Torts Outline Essay

I. INTRODUCTION TO TORT LIABILITY—WHAT IS TORT LAW UP TO?

1. Tort, definition -- French and Latin, definition points to wrong-doing and twistedness. A civil wrong, other than breach of contract. For an act to be a tort, there must be: a legal duty owed by one person to another, a breach (breaking) of that duty, and harm done as a result of that action. Examples of torts are negligence, battery, and libel.

2. Classifications for locating torts in body of law
Private Law v. Public Law. Public law, what does Congress do, what do government agencies do. Private law--torts is part of this body, addresses wrongs done to private groups/individuals.
Substance vs. procedural law-- Torts is a course in substantive law. Not a course in how to do it, but what to do.
Civil v. Criminal law -- Criminal law conceives of a crime as an injury against society at large. First party will often be "State" or "The people". Civil law actions are between two private parties. Note: There is the possibility of suing government in its capacity as a private actor. D.A. is not involved in a civil suit.
Private, civil substantive law has three components: contracts, property, torts.

3. Tort actions concern your rights and duties in situation where you have no contractual arrangement with anyone. Classic example: you claim to have suffered wrong from someone you have never met.
--Tort actions come in many varieties. Large majority are made up by judges over centuries, i.e. common law origin. Judges have to make decisions about particular situations, regarding a cause of action. Murder is a criminal law, wrongful death is a tort action. Judges will not generally allow new torts, as over the 20th century legislatures have taken more of a roll in codifying law.

4. Tort law protects your person and possessions, but also intangible interests like your reputation or privacy, and even emotional tranquility (with some restrictions). Also concerns actions that will protect your expectations and commercial dealings. Note: There is a tort called "wrongful interference in contracts," borderlines contract law = A is going to sell B widgets and has a contract. C comes up and says "My widgets are better" and tries to get B to go with C rather than A. May be a tort action. Intentional torts are those situations where someone meant to hurt you.

5. Tortfeasor -- person who commits the injury. An intentional tortfeasor has malice. Otherwise, torts are concerned with negligence rather than malice.

6. 3 typologies regarding separation of tort law
a) Intentional torts = battery, assault
b) Negligence = unintended, carelessness, you are still responsible
c) Strict liability = You weren't careless, you didn't intend it, but the fact that what you did harmed another person. Example: people who had dangerous pets, like a pit bull. Products liability is current area that is most concerned with this.

7. In reality, very few injuries allow action under the law.

8. Miscellaneous torts we discussed briefly or not at all a) Invasion of Privacy b) Misuse of Legal Procedures c) Interference with Advantageous Relationships d) Familial and Political Relations, Alienation of Affection e) Loss of Consortium f) Fraud, Misrepresentation, Negligent Misrepresentation

9. Pattern important in law Step One: legal rule is stated Step Two: case-periphery principle, does core principle control or not?
Step Three: Identify the justification for the rule, does it still properly apply in the case at hand.

10. Law is uncomfortable with the straight-on liability calculation (e.g. 70% probability) See Larson v. St. Francis Hotel and Connolly v. Nicollet Hotel

11. Two opposite structured arguments
a) the slippery-slope argument--don't take the first step down this road, or terrible things will happen b) Genius of the common law, defensible distinctions argument Herzog likes #2, hates slippery slope arguments.

A.

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