CHAPTER 1

TORT LAW: AIMS, APPROACHES,

AND PROCESSES

§ 1. WHAT IS TORT LAW?

Tort as wrongdoing. Torts are wrongs recognized by law as grounds for
a lawsuit. These wrongs include an intentional punch in the nose and also
a negligent car wreck. They include medical malpractice and some
environmental pollution. The list of tortious wrongs is very long. All torts
involve conduct that falls below some legal standard. In almost all cases,
the defendant is in some sense at fault, either because he intends harm or
because he takes unreasonable risks of harm.

Harm required. In all tort cases, the defendant's wrong results in a

harm to another person (or entity, such as a corporation), that the law is

willing to say constitutes a legal injury. The injured person is said to have
a "cause of action," that is, a claim against the person who committed the
tort. This claim can be pursued in court. Most of the cases in this book

involve some kind of physical injury or threat of physical injury. Some torts,
however, involve harm that is purely commercial and others involve
intangible harm such as harm to reputation.
Torts, crimes, and contracts. A breach of contract is often grounds for
a lawsuit, but a breach of contract is often not considered to be a tort at all.
It must ordinarily be redressed under the rules for contracts, not the rules
for torts. Some torts are also crimes. A punch in the nose is a tort called
battery, but it may also be a crime. Sometimes a defendant who attacked
the plaintiff is prosecuted criminally and is also held liable to the plaintiff
for the tort. The two fields of law often overlap. However, they are not
identical. Some acts that cause no harm at all to individuals might be
crimes but not torts. Conversely, some acts cause harm and are torts but
not crimes. That is because criminal law aims at vindicating public
interests, while tort law aims at vindicating individual rights and
redressing private harms.
Non-tort systems. Physical injuries inflicted by one person upon
another are commonly addressed by tort law, but there are alternatives to
tort law. Toward the end of this book, several chapters consider
alternatives such as workers' compensation systems, which require
employers to buy insurance and to pay for all on-the-job injuries even when
 AT TORTS
A FIRST
LOOK PT. 1
Non-tort important for tort
systems the are

is not at fault. to understand waysociety

the employeralso forthose whowish to concentrate
deals
we are going
on the
lawyers and However, fornow way
with injuries. under tort law.
injuries are addressed of the law of torts is concerned
tort law. Much
in
Common questions conduct counts as tortious or wrongful?
with three What
has committed a
(2) Did liability if
against
defenses can be raised why we have tort law
these questions turn in part
on

tort? The answers to

and what its aims are.

TORT LAW
§ 2. THE GOALS OF

A. SOME BROAD (AND CONFLICTING) AIMS

DOBBS, HAYDEN & BUBLICK, THE LAW OF TORTS

Vol. 1 §§ 10-14 (2d ed. 2011)

§ 10 Justice, policy, and process aims of tort law in summary

Morality or corrective justice. Particular aims of tort law are
usually erected under one of two large systems of thought. The first bases
tort law on moral responsibility or at least on some idea that the defendant
has in some important way wronged the
plaintiff. It attempts to hold
defendants
liable for harms they wrongfully caused and no others. Good
socialeffects may result when courts act to right the wrongs done by
defendants, but in this system of thought that is not the
point of imposing
liability.
SO.
Liability is imposed instead when and only when it is "right" to do
As stated
law
in a decision of the House of Lords, "The overall object of tort
i8 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

we.harctte. sofstn?d
public policy.
poti c ey ai h e enreo tarsu orsim
The second
large system of thought

policy may coincide with justice in

dominant concern is not particular cases, but the
justice
of rules to the
that, overall, works toward theindividual; it is to provide a system
good of
society.
Potential conflicts. The first two
regarded as antithetical to ways of looking at tort law are usually
point to the same each
result, they other. Although justice and policy often
one of these
views must
prevail
do not always do so, and when they do not;
process view might or both
also conflict must be
with the aims compromised. The legal
Suppose a city, facing of justice or those of policy.
firebreak by blowing araging
up a row of and spreadingfire, attempts to create
a

houses.Because time is critical, the city

CH. 1 TORT LAW: AIMS, APPROACHES, AND PROCESSES 5

insists upon doing so before the plaintiff, who owns one of the houses, can
remove his furniture.
When the whole thing is over, the plaintiff claims
damages from the city for the value of the furniture he could have saved.
The city has acted for the good of its residents generally, but the plaintiff
is the one who pays the costs.
If the city's action is to be judged by a
standard of social policy, some
jurists might say the city should not be
liable. On the other hand, if it is judged by corrective justice standards, the
city should pay for the damage it caused in blowing up the houses.
Otherwise, the city would get the advantage of its action (whatever that
advantage might be) but would pay none of the costs. There are more subtle
examples, but this one is enough to suggest the potential conflict between
a decision based upon (supposed) social policy and one based upon justice

to the individual...

§ 11 Corrective justice, distributive justice, and policy

For lawyers arguing cases, the question is not likely to be whether
Instead,
judges must wholly exclude policy or wholly exclude justice.
or the other is
advocacy requires lawyers to show judges why one approach
most appropriate for the particular case. . .
coe 12 Fault and other
normative bases for liability
Tort law imposes liability upon defendants for
Fault and justice.
adjudged
conduct the law treats as wrong. In most instances, the conduct
is intentional
as wrong can be viewed as morally faulty conduct: it cause harm to
misconduct or at least unreasonably risky conduct likely to
to be commensurate in a general way
others. In these cases, tort law seems
wrong that has
with corrective justice ideals. The defendant's fault
is a

way; tort law, by subjecting the

harmed the plaintiff in some recognizable
be enforced against his assets, can put
wrongdoer to a judgment that can
the parties.
the accounts right between

Conversely, it be argued that in a corrective justice scheme, it

can

to impose liability upon a defendant who is not at fault in

would be wrong
Society may wish to compensate injured
causing the plaintiff's harm. force one innocent
people by the use of public funds, but it cannot justly
another.
individual to compensate
individual accountability for fault,
These views emphasize
toact without fault. They are
individual freedom
accompanied by victims, however; they
consistent with an ideal of social responsibility for for victims when the
do not speak against
government compensation
by the faultless
defendant is not at fault, only against compensation
defendant.
law imposes liability
Striet liability and corrective justice. When tort
the principle of corrective justice? At least
without fault, does it go beyond
some strict liability Seems commensurate with corrective justice. For
 PT. 1
6 A FIRST LOOK AT TORTS
in our neighborhood permits any
example, suppose long-standing custom
from any other neighbor, but the
neighbor to borrow garden equipment
custom is equally strong that if the equipment is
damaged or lost while in
the borrower's possession, the borrower must make the
loss good. Suppose
I borrow your lawnmower and without my fault is damaged when a truck
it

