the plaintiff’s right of autonomy the centerpiece of the law on intentional torts and to some extent other torts as well. Nevertheless, a cluster of subsidiary rules and definitions both enlarge and constrain its application:
- Statutes traditionally criminalized sexual relations with minors under a stated age, in effect depriving those minors of the power to consent. Courts carried these criminal statutes over into tort law, holding that the seducer of an under-age minor would be liable in tort, since the consent would be ineffective. and certainly they have not been the basis for major tort litigation for a long time.
- Absent statutory authorization, parents generally lack authority to waive or release a child’s tort claim in advance, for example. See, e.g., Kirton v. Fields, 997 So.2d 359 (Fla. 2008) (holding such releases invalid in the context of “commercial activities”); Smith v. YMCA of Benton Harbor/St. Joseph, 216 Mich. App. 552, 550 N.W.2d 262 (1996) (parents have no authority to comprise a child’s tort claim). Contra, Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738 (2002) (parents may release child’s tort claim in the non-profit setting). See § 17.3.
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Chapter 4. Direct and Intentional Interference with the Person 135 results (showing 5 best matches)
- See 1 Dobbs, Hayden & Bublick, The Law of Torts §§ 75–79 (2d ed. 2011 & Supp.).
- See 1 Dobbs, Hayden & Bublick, The Law of Torts § 77 (2d ed. 2011 & Supp.).
- Other consequences of the categorization as an intentional tort
- Trespassory torts
- The Restatement defines each tort to include cases in which some other tort or harm was intended, and to include as well cases in which the tort was intended to another person. See Restatement Second of Torts §§ 13, 16, 18, 20 & 21 (1965).
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Chapter 40. Interference with Family Relationships 34 results (showing 5 best matches)
- See 2 Dobbs, Hayden & Bublick, The Law of Torts §§ 329 & 332 (2d ed. 2011 & Supp.).
- Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996). See 2 Dobbs, Hayden & Bublick, The Law of Torts §§ 329 to 332 (2d ed. 2011 & Supp.), on clergy malpractice, including claims based on sexual relations in therapy.
- Independent torts
- . Courts and legislatures have been moved in part by the conclusion that these torts lent themselves to blackmail and to vindictiveness pursued by a spouse whose marriage is over and who seeks merely to inflict harm. With the advent of no fault divorce everywhere and the decriminalization of adultery in many states, these torts also came to seem illogical and inimical to the reforms enacted in divorce and criminal laws. Beyond this, the torts have become offensive because they have, sometimes quite explicitly, treated a spouse as the property of the other spouse and because they are thoroughly inimical to the freedom of all human beings to choose their associations and to choose to depart dangerous, stultifying, or deeply unhappy homes. These torts could also operate unjustly by punishing the defendant for conduct to which both participants consent. Finally, some of the cases turned on nothing more than words that were by no means false and thus punished speech. The grounds for...torts
- Statutes abolishing the tort have been enacted in most states. E.g., N.Y. Civ. Rights Law § 80–a; Tex. Fam. Code § 1.107. Among judicial decisions abolishing the tort, see O’Neil v. Schuckardt, 112 Idaho 472, 733 P.2d 693 (1986); Hoye v. Hoye, 824 S.W.2d 422 (Ky. 1992); Russo v. Sutton, 310 S.C. 200, 422 S.E.2d 750 (1992). A recent decision abolishing the tort is Helsel v. Noellesch, 107 S.W.3d 231 (Mo. 2003). For an intriguing post mortem on the tort, see Kyle Graham, Why Torts Die, 35 Fla. St. U. L. Rev. 359 (2008).
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Chapter 46. Unfair Competition: Trademarks, Trade Secrets and Publicity Rights 11 results (showing 5 best matches)
- See 4 Dobbs, Hayden & Bublick, The Law of Torts § 741 (2d ed. 2011 & Supp.).
- See Id. § 37. Accounting for profits permits a recovery of the gains obtained by the defendant as a result of the tort and presents special problems of measurement. See 2 Dan B. Dobbs, Law of Remedies § 6.4(4) (2d ed. 1993).
