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LS101 Lecture Notes - Public Nuisance, Replevin, Vicarious Liability

Legal Studies
Course Code
Frances Chapman

of 6
LS 101 TORT LAW Tuesday, October 23/25, 2012
Flexible, Different categories of tort
Tort of Negligence
New tort, last 60 years began
Develops through the case law, some statue based on
Greatest number of torts today = car accidents
Sometimes called unintentional tort
Civil law = private law
Intentional tort
o Within distinct categories of wrong
Restore victim to position prior to accident
Definition of a tort
Latin term “tortus” twisted or curved
Civil law wrongs
o One person commits against another resulting in damages
o Must have some sort of damage: body, property, dignity
Person who causes the harm must compensate the victim
Basic principles of tort law
Plaintiff and defendant
Seek compensation
Balance of probabilities
Some governed by status
o Property law separate of civil actions
One action can give rise to tort action, an equitable remedy, breach of contract and criminal
Purpose of lawyer to find cause of action
o If your case is eligible to bring to court
Generally intentional act, negligence, wrongful on surface, and some special torts
Who to sue? (person who has most money)
Remoteness: is it too far-fetched to go after a specific person? Be realistic
Criminal threat to society/public
o Crime against state
o Punish criminal and incapacitate
Civil compensate victims for negligence between 2 individuals
o [plaintiff (tortfeasor) v. Defendant)
o Financed by the person wronged (unlike criminal)
Overlaps between tort and criminal law ex. Breaking into someone’s property (trespassing)
Allow criminal case to proceed first since it helps one’s civil case
Standard of proof
o Balance of probabilities (civil)
o Beyond a reasonable doubt (criminal)
LS 101 TORT LAW Tuesday, October 23/25, 2012
Categories of liability in tort
4 categories of tort: negligence, strict liability, intentional tort, other unique torts
o Failure to take reasonable care to prevent future harm to another
o The tortfeasor’s relationship with the victim
o Something happens by mistake
o Conduct fell below a standard of behavior that society considers acceptable
o Donoghue v. Stevenson
Transformed negligence, changed tort law
A woman drank gingerbeer with a snail in it, sues manufacturer: but didn’t have
relationship since her friend bought the drink (no direct relationship between
plaintiff and defendant)
Concluded that manufacturer owed duty of care to plaintiff
Opened up manufacture’s liability for first time
Person you owe a duty of care to is your neighbor
Everybody is your neighbor
Not just specific relationships but relationships you have around you
Concept continues today “duty of care” to others
Plaintiff must prove that the defendant’s conduct gave rise to a duty of care,
and that duty was owed to the plaintiff
The foreseeable plaintiff test/
o Expect highly of your neighbors
o Opened up to large number of actions in civil court with negligence
o Fail what a reasonable person would have done in the standards of community
7 elements must be present for a negligence suit to be successful
1. Duty of Care
Did the defendant owe a duty to the plaintiff?
Find relationship between two parties
People are responsible for their inadvertent conduct when they
anticipate that their conduct may cause injury to others
To maintain a standard of vigilance in their conduct and to act in a
careful manner
Is there is a duty of care, was it breached?
Fault = is it reasonable foreseeable that this would happen to plaintiff?
Reasonable person: someone who has knowledge of both parties
2. Standard of Care
Court must ask what a reasonable person in that situation would have
Standard of a reasonable person
Defined as an imaginary person who is not perfect, but
considerate and careful of others
Is a man who is not a genius, acts in general and approved
practice, normal intelligence
Plaintiff must prove there was a breach of standard of case
Legislation, customs
Failure to act
Misfeasance: doing something badly, causes harm
LS 101 TORT LAW Tuesday, October 23/25, 2012
Nonfeasance: failure to act
Statutory obligation to act
Position or role in an organization
Ex. Lifeguard must save one from drowning
Individual innocently or negligently created the situation
Volunteer is not liable for accidental damages for injuries for trying to
help someone
Foreseeable risk
Likelihood that damage will occur and how severe the harm will
be if it does occur
3. Breach of that care
Was there a breach? Yes or no
4. Injury and causation
Injury must be directly caused by the defendant
Metal distress: high level of anxiety, fear
Close casual connection
The “but for” test
Plaintiff must prove if defendant’s actions haven’t happened,
injury wouldn’t have occurred
Reasonably foreseeable, not too remote, therefore liable
5. Remoteness
Defendant is not responsible for every outcome
Sometimes so unexpected
Limits the damages to that which are foreseeable, natural, or
directly caused by the negligent act
Some connection in space, time, or probability
“think-skulled plaintiff “rule: take plaintiff as you find him
6. Contributory negligence
Prejudicial conduct = contributory negligence
Victim is partially responsible
Plaintiff contributed to the victimization through his/her own
negligence and is disqualified from seeking compensation or the
damages awarded will be reduced
Burden is on the defendant to prove plaintiff’s own negligence
Reasonably prudent person
7. Liability and damages
Intended to put plaintiff in position they would have been if the
negligent act did not happen
Anyone who suffers lost because of defendant is awarded damages
Give money in form of damages because it’s easy
Awarded for injury, fatality, and property issues
Insurance: subrogation rights insurance company goes after
defendant for money
Courts hear all available evidence
Fail in any step, no case
Must have all 7 steps present to find negligence action