The Forms of Action Flashcards
TL Notes
i. Court system in early England
1) William the conqueror came in and took over England
a) What did he do after he came? did he get rid of the courts or keep them? Should he implement a whole new court system?
a) They kept the framework of government but made changes in the personnel, although at first the new king attempted to keep some natives in office. ~ Wikipedia
b) Kept the system of writs
c) Within the writ system each claim has its own rules.
2) Damnum absque injura (Damage without legal injury) DO NOT FORGET THIS TERM
a) Insult does not constitute slander
a) Can it amount to emotional distress? Yes you can
b) My lawyer used slander it didn’t work
One. Can I sew my lawyer for malpractice because he didn’t use intentional infliction of emotional distress.
Two. Sporting theory of justice
First. Law suits are a game run by lawyers and judges, and if you don’t follow the rules, you lose.
Second. That was that way for a long time
Third. Statues were passed to change so that the judge can change the lawyers suit and say what he could win for.
3) False imprisonment claim
a) Why did the spectator false imprisonment lawyer not file a negligence claim and filed the false imprisonment instead? He did it to get punitive damages which are not available in negligence.
b) The reason we used the writ and claim system was to basically limit where the claims were filed.
ii. Significance
1) P not able to just state the facts sufficient to get relief, has to show that his CoA fell within one of the common law writs of the time
iii. Two Forms of Action
1) Trespass
a) Trespass lay for the redress of harm caused by the D’s direct and immediate application of Force against the P’s Person or property
2) Case
a) Covered all those indirect harms not involving the use of force, actionable at common law
iv. Hypo
1) If you throw a log
a) and it hits a person this is then TRESPASS
b) and it falls into the Road then someone trips and falls on it, this is then CASE
2) This went on to cause substantive problems
some are shown in the famous squib case below
Scott v. Shepherd
i. Facts:
1) D lit a small pack of gunpowder and threw it into a crowded market place, the first beholder, picked it up and threw it further, then the next threw it even further and then finally the law person to receive it was the P, it exploded causing the P to lose his eye.
ii. Issues:
1) Who of those involved with the case is liable for the damages to our P’s eye? Is it the originator of the Squib or the subsequent individuals who threw it?
iii. Holding:
1) Justice Nares
a) The D is liable for the injuries whether they were caused directly or indirectly it was his first action that caused the problem.
b) Criminality is important to nares
c) Natural consequences of his act was injury
d) Nares suggests that Trespass is an issue of strict liability.
2) Justice Blackstone
a) The subsequent thrower is liable for trespass not the D
b) Criminality is not the issue at hand, its whether the injuries are consequential or immediate
a) If the injury is immediate, it shall be trespass
b) If the injury is Consequential it shall be case.’
c) The D’s may have caused mischief, but the subsequent throwers were the actors of the immediate harm.
a) The person could not bring a trespass case against the D. but he could bring a case writ against him.
b) Blackstone says the D used the wrong writ.
3) Justice Degray
a) D is liable for all injuries consequent of his immediate action of trespass.
b) Agrees with Blackstone on that law but not on his application thereof
c) D’s unlawful act is not over until it explodes,
d) Subsequent actors are not free agents, to stand by.
iv. Notes:
1) Which writ should the lawyer file negligence or trespass?
a) Is it a direct or indirect application of force?
b) What will the law consider the two intermediate guys as?
a) Are they interjectory actors?
b) Or are they just continuing on the movement given to it by the thrower?
2) Nares,
a) Malus animus
a) Evil intention
3) Blackstone
Says Nares decision is garbage and says that the criminality of it is irrelevant because the law was written down incorrectly.
Guille v. Swan
1) D flew in a balloon that landed on the P’s property, upon landing it dragged about 30 feet ruining some of the vegetables in the garden. Upon realizing potential mortal peril, he called for help, an additional 200 people came running to help, further damaging more goods. P sues for damage of all goods, including what the other 200 people broke.
ii. Holding:
1) D is liable for all damages, resulting from him landing his balloon on the P’s property
2) Intent is not important in cases of trespass
iii. Notes:
1) Which writ should the P file?
2) Trespass?
a) Hard to press just trespass because of all the intervening actors?
b) Is it indirect or direct?
c) Is it inevitable that the 200 people would come on to the property?
Yes, so it is not consequential or indirect but rather immediate and directly the D’s fault.
Breakdown of the forms
i. Notes
1) Line between Case and Trespass need not be clear to the P
2) Statute allowed P to sue for both Case and Trespass with a single writ
Allow P to sue the D vicariously for immediate and direct harm done by the servant of master
William v. Holland
i. Holding:
1) The P could sue in case, no matter whether the harm was immediate or consequential as long as the P could show that the harm occurred as a result of the D’s negligence
ii. Notes
1) Williams rule rendered Case as the Preferred CoA because it
a) Negated the Ps need to guess whether harm was Immediate or Consequential
Allowed P to join master and servant in one suit.
Holms v. Mother
i. Holding:
1) Trespass is the proper remedy for
a) Wrongful direct force acts; and
If the wrongful component is due to willfulness or negligence