- See 4 Dobbs, Hayden & Bublick, The Law of Torts § 712 (2d ed. 2011 & Supp.).
- E.I. du Pont de Nemours & Co. v. Christopher, 431 F.2d 1012 (5th Cir. 1970) (overflights with photography to reveal plant structure which in turn would reveal nature of secret process). The set of special trade secret rules displaces an ordinary conversion analysis. See 4 Dobbs, Hayden & Bublick, The Law of Torts § 712 (2d ed. 2011 & Supp.).
- See 2 Dan B. Dobbs, Law of Remedies § 6.4(3) (2d ed. 1993).
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Chapter 16. Fault of the Plaintiff 75 results (showing 5 best matches)
- See 2 Dobbs, Hayden & Bublick, The Law of Torts § 470 (2011 & Supp.).
- See, e.g., Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006). The rule is not limited to tort cases. See 3 Dan B. Dobbs, Law of Remedies § 12.6 (2d ed. 1993).
- See 1 Dobbs, Hayden & Bublick, The Law of Tort § 231 (2011 & Supp.).
- 1 Dobbs, Hayden & Bublick, The Law of Torts § 231 (2011 & Supp.) (for a discussion of these cases as well as policy rationales suggested by courts).
- See Skinner v. Ogallala Pub. Sch. Dist., 631 N.W.2d 510, 526 (Neb. 2001) (upholding lower court ruling against comparative fault in a case in which plaintiff failed to turn on the lights but defendant left open a trap door in a school classroom); Dan B. Dobbs, Accountability and Comparative Fault, 47 La. L. Rev. 939, 956 (1987) (positing a similar scenario); Restatement Third of Torts (Apportionment of Liability) § 4 (2000) (“[T]he defendant also has the burden to prove that the plaintiff’s negligence, if any, was a legal cause of the plaintiff’s damages.”).
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Chapter 19. Expanded Duties of Care: Carriers, Innkeepers and Fiduciaries 12 results (showing 5 best matches)
- See, e.g., Booth v. Quality Carriers, Inc., 276 Ga.App. 406, 623 S.E.2d 244 (2005); see also 2 Dobbs, Hayden & Bublick, The Law of Torts § 260 (2d ed. 2011 & Supp).
- See 2 Dobbs, Hayden & Bublick, The Law of Torts § 265 (2d ed. 2011 & Supp.).
- See 3 Dobbs, Hayden & Bublick, The Law of Torts §§ 696 to 699 (2d ed. & Supp.).
- See 2 Dobbs, Hayden & Bublick, The Law of Torts § 269 (2d ed. 2011 & Supp.).
- See 2 Dobbs, Hayden & Bublick, The Law of Torts § 270 (2d ed. 2011 & Supp.).
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Chapter 35. Apportionment of Liability among Parties 90 results (showing 5 best matches)
- For a discussion of several forms of causal apportionment, see Chapter 14. For a discussion of causal apportionment in products liability, see Dobbs, Hayden & Bublick, The Law of Torts § 471 (2d ed. 2011 & Supp.).
- For a fuller explanation see Dobbs, Hayden & Bublick, The Law of Torts §§ 489–91 (2d ed. 2011 & Supp.).
- See § Dobbs, Hayden & Bublick, The Law of Torts § 489 (2d ed. 2011 & Supp.).
- Relatedly, crediting the nonsettling tortfeasor in the light of the settling tortfeasor’s payment is considered with other apportionment materials in Dobbs, Hayden & Bublick, The Law of Torts § 491 (2d ed. 2011 & Supp.).
- See Dobbs, Hayden & Bublick, The Law of Torts §§ 222 & 494 (2d ed. 2011 & Supp.) on apportionment problems in multiple tortfeasor cases and in particular § 498 in the kind of case in which A negligently risks B’s intentional wrongdoing.
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Chapter 18. Statutes of Limitation and Federal Preemption 21 results (showing 5 best matches)
- 1 Dobbs, Hayden & Bublick, The Law of Torts § 245 (2d ed. 2011 & Supp.).
- 2 Dan B. Dobbs, Law of Remedies § 11.9 (2d ed. 1993).
