Chapter 3- Introduction To Torts Flashcards
What is a tort?
A failure to fulfill a private obligation that was imposed by law
Origin of the word Tort?
French word Tort meaning “wrong”, which came from the Latin word “tortus” meaning “twisted or crooked”
What are the two main sources of obligations in private law?
Contract and Tort
What is an obligation?
An obligation in tort law is owed to a person (including a corporation)
What is a tortfeasor?
A person who commits a tort
How are tort obligations different from contractual obligations?
Both contain private obligations but contractual obligations are created by the parties rather than
“imposed by law”
How is a tort different from a crime?
Tort occurs when a person breaks a private obligation, a crime occurs when a person commits a public obligation
Standard of proof in tort
Must prove tort claim on a balance of probabilities
Is tort law private or public?
Private law
Is criminal law private or public?
Public law
In tort law, which parties are involved in the obligation?
The defendant owes an obligation to the plaintiff
In tort law, who are the parties to the action if that obligation is broken?
the plaintiff sues the defendant
In criminal law, who are the parties to the action if that obligation is broken?
the government prosecutes the accused
In tort law, what is the usual remedy?
Compensatory damages
What is a similarity between tort and contract law?
Structure, both involve primary and secondary obligations
What is a primary obligation?
Tell people how they should act
What is a secondary obligation?
Remedial, they determine what has to be done after a primary obligation has been breached
What is the differences between tort and contract law?
Source of primary obligations, privity, compensation, and risk management
Source of obligation in tort?
Imposed by law, they are involuntary exist even if the parties do not know each other. Aimed at preventing harm
Source of obligation in contract?
Voluntary created by the parties
What is privity in relation to tort law?
Enforceable regardless of any agreement between the parties
What is privity in relation to contract law?
Only those people who created the contract can sue, or be sued, on it. Create rights and obligations only for them
What is compensation in relation to tort law?
Compensatory damages are backward looking, put the plaintiff as if the tort had not occurred
What is compensation in relation to contract law?
Compensatory damages are foward-looking, give the plaintiff the expected benefit of the agreement
What is risk management in relation to tort law?
May take a person by surprise, may require more than a person is able to give
What is risk management in relation to contract law?
Always possible to know the obligations in advance.
Always possible to limit the obligations to promises that can be fulfilled. No surprise factor
What is the only sort of private law wrong not covered by tort law?
Breach of contract
What is specific performance (contract law)?
Requires the defendant to actually fulfill a promise, in exceptional circumstances only
The tort of negligence requires people to act with “reasonable care” what does this entail?
Even if a particular person suffers from a mental incapacity and therefore cannot possible meet the legal expectation, this still remains true?
What is one of the most important strategies in tort law?
Focus on mental capability
What are the three possibility within tort law?
Intentional Torts, Negligence Torts, Strict Liability Torts
What are intentional torts?
Occur when people intentionally act in certain ways
How is “intention” used in Law?
Some torts require proof of intent to hurt. Others just require proof that the defendant intended to act in a certain way, even if there was no intention to commit a tort or cause an injury
What are negligence torts?
Occur when a person acts carelessly
What are strict liability torts?
Occur when a person does something wrong without intending to do so and without acting carelessly. liability is imposed simply because the defendant was responsible for the situation that injured the plaintiff,
Why are strict liability torts rare?
Occur only when the defendant is involved in some extra ordinarily dangerous activity
What are the general principles of Tort Law?
Liability Insurance, Vicarious liability, remedies
What does liability insurance contribute to in tort law?
Contributes to the compensatory function of torts.
What does liability insurance undermine in tort law?
Undermines tort law’s deterrence function, because people know their insurance companies will pay if something goes wrong
What is the deterrence function of tort law?
Discourage people from committing torts by threatening to hold them liable for the losses they cause
True or false: Liability insurance policies cover all torts?
False, often excluded coverage for injuries inflicted through “intentional or criminal acts”, will not support the defendant.
True or false: It is possible to purchase insurance for liabilities arising outside of tort?
True
What is vicarious liability?
Occurs when one person is held liable for a tort that was committed by another person (company and its workers)
How does vicarious liability contribute to tort law’s compensatory function?
Increases the chance that the plaintiff will receive damages
How is an employer vicariously liable ?
Liable for the acts that it authorized an employee to do and other closely connected acts, but must occur within the employments relationship
True or false: vicarious liability releives an employee of responsibility?
False, it allows the plaintiff to sue both the employer and the employee
True or false: if the plaintiff receives damages from the employer, the employer is entitled to receive the same amount from the employee?
True, in some cases but often does not occur as workplace morale would be poor if an employer sues an employee
What is personally liable?
Responsible for its own tort
What are the remedies available in tort?
Compensatory damages, punitive damages, nominal damages, injunctions
What is compensatory damages?
The defendant must pay money to repair the plaintiffs loss
True or false: When a plaintiff successfully sues in both tort and contract, they can receive compensatory damages for both?
False, they must choose one form of compensatory damages, usually whichever generates the largest remedy
What is compensatory damages subject to?
Remoteness and mitigation
What losses is the defendant responsible for?
Only the losses that the tort in fact caused
What type of tort does “remoteness” not apply to?
Intentional torts
When is a “loss” remote?
A loss is remote if it would be unfair to hold the defendant responsible for it, therefore a judge will not award damages
What is mitigation?
Occurs when the plaintiff takes steps to minimize the losses that result from the defendant’s tort
What is the general rule with mitigation?
Compensation is denied to the extent that the plaintiff unreasonable failed to mitigate
What are the four rules on mitigation?
Reasonable steps, No Duty, Extent of Loss, Costs of Mitigation
What does reasonable steps mean?
The plaintiff is responsible only for taking reasonable steps to mitigate a loss
What does No Duty mean?
Although lawyers often refer to a “duty to mitigate”, the plaintiff is not required to mitigate. However, damages will be reduced if the plaintiff did unreasonably fail to mitigate
What does Extent of Loss mean?
Damages are denied only to the extent that the plaintiff unreasonable failed to mitigate
What does Costs of Mitigation mean?
The plaintiff can recover the costs associated with mitigation
What happens when a defendant does something particular outrageous or reprehensible?
The court may impose both compensatory damages and punitive damages
What does actionable per se mean?
Torts can occur as long was the defendant acted wrongful, they are therefore actionable per se, that is, in themselves,
What is an injunction?
A court order that requires the defendant to do something or refrain from doing something
Difference between assault and battery?
Assault is the eminent threat ex:pointing a gun
Battery is actual physical contact
