Tort Law: Aims, Approaches, and Processes
§ 1. What is Tort Law?
Tort as wrongdoing- Torts are wrongs that are recognized as grounds for a lawsuit. Usually the defendant is at fault in some way, either through intentional harm or unreasonable risk.
Harm required- The wrong must result in some sort of harm to the plaintiff. Usually the harm is physical, but it can be commercial or intangible (i.e. loss of reputation).
Torts, crimes, and contracts- Contracts are usually not considered torts. There is some overlap between torts and crimes, but criminal law is about public interests, while tort law is about individual interests, so there are a lot of places where they don't overlap.
Non-tort systems- There are other systems of recourse for personal injuries besides tort law. Workers' comp is mentioned as one.
Common questions in tort law- (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?
§ 2. The Aims and Approaches in Tort Law- Justice and Policy, Compensation and Deterrence
a. Some Broad (and Conflicting) Aims
(Dobbs, The Law of Torts §§ 8-11 & § 13)
Section 8- Justice, Policy, and Process Aims of Tort Law
Morality or corrective justice- The idea that tort law should right individual wrongs.
Social utility or policy- The idea that tort law should provide a system of rules that are good for society in general (as opposed to individuals).
Process- This is a kind of social utility or policy. The focus is on improving the litigation process (and the assumption is that the litigation process is fundamentally a good thing).
Potential conflicts- The first two are pretty antithetical to each other. Process can sometimes conflict with the first two as well (the most efficient answer for the courts may not serve justice or policy).
Section 9- Ideas of Corrective Justice
Fault and corrective justice- Tort law imposes liability for conduct the law treats as wrong- this pretty much goes with corrective justice ideas. However, corrective justice thinks that in cases where the defendant is not at fault for causing the plaintiff's harm, the defendant should not be held liable.
Strict liability and corrective justice- Strict liability means you can be held liable even if you aren't at fault. This can go along with corrective justice if by some custom you would be held responsible anyway. [Why does the existence of a custom change the idea of justice?]
Uniting the potential for gains and losses- Some people think that strict liability is morally based (and therefore a part of corrective justice). The general idea is that if you are entitled to the gains you receive from a certain course of action, then you should also be responsible for the losses. This doesn't always work with corrective justice when the actors are two humans in a no fault situation.
Fault again- Most of tort law cases turn on the idea that the defendant is at fault. At least for these cases, tort law starts with corrective justice ideas even if they are influenced by pragmatic, process or policy considerations.
Section 10- Compensation, Risk Distribution, Fault
Risk distribution or loss spreading- The idea that tort liability should be strict or expansive in order to secure compensation for more injured persons. Some defendants should be liable for all harms they cause regardless of fault because they have the means to distribute the risk- i.e. corporations.
Limited acceptance of risk distribution arguments- Common law of tort has not generally adopted the idea that compensation is more important than justice or that liability should be strict; the latter are still rare.
Moral and policy reasons for limiting compensation to cases of fault- The legislatures may be better suited to determining risk compensation and enacting it (i.e. workers' comp). If compensation is guaranteed, it may actually reduce the deterrent effect. Third, the tort system is certainly not the most cost-effective way to secure compensation.
Section 11- Fostering Freedom, Deterring Unsafe Conduct; Economic Analysis
Deterrence- If people know certain actions have negative consequences, they will usually avoid them.
Deterrence in corrective justice and social policy systems- Each approach wants to deter different sorts of things.
Economic analysis- A particular kind of social policy consideration which weighs the good of the economy and encouraging enterprise against individual complaints.
Section 13- Process Values in Tort Law
Adopting, formulating, and applying tort rules- Rules adopted must be seen understood and applied at the least by litigation professionals. Without rules, the judges would suspect and the system in a sense unjust.
Process goals- No authoritative list of process values guides judges, but some are: justice/policy, treating people like humans, and practical concerns.
Loose rule formulation that diminishes judicial accountability- Rules that are too abstract make it easy for judges to simply do whatever they like. Published opinion subject judges to peer review.
Tight rule formulation that eliminates needed flexibility- Too tight a rule just prevents judges from doing their jobs- that is, using their judgment.
Rules guiding lawyers' investigation and arguments- "Rules often attempt to reflect the way people should behave even if they have not read the statutes and the cases." Since the people who actually read the rules are lawyers, the judge must write the rules with them in mind as well. [Ask for clarification... how does this guide investigation?]
Rules failing to specify provable facts- Rules suck when they call for evidence that can't reasonably be proved- like someone's subjective state of mind.
b. Applying Some Approaches
Prosser v. Keeton
143 Unrep. Case 1113.
§ 3. Implementing Tort Law Purposes with Damages Awards
Holden v. Wal-Mart Stores, Inc.
259 Neb. 78, 608 N.W.2d 187 (2000).
Estevez v. United States
72 F.Supp.2d 205 (S.D.N.Y. 1999).
Chapter 2
Reading Torts Cases: Trial Procedures
§ 1. Looking for Facts, Rules and Reasons
Reading cases to understand principles and predict law- The skills involved in briefing a case are important.
Rules- Sometimes judges state the rules they are using; more often they simply state the part of the rule at issue in a case. Context is key.
Reasoning- You can interpret by following the judge's reasoning- what they emphasize can tell you a great deal about what the rule is and isn't.
Facts- The facts of a case can influence a judge's reasoning- for instance, in a case about a young child, speaking of "a child's liability" may really be speaking of a very young child.
Process and issues- How did we get to this point and why are we here? Also, the spheres of judges and juries are important and often a main issue.
Application of rules- is not easy. How does the rule apply? How does the rule interact with other rules?
Rules point lawyers to evidence required and arguments available- 'Nuff said.
§ 2. Procedures at Trial
1. Complaint
2. Answer
3. Selection of a jury
4. Opening statements
5. Plaintiff's case
6. Defendant's case
7. Closing arguments
8. Instruction to the jury.
§ 3. Procedures Raising Legal Issues
a. The Motion to Dismiss or Demurrer "Take all the facts stated in the complaint as if they were proved; even so, they do not show a valid legal claim." Defendant's motion; comes early in a case, before the answer is filed.
b. The Motion for Summary Judgment is based on (a) a showing of new facts in addition to those stated in the complaint and possibly in contradiction of them; (b) a showing that there is no real dispute about these new facts; and (c) a showing that on these new facts, the law compels judgment for the moving party. Usually made by the defendant, saying the legal rules do not permit the plaintiff to win.
c. Objections to Evidence and Offers of Evidence Evidence that is not relevant should be excluded, especially if it is likely to mislead or prejudice a jury. Attorneys must raise this point; if they fail to do so, they cannot complain later on. Every time a judge sustains or overrules, they are making a quick statement on the rule (even if they never explain).
d. The Motion for Directed Verdict is usually done by a defendant after the plaintiff's evidence and again after the defendant's evidence. "Such motions assert that the proof offered by the plaintiff is legally insufficient to warrant a jury's verdict for the plaintiff." Can be done if no reasonable person could disagree on the pertinent facts. Based on evidence produced in full at the trial, not initial allegations or the claim that the evidence is undisputed.
e. Proposed Instructions and Objections to Them Instructions are statements of law to the jury. "The substantive legal issue raised by an instruction, then, is whether it correctly states the law." Lawyers have the burden to object.
f. The Motion N.O.V. - A Post-trial Motion for Judgment as a Matter of Law The same as a motion for directed verdict (that is, based on the same things), but submitted after the trial. Turns on legal issues, not factual ones. The judge does not have to give a direct verdict during the trial; the judge can change their mind later if presented with this motion.
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