- Laches, the old defense originating in the once-separate equity courts and still applied mainly in cases where equitable relief is sought, was not a bright-line approach to the bar. Laches allowed judges to decide in each case whether the plaintiff had unreasonably delayed in bringing suit and whether the defendant was prejudiced by the delay. See 1 Dan B. Dobbs, Law of Remedies § 2.4(4) (2d ed. 1993). The ordinary statute of limitations approach is not comparable. However, courts occasionally do suggest that the trial court has a range of discretion in determining when the claim accrues in doubtful cases. See Lindsay Mfg. Co. v. Universal Surety Co., 246 Neb. 495, 519 N.W.2d 530 (1994).
- . Federal statutes are sometimes construed to preempt or displace state law, including state tort law. For instance, federal statutes can specify the warnings to be placed upon poisons or dangerous substances like tobacco products. At the same time, the federal statute may preempt tort law so that if the defendant who sells poisons prints the warning prescribed by the federal statute, state courts, even though they believe the warning is dangerously inadequate, cannot impose tort liability.
- (a) all the elements of the tort are present;
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Chapter 13. Proving Negligence Claims 27 results (showing 5 best matches)
- See, e.g., Blount v. Bordens, Inc., 910 S.W.2d 931 (Tex. 1995). For a fuller discussion of issues related to circumstantial evidence and presumptions from proof, see 1 Dobbs, Hayden & Bublick, The Law of Torts § 166 (2d ed. 2011 & Supp.)
- For a fuller discussion of joint actors cases and superior knowledge as a rationale in res ipsa loquitor see 1 Dobbs, Hayden & Bublick, The Law of Torts § 174 (2d. ed. 2011 & Supp.).
- Restatement Third of Torts (Liability for Physical and Emotional Harm) § 17 (2010) puts the point affirmatively, that the accident must be of the type that ordinarily occur as a result of negligence. Restatement Second of Torts § 328D (1965) uses the negative formulation. David Kaye, Probability Theory Meets Res Ipsa Loquitur, 77 Mich L. Rev. 1456, 1476 (1979).
- Darling v. J.B. Expedited Servs., Inc., 2006 WL 2238913 (M.D. Tenn. 2006); Restatement Third of Torts (Liability for Physical and Emotional Harm) § 8(a) (2010) (where reasonable minds can differ).
- Restatement Second of Torts § 328C (1965).
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Chapter 3. Tort Law in Practice 65 results (showing 5 best matches)
- The largest number of cases in which a losing party must pay a prevailing party’s reasonable attorney’s fees are based on a specific statute authorizing a fee recovery. Federal civil rights cases are a major example. See 1 Dan B. Dobbs, Law of Remedies § 3.10 (2d ed. 1993). A less common exception is that a particular tort like malicious prosecution may be aimed at recovery of attorney’s fees. See § 39.1.
- 1 Dan B. Dobbs, Law of Remedies § 2.4 (7) (1993).
- Tort law operates with a number of fundamental conceptions in deciding rights of the parties to a dispute. Most of these, such as the concept of negligence, are developed in the substantive chapters of this book; they help define the relevant tort. This section and the next focus instead on conceptions about the gross structure of the tort case, particularly on the non-technical ways courts think about the elements of tort claims and about defenses.
- The “no-tort” way of thinking
- Three interrelated rules of remedies and attorney compensation fundamentally affect the way tort law is practiced and, indirectly, the operation of tort rules. Tort law cannot be assessed or well understood without grasping these background rules.
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Chapter 5. Intentional Interference with Real Property: Trespass to Land 40 results (showing 5 best matches)
- Other tort rules affecting rights in real property include ejectment (which gives the plaintiff possession of the land from a trespasser who has gone into possession and allows for recovery of , see 1 Dan B. Dobbs, Law of Remedies §§ 4.2(2), 5.8(2), 5.10(1) (2d ed. 1993)), negligence, and federal civil rights laws (where the trespass is committed under color of state law), see Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961),
- 1 Dan B. Dobbs, Law of Remedies § 5.9 (2d ed. 1993).
- See Dan B. Dobbs, Law of Remedies § 5.2(5) (2d ed. 1993).
