Tort Law

Question 1

Tort

Answer 1

A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.

Ex: A seller lying about product defects to a buyer. A worker being injured on the job due to lack of safety precautions required by law.

Question 2

Battery

Answer 2

The intentional causation of harmful or offensive contact with another’s person without that person’s consent.

Ex: Punching someone.

Question 3

Comparative negligence

Answer 3

A tort rule for allocating damages when both parties are at least somewhat at fault. In a situation where both the plaintiff and the defendant were negligent, the jury allocates fault, usually as a percentage (for example, a jury might find that the plaintiff was 30% at fault and the defendant was 70% at fault).

So, 70% of damages will be recovered by plaintiff.

Question 4

Contributory negligence

Answer 4

A tort rule in which a plaintiff was totally barred from recovering damages if they were in any way negligent in causing the accident at issue in a tort case.

Question 5

Fault

Answer 5

An improper act or omission, injurious to another (in the context of torts), and transpiring through negligence, rashness, or ignorance.

Question 6

Intentional tort

Answer 6

A tort that was conducted on purpose by a defendant.

Question 7

Negligence

Answer 7

A failure to behave with the level of care that a reasonable person would have exercised under the same circumstances. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act.

Question 8

products liability

Answer 8

American law holds the manufacturers of consumer products strictly liable for injuries caused by manufacturing defects.

Question 9

res ipsa loquitur

Answer 9

The Latin phrase res ipsa loquitur stands for the concept that although it is ordinarily the plaintiff’s burden to prove negligence, the defendant should carry the burden instead because the defendant controlled the situation or the instrument that caused the injury and the injury was of a kind that does not usually occur in the absence of negligence.

Principle of American tort law

Question 10

Strict liability

Answer 10

Rule providing that if you cause a tort by a deliberate act, even if you did not mean to cause injury and were careful, you are liable to compensate the injured party.

Question 11

Remedies in tort law

Answer 11

Damages

Injunctions if tort is ongoing.

Question 12

Common law

Answer 12

Body of law consisting of court opinions written by judges

Question 13

Tort Action

Answer 13

A lawsuit in tort law

Question 14

Adversarial system

Answer 14

Plaintiff and defendant hire lawyers and expert witnesses to support their side before a judge in the court room.

Nature of US court system.

Question 15

Purposes of tort law

Answer 15

To achieve corrective justice. It seeks to address wrongs by putting offended party in situation before offense.

Ex: Getting lost wages from employer for not being able to work due to workplace injury. Payment of medical bills to rectify personal injury caused in an accident.

Deterring aggressive behavior

Punishing recklessness and malice

Encouraging insurance

Forcing business to internalize costs

Question 16

What mainly makes up American tort law?

Answer 16

Common law made by judges.

Question 17

Distinctive feature of American tort system?

Answer 17

Liability is only imposed on defendant if only they are at fault.

Question 18

3 main tort claims in US

Answer 18

1. Injury from intentional torts
2. Injury from negligent torts
3. Injury from defective products and dangerous activities

Question 19

Brown vs Kendall

Answer 19

Kendall beats his and Brown’s dog with rod as they fight. Kendall accidentally hits Brown’s eye with rod, causing severe injury.

Kendall argues in trial court, he was not beating the dogs without a duty of care. Brown sues and initially, wins.

On appeal to Supreme Judicial Court of Massachusetts, Kendall wins. Judge Shaw says jury should have been instructed by judge in initial trial that Kendall would not be liable unless he injured Brown negligently or intentionally.

Shaw rejected usage of rule of strict liability to be applied to this case.

Judge Shaw ordered new trial in lower court.

Question 20

Why do defendants not like lawsuits?

Answer 20

1. Reputation is at stake
2. Lawsuits take time.
3. Plaintiffs may want revenge or easy money.

Question 21

Why does Professor Anita Allen believe less lawsuits are filed than they should be?

Answer 21

She argues many lawsuits are warranted based on the facts of the respective cases, but potential plaintiffs don’t want hassles, they have low access to lawyers, and cannot manage distractions.

Question 22

Contingent fee basis

Answer 22

If plaintiff wins a lawsuit, lawyers gets paid a a percentage of the lawsuit compensation.

Question 23

Why are lawsuits expensive?

Answer 23

You need lawyers to file a lawsuit and navigate the legal system, which can be rather expensive as you have to pay them.

Question 24

What rule is used to day to apportion damages in lawsuits?

Answer 24

Comparative negligence rule

Question 25

Case of Thorns

Answer 25

Case from English common law serving as precedent for rule of strict liability

In the Case of Thorns, a man trimming hedges on the property line between his land and his neighbor’s land crossed over to clean up some fallen branches. He was found civilly liable for trespass even though his intentions were kindly rather than a deliberate effort to trample and destroy with force and arms a neighbor’s land. He was trying to pick up his trash. Nonetheless, he trespassed and was found liable.

Question 26

Fault based system

Answer 26

A system of tort law that says a person may only be held liable in a tort action if found to be at fault (negligent or intentional). Rejects strict liability rule.

Question 27

Brown vs. Kendall legacy

Answer 27

Affirmed that American tort law is a fault based system.

Question 28

Why do some legal historians argue judges reject the strict liability rule in the 19th century?

Answer 28

To encourage entrepreneurship and allow American capitalism to flourish so that the economy can grow.

Question 29

How may American tort law guarantee security and freedom?

Answer 29

It allows us to engage in a wide range of conduct freely so long as we do not cause harm to others, intentionally or negligently.

Question 30

Is American tort law a fault-based system?

Answer 30

Yes.

Question 31

Examples of intentional torts

Answer 31

Battery
Invasion of Privacy
Trespassing

Question 32

How do courts think of the use of guns to protect property from thieves in unoccupied house?

Answer 32

Defense of property does not apply in this situation. Defendant would still be liable.

Question 33

What are some situations in American tort law that strict liability and not the fault-based system would apply?

Answer 33

1. Possession of wild animals at home. (Owner liable)
2. Activities involving blasts or explosions (Person conducting activities liable)
3. Consumer product defects causing injury (Manufacturers are responsible)

Question 34

Why does it help the public to impose strict liability on manufacturers of consumer goods?

Answer 34

The public cannot protect themselves from risks and dangers of which they may not be aware.

Question 35

Respondeat superior

Answer 35

the American legal doctrine according to which an employer is responsible for the actions of its employees performed during the course of their employment.

Question 36

Alternative avenues to courts in resolving torts

Answer 36

1. No-fault automobile insurance policy requirement
2. Employers cannot be sued for workers’ injuries in exchange for providing workers’ compensation through their respective state
3. Victim injury funds for oil spills, natural disasters, terrorism etc..

Question 37

Does American tort law require a duty to rescue?

Answer 37

No, traditionally, people were not required to lend a helping hand to people in danger unless the former put the latter in danger or have a special relationship recognized by the law.

Ex: I am not required to perform CPR on a person who collapses before my eyes.

Question 38

Defense of property

Answer 38

a person has a legal right to use reasonable force to prevent the commission of a tort (such as trespass or conversion) against his or her property.

Defense used by defendants in court in tort cases.