backs over it in my driveway. A rule that imposes liability upon me would

be a strict liability rule because I was not at fault. Even so, liability seems
to accord with corrective justice so long as you and I both know of the
custom. . . . Whatever is to be said of strict liability theories of corrective
justice, the greatmajority of tort cases turn on some kind of perception that
the defendant is at fault in a significant way. At least for those cases, tort
law begins with ideals of justice, even if those ideals may be modified by
pragmatic, process, or policy considerations in particular cases.
$ 13 Compensation, risk distribution, fault
Compensation. Compensation of persons injured by wrongdoing is one
of the generally
accepted aims of tort law. Payment of
compensation to
injured persons is desirable. If a person has been
it is just that the wronged by a defendant,
socially desirable, for otherwise thecompensation. Compensation
defendant make is also
uncompensated injured persons will
represent further costs and problems for society....
[R]isk distribution or loss
have argued that tort spreading... . [S]ome commentators
secure compensation liability should be strict or expansive in orderoto
were seen as for more
good "risk injured persons. Some defendants & not all
distributors"
they cause regardless of fault who should be liable forany harms
because they can "distribute" the
manne compensation This means that some defendastribute* costs of

mabiy churce D an d nay compensation tor thyunes ntk uch as pro products

view, each individual thneh aoste by rnicing the price of protieciand then
the costs purchaser of the products
or injuries inflicted by those productss wi
not be compelled to bear
will pay tiny fraction of
a

social dislocation. At the the entire cost alone. Loss the injured person will
wolhd
same
time, an thus cause less
internalize losses typically generated by enterprise would be forced to
Limited the business
itself.
acceptance of risk
tort has
not in fact distribution arguments. The
important than generally adopted views that common law of
Distribution
1
corrective
justice or that
arguments and strict compensation
liability
is more
only in certain
kinds of cases. Theyliability havegone handshould be strict.
common basis for tort have not in
hand, but
liability.. . . supplanted fault as the most
14
Fostering freedom,
analysis deterring unsafe
Deterrence. Courts and conduct; economic
aim of tort law is to deter writersalmost always
certain kinds recognize
of conduct that
by imposing another
liability
 CH. 1 TORT LAW: AIMS, APPROACHES, AND PROCESSES

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
liability, would tend to avoid conduct that could lead to tort liability.
tort
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. . . .

Deterrence: justice or social policy? Both systems of thought that

emphasize justice and those that emphasize social policy goals can agree
that deterrence is acceptable, but the two approaches might call for

deterring quite different conduct. If you focus on conduct that is wrongful

inthe sense of being unjust to an individual, you might regard any given
act aswrongful even though it is economically useful in society. If you focus
on social policy, you might want to forgive defendants who cause harms by
their socially useful activities..
Economic analysis. [O]ne particular kind of social policy consideration
is the economic one. If economics is defined broadly enough to include
consideration of all human wants and desires, then perhaps all social
policies are in a sense economic policies.. ..

NOTE

Further reading. Many writers have analyzed tort law's goals and
methods. Major contributions and differing views about justice vs. deterrence
(or moral VS. analysis) are discussed in Gary T. Schwartz, Mixed
economic
Both Deterrence and Corrective Justice, 75
Theories of Tort Law: Affirming
TEX. L. REV. 1801 (1997). For a
more recent look at the tensions, see Lawrence
A. Cunningham, Traditional Versus Economic Analysis: Evidenceisfrom also
L. REV. 667 (2010). There
Cardozo and Posner Torts Opinions, 62 FLA.
Fairness
an admirably succinct summary in William E. Nelson, From
to

Efficiency: The Transformation of Tort Law in New York, 1920-1980, 47 BUFF.

E. REV. 117 (1999). David A. Fischer, Successive Causes and the Enigma of
Duplicated Harm, 66 TENN. L. REV. 1127 (1999), concludes that when courts
of fairness and efficiency, they
have been forced to choose between the goals
have opted for fairness. Kaplow
Louis Steven Shavell
and argue in Fairness
REV. 961 (2001), that courts err whenever they
versus Welfare, 114 HARV. L.
accord independent weight to
notions
of fairness such
as corrective justice,
and

The materials in this book may

instead should focus on individual well-being.
of these conclusions is well-
help you determine for yourself whether either
founded.
for
Scholars have engaged in
the "fairness versus efficiency" debate
Cristina Carmody Tilley
several decades. Is it focused on the right questions?
126 YALE L.J. 1320 (2017), that tort doctrine is
argues in Tort Law Inside Out,
not with efficiency or
morality, but rather with
centrally concerned which
"community"; that is, that tort law "operates as a vehicle through
values." And
communities perpetually reexamine and communicate their
 A FIRST LOOK AT TORTS PT. 1

"has long shown

noting and efficiency
that the struggle between fairnessJohn signs
Fabian Witt argue that "a core
of being tired," Nathaniel Donahue and structure and enable the
function of many substantive tort doctrines is to
private administration of rights and
law of torts sets out." Tort
duties that the
CORNELL L.REV. 1093 (2020). The fact that
as Private Administration, 105
almost all tort cases settle prior to trial, they argue, has exposed a "hidden
function" of tort law, which is to shape the process by which private parties

settle.

B. APPROACHES IN ACTION: THE ROLE OF FAULT

A great deal can be said about approaches to tort law and its goals, but
for those without experience in reading actual cases and encountering
actual tort almost elude the
problems, the goals are so abstract that they
grasp. The best approach may be to keep the goals or approaches in mind
while reading cases.

VAN CAMP V. McAFoOS

156 N.W.2d 878 (Iowa 1968)
BECKER, JUSTICE.
This case comes to
us on appeal from the trial court's action
sustaining defendant's motion in
can be to dismiss. We are therefore limited to what
gleaned from the pleadings.
In Division
of her petition plaintiff sues Mark
pertinent part, "That at alleging in
operating a tricycle on said time and place defendant Mark McAfonng, in
thereby
anid public sidewall, and ope.tthe tricycle
thereit he plain tint without warning, strlki n thedrove oos the

"That as a intury Achilles tendon

to
direct and
the of that
proximate cause of the
leg.of the plaintiff

plaintiff's tendon was

injured defendant's action,
another part and subsequentlyrequired
one month old.] of the petition the plaintit aleredthat Marksurgery. . .." [In
The trial court
was three years,
in part, "It is not sustained the motion to
that the action alleged that the defendant
dismiss as to
of the was DivisionI stating
Under these defendantwas negligent.
circumstances willful or It
is not alleged
it is wrongful
upon whichdifficult
out states in
any basis to see how the any manner.
The question the plaintiff could Division as now set
presented is, did plaintiff recover."
I. Plaintiff's
sole plead a cause of
erred in failing assignment of action. . . .
error asto
recognize
to
negligence,in evaluating categories ofDivision I is "Thetrial court
the pleadingin tort
liability other
plaintiff's first than
division."
 CH. 1 TORT LAW: AIMS, APPROACHES, AND PROCESSES

She stands firmly on the proposition that invasion of her person is

in itself a wrong and she need
plead no more. We do not agree.. In
essence plaintiff urges a person has a right not to be injuriously touched or
struck as she lawfully uses a
public sidewalk. She was injuriously struck
by Mark. Therefore Mark is liable. She argues that no more need be
pleaded. It follows that no more need be proved in order to justify
submission of the case. Plaintiff's posture satisfies us she would have us
impose liability without fault. We are not prepared to extend this concept
to childish acts (by children).
II. Plaintiff's
reply brief states "If the absence of a single word or
conclusory label remains the sine qua non of pleading a valid cause of
action, we have restored today's jurisprudence to the specious procedural
formalism of the 18th Century common courts."
The trial court's ruling was not a return to legal formalism. Plaintiff
makes it abundantly clear she insists on a right to recovery by proof of an
accident caused by another, independent of fault or wrong doing. Where an
essential element of the cause of action is missing, the question is not what
may be shown under the pleading but whether a cause of action has been
pled.
Unless and until we are ready to recognize liability without fault
for otherwise innocent childish actions, fault must be discernible in the
pleading and in proof. . . Intentionally wrongful or negligently wrongful use
of the tricycle is neither pled nor can it be made out from the bare allegation
defendant "operated a tricycle on said public sidewalk and drove the
tricycle into the rear of the plaintiff without warning."
jurisdictions holding a child
III. Plaintiff cites many cases from other
of tender years may be liable in tort. Garratt v. Dailey, 46 Wash. 2d 197,
279 P.2d 1091. All of the foregoing cases involve the fault concept. Many
turn on the question of whether the child could be guilty of the fault

charged but each case has fault as one of the essential elements of liability.
We need not disagree with those authorities. Whatever her motive,
plaintiff has chosen to plead in such a way as to avoid bringing herself
within the scope of those cases..