- On punitive damages generally, see § 34.4; 1 Dan B. Dobbs, Law of Remedies § 3.11 (2d ed 1993).
- See 1 Dan B. Dobbs, Law of Remedies § 5.3(3) (2d ed. 1993).
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Part VIII. Dignitary and Economic Torts 14 results (showing 5 best matches)
- The meaning of pure economic torts
- Examples of pure economic torts
- . The distinction between stand-alone dignitary or economic harm and physical harm to persons and property is not merely an idle classification. Both the explicit rules and the guiding policies of dignitary and economic torts usually differ radically from the rules of negligence and the rules of trespassory torts like battery. The mode of legal analysis also differs in most cases. For example, negligence is seldom the basis for liability in dignitary and economic torts. In terms of guiding policy, free speech considerations, which are not an issue in ordinary physical harm torts, will often be significant or even determinative in the case of dignitary torts based on non-commercial communications by the defendant. And in economic tort claims, courts are increasingly concerned to preserve a large, sometimes a very large role for contracts, to the exclusion of tort claims.
- Dignitary torts
- . The tort of nuisance, where the plaintiff loses “enjoyment” of land but does not necessarily suffer physical harm to it, is also hard to classify, but it can certainly be said that it is a tort with rules of its own and that simple negligence analysis alone will not suffice.
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Chapter 1. Defining Tort Law 71 results (showing 5 best matches)
- See Dan B. Dobbs, The Law of Remedies § 4.1(1) (2d ed. 1993) (noting that restitution in money may exceed the more common award of “damages”).
- Examples of torts can be found everywhere. In the absence of some defense or special facts, it is a tort to punch another in the nose, to negligently run an automobile into another, or to negligently perform a medical operation. It may be a tort to sell a defective product that causes harm. Some torts cause no physical harm at all but are nonetheless actionable. For example, it is tortious to maliciously prosecute a person without probable cause, to damage reputation by libel, to interfere intentionally with a contract, or to mislead a person by misrepresenting material facts in connection with a sale. Many other torts can be described or named, and in fact courts are free not only to prescribe limits on tort actions but to recognize variations and even “new torts.”
- Many people think of personal injury cases when they think of tort law. But tort law is more than injury law because it includes rules for wrongs that cause economic and emotional injury even when no physical harm of any kind has been done. Tort law is also less than personal injury law. Other social institutions, in addition to tort law, attempt to control and compensate personal injury. Tort law is, in fact, only one of a number of ways in contemporary American society aimed at creating incentives for safety or at providing compensation for loss or both.
- The boundaries of tort law staked loosely in the preceding sections may suggest that torts cannot be a coherent field. It is not only large in itself, including all kinds of wrongs of which there are many if not infinite varieties; it also has family ties to criminal, contract, property, and regulatory law, not to mention alternative compensation schemes. The size and diversity of tort law is emphasized by the fact that lawyers do not specialize in tort law but only in some patch of it. Probably no lawyer could be said to “specialize” in a field so diverse that it includes medical malpractice, products liability, interference with contract, libel, privacy, sexual harassment, civil rights, malicious prosecution, and other torts. If size and diversity of tort law threatens to render it incoherent, so does the fact that tort law is always changing.
- Tort law is predominantly common law. That is, judges rather than legislatures usually define what counts as an actionable wrong and thus as a tort; they also determine how compensation is to be measured and what defenses may defeat the tort claim. Nevertheless, statutes is sometimes a tort for which the violator is subject to liability. In limited circumstances, international law may affect tort issues and even form a basis for tort liability.
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Chapter 28. Wrongful Death and Survival Actions 22 results (showing 5 best matches)
- For more detail and additional citations on several points, see 2 Dan B. Dobbs, Law of Remedies § 8.2(4) (2d ed. 1993).
- See Higgins v. Butcher, Yelv. 89, 80 Eng. Rep. 61 (K.B. 1607). Torts to personal property did survive, however. See Percy H. Winfield, Death as Affecting Liability in Tort, 29 Colum. L. Rev. 237, 242–43 (1929).
