TORTS NOTES

READING NOTES FOR CLASS ONE AND CLASS TWO

DATE: August 20, 2020 – August 21, 2020

Chapter One: WHAT IS TORT?

(3-24)

Defining Tort:
- wrongdoing
- wrongs recognized by the law as grounds for a lawsuit
- All torts involve conduct that falls below some legal standard
- In almost all cased the D is in some fault either because he intends harm or because he
takes unreasonable risk of harm
- Harm required:
o In all tort cased the D’s wrong results in harm to another person/ entity = injury
o an injured person is said to have a “cause of action” (i.e. claim against the person
who committed the Tort)
o Physical/ commercial (economic torts) and intangible harm
- Criminal and Tort law often overlap
- Distinction: Criminal law aims at vindicating public interests, while tort law aims at
vindicating individual rights and redressing private harms

Much of Tort Law is concerned with the following three questions:

1. What conduct counts as tortious or wrongful?
2. Did the conduct cause the kind of harm the law will recognize?
3. What defenses can be raised against liability if the defendant has committed a tort?

The goals of Tort Law

ONE: Morality and corrective Justice:

- Aims of Tort law fall within these two schools of thought
- Morality
o moral responsibility or at least on some idea that the defendant has in some
important way wronged the plaintiff
o Liability is imposed when it is “right” to do so
o HoL “ The overall object of tort law is to define cases in which the law may justly
hold one party liable to compensate another”- Fairchild v. Glenhaven Funeral
Serv., [2002]
TWO: Social utility or public policy
o it bases tort law on social policy or a good-for-all-of-us view.
 o dominant concern is not with justice to the individual; it is to provide a system of
rules that, overall, works toward the good of society

Fault and justice:

- The defendants fault is a wrong that has harmed the plaintiff in some recognizable way;
tort law, by subjecting the wrongdoer to a judgment that can be enforced against his
assets, can put the accounts right between the two parties.

Strict Liability (can be at fault even though one did not act to commit the wrongdoing which
occurred)

Compensation, risk distribution, fault:

- compensation is an aim of Tort

APPROACHES IN ACTION: THE ROLE OF FAULT

CASE: Van Camp v. McAfoos 156 N.W.2d 878 (Iowa 1968) * SC of Iowa

RULE:

A parent is under a duty to exercise reasonable care so to control his minor child as to prevent
it from intentionally harming others or from so conducting itself as to create an unreasonable
risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the
ability to control his child, and (b) knows or should know of the necessity and opportunity for
exercising such control.

FACTS:

The claimant was struck and injured by a tricycle ridden by appellee child, who was three-years
old at the time, and brought the current action accordingly. Claimant alleged that appellee
parents gave the child control of a tricycle, knew the child was riding the tricycle on public
sidewalks accompanied only by a babysitter, and that this alone created an unreasonable risk of
harm. The claimant failed to allege fault of the accident at issue and did not claim that appellee
parents were aware of any specific potential for accident or injury. Rather, she claimed she was
injured while on the public sidewalk and that this, alone, was sufficient to state a claim for
recovery. The trial court disagreed and dismissed the claimant's complaint. On appeal, the court
affirmed the trial court ruling because the claimant failed to establish that appellees were in
any way at fault or negligent.
ISSUE:

Did petitioners fail to allege any facts indicating the parents knew or should have known their
child was prone to use his tricycle in an unusual, intentionally harmful or other wrongful
manner?

ANSWER:

Yes.

CONCLUSION:

The court affirmed and held that liability did not attach unless it was somehow established, or
at the very least plead, that the parents knew or should have known of some unusually
dangerous activities or propensities of the child while riding the tricycle.

Substantive issue: Do you need you need to allege fault in order to maintain a cause of action in
this case? Can a child be liable without fault?
- Court says it is not just enough to say the boy injured you, there has to be a fault
element
- You have to show something wrong… it is not enough to just say you bumped into me

Procedural Issue: Was there a valid cause of actions? Was the fault adequately relayed
- Court affirmed you cannot have that cause of action

IMPLEMENTING TORT LAW GOALS WITH DAMAGES AWARDS:

CASE: Dillion(plaintiff) v. Frazer (defendant) (2009)

- Car accident, injuries, asked for pre and post trial earnings loss + some medical bills
- First JT verdict was not adequate and was excessive
- There was unchallenged evidence at the initial trial, that of liability of the defendant
- a new trial was remanded for damages discussions only

** Injured person usually has the burden of proving the defendant is liable** (except in cases
where the D admits to liability)
Definition: Compensatory Damages  The D has wrongfully reduced the plaintiff’s net assets,
tangible and intangible, and should be required to restore them.

