Chapter 3 Introduction to Torts

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25 Apr 2012
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Chapter 3: Introduction to Torts
Tort: generally consist of a failure to fulfill a private obligation that was imposed by law
Tort & Crimes
-Tort refers to a breach of a private obligation. An obligation in tort law is owed to a person
Tortfeasor: is a person who has committed a tort
Tort Law: is private, the defendant owes an obligation to the plaintiff, the plaintiff sues the defendant,
and the usual remedy is compensatory damages
Criminal Law: is public, the accused owes an obligation to society, the government prosecutes the
accused, and the remedy is punishment such as fine or imprisonment
Torts & Contracts
Similarity
Structure: both tort and contract involve primary and secondary obligations. Primary obligations
tell people how they ought to act. Secondary obligations are remedial; they tell how they must
act after primary obligations have been broken.
Differences
Sources of Primary Obligations: obligations in tort are simply imposed by law. Obligations in
contracts are created by the parties.
Privity: when two people enter a contract, they create a special relationship for themselves. The
doctrine of privity states that the only people who can sue, or be sued, on a contract are the
parties themselves. Because obligations in tort are simply imposed by law, there is no need for
the parties to create a special relationship.
Compensation: the purpose of imposing obligations in tort law is to prevent harm. IF you have
breach your primary obligation, then you will have a secondary obligation to put me back into
the position that I enjoyed at the outset. In contracts, the purpose of creating obligations is
usually to provide benefits. If you breach your primary obligation you will be required to
compensate me.
Risk Management: because tort obligations are imposed by law, they are more likely to take a
person by surprise, and they may require more than a person is actually capable of providing.
Because obligations in contracts are created voluntarily, it should be vice versa.
Types of Torts
1) Intentional Torts: occurs when a person intentionally acts in certain ways. Some torts require
proof that the defendant intended to hurt the plaintiff. Others are satisfied by proof that the
defendant merely intended to act in a certain way, even if they did not realize that the plaintiff
would be hurt (assault, battery, intimidation, deceit, etc)
2) Negligence Torts: occur when a person acts carelessly (occupier’s liability, nuisance, negligence,
product liability, etc)
3) Strict Liability Torts: occurs when a person does something wrong without intending to do so
and without acting carelessly. It is enough that the defendant was responsible for the situation
that resulted in the plaintiff’s injury. Strict Liability torts create special problems for risk
management because they do not require proof of any sort of intentional or careless wrong
doing. Liability is imposed simply because the defendant was responsible for the situation that
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