- However, an historical explanation for some of the rules can be found in primitive English law. The English idea was that there was no private tort action for a felony because the tort action merged in the felony, which was to say that the felon’s property was forfeited to the Crown, which was unwilling to share any of the assets with the felon’s victim.
- European Group on Tort Law, Principles of European Tort Law Art. 10:202 cmt. 4 (2005).
- Persons in a similar position to a family member who “had been in fact or would be maintained by the deceased” may also recover for the decedent’s wrongful death. European Group on Tort Law, Principles of European Tort Law Art. 10:202 cmt. 2 (2005).
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Chapter 30. Nuisance 34 results (showing 5 best matches)
- See 1 Dan B. Dobbs, Law of Remedies § 2.4(6) (2d ed. 1993).
- On the damages rules for nuisance, see 1 Dan B. Dobbs, Law of Remedies § 5.6(2) (2d ed. 1993).
- See 1 Dan B. Dobbs, Law of Remedies § 3.3(7) (2d ed. 1993).
- E.g., Aviation Cadet Museum v. Hammer, 373 Ark. 202, 283 S.W.3d 198 (2008) (upholding lower court decision that operation of airport was a nuisance and could be enjoined); Bishop Processing Co. v. Davis, 213 Md. 465, 132 A.2d 445 (1957) (injunction to avoid escape of noxious gases that interfere with plaintiff’s use and enjoyment of property); see 1 Dan B. Dobbs, Law of Remedies § 5.7(2) (2d ed. 1993).
- See, e.g., Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U.Chi.L.Rev. 681 (1973); W. Page Keeton & Clarence Morris, Notes on “Balancing the Equities,” 18 Tex. L. Rev. 412 (1940); Jeff L. Lewin, Compensated Injunctions and the Evolution of Nuisance Law, 71 Iowa L.Rev. 775 (1986); A. Mitchell Polinsky, Resolving Nuisance Disputes: The Simple Economics of Injunctive and Damages Remedies, 32 Stan.L.Rev. 1075 (1980); Edward Rabin, Nuisance Law: Rethinking Fundamental Assumptions, 63 Va.L.Rev. 1299 (1977). Some of the writings on this subject are discussed in 1 Dan B. Dobbs, Law of Remedies § 5.7(4) (2d ed. 1993).
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Chapter 27. Prenatal and Birth-Related Injury 20 results (showing 5 best matches)
- See 1 Dan B. Dobbs, Remedies § 3.9 and 2 id. § 8.7.
- Thus some advocate changes in the requirements of causal evidence in toxic tort cases, see Margaret A. Berger, Eliminating General Causation: Notes Towards a New Theory of Justice and Toxic Torts, 97 Colum. L. Rev. 2117 (1997), while others advocate changes in regulation and compensation systems. See Anita Bernstein, Formed by Thalidomide: Mass Torts as a False Cure For Toxic Exposure, 97 Colum. L. Rev. 2153 (1997).
- . Courts have sometimes emphasized viability of the fetus for purely formal or conceptual reasons that are quite divorced from the purposes of tort law. The idea is that until the fetus is viable, there is no “person” apart from the mother. Any harm done is harm to the mother. In personal injury cases, however, that argument misses the point entirely. Whatever may have been the case when injury was inflicted, it set in motion a chain of events that caused injury to a living and suffering human being. Both compensation and deterrence goals of tort law counsel a rule allowing the child to recover for the tort in personal injury cases and one allowing the parents, or at least the mother, to recover when the fetus does not survive or the child dies of the injury. The status of the fetus at the time of injury has no bearing on the status of the plaintiff, who is a living human being, harmed by the defendant’s torts.
- See generally Julie A. Greenberg, Reconceptualizing Preconception Torts, 64 Tenn. L. Rev. 315, 349 ff. (1997); Annotation, Liability for Child’s Personal Injuries or Death Resulting from Tort Committed Against Child’s Mother Before Child Was Conceived, 91 A.L.R.3d 316 (1980).