Once liability on the D is proved a P is entitled to recover compensatory damages caused by the
D’s tortious conduct. P is entitled to compensation for.
1. lost wages or lost earning capacity
2. medical expenses
3. pain and suffering endured including mental or emotional pain;
4. any special or particularized damages that to not fit neatly into the other categories
- Plaintiff can recover losses suffered but also for future losses

Third party payments:

- Collateral source rule: payments, like insurance payments, are irrelevant to the jury’s
damages awards against the D

Definition: Audditur following an insufficient award of damages in a jury trial, a state court
trial judge has the power to deny the Plaintiffs motion for a new trial on the condition that the
D consents to pay an increased award of damages.

Definition: Remittitur the judges power to deny D’s motion for new trial is plaintiff remits
part of an excessively high award

- a judge has the power and sometimes duty to award a new trial

Definition: American Rule  each party pays its own attorney fee’s win or lose, unless some
special statue or law allows for fee-shifting

Calculating a plaintiff’s losses (CASE: Estevez v. United States 1999)

Definition: Punitive Damages  (Can, be awarded in addition to compensatory damages).

Awarded when the tortfeasor has acted maliciously or willfully or wantonly in causing injury. PD
indented to provide a measure of added deterrence and punishment for the wrongdoer’s
serious misconduct. (CASE: Qwest Servs. Corp. v. Blood, Colo 2011)

CASE: McDonalds Case Summary: Kramer v. Java World: 1997.

Chapter Two: READING TORTS CASEA AND UNDERSTANDING TRIAL PROCEDURE

Tort Case:
BREIFING
1. Facts
2. Issues Substantive issue raised by the litigants as shaped by the court.
 3. Holding The courts response to the issues raised by the parties. (i.e. can be as simple
as reversed, however can also be long enough to state the rule
4. Reasoning the rules in most judicial decisions are interpreted in part by following the
judges reasoning. Usually explains why the rule exists ( or why the judge is creating the
rule) and how it applies to the case. May contain analogies, legal doctrines, reference to
persuasive authorities, and discussions of fairness or policy concerns.
5. Application of the Rules
6. Evaluation

Procedures at Trial
- try to resolve some factual disputes and disputes about the law.
- Disputes about what the rule is and how it should apply

1. Complaint
2. Motion to Dismiss OR Demurrer
3. Answer
4. Discovery
5. The Motion for Summary Judgement
6. Pretrial briefs and motions in limeline
7. Selection of Jury
8. Opening statements
9. Plaintiff’s case
10. The motion for directed verdict*
11. Defendants case
12. Objections to evidence and offers of evidence*
13. closing arguments
14. Proposed Jury instructions and objections to them *
15. Jury’s verdict
16. The motions J.N.O.V.—renewed motion for judgment as a matter of law *
17. The motions for a new trial*
18. Appeals
 Chapter Three
INTENTIONAL TORTS TO PERSON OR PROPERTY

Types of tortious claims: (Two dimensions)

1. Interests the claims protect; and
 interests tort actions protect against…
i. Physical injury to the person or property;
ii. dignitary and emotional harm
iii. economic harm
2. Levels of culpability they require.
 tort rules may impose liability for…
i. intentional wrongdoing (intent or malice),
ii. negligence (lack or reasonable care);
iii. even then the D is guilty of no fault (strict liability)

Definition: Prima Facie Case  elements to a case

Below: Causes of action that protect against intentional physical injury…

ONE: BATTERY
(27-44)
A. ELEMENTS

CASE: SNYDER V. TURK 627 N.E.2d 1053 (Ohio Ct.App. 1993)