Affirmed.

NOTES

1. Overview. Casebook editors may select cases and materials with

more than one purpose in mind. At any given point, several themes may be in
progress. Van Camp displays both a substantive and a procedural theme. The
substantive or tort law theme has to do with the grounds for liability. The
procedural theme has to do with how a tort cause of action is pleaded in court.
In this case, why does the court consider only "what can be gleaned from the
pleadings"? Most cases in this book will raise a number of issues that require
 A FIRST LOOK AT TORTS PT.1
10

analysis and further thought. Notes like these should helpyou develop that
information.
analysis or furnish related
2. Historical strict liability and the rules today. Fromthe
early
the 13th century until perhaps late as the
as
18th
days of tort law, about
century, anyone who
acted affirmativelyand directly
(like Mark
McAfoos)
might be held liable for harm done, even though
he was not at fault. In
these
cases the plaintiff used form of action for suing called Trespass.The plaintiff
would win unless the defendant had some special defense, called justification
or excuse. An example of a defense would be self-defense. If the harm
caused
was indirect, on the other hand, the defendant was not responsible unless he
was at fault in some way. If Mark McAfoos had left his tricycle on the walk and
the plaintiff had bumped into it in the dark, this would have been an indirect
harm and even in the
early English law Mark would not have been liable
without fault.
Cases of indirect harm required the plaintiff in that period to
select a form of action for suing called
Trespass on the Case, or just Case. Does
Van Camp implicitly or
expressly reject the older rule that a defendant can be
liable for direct harms even in the absence of fault?
3. What is fault?
What would it take to show fault in
Suppose McAfoos said that he ran into Ms. Van Camp on
Van Camp?
wanted
to hear her get angry. purpose because he
If McAfoos caused the accident, how could it
have happened without his fault?
In Von
of plaintiff's claim because no Camp, the court upheld the dismissal
wrongful" beenofpleaded
fault had use
nor "negligently wrongful" neither intentionall
misconduct and negligent miscondiccan be thetricycle. Both intentional
require pleading particular types of fault. forms of fault.Specific tort claims

o
4.
Tort law

eaten
and the states.

opinion? If Van Camp tells us

in Iowa,
do that faultyou tell which state court wrote the
5.
we know whether
fault is required maintain
to
r inIllinois?
required a battery claim
Camp stack
against the aims
of tort law?
the fault-based
andcompensatinginjured
persons? What other sort of
lawyers. It rule could the court
arguments.
is one
process by rule and
which
have
alternatives to it is important
lawyers begin to
6.
Grasping a formulate legal
the principle principle.
Onefunction or reason behindtheVanCamp
of a case to of a lawyer is case involved a child on a
new set
a torecognize might apply to tricycle.But
of facts. the othersituations.
(a) H Try it: possibilityofmany
applying the
becomes angry
with hisfist,
withhis
principle
principle breaking her
orideainVan jaw and wife, W,
and repeatedly hits her
Campeither bruising her
establishor face. Would the
exclude liability?
 CH. 1 TORT
LAW: AIMS, APPROACHES, AND PROCESSES 11

(b) Thedefendant's yard has a tree near the sidewalk. The tree
appears to be
sound and healthy, but in fact it is rotten and it blows
over
in a wind. It strikes a passerby. Can you predict from Van Camp
whether a court would impose liability?
$ 3. IMPLEMENTING TORT LAWS GOALS
WITH DAMAGES AWARDS
In a few cases the remedy for a tort is an injunction. That is, the court
will order the defendant to cease
committing a tort such as a nuisance or a

continuing contamination of the plaintiff's land. In the overwhelming

majority of injury cases, however, the remedy is compensatory damages,
an award of money to
compensate the injured person for the harms caused
by the defendant's tortious conduct.

ANDERSON V. ZAMIR
931 N.E.2d 697 (III. App. 2010)

JUSTICE CHAPMAN delivered the opinion of the court:

Tiffany Anderson appeals from the trial court's September 19, 2008,
denial of her motion for trial from a final judgment after
a new a jury
trial....

On September 22, 2005, Tiffany was involved in a motor vehicle

accident with Saadia Zamir. Tiffany was rear-ended. Her head hit the
steering wheel. Tiffany's car was pushed forward into the car directly in
front of her vehicle. Her vehicle was towed.

Although sore immediately following the accident, she did not seek
medical attention right after the accident. Later that day, Tiffany went to
the hospital to try to obtain medical care related to a headache from which
she had suffered since theaccident. Her neck was also sore at this time.
Overall, her symptoms had gotten worse since the time of the accident.
That evening at the hospital, she was prescribed a neck brace and pain
medication.

Thereafter, she followed up with the medical clinic of the student

health center at Southern Illinois University at Carbondale (SIU-C), where
she was then a student. She testified that she complained of pain stemming
from her lower back and running up into her neck, primarily on the left
side of her body.... She was treated with pain medication and some
physical therapy and home exercises for about six months. In the spring of
2006, she had cervical MRI, which the radiologist determined was
a

negative. In July 2006, Tiffany returned to the student health center

medical clinic with specific left shoulder complaints. Tiffany was referred
to Dr. Treg Brown, an orthopedic specialist at the clinic. An MRI of her left

shoulder revealed a tear in the labrum of her left shoulder, and in

 A FIRST LOOK AT TORTS
12
PT.1
December 2006. Tiffany underwent left shoulder surgery to repairthe
labrum tear. The surgery was orthoscopic and left Tiffany withseveral
her left shoulder. After the surgery, Tiffany
small scars on