- . When the fetus is exposed to hazardous materials because of the mother’s or father’s exposure in the workplace, workers’ compensation laws are potentially implicated. Those laws generally provide for standardized compensation to workers injured on the job as the exclusive remedy; tort claims are forbidden. When a child asserts a claim that she was injured in utero by her mother’s exposure to hazardous materials on the mother’s job, the question is whether the child’s claim in tort should be barred by the workers’ compensation rules. The answer in the handful of cases on point has uniformly been that the claim is not barred by the workers’ compensation exclusive remedy rules.
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Chapter 2. Aims, Policies, History and Methods of Tort Law 74 results (showing 5 best matches)
- Courts and writers almost always recognize that another aim of tort law is to deter certain kinds of conduct by imposing liability when that conduct causes harm. The idea of deterrence is not so much that an individual, having been held liable for a tort, would thereafter conduct himself better. It is rather the idea that all persons, recognizing potential tort liability, would tend to avoid conduct that could lead to tort liability. They might sometimes engage in the conduct in question, but only if they would get more out of it than the tort liability would cost. Some critics believe that tort law fails to provide systematic deterrence. Even if the failure is not pervasive, it is certainly true that tort law fails to provide appropriate deterrence at least on occasion.
- In spite of the preeminent importance of case decision in the common law of torts, many statutes affect tort law today. Statutes may indirectly affect tort law by setting some standard that courts adopt; they may directly affect tort law by creating some claim or defense that would not otherwise be recognized or enforced by the judges. Even ordinances or administrative rules may have some effect in the tort process. Since about 1960, the United States Constitution, too, has been instrumental in creating tort rights by way of a federal statute recognizing civil rights torts. So statutory instruments today are part of tort law. Statutes in the United States, however, often differ from codes in that they do not attempt to provide a complete and coherent set of rules or principles. Instead, they prescribe very particular rules for particular situations.
- Many of the technical or professional rules of tort law, the rules that affect litigation outcomes, however, are not known or understood by people in general. Even if they were known, the tort rules seldom determine outcomes of litigation by themselves. That is, the technical tort rules are almost never detailed enough to lead inexorably to a given conclusion except in extreme cases. Tort law directs people to use reasonable care under the circumstances, but it does not attempt to define in advance what counts as reasonable care in all possible circumstances.
- See Kenneth S. Abraham, What Is A Tort Claim? An Interpretation of Contemporary Tort Reform, 51 Md. L. Rev. 172 (1992); Glen O. Robinson & Kenneth S. Abraham, Collective Justice in Tort Law, 78 Va. L. Rev. 1481 (1992).
- In medieval England, the law of torts, like the law of crimes, had modest aims, principally to discourage violence and revenge. Today’s tort law has much grander aims. All of the aims are laudable, but sometimes one of them will conflict with another. The most commonly mentioned aims of tort law are (1) to compensate injured persons and (2) to deter undesirable behavior. Both of these aims, however, are subsumed in whole or part under even broader goals.
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Chapter 9. The Negligence Action: an Introduction 43 results (showing 5 best matches)
- The first torts book was Francis Hilliard, The Law of Torts (1859). See G. Edward White, Tort Law in America 16 (1980). Most of Hilliard’s book was devoted to topics other than negligence—libel, malicious prosecution, and nuisance, for example.
- . A person who negligently causes personal injury or property damage is subject to liability in tort. Negligence liability is liability for one particular kind of fault—typically, failure to use reasonable care under the circumstances. It is contrasted with liability for intentional torts and with strict liability.
- Strict liability for trespassory torts?
- . A great deal of the common law of tort migrated to America with colonization. Even as the American Revolution was being launched, English judges were still debating tort cases by debating the direct vs. indirect distinction. with its potential for covering maritime torts, to the federal government. Otherwise, tort law was the province of the states, which usually The sparse American authority on torts in the generation or so after adoption of the Constitution seems to indicate that courts were routinely thinking primarily in terms of fault or negligence.
- Some scholars have challenged this view. See Gary Schwartz, Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 9 Yale L.J. 1717 (1981); Gary Schwartz, The Character of Early American Tort Law, 26 U.C.L.A. L. Rev. 641 (1989); Stephen Young, Reconceptualizing Accountability in the Early Nineteenth Century: How the Tort of Negligence Appeared, 21 Conn. L. Rev. 197 (1989).