PARTIES Defendant – surgeon
Plaintiff = Scrub Nurse
PROCEDURE TC (directed verdict for the surgeon)  Appellant Court
(STAGE OF
LITIGATION)
ISSUE Was there an element of intent?
(QUESTION
THE COURT IS
ANSWERING)
FACTS - D was upset by P’s inadequacy in providing him the correct
instruments during a surgery and when exasperated held her face
to the opening of a body cavity
- P sued for batter but the TC granted a directed verdict for the
 surgeon
- Definition: A directed verdict   is a ruling entered by a trial judge
after determining that there is no legally sufficient evidentiary basis
for a reasonable jury to reach a different conclusion. The trial court
may grant a directed verdict either sua sponte or upon a motion by
either party.
- Definition: Demurrer  A demurrer is a pleading in a lawsuit that
objects to or challenges a pleading filed by an opposing party. The
word demur means "to object"; a demurrer is the document that
makes the objection. Lawyers informally define a demurrer as a
defendant saying "So what?" to the pleading.
-
RULE (RULE OF
LAW APPLIED Battery  “A person is subject to liability for batter when he acts
BY THE COURT) intending to cause harmful r offensive contact, and when a harmful [or
offensive] contact results. Contact which is offensive to a reasonable
sense of personal dignity is offensive contact…”
ANALYSIS Reasonable person test was applied.
(HOW THE -
COURT
APPLIED THE
RULE OF LAW)
HOLDING Assignment of error is sustained.
(LEGAL
CONCLUSION)
JUDGMENT
(ULTIMATE
DISPOSITION
OF THE CASE)

COHEN V. SMITH 648 N.E.2d 329 (III. App. Ct. 1995)

PARTIES Cohen’s (Plaintiff) (Appellant)
Roger Smith (Defendant)
PROCEDURE TC  Appellant Court
(STAGE OF
LITIGATION)
ISSUE Was there a valid cause of action pleaded?
(QUESTION
THE COURT IS
ANSWERING)
FACTS - Cohen’s had to undergo a caesarean and alledegly informed the
doctors that according to their religious beliefs a male could not
 touch or see Mrs. Cohen’s naked body
- Doctor said they would adhere to these beliefs
- During C-Section Nurse Smith saw and touched Mrs. Cohen’s body
- Cohen’s sued Smith and Hospital
- TC stated there was no Cause of Action pleaded
- However, it is the courts duty to see if the facts (few or as many as
there may be) favour the plaintiff’s case for recovery
RULE (RULE OF
LAW APPLIED
BY THE COURT)
ANALYSIS - Court stated there is room in the Tort of Battery to please for not
(HOW THE only physical harm caused but harm caused by one’s conduct as
COURT well
APPLIED THE
RULE OF LAW)
HOLDING Trial Court erred in dismissing both the battery and the intentional
(LEGAL infliction of emotional distress
CONCLUSION)
JUDGMENT
(ULTIMATE
DISPOSITION
OF THE CASE)

TWO: OTHER INTENTIONAL TORTS: ASSAULT, FALSE IMPRISONMENT, PROPERTY TORTS AND
STATUTORY TORTS
(44-60)

Assault  Is effectuated when one acts intending to cause a harmful or offensive contact
with the person of the other or an imminent apprehension of such contact.

CULLISON V. MEDLEY 570 N.E.2d (Ind. 1991)

PARTIES Cullison (Plaintiff)

Medley (Defendants)
PROCEDURE
(STAGE OF
LITIGATION)
ISSUE
(QUESTION
THE COURT IS
ANSWERING)
FACTS Brief Fact Summary. Plaintiff Cullison met a 16 year old girl in a parking lot
 then invited her to his home for a soda, which she declined.  That night,
she and her family came to Cullison’s home, surrounded him, and verbally
threatened him with bodily harm if he did not leave the girl alone while her
father was armed with a holstered revolver.  Cullison experienced mental
trauma and distress as a result of the incident and sued for assault.

RULE (RULE OF Synopsis of Rule of Law. Assault is found where one intends to cause a
LAW APPLIED reasonable apprehension of imminent harmful or offensive contact in
BY THE COURT) another.

ANALYSIS
(HOW THE
COURT
APPLIED THE
RULE OF LAW)
HOLDING
(LEGAL
CONCLUSION)
JUDGMENT
(ULTIMATE
DISPOSITION
OF THE CASE)

DEFENSES: DEFENSES OF PERSON AND PROPERTY, CONSENT, NECESSITY

(61-69, 74-88)

PARTIES
PROCEDURE
(STAGE OF
LITIGATION)
ISSUE
(QUESTION
THE COURT IS
ANSWERING)
FACTS
RULE (RULE OF
LAW APPLIED
BY THE COURT)
ANALYSIS
(HOW THE
COURT
APPLIED THE
RULE OF LAW)
HOLDING
(LEGAL
CONCLUSION)
JUDGMENT
(ULTIMATE
DISPOSITION
OF THE CASE)