Tort- My Outline

Goals of Tort Law: 1-11

Torts as wrongdoing: Torts are wrongs recognized by law as grounds for a lawsuit.

Harm required: In all tort cases, the defendants wrong results in a harm to another person or entity. Torts, crimes and contracts. Breach of contract is often not considered to be a tort and must ordinarily be redressed under the rules of contracts, not the rule of torts. Some torts are crimes eg battery.. criminal law and Tort law sometimes overlap but are not identical. Criminal law aims at vindicating public interests, while tort law aims at vindicating individual rights and redressing private harms. Non-tort systems. There are alternatives to tort law. Eg. Workers Compensation Common questions in tort law. A) what conduct counts as tortuous or wrongful B) did the conduct cause the kind of harm the law will recognize C) what defenses can be raised against liability if the defendant has committed a tort.

Some Broad and Conflicting Aims of Tort Law

Morality or corrective justice. Tort law are largely erected under two large systems of thought.

Morality or corrective justice attempts to hold defendants liable for harms they wrongfully caused on others. While good social effects may result from doing so, thats not the objective. The overall object of tort law as stated in a recent decision of the House of Lords, is to define cases in which the law may justly hold one party liable to compensate another. Fairchild v. Glenhaven Funeral Servs., [2002] 3 All E.R. 305, 2002 WL 820081 (H.L. 2002) Social utility or policy. This school of thought bases tort law on social policy or a good for all of us view. Process. Rules must be made with the legal process itself in mind. Must be the kind of rules that judges and juries can understand and apply in practical ways. Potential conflict. Morality and Social utility basis for tort law are usually antithetical to each other.

Ideas of Corrective Justice

Fault and corrective justice. Tort law imposes liability upon defendants for conduct the law treats

as wrong. In these situations, tort law seems to be commensurate with corrective justice ideals. Conversely, one may argue that it would be wrong to impose liability upon a defendant who is not at fault in causing the plaintiff harm. Society may wish to compensate injured people by the use of public funds, but it cannot justly force one innocent individual to compensate another.

This view emphasizes individual accountability for fault along with individual freedom to act without fault.
Strict liability and corrective justice. Does tort law go beyond the principle of corrective justice

when it imposes liability without fault? E.g. someone damages your property while the property is in my care..A rule that imposes liability upon me would be a strict liability rule because I was not at fault however, liability seems to accord with corrective justice as long as you and I both understand upfront.
Uniting the potential gains and losses. Some thinkers advocate that a general regime of strict liability on the grounds that it is morally based and within the principle of corrective justice. This line of thought works best when an active person causes harm to a person or thingwhen both parties crash into each other for instance, it is much harder to work out strict liability based on corrective justice.

Compensation, Risk Distribution, Fault

..Risk distribution or loss spreading.. Some commentators argue that tort liability should be strict or expansive to secure more compensation for more injured persons. Some defendants such as product manufacturers, were seen as good risk distributors and could pay compensation for injuries they cause and then recoup some or all of those costs by raising price of product. In this view each purchase of the product will pay a tiny fraction of the cost of injuries inflicted by those products and injured person will not be compelled to bear the entire cost alone. Similarly, an enterprise would be forced to internalize losses typically generated by the business itself. Limited acceptance of risk distribution. The common law of tort has not generally adopted views that compensation is more important than corrective justice or that liability should be strict. Distribution arguments and strict liability have gone hand in hand in a few kinds of cases. They have not supplanted fault as the most common basis for tort liability. Moral and policy reasons for limiting compensation to cases of fault. Judges possibly do not adopt strict liability across the board and order compensation in every case in which defendant causes harm because judges feel heavily committed to a system of corrective justice and turn to social policy only when the feel that social policy and corrective justice coincide at least in part. Possibly, in spite of social policy favoring compensation, other social policies may only counsel limited compensation through the tort system. Risk distribution arguments may be sound but better suited to legislatures.