physical therapy. underwent

Tiffany providedtestimony aboutthe pain sheexperienced
injuries and following the surgery. Tiffany testified to the fromthe
which she had engaged before the accident and the limitations in activities
experienced due to these injuries. she
Tiffany filed suit against the Zamirs for personal
injuries resulting
from the accident. The Zamirs admittedliability. The case
went to
the issue of damages only. The trial was held for two days trial on
totaling $28,804 wereadmitted beginningon
July 21, 2008. Medical bills
At the conclusion of the into evidence.
only $5,000 for trial,thejuryawardedTiffany total
a of
medical bills and the
balance $12,500
suffering.
Tiffany filed
September 19, 2008. ..
a motionfor a of$7,500
for pain
new trial,which thecourt and
denied on
courts ruling on a motion for
The trialappeal
reversed
unless
a
new
trial should
affirmatively the party who is not be
show that the court clearly seeking the new trial can
determining whetherthe abused its
whether thejury's verdiettrial
was
court abused its discretion, wediscretion. In
complaining supported
party wasdenied a by the must consider
The fair trial. evidence and whether the
amount of money a
the jury to juryawards
received determine" and isentitled "ispeculiarly an
proper instruction to issueoffact for
award,the and otherwise substantial deference.
no appellate court will
preciseformula had a If the
jury
not disturb reasonable
for the basis
the followingdetermining
reasonable. for
injuriessuffered if a verdict. Although thereits is
and factors should bemonetary award is
plaintiff's
age, the
the degree of considered the fair and
possibility of the
expenses permanency extent of the
of the involved, and future of those
injuries suffered.the restrictionsdifficulties,
unless it is theamount injuries, the
A
shown that jury's upon the ofmedical
damages, that the damages plaintiff's
award cannot lifeas a result
awardbears the verdict juryclearly
wasthe
resultignored overturned
be
reasonable
no
In this case,
relationship of
passion established elementof
or
an
was liability was
conceded,along to the loss prejudice, thatthe
defendants admitted, that was or
contestedatwith
evidence offered andessentially
damages related
the trial
suffered.
[experts} in her[byeither the cervical
to that injury
Tiffany's case. Theparty] at injury.
physicians and defendants
injuries,her the
trial
was
presented byTiffany's
cross-examination presented
medical care,
the
attorney merely
of
her
Tiffany'sindependent
no
medical bills, cross-exami
her evaluation
or ned
ofTiffany's
physicians prognosis. Areview
reflects that
of
neither
 CH. 1
TORT LAW: AIMS, APPROACHES, AND PROCESSES 13

physician wavered in his opinion relative to the cause of the shoulder

injury. We find that the testimony of both
physicians is of great importance
to our
consideration of the proof relative to the damages award. . . .
Dr.
Perkins testified that Tiffany's shoulder injury was most probably
caused
by the September 2005 motor vehicle accident. Dr. Perkins
explained that this late experience of symptoms is fairly common. Initially,
the patient complains of cervical pain, and the patient simply does not
experience the signs of laxity and shoulder pain until the cervical area
starts to improve and the patient starts engaging in more activity.
Dr. Treg Brown testified at the trial that he had reviewed all of her
records and found nothing in her records other than the motor vehicle
accident to explain the shoulder injury that Tiffany sustained. . . . Dr.
Brown testified that her surgical care and all the medical bills associated
therewith were related to the motor vehicle accident.
The jury does not have to believe a witness if the jury believes that
the testimony is false based upon "all of the other evidence or the inherent
improbability or contradictions in the testimony." However, the jury is also
not allowed to arbitrarily reject unimpeached testimony. . . .
Tiffany's medical bills totaled $28,804, but the jury chose to ignore this
uncontradicted evidence and award her only $5,000 for medical bills,
presumably following the suggestion of the defendants' attorney that it
award her damages only for her cervical injury. The defendants advanced
the argument that the shoulder injury was not causally connected to the
motor vehicle accident because of the delay between the motor vehicle
accident and the report of specific shoulder pain. The defendants also
sought to argue that the injury was related to a viral infection. While the
propriety of asking these questions on cross-examination of the physicians
is not in doubt, the problem is that neither physician agreed with the
arguments advanced by the defendants' attorney.... Again, all the
medical testimony introduced at the trial supported the theory that the
shoulder injury was causally connected to the motor vehicle accident. No
evidence contradicting this connection was introduced. The witnesses were
not impeached, and they stood by their opinions of causation. Upon
reviewing the testimony, we do not conclude that this medical testimony is
inherently improbable.
We find that the jury's verdict simply bears no reasonable relationship
to the injuries established by Tiffany at the trial, and accordingly, the
damages award must be reversed. Furthermore, we conclude that the trial
court abused its discretion in upholding this damages award in light of the
only medical evidence introduced at the trial. . . For the foregoing reasons,
the judgment of the circuit court of Jackson County is hereby reversed, and
the cause is remanded for a new trial on the issue of damages.
 TORTS PT. 1
A FIRST LOOK AT
14

NOTES

Compensatory damages components. The injured person

1. usually
Anderson the
has the burien of proving that the defendant is liable. In
admitted, a plaintiff is
defendant admitted liability. Once liability is proved or
entitled to recover compensatory damages caused by the defendant's
tortious
compensation for (1) lost
conduct. Upon proper proof, a plaintiff is entitled to
wages and lost earning capacity, (2) medical expenses, (3) pain and suffering
endured, including mental or emotional pain, and (4) any
special or
particularized damages that do not fit neatly within the other categories.
The

plaintiff can recover not only for such losses that have already occurred, but
also for such losses that are reasonably certain to occur in the future, if the
evidence demonstrates the likelihood of such future losses. See 3 DOBBS,
HAYDEN & BUBLICK, THE LAW OF TORTS § 479 (2d ed. 2011).
The gist of the damages rules is that the defendant has wrongfully
reduced the plaintiff's net assets, tangible and intangible, and should be
required to restore them-that is, to restore the plaintiff to the condition the
plaintiff was in before the tort, to the extent that can be done with money. Are
the compensatory damages rules consistent with some or all of the broad goals
of tort law?

2.
Measuring damages. "Because the measure of damages in a
personal injury case is not subject to mathematical calculation, each case must
be measured
by its own facts, and considerable latitude and discretion are
vested in the
jury." Primoris Energy Services Corp. v. Myers, 569 S. W.3d 745
(Tex. App. 2018).
The amount of damages need not be proved with precision,
but the amount cannot be based on
speculation, either. Courts often say that
the
amount of damages must be proved to
more accurately, to a a" substantial certainty," or perhaps
"reasonable certainty." Pain and suffering and lost
earnings and earning capacity are inherently impossible to prove with
precision, but are routinely awarded
to plaintiffs upon proper proof.
3. Measuring pain and suffering. One difficulty in assessing proper
compensation is that for many of us, our main
money or property but in the assets are not in the form of

Although formfreedom
pain is not quantifiable, health and freedom from pain.
of goodfrom
can see that in pain has economic
the expenditures people make to value. We

You could also imagine that someone offered gain pleasure and avoid pain.
your leg. If
you would accept such an awfulyou money for the right to break
offer

of many dom
you and mor money
exendemand ifthebreak
pain is wou denthi you would almost
you would almost an

would
liability (he is only liable
to suffer not the
for reasonable measure of a tortfeasor's
demand). Even SO, compensation, not what you would
if freedom from pain is an
an
the
a defendant
intangible asset, pain inflicted by
does thenury
Anderson
tenor hote inmuch
knowthat?
address how wealtolosaward shouldbecompensaepein inflict How
ind foryah the
andsuffering? How did Tiffany
caller
4. Lost wages
and earning
plaint
the defendant's tort has
caused
capacity. Where the
loss plaintiff proves that Orient
of wages because, for
example, the
powers
new
 CH. 1 TORT LAW: AIMS, APPROACHES, AND PROCESSES 15

