美国侵权法讲义

Tort Law Outline

Primary concern w/ torts– whether one whose actions harm another should be required to pay compensation for the harm done

Goals of Tort System

-promote efficient/safe behavior through incentives/disincentives

-make people whole; put them in place as if accident wouldn’t have occurred

The tort system helps compensate people in areas where insurance and the government does not.

What is a Tort?

-person v. person, instead of person v. state (civil, not criminal)

-compensation being sought

-in jured person must bring suit, state won’t

-determining liability, not illegality

-creates incentives for good behavior

-can provide punitive damages

-mostly in state courts

Negligence

Negligence– failure of a D to take reasonable care to protect a reasonable P. Elements:

1. D had a duty

2. D breached that duty/std of care

3. D caused the injury (actual and proximate)

4.P was injured, there are legally compensable damages

Negligence– conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm

For most negligent actions, an act is negligent only of the actor fails to use reasonable care. An actor is req’d to use reasonable care that a reasonable, prudent person in his position, with his info and competence, would recognize necessary to prevent an unreasonable risk of harm to another.

-Note: reasonable care is the ordinary standard of care requirement, this standard can be also be “no duty” or a heightened duty (discussed further in standard of care section).

-Various ways for determining reasonable activity are also discussed in detail in the “standards of care”

section (pg6)

Torts became and important and large part of the law in the late 19th century b/c the machines created by the industrial revolution led to several unintentional injuries.

-Prior to the industrial revolution, there were no exact rules for strict liability or negligence.

Hammontree v. Jenner (pg 3)

Court of Appeal of California, 1971

Facts:

-Jenner (D) runs his car into Hammontree’s (P) shop when he has a seizure

-P suffered personal injuries and damages to her shop

- D was taking medicine prescribed by doctor to prevent seizures and doctor said that D was safe to drive

a car.

P’s Argument

- P wanted to use product liability precedent to impose strict liability on D

Court’s Ruling

-Court treats seizure as an unforeseeable act b/c D took reasonable care to prevent himself from having

a seizures.

-Court declines to superimpose the strict liability of product liability cases upon drivers under the circumstances here.

-Innocent victim was not compensated

Notable Extras

-The DMV was not a defendant even though it did give the driver permission to drive. This is b/c govt.

agencies have been traditionally immune from torts.

-The MD that approved D to drive was not sued b/c it was seen that the foreseeable risk was very broad in that there was no certain person that would be harmed.

Litigation Process

Two bases for throwing out cases

1.line of legal reasoning

2.insufficient facts

Burden of Production– include all elements and supported by facts (prima facie case)

Burden of Persuasion– evidence strong enough to win case

-Note: If there is not dispute over facts, the case never goes to a jury b/c jury is only trier of fact. Vicarious Liability

Vicarious Liability– Liability that a supervisory party bears for the actionable conduct of a subordinate or associate. Only applies when the employee was acting within the scope of his employment when the tort occurred.

-aka: respondent superior

Policy goals of the respondent superior doctrine

-preventing future injuries (making companies liable should force them to be more safe in the future) -assuring compensation to victims (companies are more often solvent than individuals)

-spreading losses caused by an enterprise equitably (doesn’t hurt the company as bad as it would an individual)

Two types of relationship

1.Employer – Employee

•Birkner Test –criteria helpful for determining if when an employee is acting “in the scope of his employment”

1.Employee must be about the employer’s business and duties assigned by employer

2.Employee’s conduct must occur substantially within the hours and ordinary spatial

boundaries of employment

3.employee’s conduct must be motivated, at least in part, by the purpose of serving the

employ er’s interest

Ask 4 questions to determine the Birkner test

1.What was she doing?

2.Why was she doing it?

3.When was it?

4.Where was it?