B. Overview of Damage Awards: 13-16 C. Overview of Procedure: 17-24

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II. INTENTIONAL TORTS A. Battery: 27-35, 35-43 B. Elements of Battery: (Dual Intent) a. Intent i. Intent to touch/contact and ii. Intent to harm or offend b. Result i. Contact, and ii. Contact was 1. Harmful, or 2. Offensive Single Intent Jurisdiction a. Intent iii. Intent to touch/contact and iv. Intent to harm or offend b. Result v. Contact, and vi. Contact was harmful or offensive Effects of classifying a tort as intentional. Restatement Third of Torts calls itsomewhat
ironic that intentional torts are generally deemed considerably more serious than torts of mere negligence and yet in some situations, the plaintiff is worse off if the tort is classified as intentional rather than negligent. - --insurance may not pay for intentional torts; statutes of limitation is typically shorter on intentional tortsas a result, plaintiffs sometimes underplead..

Cohen v Smith debrief: Note that professor is interested in procedural context Facts: P expressly indicated that she did not want a health care learners working on her. And was reassured by anesthesiologist. When she was anesthetized, Dr allowed student D to practice intubation on her. D lacerated Ps esophagus. P required additional surgery and recuperation time as a result of the laceration. Procedural Context: Issue: Holding: Legal Reasoning

Garatt v Dailey Facts: Rule: Actual intent to contact or Knowledge substantial certainty of contact Absence of any intent to injure the plaintiff or to play a prank on her

Additional Consideration: ***Contact need not be direct. Intent and result could be both direct or indirect.*** Even if knowledge of substantial certainty of contact is not there and Intent Element is still met if actual intent or contact is determined. Probability of harm not magnitude of harm. ***Show similarity and difference with Cohen (if nurse did not know)*** White v Muniz

Additional Consideration: .. One way to group tort claims is: i) the interests the protect; a. physical injury to person or property b. dignitary and emotional harm c. economic harm ii) ii) the levels of culpability they require. a. Serious wrongdoing (intent or malice) b. Negligence (lack of reasonable care) c. Defendant is guilty of no fault (strict liability)

Think about how we treat children and mentally ill * possible exam questions Battery Prima Facie Case Intent Element: 1. Intent to touch / contact a. Actual intent to contact or knowledge of substantial certainty of contact b. Intent to contact plaintiff or intent cause plaintiff to come into contact with something / someone c. Intent to contact another transfers to plaintiff And 2. Intent to harm or offend a. Actual intent to harm / offend or knowledge of substantial certainty harm/offend b. Knowledge can be found if: i. People typically harmed/offended by conduct ii. Defendant knew plaintiff would be harmed / offended Result Element: 1. Contact
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i. Direct contact or cause plaintiff come into contact with something/someone And 2. Contact was harmful or offensive i. Offensive if reasonable people offended or plaintiff reasonably offended Assault Prima Facie Case Intent Element: Intent cause harmful or offensive contact, or Imminent apprehension of harmful or offensive contact Result Element: Reasonable apprehension of a battery False Imprisonment Prima Facie Case Intent Element: Intent to confine Result element: Confinement, and Plaintiff either (1) aware of confinement, or (2) harmed by confinement McCann v. Walmart Stores Inc. Debrief

FACTS: s shopping at s store When leaving, s were prevented from leaving the store by two employees of the who stepped in front of the shopping cart, blocking their path to exit and actually placing their hand on the cart, stating that the police were on their way. s son was mistaken for the son of a different family who had been caught shoplifting two weeks before. s were detained near the front of the store and waited for the police, which later turned out to be a security guard who stated that they had the wrong boy. PROCEDURE: Jury awarded the McCanns $20,000 in Compensatory damages. Wal-Mart appealed. ISSUE: Whether the jury, by the facts presented, would conclude that the was falsely imprisoned by the ? HOLDING: The court concluded that a reasonable jury could conclude that s employees intended to confine the s within boundaries fixed by , that the employees acts did result in such a confinement, and that 5

