Chapter 3: Introduction to Torts Flashcards
What are the two main sources of obligations in private law?
Torts and contracts.
Tort
Failure to fulfill a private obligation that was imposed by law.
Tortfeasor
A person who has committed a tort.
A tort occurs when a person breaks a ___ obligation, while a crime occurs when a person breaks a ___ obligation.
Private, public.
Blood Feud
Allowed the family of a murder victim to take revenge by killing the murderer or someone in the murderer’s family.
Primary Obligations
Tell people how they ought to act.
Secondary Obligations
Remedies that tell people how they must act after primary obligations have been broken.
How is the source of primary obligations different in tort and contract law?
In tort law, you never have to agree to anything; obligations in tort are simply imposed by law. However, in contract law, you must voluntary agree to something.
Doctrine of Privity
States that the only people who can sue, or be sued, on a contract are the parties themselves.
What is the purpose of creating compensation in torts?
To restore you to the state you were in before the tortfeasor committed the action.
What is the purpose of creating compensation in contracts?
To restore you to the state you would be in if the promise had not been broken.
Which type of obligation (tort or contract) is more likely to catch a person by surprise?
Tort.
Do all torts have to prove “guilty mind”?
No, some do and some don’t.
Intentional Torts
Occur when a person intentionally acts in certain ways.
Negligence Torts
Occur when a person acts carelessly.
Strict Liability Torts
Occur when a person does something wrong without intending to do so and without acting carelessly. It is enough that the defendant was responsible for the situation that resulted in the plaintiff’s injury.
True or false? Strict liability torts are common.
False.
Why do strict liability torts create special problems for risk management?
Because they do not require proof of any sort of intentional or careless wrongdoing.
Liability Insurance
A contract in which an insurance company agrees, in exchange for a price, to pay damages on behalf of a person who incurs liability.
Duty to Defend
Requires the insurance company to pay the expenses that are associated with lawsuit brought against the insured party.
Compensatory Function
Aims to fully compensate people who are wrongfully injured.
Deterrence Function
Discourages people from committing torts by threatening to hold them liable for the losses they cause.
Why does tort law have surprisingly little deterrence effect?
Insurance companies will pay if something goes wrong.
Vicarious Liability
Occurs when one person is held liable for a tort that was committed by another person.
Independent Contractor
A worker who is not as closely connected to the employer’s business as is an employee.
Can you simply label someone as an independent contractor?
No, the wording does not change whether they are an employee or an independent contractor.
Can an employer be both vicariously and personally liable for a tort?
Yes.
What are the 4 most important possibilities for remedies in the case of a tort?
- Compensatory damages.
- Punitive damages.
- Nominal damages.
- Injunctions.
Compensatory Damages
When the defendant is required to pay for the losses that they caused the plaintiff to suffer.
Remote Loss
When it is unfair to hold the defendant responsible for the loss.
Does remoteness play a role in intentional torts?
No.
Mitigation
Occurs when the plaintiff takes steps to minimize the losses that result from the defendant’s tort.
Punitive Damages
Intended to punish the defendant.
Nominal Damages
Symbolically recognize that the defendant committed a tort even though the plaintiff did not suffer any loss.
Injunction
A court order that requires the defendant to do something or refrain from doing something.
Alternate Compensation Scheme
A system that allows a person who has suffering an injury to receive compensation without bringing an action in tort.
Worker’s Compensation Scheme
Workers lose the right to sue in tort for workplace injuries, but in exchange they gain the right to claim compensation from a fund without having to prove that anyone was at fault for their injuries.
No-Fault Insurance
Victims of traffic accident cannot sue in court, but are entitled to receive compensation from the scheme without having to prove that another driver was at fault.