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Chapter 23. Family Members and Charities 23 results (showing 5 best matches)
- Domestic violence torts
- Some courts have replaced the blanket immunity with a screen that filters out some but not all claims for spousal torts. For instance, some courts initially abolished the immunity only for injuries inflicted by the use of automobiles. But it is hard to draw a rational line at automobile cases, and as the decisions came down, courts gradually moved to a more general abolition of the immunity, so that ordinary tort rules increasingly apply.
- . The early common law that ascribed a single legal identity to husband and wife had no application to suits between parents and children. Consequently writers have supposed that children could sue parents, at least for torts to property. In 1891, however, Mississippi decided could not be held liable for either intentional or negligent torts to their minor, unemancipated children. The blanket immunity has now been discarded in Mississippi, the state of its origin, and in most others.
- (2) for their torts to strangers, that is, to persons who do not receive the benefactions of the charity; (3) for the torts of upper level management, including negligence in hiring or retaining dangerous employees;
- There are many good brief summaries of this abysmal history. See Price v. Price, 732 S.W.2d 316 (Tex. 1987); Restatement Second of Torts § 895F cmts. b and c (1979).
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Chapter 12. Breach of Duty 28 results (showing 5 best matches)
- Restatement Second of Torts § 288C (1965); Restatement Third of Torts (Liability for Physical and Emotional Harm) § 16 (2010).
- Rallis v. Demoulas Super Mkts., Inc., 159 N.H. 95, 101, 977 A.2d 527, 532 (2009) (plaintiff must “show that the defendant’s conduct created a foreseeable risk of harm; in other words, it was reasonably foreseeable that an injury might occur because of the defendant’s actions or inactions”). See also Restatement Third of Torts (Liability for Physical and Emotional Harm) §§ 3 & 7 (2010); Restatement Second of Torts § 291 (1965).
- Restatement Third of Torts (Liability for Physical and Emotional Harms) § 3 (2010).
- See Restatement Third of Torts (Liability for Physical and Emotional Harm) § 3 cmt. j (2010) (elaborating this point with other examples and comments).
- See Restatement Third of Torts (Liability for Physical and Emotional Harm) § 18 cmt. a (2010).
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Chapter 32. Strict Liability for Animals and Abnormally Dangerous Activities 40 results (showing 5 best matches)
- Strict liability is imposed upon a defendant without proof that he was at fault. In other words, when liability is strict, neither negligence nor intent must be shown. Strict liability is routinely imposed for breach of contract, but is not so common in tort law. The liability of a master for torts of a servant, seen in the last chapter and justified either on grounds of fairness or economic analysis, is a species of strict liability so far as the fault-free master is concerned. An even older form was found in early tort law, which, according to traditional views, imposed strict liability for all direct and forcible harms to person or property and perhaps for the spread of fire as well. In the mid-19th century, fault became the normal basis for tort liability,
- Morgan v. Marquis, 50 A.3d 1 (Me. 2012); Carreiro v. Tobin, 66 A.3d 829 (R.I. 2013); Restatement Second of Torts § 509 (1977); Restatement Third of Torts (Liability for Physical and Emotional Harm) § 23 (2010).
- Restatement Second of Torts § 509 cmt. i (1977); Restatement Third of Torts (Liability for Physical and Emotional Harm) § 23, cmt. g (2010).
- Restatement Second of Torts § 509 cmt. i (1977); see Restatement Third of Torts (Liability for Physical and Emotional Harm) § 23, cmt. g (2010).
- Restatement Second of Torts § 507(1) (1977); Restatement Third of Torts (Liability for Physical and Emotional Harm) § 22 (2010).
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Chapter 20. Premises Liability 50 results (showing 5 best matches)
- Restatement Second of Torts §§ 337 & 338 (1965). The Third Restatement, in a comment, is largely in accord on this point, requiring that a landowner be “aware of the existence and plight of a flagrant trespasser” before a duty of reasonable care arises. Restatement Third of Torts (Liability for Physical and Emotional Harm) § 52(b), cmt. g (2012).