the were conscious of the confinement. REASONING: False Imprisonment: conduct by the actor which is intended to, and does in fact, confine another within boundaries fixed by the actor where, in addition, the victim is either conscious of the confinement or is harmed by it. Restatement 2d., Torts 35 Physical barriers or physical force, as well as mere threats of physical force can suffice as confinement Threats of confinement may be implicit as well as explicit, and can also be based on a false assertion of legal authority to confine. Restatement, Supra, 41 Confinement may occur by other unspecified means of duress. Id. 40A. The mere threat of physical force, or a claim of lawful authority to restrain, as enough to satisfy the confinement requirement for false imprisonment. The directions to the , the reference to the police, and the continued presence of the s employeeswere enough to induce reasonable people to believe either that they would be restrained physically if they sought to leave, or that the store was claiming lawful authority to confine them until the police arrived, or both. HOLDING: Affirmed ADDITIONAL CONSIDERATION / NOTES: Note that the court also stated that the action would induce reasonable people to believe either that they would be restrained physically if they sought to leave, or that the store was claiming lawful authority to confine them.

It is not enough that the action The fact that the walmarts employee did not necessary have bad motive is not a factor in this case. Their action caused false imprisonment Remember intent knowledge of substantial certainty..

Trespass to Land Prima Facie Case Intent Element: Intentional entry anothers land, or Intentional causing object to enter land, or 6

 Unintentional entry + intentional refusal to leave Result Element: Entry on anothers land, or Caused object to enter anothers land The public policy here is to protect the right to the exclusive possession of property

Nuisance: Nuisance is an interference with anothers use and enjoyment of ones property. Here there is a balancing act. Conversion of Chattels Trover - Prima Facie Case Intent Element: Intent to exercise dominion over chattel Result Element: Interferes with anothers right to exclusive control *must be nontrivial interference

*In the earlier hypothetical Proser v. Keeten, Proser wins. Note that in some cases, U.C.C. will state that the buyer wins. In situation where you have a conflict the statute winsi.e, UCC wins.

.Intent can be established either through actual intent or knowledge of substantial certainty Tresspass to Chattels Prima Facie Case Intent Element: Intent to interfere with anothers use and enjoyment of personal property Result Element: Interference, and Plaintiff harmed thereby

School of Visual Arts v. Kuprewicz, 771 N.Y.S.2d Different b/w trespass to chatell and conversion is that in one, the perpetuator does not have dominion or control over the property. Most torts law is based on state law. What happens when an action false into section 1983 and common law of tors?
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If you prevail on both section 1983 and torts, you can only collect damages once. You would go for both to get 2 bites at the apple. Eg- you might be able to collect more damages in one over the other or you may lose in one,. Defenses to Intentional Torts.
Types of Affirmative Defenses

Self-defense Arrest detention Defense of property Privilege to discipline Arrest and searches Privileges to enter land/premise pursuant in connection

Self Defense/Defense of Others Must show: 1Reasonable person would have a perceived an imminent 3. Threat requiring defense, and 4. Response was reasonable and not excessive. Defense of Third Partysimilar to self defense. However, some courts (minority) take the view that if you make a mistake, you are liable.

Defenses to Intentional Torts Privileges Arrest and Detention Peters v. Menard, Inc., 589 N.W.2d 395 (Wisc. 1999) Must show: a. b. c. d. Reasonable cause for believing merchandise taken; Detained for purpose of delivering plaintiff to law enforcement; Detained for reasonable amount of time; and Actions reasonable
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Side notecourt held that even if the defendants action was unreasonable, the deceaseds action was more unreasonable. Assuming shop talked to shoplifter but did not call authorities?