plaintiff has not been able to work (or work as much) because of the injury-
that is a of compensable damages. See, e.g., Dillon v. Frazer, 678
category
S.E.2d 251 (S.C. 2009) (granting new trial on damages where jury disregarded
uncontroverted evidence of $18,000 in lost wages and overtime pay). A plaintiff
can also seek to recover damages for loss of future earning capacity, upon proof
to a substantial certainty that the defendant's tort caused a diminution in
plaintiff's power to earn money. See, e.g., Stephens v. Crown Equipment Corp.,
22 F.3d 832 (8th Cir. 1994). Thus even a person who was not employed at the

time of injury may be able to recover for a loss of earning capacity. See, e.g.,
Zhao v. United States, 963 F.3d 629 (7th Cir. 2020) (affirming award of $2.6
million for lost earning capacity to a plaintiff injured at birth). Why do you
think Tiffany Anderson was not awarded damages for lost wages or loss of
earning capacity?
5. Attorney's fees. One of the most important institutional rules
covering most litigation in the United States is that a losing party is not
required to pay the winning party's attorney's fees as a line-item. Under this
so-called American Rule, each party pays its own attorney's fees, win or lose,
unless some special statute or law allows for fee-shifting. As a result, the
almost universal system of litigation finance in this country is that plaintiffs'
attorneys in torts cases are paid by contingent fees: they are paid nothing
if

they lose, and a percentage of the recovery if they win. The percentage may
vary from around 25% to 40%, sometimes higher. The percentage may sound
high, but considering the lawyer's investment of time and effort and the fact

lawyer will be paid nothing in some cases, such fees are usually not a
that the
bad deal for the client who could not afford to pay a lawyer otherwise. State
rules of professional responsibility prohibit lawyers from charging or collecting
fees that are unreasonable, excessive or unconscionable. See ABA MODEL
RULES OF PROFESSIONAL CONDUCT 1.5(a) (prohibiting unreasonable fees).
plaintiff's lawyer is likely to be paid a percentage of the
Given that
damages obtained, why isn't the plaintiff left short of money for medical
expenses and lost wages and earning capacity in every case?
6. Judge and jury. Determining the amount of damages is the jury's

job, but as you can

see from Anderson the trial judge and the appellate judges
have important roles to play in the final outcome. Once the jury has fixed
damages, can an aggrieved party win simply by
arguing that the jury got the
amount wrong? Is that what happened in Anderson?
7. Judicial powers: additur, remittitur, and new trial. Following
an insufficient award of damages in a jury trial, a state court trial judge has
the power to deny the plaintiff's motion for a new trial on the condition that
the defendant consents to pay an increased award of damages; this power is
if
called additur. The judge's power to deny defendant's motion for new trial
plaintiff remits part excessively high award is called remittitur.
of an
See

Orientale V. Jennings, 218 A.d 806 (N.J. 2019) (exploring history of

those

powers). The trial judge also has the power, and sometimes the duty, to order
a new trial on damages, as you can see in Anderson. See also Mader v.
 AT TORTS
A FIRST LOOK PT.1
16 2020) (new trial may be ordered
Co.,
Duquesne Light Can
respectto were properly awarded). damages, based simply
damages that a new
trial on judge's
remittitur, or
grant too low or
too high?
on the
Or based judge's view
amount ishave come up
opinion that thejury
with a different amount? See
Nason
different would
that a 2019).
U. Pruchnic,
204 A.3d 861 (Me. have heard
on alyanat Amrienp bhenis bpml
You may or read
Criticisms damages.
of many
8. of
it is out
criticisms of tort law-that
greedy, and that they seek something for nothing.
that they are as in corporate board rooms
matters,
up in
lawsuits as well and
doubt greed shows know that the studies availabledo not
elsewhere. However,
it is important
to
individuals has increased or that juries
that litigation by
support the claim the Bureau of Justice Statistics
often tun amok. A 2008 report issued by the median award in tort cases
of its kind- estimates tl
of 2021 the most recent award in contract
of sites,ooo, slightly lower than the $35,000 median cases. In
million dollars. In
cases, only
of plaintiffs received awards over one
4%
all
addition, from 1992 to
2005 the number of tort cases decreased by 40%. Did
Quite to the contrary. See
plaintiffs fare better with juries rather than judges?
Dynn Langton & Thomas H. Cohen, BUREAU OF JUSTICE STATISTICS, U.S.
AND JURY TRIALS IN STATE
DEP'T. OF JUSTICE, NCJ 223851, CIVIL BENCH
COURTS, 2005 (October 2008).
9. Punitive damages. In a few cases, juries are permitted to award
punitive damages in addition to compensatory damages. Virtually all states
authorize punitive damages only when a tortfeasor has acted maliciously or
willfully or wantonly in causing injury. Punitive damages are intended to
provide a measure of added deterrence and punishment for the wrongdoer's
serious, even reprehensible, misconduct. They are measured not by what the
plaintiff has lost, but rather by what will punish the particular defendant given
the seriousness of wrongdoing, among other factors. See Qwest Servs. Corp. U.
Blood,252 P.3d 1071 (Colo. 2011) (upholding punitive damages award of $18
million against utility company found by the jury to have acted willfully and
wantonly in failing to maintain a utility pole that
collapsed and seriously
injured a lineman). Punitive damages are explored in greater detail in Chapter
26.

NOTE: POPULAR CONCEPTIONS AND

MISCONCEPTIONS THE McDONALD'S CASE
You should be
based upon cautious
anecdotes or
about forming
media
judgments about all tort law
an
presentations rather than
understanding of the whole tort system. One that grabbed
media
attention and continues to rencrate criticiem in oved that erabdement for
burned by scalding coffee she got at a McDonald's drive-
 CH. 1 TORT LAW: AIMS, APPROACHES, AND PROCESSES 17

through. Sitting in the car, she held the container between her legs to take
the top off and the coffee spilled. It was hot enough to inflict third degree
burns which covered
her groin and genital area. Third degree burns can
burn entirely through the skin and vessels and all the way to the bone. She
was hospitalized, underwent skin grafts, had excruciating pain, and was
permanently disfigured. She asked McDonald's to pay her $11,000 hospital
bills, but McDonald's refused. She hired an attorney who demanded
$90,000 in damages, but McDonald's refused that, too. Her
lawyer then
filed a suit
and discovered that McDonald's intentionally kept its coffee hot
enough to inflict third degree burns and in fact had known of at least 700
people who had been burned by its scalding coffee. Shriner's Burn Center
had
published warnings to the fast food industry about the severity of the
burns from coffee at this temperature. The lawyer now demanded more in
compensatory damages, and sought punitive damages as well. At trial,
after hearing all of the evidence, the jury awarded the plaintiff $200,000 in
compensatory damages, reduced to $160,000 because it decided that she
was partly at fault in causing her own injuries. The jury then added $2.7
million in punitive damages, based on a finding that McDonald's was
reckless or even malicious. While this was a large sum, it represented only
about two days' of McDonald's revenues from coffee sales. The judge
reduced the punitive award to $480,000, leaving the plaintiff with a total
damages award of $640,000.
Media and web commentators often present a different picture. They
award was in the form of punitive
often leave out the fact that most of the
damages-meant to punish, not to compensate, that the punitive damages
award was reduced as part of the ordinary mechanisms of tort law (the

judge's review), and that the coffee was not merely "hot," but capable of
great harm, which it in fact caused quite needlessly. You can still read
comments on the web in essence saying that "an old woman" spilled coffee
on herself and got something for nothing, omitting to note that the jury

reduced the compensatory damages by $40,000 for the plaintiff's supposed

fault in spilling the coffee, and perhaps betraying a contempt for "old
women." You'll want to judge for yourself, but as professionals we should
base our analyses on more facts than appear in the popular media. You can
find a summary of the McDonald's case in Mark B. Greenlee, Kramer U.
Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26
CAP. U.L. REV. 701 (1997).
 CHAPTER 2