- Restatement Second of Torts § 371 (1965); Restatement Third of Torts (Liability for Physical and Emotional Harm) § 54(a) & cmt. b (2012).
- Rodrigue v. Rodrigue, 694 A.2d 924 (Me. 1997); Restatement Second of Torts § 360 (1965); Restatement Third of Torts (Liability for Physical and Emotional Harm) § 53(a) (2012).
- Restatement Second of Torts § 339 (1965). See, e.g., Croaker v. Mackenhausen, 592 N.W.2d 857 (Minn. 2009) (applying the “reason to know” test, finding defendant had no reason to know of child’s trespass). “Reason to know” is not necessarily actual knowledge of the fact in question, but it is knowledge of specific facts that would lead to an inference of such a fact. See Restatement Second of Torts § 12 (1965).
- Persons in actual occupancy of land and exercising control over it, as well as members of the possessor’s household, may take advantage of these limited-duty rules. See Restatement Second of Torts §§ 328E, 382 (1965).
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Chapter 17. Assumption of the Risk 15 results (showing 5 best matches)
- See, e.g., Murphy v. North Am. River Runners, Inc., 186 W.Va.310, 412 S.E.2d 504 (1991); see also Restatement Second of Torts § 496B & cmt. b (1965) (allowing express waivers of “negligent or reckless conduct”). The Restatement Third would go one step further and accept a release of “intentional or reckless conduct” and even “an intentional tort.” Restatement Third of Torts (Apportionment of Liability) § 2 cmts. g & f (2000). It seems unlikely that many, if any courts, will extend acceptance of exculpatory clauses this far, at least when the intentional tort involves an intent to harm.
- Restatement Third of Torts (Apportionment of Liability) § 2 (2000); Restatement Second of Torts § 496B (1965). Some courts limit the enforceability of releases to particular types of activity and hold releases in other contexts void for public policy reasons. See, e.g., Vodopest v. MacGregor, 128 Wash.2d 840, 913 P.2d 779 (1996) (releases generally valid only in the context of “adult high-risk sports activities”). Others have taken the opposite approach and have struck down releases in particular contexts, leaving them potentially enforceable outside those settings. See, e.g., Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) (even well-drafted releases void in the recreational-activity setting).
- Provoncha v. Vermont Motocross Ass’n, 964 A.2d 1261 (Vt. 2009) (citing Restatement Third of Torts (Apportionment of Liability) § 2 cmts. d & e (2000)).
- Restatement Third of Torts (Apportionment of Liability) § 2 cmt. e (2000).
- Restatement Third of Torts (Apportionment of Liability) § 2 cmt. i (2000).
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Index 148 results (showing 5 best matches)
Summary of Contents 17 results (showing 5 best matches)
Table of Contents 50 results (showing 5 best matches)
Chapter 24. Professional Risk-Takers 8 results (showing 5 best matches)
- . Some courts suggested that the safety officer would collect workers’ compensation or similar benefits from the public employer and that if the negligent defendant were required to pay tort damages, the defendant would pay twice, once indirectly as a taxpayer and again as a tortfeasor. One difficulty with this argument is that it was not applied in other instances of public employee injury. Even in its own terms, it did not work. The public employer who paid compensation benefits to the injured firefighter would in fact recoup some or all of the payments from the tort recovery against the negligent defendant.
- Restatement Third of Torts (Liability for Physical and Emotional Harm) § 55 illus. 4 (2012).
- Restatement Third of Torts (Liability for Physical and Emotional Harm) § 56 (2012).
- Prosser & Keeton on Torts § 61, pp. 431–32.
- See Restatement Third of Torts (Liability for Physical and Emotional Harm) § 51 cmt. m (2010).
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- Publication Date: December 29th, 2015
- ISBN: 9781628101478
- Subject: Torts
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This single-volume hornbook provides a comprehensive overview of tort and injury law. The book covers all of the major topics in tort law. Topics include liability for physical injuries, as well as emotional, dignitary, and economic harms. This newly-updated edition includes citations to hundreds of cases and statutes decided over the last decade, as well as references to the Restatement (Third) of Torts.