Arrest and Detention (General) Must show: e. f. g. h. i. Reasonable cause for believing crime committed; Detained on or near premises Detained for purpose of investigation or delivering plaintiff to law enforcement; Detained for reasonable amount of time; and Actions reasonable

*Always check what the law is in your state *Check intent element, result element Defense and Repossesion of Property Defense of Property Permissible if: 1. Action reasonably necessary to defend property, and 2. Force used commensurate given threat * Deadly force not reasonable if no threat to life or lime

Katko v. Briney The underlying principle here is that we value protection of human life more so than we value protection of property

B. Other Intentional Torts: 44-59 (8/29/11) C. Defenses to Intentional Torts: 60-73, 73-81

In TX you can use deadly force to defend your property or your neigbors if they have asked you to protect their property.

Brown v. Martinez, debrief Transfer of intent both sides could potentially use the same doctrine.. Recapture of chattels. cant forcibly recapture item from thief a week or so later Discipline of children parents enjoy a privilege to discipline Consent Illustrative case Austin v. Berwyn Consent can be non-verbal If the defendant reasonably thought that there was consent, then the consent element is established. No consent if not voluntarily given and defendant knows this -Coercion / duress -Power imbalance Consent ineffective if not meaningful consent and defendant knows this -Plaintiff incapable of understanding nature of act/consequences / moral significance -Plaintiff misled / mistaken as to true nature of act. Robins v. Harris debrief

Doe v. Johnson

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Remember that consent is effective if the plaintiff knows the true nature of the act they are consenting to. There might be a debate about what is the nature of the act.. 9/8/11 Remember that consent can apply not only battery but also any intentional torts. If a patient clearly objects a specific medical treatment, and the medical provider dishonors that, then they have gone beyond the scope of their consent Public Necessity Action intended to benefit public Reasonable belief action necessary to avoid imminent public threat Reasonable response to public threat Note that when trespasser has public necessity defense, then privilege to protect land for trespass is gone. Note that minority is Minnesota were govt still pays.. majority is that you dont recover if public necessity is established. We allow this defense because the greater public good is greater than the individual good Private Necessity Actions intended to benefit private individuals Reasonable belief action necessary to avoid imminent threat/address immediate need

9/12 Prof wants to clarify that majority view is that if public necessity is established, then defendant will not be held liable. However in a minority of cases Minnesota, even if established, the defendant will still have to pay something. Private Necessity 1. Action intended to benefit private individuals 2. Reasonable belief action necessary to avoid imminent threat/address immediate need 3. Benefit to private individuals outweighs property owners interests Debrief of Ploof v. Putnam Debrief of Vincent v. Lake Erie Transportation Co Liable for private necessity if defendant knowingly damages to preserve or benefit Economic consideration the principle of negative externalities Note that the private necessity defence extinguishes liability from trespass but it does not extinguish liability from the actual damage that may have been caused
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When there exists a private necessity: Property owners loses right to defend property No liability wen no harm (other than loss of right to exclusive possession) Liability for any damages where deliberately trespass knowing damages likely How you put it all together.. review all the intentional torts and prima facea

Negligence
Prima Facie Case
D owed P a Legal Duty Breach of Duty Actual Damages Cause in Fact Proximate Cause

We will cover each element in detail.

Duty of Care Defined

Duty owed by all people generally the standard of care they owe- is to exercise the care that would be exercised by a reasonable and prudent person under the same or similar

Prior to xx the general view was that the parties owed xxxx; over time, the view evolved to xxxx where courts stopped enquiring about relationship to each other and focus more on the general duty

Beach Bum Reasonable and Prudent Person Worrier

Low-Risk Scenario 2 4 8

High-Risk Scenario 5 8 10

Remember, the majority rule is reasonable person standard

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Bjondal v. Weitman debrief

Issue was jury instructions. Remember the role the jury is to determine the facts, the second is to understand the standard with which the jury will use to reach decision Standard of care is the same but the duty of care should change based on the situation. Jurisdictions that have emergency direction generally aim to cut slack to defendants in emergency but liable when defendant caused the emergency.

9/13/11 Shepherd v. Gardner Wholesale, Inc., ? is there a parallel between how we treat someone intoxicated and one who willingly creates an emergency notice the common thing is that it was created by choicebad choice Assuming someone is home had a drink and for an emergency outside control is forced to drive and enters into accidentunder this fact partern, we may argue for a reasonable standard for someone not drunk.