READING TORTS CASES AND

UNDERSTANDING TRIAL PROCEDURE

§ 1. LOOKING FOR FACTS, RULES, AND REASONS

Reading cases to understand principles and predict law. This course
presents real cases that involve individuals and sometimes organizations
as plaintiffs, defendants, lawyers, and judges. The "cases" in this book are
actually the explanations judges give for the legal decisions that they
make. By carefully reading these judicial explanations, called opinions,
good lawyers can learn the governing legal principles of tort law. They can
also envision what other legal rules could develop from these principles. In
addition, they can learn to identify recurring issues, distinguish seemingly
similar cases, and find similarities in cases that are seemingly different.
Why are these skills important? One reason is that in the United States,
tort law develops through a common law system. That means a court
decision in an individual case not only serves to resolve that case, but
creates a rule to be followed in future cases. In order to make professional
estimates about likely outcomes of a case if a client must sue or defend, an
attorney will need to be able to read and understand prior case law. Also,
an attorney who wishes to construct a sound legal argument must be able
to compare the case before her with prior legal cases and principles.
Facts. The facts of a case likely to influence the judge in deciding
are

on appropriate legal rules. If the case is about a four-year-old who causes

harm, the judge's observations about "the liability of children" may really
be observations only about the liability of very young children. The facts
that influence the judge's decision may be an explicit part of the case or an
implicit part of the judge's reasoning. The scope of a rule will require
interpretation on your part, and it means that you must understand the
facts in the case very well indeed. When you identify the important facts of
a case be sure to include all facts necessary to the judge's decision and to

the legal elements of the case. For example, if a cause of action requires
proof of actual physical harm, the fact that the defendant's achilles tendon
was injured and required surgery will be an important fact to record. You
may also include facts that demonstrate the overall context of the case and
facts helpful to remembering the case.

19
 A FIRST LOOK AT TORTS
20

Procedural posture. Reading cases well requires

by the parties
PT.
attentionto both 1

substantive legalissues raised andthe

legal the
through which those issues toraised.
are The legalprocedurethat procedures
the court's ruling is important understanding the triggered
of the case didthe lower court dismissthe plaintiff'ssubstantive legalrule
evidencehad beengathered, grant summary judgment complaint
forthe beforeany
after reviewing all the material facts, or reverse
a judgment defendant
defendantafter fulltrialand verdict? The allocation againstthe
decision-making
a
of
power betweenjudge and jury majorprocess element
is a
in
cases. Suppose: (1) The defendant files manytort
a
motion saying the
dismiss
the plaintiff's claim without letting a jurydecide it, judgeshould
denies the motion and lets the jury decide. (2) The jury but
thejudge
defendant. (3) The judge upholds the jury's verdict. decides for the
this sequence. In item (1), by Process
refusing to dismiss the values explain
saying that the plaintiff should win. The judge is case the judge is
decision on saying not
the particular issue in light of the factsstatedinstead that the
by the jury, not by the judge. sothe should be
on those particular facts. In other jury's verdict either way will be made
upheld
from the jury,
allocating power tocases, judges willtake the caseaway
appropriate role of judge andjury is often
themselves
a
instead of the
basic concern jury. The
A
reader of cases must in applyinglegal
appeal. One example of a pay attention
to
which procedure of fact.
"summary judgment statement
court." grantedby the about the procedure of a triggers the
trial court and case might be
Issues. The upheld by the appellate
court will substantive
also affect issue raised
by
the litigants
procedural issue
the
holding. It is as shaped by the
be "should the trial helpful
upheld?"-and
intent to the court's motion recognize both the
harm requiredsubstantive question
to
for
will be the primary to show summaryjudgment
focusof presented
a
battery?"
analysisin Often
to the court-"is
Holding. the
classes other thansubstantiveissue
raised bythe The holding ofthe
parties. The
"reversed."
as court is procedure.
However, procedural
the court's
the rule of law a fuller formofthe response to the issues
in the the
court statement holding might be simple as
example, a in responseoftothe holding mightalsoinclude
case.
For stated
procedural holding
defendant; a andthestatementofa the substantiveissue raised
intended harmbattery cannot of the holdingthat
rule
concerningthe offense.' Theproved
or be case mightbe includesboththe
case,' are substantive
helpful ruleswithout
of proof
"Reversed,
that the
forthe
defendant
on.
issues,
Sometimes a becausethey law
interpretwhat judge maybe
establishedby the court
sometimesreferred
youread.clearly used to to as "therules of a
earmarks a resolve similarcases later
rule. More
often,you must
 READING TORTS CASES AND
CH. 2 UNDERSTANDING TRIAL PROCEDURE 21

Reasoning. The rules in most judicial decisions are interpreted in part

by following the judge's reasoning. Ideally, the judge's reasoning explains
why the rule exists (or why the judge is creating the rule) and how it applies
to the case. The judge's reasoning may include analogies to other cases or
legal doctrines, reference to persuasive authorities like the Restatement or
prominent treatises, and discussion of fairness or policy concerns. What the
judge emphasizes in reasoning about the rule tells you a great deal about
what the rule is and what its limits
might be. Be sure to note the reasoning
of arguments made in concurring and dissenting opinions as well as the
majority's explanation.
Application of rules. Often, in the common law, attorneys are asked to
apply the rule and reasoning of a decided case to a new factual situation or
hypothetical. Although rules found in yesterday's cases will help resolve
today's disputes, they usually will not do so simply or directly. You will find
you must reason about how the rule is to be applied in other fact scenarios,
including your client's situation.
Evaluation. After you read the case, take time to think about how the
case you read relates to other cases you have examined. What does the case
add? Why is it significant? Is the rule of the case just? Does it promote
useful policy aims? Is the reasoning sound? Are there alternative solutions
that would be
preferable in terms of principle and policy? Does the rule of
the case work effectively with other rules you have studied? This is your
chance to reflect on connections
between cases and the wisdom of rules as
a whole.

Rules point lawyers to evidence required and arguments available.

Frequently, the rules in yesterday's cases do not actually resolve today's
disputes at all. Instead, their most important function is to
point to
evidence that lawyers will need to gather for a trial and to arguments
lawyers will need to construct in presenting a claim or in defending it.

§ 2. PROCEDURES AT TRIAL
The cases you read are usually the
decisions of appellate court judges.
Less often they are decisions of trial court judges who occasionally decide
to
provide a written explanation of their decisions. Appellate court judges
typically address facts that are raised in party briefs and reference a
factual record assembled for summary judgment or a transcript of the trial.
Since a judge's decision about tort law
will come within a particular
procedural context, it is necessary to have
a basic understanding of trial
procedure.

