General Tort Concepts

Question 1

Definition of Tort Law

Answer 1

Legal principles aiming to control or regulate harmful behavior or to assign responsibility for injuries that arise in social interaction and to provide recompense to victims with meritorious claims

Question 2

Definition of Negligence

Answer 2

The omission to do something that a reasonable person, guided upon those considerations that ordinarily regulate the conduct of human affairs, would do (the untaken precaution test) or doing something that a prudent and reasonable person would not do (the average reasonable person test). Blyth v. Birmingham Waterworks Co.

Question 3

Definition of Vicarious Liability

Answer 3

Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties. Kohlman v. Hyland

Question 4

Definition of Strict Liability

Answer 4

Liability that does not depend on proof of negligence or intent to do harm but that is based instead on a duty to compensate the harms proximately caused by the activity or behavior subject to the liability rule.
Exner v. Sherman Power Construction Co.

Question 5

Definition of Workers Compensation

Answer 5

System of providing benefits to an employee for injuries occurring in the scope of employment. Employee’s contributory negligence does not lessen their rights. Need to be employee not contractor. Give up right to sue employer for damage.
Whetro v. Awkerman

Question 6

Policy Consideration of Negligence

Answer 6

Personal interests over others violates ethical norm of equal consideration when imposing risks on others. Appropriate incentives to engage in safe conduct: improves social welfare and economic goals. Zokhrabov v. Park

Question 7

Policy Considerations of Liability

Answer 7

1. Accident avoidance: assign liability to individuals or entity that is in the best position to make choices between imposing a risk and avoiding it
2. Loss spreading: assign liability to individuals or entity that is in the best position to insure against a class of accidents
3. Fairness: assign liability to individuals or entity that can spread costs of accidents across all those, consumers and owners, who benefit

Question 8

Hand Formula for Negligence

Answer 8

B: burden of adequate precautions
P: probability that the event happens
L: gravity of the resulting injury
B<PL injurer is liable

Question 9

Policy Consideration of Vicarious Liability

Answer 9

Advantage of holding an employer liable in addition to the employee: reduces risk and frequency of negligent and non-negligent accidents. Employer will enforce rules that employees must follow to ensure safety of everyone involved including third parties. Can guarantee that the victims in these torts can receive a remedy that is truly appropriate for what they have experienced.

Question 10

Policy Consideration of Strict Liability

Answer 10

Entities that engage in “abnormally dangerous activities” should bear the nonnegligent risks of their activity b/c just engaging in those activities are risky and increases the chances that others will get hurt. It encourages them to take adequate precautions to ensure they are performing it in the safest way possible.

Question 11

Policy Consideration of Worker’s Compensation

Answer 11

Bosses learned a lesson after the popularization of the IWW.
“Arise out of” should be broadly construed in determining whether compensation should be paid to workers who are injured while on the job b/c many employees put their lives at risk going to work every day and they should have the confidence that in a situation they can be protected. They should not worry about whether their job will have their backs. The values that this broad definition serves include responsibility, accountability and trust.

Question 12

Compensatory Damages

Answer 12

Damages sufficient to compensate injured person for loss suffered. Jones v. Fisher
1. Personal injury: loss of earnings, pain and suffering, permanent or future disability
2. Mental suffering: humiliation, shame, embarrassment and fear

Question 13

Punitive Damages

Answer 13

Damages to penalize the wrongdoer an make an example to others (deterrent). Sufficient that there is a showing of wanton, willful or reckless disregard of P’s rights. Jones v. Fisher.

Question 14

Policy Consideration of Compensatory Damages

Answer 14

Before we punish people we want them to be blameworthy, but we are willing to hold people accountable for intentionally wronging others even when they do so blamelessly

Question 15

Policy Considerations of Punitive Damages

Answer 15

Pros for permitting punitive damages: deterrence, punishment, statement of moral outrage + added incentive.
Cons for permitting punitive damages: can be excessive, exploit and over-compensation, over litigation, may not impact large companies, redundancy with different standard of proof (criminal and civil), and are up to discretion of jury so arbitrary.

Question 16

Policy Considerations of Objective Approach to Consent

Answer 16

Pros of objective approach to consent: more consistent across similar cases, public rather than private matter, protect the liberty of prospective “injurers”. External criteria facilitate the application of law by judges and juries.
Cons of objective approach to consent: people may consent to different things in different ways which may or may not be clear. When the subject’s own understanding of whether or not they consented varies from society’s understanding, society’s understanding trumps. Takes power away from victim who cannot properly articulate or defend themselves. O’Brien v. Cunard Steamship Co.