Creasy v Rusk Majority ruleIf you have mental disorder..no special duty of care exception ? is this consistent with the earlier case where it was established that no liability no fault Lets assume that it is inconsistent with the earlier ruleno liability no fault (somehow morally blame worthy)exception mainly because of public policy reason A dichotomy in how the courts are dealing with mental disability in intentional torts context and how they are dealing with it negligence cases. Hill v. Sparks ? is this consistent with the Creasy Case? Nobecause it appears as though we are taking into account people with extra ordinary mental ability but dont appear to take that into account people with deficient mental ability.. perhaps because we want to encourage caretakers, policy consideration may help in trying to reconcile apparently divergent reasoning. Robinson v. Lindsay Why take a childs age into account and why not take mental status into account? Public policy considerationsencourage kids to be kids but discourage using dangerous activitiesand/or clearly adult activities ? on the difference between how physical ability and mental disability.. concerned about fraud etc..
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Sometimes the court will spell out in detail, what a a specific duty is. In those situations, the duty of care is now specific and objective (e.g. speed limit rules) Mashall v. Southern Railway Co., Motion for Non-suit When we have a general rule of law, and the rule of law is established then its never left to the jury(motion for non-suit)

Chaffin v. Brame Martin v. Herzog Unexcused trigger word.. look at notes..apply the xxx approach.. Some states take a different approachthey call it a presumption in practice, it is really no difference (presumption and xxx work same way) Minority of jurisdiction do follow the trial court approach ..as one piece of evidence to factor)

Remember the whole idea is that we are evaluating if defendants acted based on community norms. Sometimes we substitute statutory definition of legal duty over jury .. Can the government pursue this or *Negligence per see can only be brought if ** OGuin v. Bingham County When negligence per se does not apply, we resort back to common law.. Why did the court grant summary judgement? Much lower bar for common law standard.. plaintiff pushing for negligence per se because the bar is higher.. Elements of Negligence Per Se 1. The statute / regulation clearly defines required standard of conduct; 2. The statute / regulation is intended to prevent type of harm D caused; 3. P member of class of persons statute / regulation designed to protect; 4. Proximate cause***not typically used**

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Impson v. Structural Metals, Inc. Ignorance of the law is not an excuse.. Pretty significant change in the Restatement with respect to incapacity.. Look at excuses that permit violation of statute, vs those that dont.. Notice how the reasonable and prudent standard creeping back into the negligence per-se standard. Remember the ..morally blame worthy standand..

9/19 Negligence Per Se v Reasonable person standard.. Restatement says if the violation of the statute is excused, then no negligence Some jurisdiction do not follow the Restatement approach so you have to always check where you are. Negligence Prima Facie Case
D owed P a Legal Duty Breach of Duty Actual Damages Cause in Fact Proximate Cause

Pipher Case: Hypothetical reasonable person An adult.. Determining Breach of Duty 1. Would reasonable person have foreseen a risk of harm? a. If no, then not negligent b. If yes, move on to #2 2. Would reasonable person have taken steps to avoid or minimize the risk? a. If no, then not negligent b. If yes, then negligent Pipher was more about foreseeability. Indiana Case:
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Remember, the appellate court does not weigh in on evidence.. There is not necessarily one choice that a reasonable and prudent person would make..we may say that in an emergency they may do something else.. may actually be a choice of reasonable things that

Stinnet Case.. 131 144 scan pg 122.

United States v. Carroll Towing Co. Why in Stinnets case do we have a ruling that says you dont have to be responsible for others negligence buy here in this casewe are saying you are responsible?? What if the rule is you should anticipate what other people are going to do? As a lawyer, its your job to shape the judges view of how to view the evidence. Watch out for apples to apples comparisonespecially with time horizon

Learned Hand FormulaRefined Breach if B < (Pdo nothing* L) (Ptake precautions*L) B = burdens to actor if taking steps to avoid or minimize risks P= probability harm L magnitude of harm

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You can argue that the court was applying the Learned formula in Matthew albeit intuitively.