Trial procedure can be complicated, but the

simple. It is designed to resolve two kinds of basic plan of a trial is very
dispute disputes. The first kind of
is about the facts, about what happened. Almost all trials involve
least some factual dispute. The second kind of dispute is about the lave
at
 AT TORTS PT. 1
A FIRST LOOK

win tethtp:././.ew .ar herd/tahinis-thtpt.teg

22

Most trials
Although we've listed
should apply to
of trial procedures.
Below you will
find a list
they typically arise in a trial, some
in which asterisk-are the main
these procedures in the order marked with an
legal issues that appearlegal
in the
tort
of the procedures the ones
the
cases

procedural devices that raisethat most frequently raise issues reflect

book. The procedures evidence that is improper
in this
eatekeeper who screens out evidence or the case from
the judge's role as a
and often screens out whole cases,
preventing the out the whole case,
judge screens
jury. When the to the jury,"
being considered by the the case did not "get
the jury decides nothing and lawyers say lose under some
plaintiff must
the judge decided that the
meaning that was insufficient to permit
that the plaintiffs evidence
rule of law or
essential for the plaintiff to win. On
reasonable people to find the facts
occasion, a plaintiff can prevail on a motion for judgment without trial. Onc
ask when they evaluate a new
are likely to
of the first questions lawyers
the jury? meaning, will the judge screen the
case is: Can this case get to
case out or will the jury be permitted to make the ultimate decision in the
case?

these as you encounter these

You may want to look back at pages

procedures in cases. In the appendix following this section, we narrate a

hypothetical case SO you can see the procedures being applied.
For may be helpful to imagine a very simple
our discussion here, it
kind of case in which the plaintiff contends that the defendant struck him.
Defendant denies this completely. How does this get to court and what

happens there?

Complaint. Plaintiff's lawyer, having investigated the applicable law

and facts, writes up a document called a complaint or petition. This
document states the facts as claimed by the client. This document is
formally filed with the court (in the court clerk's office) and a copy is served
on (delivered to) the defendant, sometimes by an officer of the court such
as the sheriff or the federal marshal. In most courts today, electronic filing
is available and may be mandatory.

*The Motion to Dismiss or Demurrer. If the defendant believes that the

plaintiff's complaint does not state facts that show a good legal claim, the
appropriate response is to file a motion to dismiss the complaint for failure
to state a claim upon which relief can be granted. This is a Rule 12(b)(6)
motion under the Federal Rules of Civil Procedure. The effect of this motion
is to say to the judge, "Take all the
facts stated in the complaint as if they
were proved; even so, they do not show a valid
legal claim.'
Since the facts alleged
are temporarily assumed to be true for purpose
of considering this motion, there is no
one of law, for the judge to decide, factual dispute. The issue raised is
not the jury.
Suppose plaintiff's lawyer
 READING TORTS CASES AND
CH. 2 UNDERSTANDING TRIAL PROCEDURE 23

wrote up, filed and served a complaint stating not that the defendant
struck the plaintiff, but instead that the defendant frowned at the plaintiff.
Frowning is not a tort, so defendant's motion to dismiss would be sustained.
Conceivably the plaintiff's complaint would be rewritten or amended
to
add important allegations. This would usually be permitted. However,
in most cases in this casebook, the issue is on appeal for the very reason
that the plaintiff cannot add any provable facts that will help.
Notice that the motion to dismiss comes at a very early stage of the
case before the defendant has filed an answer or along with the
defendant's answer. In other words, it comes before any time has been
invested in developing proof or calling a jury.
If the motion to dismiss or demurrer is denied, the case will proceed
and defendant will file an answer.

Answer. If thedefendant has not moved to dismiss the complaint, or if

the defendant's motion to dismiss is denied, the defendant must file a
document taking a position on the complaint. Very often it is an "answer."
An answer usually disputes some of the factual claims of the plaintiff. For
example, if plaintiff's complaint states "Defendant struck the plaintiff in
the face," the defendant might answer saying she denies that she struck
the plaintiff. This reveals what facts are in dispute between the parties.
Because the dispute is about the facts, the parties will gather evidence for
presentation to a jury.
Discovery. Discovery is the portion of the case in which both parties
gather information about the underlying claims. For example, the
defendant might depose the plaintiff in order to obtain new information or
reveal inaccuracies. Did the plaintiff seek medical treatment after the
event? What did the plaintiff tell the doctor at the time? Discovery is not
limited to gathering information from the parties. The parties may also
seek information from others who know about the event. For example, if
other people were in the room at the time that the defendant allegedly
struck the plaintiff, the parties might interview those witnesses
(sometimes under oath) and ask what they saw. The parties can investigate
facts through written requests for documents as well as oral interviews.
For example, either party could ask for written records of the plaintiff's
doctor visit.

*The Motion for Summary Judgment. The motion to dismiss assumes

all the facts stated in the complaint are true and argues that, even so, the

complaint fails to show a good legal claim. On the other hand, the summary
judgment motion, which occurs after the parties have gathered facts during
the process of discovery, is based on a developed set of facts. If the moving
party, almost always the defendant, shows that (1) there is no real dispute
about important facts and (2) on the undisputed facts, the law compels
judgment for the defendant, summary judgment will be granted.
 A FIRST LOOK AT TORTS
24

discovery andthe plaintiff PT.1

Suppose the parties go through states,
while the defendant states, did not.'
hit me."
"I The
defendant 'he
summary judgment because the truth of the fact heassertediscannotget
to the controversyandisdirectlydisputedbytheplaintiff. It willimportant
befor
jury to party ISspeaking truthfully.
decide which Even if one the
more witnesses than another, the dispute of fact is still for party
the has
resolve. juryto
Pretrial briefs and motions inlimine. After a case is set for
parties may want the judge to decide beforehand whether trial, the
to
exclude certain types ofevidence andwhether
apply. particularlegalinclude or

a partics may file motions or briefs asking the jude to

trial inThe
rules will
might ask particular way. For example, in a motion
in limine
the
shape the
the trial judge to keepout evidence that defendant
another
incidentperson
five years earlier on theground that the
defendant
evidence of the struck
mightprejudicethe juryagainst the defendant. earlier
Selection ofaljury. When the case comesup
are questioned by the
judge and perhaps for trial,
whether theyare biasedaboutissues by the prospective jurors
Lawyers may"strike" inthe case lawyers to
12 (or or eliminate or about determine
oneofthe
sometimes six or eight) some
particular case. are then
prospects.
"put Of thosewho parties.
in the
box" as remain,
Opening statements. At jurorsfor the
lawyer to state this
pointthe
thecase for
preliminary view of the
the plaintiff. judge will ask the
defendant'slawyer testimony the This is notan plaintiff's
Plaintiff's
willmake a plaintiff
similar opening will put argument
on. Then
but a
asking case. Next
the statement. the
questions, plaintiff's
witness knows thelawyer attorney calls
questioned by about the factselicits answers that the first witness. By
opportunity the plaintiff's relevantto the establish what the
put the to cross-examine lawyer, case. After
matters the the witness is
or
may show in a different the witness, defendant's
examinations that the light,or by
asking lawyerhas an
themaquestions that may
much the of the witness maygive
witness was
really knewthus canmistaken, lying,different
witness
process
continues
witnessesinturn. as the andhow
emphasis,
givethejurya orbiased.Thetwo
plaintiff's crediblethe basisforjudging
*
The
directed Motion for
how
attorneycallswitness mightbe.This
Directed
federal verdict(referred each
courts) the to
defendant's Verdict.
ofthe
plaintiffs
Defendants
at as a
offeredby evidenceis ofthemotionfor
end
the
plaintiff's
judgment usually move for
the
plaintiff. plaintiffiscompleted. as
Such evidence and matter of lawin
a
a

motionMore
such a
is rarely, motions again when the
seldom plaintiff
grantedin might
view movefor
ofthe directedverdict,
plaintiff's but
 READING TORTS CASES AND
CH. 2 UNDERSTANDING TRIAL PROCEDURE 25