What goals of tort is promoted by this: Economic efficiencies Deterrent Corrective justice Learned Hand Formula Refined

Breach if: B < Reduction Risk to Plaintiff + Reduction Other Risks

Reduction risk to Plaintiff = (P do nothing * L) Ptake precaution * L) Reduction Risk to Others = (P other harms do nothing * L other harms) (Pother harms take precautions * L other harms) B= burdens to actor of taking steps to avoid or minimize risk Includes direct cost + potential risk Potential risk = (Pnew risk *Lnew risk)

P= probability harm L= magnitude of harm Hypo debrief: Brown v. Stiel Wh Workers compemployer can spread the risksometimes, we may want to look outside the tort system to address certain situations workers compensation.. Multi party negligence.. In most states, each negligent party pays in proportion to their fault. Thoma v. Cracker Barrel Old Country Store, Inc. Slip and Fall Cases Legal Standard Premises owner negligent if: (1) (a) Created dangerous condition, or (b) Had actual or constructive knowledge of dangerous condition, and (2) Failed to take reasonable actions to minimize/eliminate risk
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Slip and Fall Cases Xxxxxxxx

Walmart v. Wright Debrief

Duncan v. Corbetta The T.J. Hooper Determining Breach of Duty 1. Would reasonable person have foreseen a risk of harm? 2. Question is not whether technically foreseeable, but how remote 3. Would reasonable person have taken steps to avoid or minimize the risk? a. Value life over property b. Risk utility balancing Damages Xxxxxxxxxxxxxxxxxxx

Cause in Fact Xxxxxx But for- remember, need to show that the negligent conduct on the part of the defendant is what caused the fault Res ipsa loquitur rule does not necessarily negate Cause in Factif direct res ipsa loquitur, you can safely infer causation for initial state of affairs but for subsequent state of affairs, we will have more questions there this Defendant negligence e.g- defendant fails to have lifeguard on duty and child drowns.. court might say its appropriate to draw causation. There often are 2 or more persons that are negligentwhen that is the case, how do you allocate responsibility. Scenario #1: Action D1s Negligence

Injury Broken Leg

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D2s Negligence Scenario #2 D1s Negligence D2s Negligence

Broken Arm

Broken leg and Arm

D1 and D2 both liable for broken leg and arm Look at scenrios in her note and

10/3/11 Scenario #5 2 tests for causationthe but for test and the substantial factor test. Most courts apply the but for test and reserve the substantial factor test when you have multiple or 2 negligent tortfeasors do they go with the substantial factor test.

Scenario #6 Two defendants acted negligently, but only 1 caused harm to P. Dont know which one caused harm. Gen- rule each Ds is jointly liable. Apportion liability based on comparative fault. (Summers)

Proximate Cause: The main thing to remember about proximate cause is that it is about foreseeability.

When the harm that occurred was a foreseeable risk, then you have proximate causesubstantial factor test.. From 190 -203

10/4/11 Remember test for a breach of duty is a reasonably foreseeable risk Metcalf Debrief.
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Abrams Debrief Court applied the scope of risk test on appeal and found that it risk was not foreseeable. ? would a reasonable and prudent person have foreseen the risk and would they have done something about it.. May have been negligent for delay, but the harm was not attributable to the negligent..

Palsgraff debrief.. For the purposes of this course, ask the foreseeability question during proximate cause and not during duty of care the dominant approach to proximate cause is the Cardozo approach. The courts in WI do apply the multi factor test too. For Thursday, read through Page 203 - 213

10/10/11 Proximate Cause Scope of Risk In criminal cases, some courts focus on the foreseeability of the criminal act.. In suicides, most courts still focus on . Sometimes an intervening act may be a negligent act.. Derdiarian debrief Rule: An intervening act may not serve as a superceding cause, and relieve an actor of responsibility , where the risk of the intervening act occurring is the very same risk which renders the actor negligent.

In a medical malpractice the intervening negligence does not ever brake the causal chain.. Ventricelli debrief

Marshall debrief Understand the different nuances for applying comparative fault rules New York, TX, WI and ND.

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When looking at comparative faults with multiple defendants, we may look at the state of mind of the defendants. Restatement also talks about how strong the xxxx ; some states look at the capacity of the person.. Tomorrowassumption of the riskpg 239 251 10/11/11

Get notes from Suchi..

Assumption of the Risk Generally speaking, 2 broad categoriesContractual and expressed assumption of risk.. in effect, they are waiving the defendants negligencehowever, they are not consenting to waive the defandants liability. [ intersection of contracts and Torts] 252 259; skip mcdugel 587 - 594

Implied assumption of risk Voluntarily encountered a known riskimplied agreement or consent to waive defendantsnegligence. (Majority) Some courts hold that just because a P voluntarily encountered a
risk, does not mean they consented to the defendants negligence..

a) Primary assumption of risk (Avila) b) Scenaril: P consents to risks deemed inherent in activity c) Consequences: imp

594 604look at the hypothetical.

10/17/11 Damages.. Nominal Compensatory Punitive Comp damagesmust be proven.. Bod injurypast and future medical expenses; pain and suffering; lost wages
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Tort for profit case Tort for pleasure or wage.. Punitive deterrencewatch out for underdeterrence.

III. COMMON LAW ELEMENTS OF NEGLIGENCE A. Duty of Care The Reasonable Person: 83-100 Negligence Per Se: 100-11 B. Breach of Duty Risk-Utility: 112-22, 127-34 Multiple Parties: 131-34 Proving and Evaluating Conduct, Notice, Custom: 135-47 Res Ipsa Loquitur: 147-62 C. Injury: 163-65, 587-97, 600-04 D. Actual Cause: 165-85 E. Proximate Cause Scope of Risk: 186-203; 223-47 Intervening Causes: 203-17

Class Notes: 8/22/11

Tort law is based on common lawjudge made rules. Sometimes, Tort law is governed by statute. Hierarchy..Constitution > Statute> Common Law Encourage schedule assignment and come see her. Will plan to see once a month.

Why it is important to understand the historical basis of the law.

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Prior cases serve as precedent to current and future casesbut often the facts in current case is not often similar to prior caseso understanding the historical bases of the prior case will help in understanding if it applies in your case. Sometimes there is no precedent and the judges have to make up or come up with a new rule. You as the lawyer will have to try to help the judge to come up with

Common theme Morality/Corrective justice

Social Utility/Policywanting to enhance society welfarebased on economic rulemaximize social benefit. We may want to craft tort rules that promote a certain behavior or not.

Formal rules are rulings that do not expressly take into account the philosophical basis of the law.

Other Goals. Compensation Risk Distribution

Is tort system the best way to deal with these issues? Insurance, etc..

Prosser v Keeton: Titleone right of ownership is the right to transfer ownership

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Compensatory damages Lost wages/earning Cost of repairing/replacing damaged items Medical expenses Pain and suffering Punitive damages Overview of the Trial Stage Pre Trial Trial Stage Complaint Filed (Plaintiff) Answer (Defendant) Discovery Trial Plaintiff Presents Case Procedural Device Motion to Dismiss / Demurrer (Defendant) Motion for Summary Judgment (Defendant) (End of Discovery) Motion for Directed Verdict (Defendant) (End of Plaintiffs Case) Motion for Directed Verdict (Usually Defendant) (End of Defendants Case) Challenge on Appeal (Losing Party) Motion J.N.O.V (Losing Party) Motion for New Trial (Losing Party) Challenge on Appeal (Losing Party)

Defendant Presents Case

Jury Instructions Jury Verdict

Appeal

Plaintiff cannot succeed if they do not establish each element of the prima facea case. Even if the plaintiff proves a prima facea case, it does not guarantee victory if the defense can come up with a viable defense to the intentional tort

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