The judge considers the evidence in the light most favorable to the
plaintiff. That is, the judge takes into account all the reasonable inferences
the jury would be allowed to draw from the testimony. Considering all the
evidence in this light, the judge will grant the motion for a directed verdict
if a jury of reasonable persons could not differ on the evidence, or if the
facts taken in this favorable light do not establish any legal claims. The
standard can be stated in other ways, but the basic idea is that the judge
is not to take over the jury's role. So a directed verdict should be denied if
there is room for reasonable jurors to disagree. This almost always involves
some interaction of fact and law do the facts, taken in a light favorable to
the plaintiff, establish the elements required by law?
Amotion for directed verdict is somewhat similar to a summary
judgment motion, with a similar standard, but it is based on the evidence
produced in full at the trial.
Defendant's case. When all of the plaintiff's witnesses have been
examined and cross-examined, the defendant puts on witnesses who give
the defense side of the story. These witnesses, answering questions on the
defense counsel's examination, often give a different factual picture from
that given by the plaintiff's witnesses. After each witness is examined, the
plaintiff's counsel cross-examines.
*Objections Evidence and Offers of Evidence. Not only before the
to

trial, but also during the trial, the parties can object to evidence that is
presented. Evidence that is not relevant to help prove any element involved
in the case should be excluded by the judge, especially if the evidence is

likely to mislead the jury or to be "prejudicial." A trial judge's admission of

evidence over objection, or her refusal to admit evidence because of
objection, raises legal issues. Rulings on admission of evidence are often
rulings based on a specific principle of law.
Closing arguments. Plaintiff's lawyer, then defendant's lawyer,
then

plaintiff's lawyer in rebuttal, will make closing arguments to the jury.

These are arguments, not statements of fact. They are aimed at persuading
the other should be
the jury, on the basis of the testimony, that one side or
believed.

*Proposed Jury Instructions and Objections to Them. Instructions are

the trial judge's statements of law to the jury. They tell the jury what it
must consider and what facts must be found to exist before the plaintiff can
recover, or before a defense applies. Instructions must accurately state the
law. Lawyers must actively object to instructions they feel are incorrect
statements of law, or propose instructions of their own. Once the judge
listens to each party's suggested instructions and decides which
are

appropriate, the judge instructs or "charges" the jury. Thus, a judge might
instruct the jury that if it finds that the defendant intentionally struck the
plaintiff with intent to harm, it should bring in a verdict for the plaintiff.
 AT TORTS
26 A FIRST LOOK PT. 1
the legal
to the jury and rules to the
Notice that this leaves the fact-finding a correct
instruction supposed represent statementof
to
judge. Since an is
statement of
erroneous
the law, and one on which the jury will act, an the
law would be ground for appeal.
Jury verdict. After receiving instructions
consider
from the judge,
whether the
the jury
members talk with each other and evidence
presented in the trial meets or does
not meet the legal rules articulated
by
the judge. The jury reaches a verdict on the plaintiff's claim, and when
applicable decides on an appropriate remedy. For example, if the jury finds
that the defendant struck the plaintiff in way that provides the plaintiff
a

with a recognizable claim against the defendant,thejury might also award

the plaintiff
a sum of money it deems fair compensation.
*The Motion J.N.O.V.A Renewed Motion for Judgment as a Matter
of Law. The post-trial motion for
judgment notwithstanding the verdict
(also referred to as a
renewed motion for judgment as a matter of law in
federal courts) is a virtual renewal of the motion for directed
(N.O.V. is for the Latin non obstante verdict.
veredicto, meaning notwithstandin*
the verdict.) The motion asserts that the evidence is not
to justify legally sufficien
a jury verdict for the plaintiff. A judge who is unwilling
after
reported. There may be several
example, the reasons this. For
judge may firmly believe the jury will find for
come in with
reasonable. Afterwards, when plaintiff,
but
that it will be

may have some second thoughts. the J.N.O.V. motion is presented,small and
the judge
wants to have Another
a jury verdict in case that possibility is that the judge
appellate can simply be reinstated if the
court reverses on appeal.
The legal issue presented
sufficiency of the evidence It should
by the
J.N.O.V. motion
is the legal
be decided
have arrived according to the same
at the
verdict. no reasonable
*The Motion for New jury
but to one that is Trial. The parties
attorneymaytherefore file a without anyare entitled not only to a trial
carried out
the first one. If the motionfor a new serious legal error. Either
a strong judge agrees that an trial due
possibility the error error was to error(s) made in
granted.
prejudiced thejury, made and that thereis
a new trial
A
second kind of should be
new
granta new trial, trial
the notbecause motion isunique.
weight of the of This asksthe
unconscionably evidence orerror,butbecausethe judge to
high (or because verdict is against
askthe judgetouse possibly the
unconscionably low).
damages award was
somethinglike These motions
discretion. Thejudge really
cannot substitute
 READING TORTS CASES AND
CH. 2 UNDERSTANDING TRIAL PROCEDURE 27

herself for the jury and make the ultimate decision in the case merely
because she differs from the jury about what is right. Still, the judge does
have considerable power to grant a new trial. If a new trial is granted, a
new jury will hear the evidence. This may be done in many states because
the first jury's verdict is against the
weight of the evidence (though not
legally wrong), or because the damages award was excessive. Judges do not
often grant such motions, although they do sometimes grant a remittitur,
conditioning the denial of the new trial motion on plaintiff's consent to
receive a lower amount
of damages than granted by the jury.
Appeals. When a case has been resolved by a judge or jury, a party may
ask a higher court to review the determination. Typically, state court
systems have two levels of courts of appeal-intermediate appellate courts
and a state supreme court. If an intermediate appellate court affirms the
trial court's ruling, the non-prevailing party can accept the appellate court
ruling or appeal further to the state supreme court. In rare cases, where
the case raises an issue of federal law, the
tort issue can be appealed
further to the United States Supreme Court. It is unusual for tort cases
to
be resolved by the United States Supreme Court because tort law is
generally state law for which state courts are considered the final arbiter.
When an appellate court reverses a lower court's decision, the case
typically returns to the place it left off in the trial process. For example, if
the trial court dismisses the plaintiff's complaint and the court of appeals
reverses the dismissal, the
plaintiff will not necessarily prevail in the case.
Instead, the case will be returned to the lower court and the defendant will
have to answer the complaint, after which the
discovery process will begin,
and so forth.

REFERENCES: THOMAS A. MAUET & DAVID MARCUS, PRETRIAL (10th ed.

2019); PAUL BERGMAN, TRIAL ADVOCACY IN NUTSHELL (6th ed. 2016);
STEVEN H. GOLDBERG & TRACY
WALTERS McCORMACK, THE FIRST
TRIAL (WHERE DO I SIT? WHAT DO I SAY?) IN A NUTSHELL (3d ed. 2016);
KENNEY
F. HEGLAND, TRIAL AND CLINICAL SKILLS IN A NUTSHELL (5th
ed. 2015).