In our first lecture, we began by reading the first chapter of the Prosser casebook. However, we did not make it all the way through. The lecture tomorrow will begin by finishing the chapter and beginning with some next cases.
Reading Notes
Introduction
A tort is a civil wrong where the law can provide a remedy. Although we are surrounded by torts, we rarely recognize them for what they are. However, the majority of legislation is focused on tort law. Below are several reasons why we should explore tort law:
- Find a peaceful way of adjusting the wrongs to injured parties
- Deter wrongful conduct
- Encourage responsible behavior
- Restore parties to their original condition (as far as possible and the law provides)
- “vindicate individual rights of redress”
The historical development of torts is debated. There seems to be two possible scenarios: First, the law imposed liability on those who caused physical harm. Eventually, the law developed to impose liability on those who imposed moral harm as well.
There are two types of ways to bring action, trespass or action by case. Trespass in torts means to do something to hurt or offend someone (rather than trespassing on property). To find trespass, one must suffer direct and forceful injuries. However, most modern tort comes from action by case. (I am still unsure what an action by case is). However, the analogy given in the book may help. A trespass could be seen as someone being immediately injured by a log thrown onto the highway. A action by case may occur later when someone trips over the resting log.
Although in the past there used to be a no requirement to show proof of injury for trespass (because it was semi-criminal). Later, the criminal nature of trespass was done away and all remedies are through fines or court action (not imprisonment). Currently, all torts must show evidence of injury.
The following cases may help with understanding these principles.
Hulle v. Orynge (The Case of Thorns)
King’s Bench, 1466. Y.B.M. 6 Edw. IV, folio 7, placitum 18.
Plaintiff, defendant, legislative history, background, and holding
There is no information provided in this case for this information
Rule
If a person is doing something lawful and accidentally injures another, the injured person may still have a case against them.
Analysis
Although there is no reasoning, there are a couple of examples provided. One example follows: If you are building a house and timber falls on a neighbor’s house causing damage, they may have a case although the building of the house was lawful and the timber fell with no intent.
Weaver v. Ward
King’s Bench, 1616. Hobart 134, 80 Eng.Rep. 284
Plaintiff
Weaver
Defendant
Ward
Facts
Weaver and Ward were “skirmishing” (I believe for military training). Unintentionally, Ward’s musket discharged and caused an injury to Weaver.
Holding
I believe this was judgement in favor of the Plaintiff. (But I’m not sure)
Analysis
Here we examine a trespass but there is a distinction. I could be wrong but intent becomes much more necessary to find trespass. If the injury was inevitable (say the plaintiff walked in front of a weapon while it discharged) with no malicious intent, then the defendant is not guilty of trespass. However, the defendant has the burden of proof to show that there was no intent.
Brown v. Kendall
Supreme Judicial Court of Massachusetts, 1850. 60 Mass. (6 Cush.) 292
Plaintiff
Brown
Defendant
Kendall
Rule
I noticed 2 rules: First, the plaintiff has the burden of proof to show unlawful intent or that the defendant was at fault. Second, if an injury accidentally arises during a lawful act, no action can be taken against the defendant.
Holding
The incident was an accident. The plaintiff failed to provide a burden of proof that the defendant did not exercise due care. Therefore, a new trial is ordered.
Facts
Brown and Kendall’s dogs were fighting. In an attempt to separate them, Kendall raised a stick which accidentally struck Brown in the eye. During trial, the instructions said that the defense had a burden of proof that he exercised “extraordinary care” as defined in the popular sense. The jury returned in favor of the plaintiff.
Analysis
The court gets deeper into the instructions provided to the jury. They take persuasive sources to argue that the plaintiff has the burden of proof to show the defendant did not exercise due care. So, the standard is ordinary care, not extraordinary care. This standard should be evaluated on a car-by-case basis because the level of ordinary care is different depending on the circumstance (less care required for shooting a firearm in an open field verses in a crowded city).
Seeing how the plaintiff did not need to present material during the trial to show they had this burden, the case was overruled, there is no right to recover and a new trial is ordered following these proceedings.
Why should we care?
We can see how much the intent has changed since Weaver v. Ward. Since that time, the plaintiff now has the burden of proof and the intent to commit a wrong is the main question to answer.
Cohen v. Petty
Court of Appeals of the District of Columbia, 1933. 62 App.D.C. 187, 65 F.2d 820.
Plaintiff
Cohen
Defendant
Petty
Issue
Whether the court was justified in taking the case away from the jury. In other words, did the defendant exercise due care?
Rule
A driver is not liable for an accident occurred while falling unconscious in an automobile if they had no reason to believe something was wrong before driving.
Holding
The Trial Court’s ruling was correct, the facts stand, and the ruling is confirmed
Facts
Petty was driving with 3 passengers, his wife in the front and the plaintiff and her sister in the back. The defendant said that he was not feeling well, the wife responded and then the accident occurred. The plaintiff claimed that the defendant was driving too fast but did not look at the driver when he spot but kept their eyes on the road. The wife said that once the defendant had spoken, she looked over to discover that he had fainted. Upon grabbing the wheel, they hit the bank and crashed.
Analysis
The defendant had no evidence of being ill prior to driving the vehicle. Further, he felt fine until the moment he exclaimed then fainted. This was the first time he had ever fainted. Because of these factors, he could not have been aware that he would possibly become impaired while driving. Thus, there was no negligence and he can not be held liable.
Further, the plaintiffs had no further evidence to show liability. They assumed his speed but were not aware that the driver had fainted, only that he felt sick then the accident occurred. Because the plaintiff has the burden of proof and provided no proof, the judgement of the trial court stands.
Spano v. Perini Corp.
Court of Appeals of New York, 1969.
25 N.Y.2d 11, 350 N.E.2d 31, 302 N.Y.S.2d 527, on remand, 33 A.D.2d 516, 304 N.Y.S.2d 15 (1969)
Plaintiff
Spano
Defendant
Perini Corp.
Issue
Whether there should be absolute liability for activities that are “abnormally dangerous.”
Rule
I believe that the rule is that there is absolute liability for activities that are abnormally dangerous.
Holding
There was no negligence by Perini Corp. However, because of absolute liability in blasting, they may be found liable for the damages caused. Reversed and Remanded.
Facts
Spano and Davis (plaintiffs) owned a garage and a vehicle in the garage. Blasting occurred nearby which caused damage to the garage and vehicle. No claims of negligence were made but instead they argued that the company has absolute liability because of the nature of their work (despite the blasting being contracted by the city).
Analysis
This part was a little confusing, but I believe that the court simply says that blasting is dangerous. So, even if contracted, and careful, there should be liability for conducting abnormally dangerous activities. Booth disagrees. However, the court here overturns Booth. So, the question was not whether the activity is lawful, but who should pay for the damages. The court finds that the party blasting should pay for those damages.
Why should we care?
We see that blasting is one case where you use strict or absolute liability. Here are some other cases that require the same liability:
- Intentional conduct
- Negligent conduct that creates a risk
- Conduct that is not intentional or negligent but public policy makes them subject to strict liability.
Additional Notes
Torts is often called “retail law” because of how people and case specific it is. One of the biggest reasons why we have tort law is to deter people from doing wrong.
During this course, we will be learning about doctrines, rules, and principles. During one lecture, we may not make it through a ton of material, but these rules and principles accumulate quickly.
Additionally, we focus on developing arguments on behalf of a client. This is one of the best ways of describing the adversarial system of justice. As a refresher, the adversarial system is where the attorneys work with a client, their obligation is towards their client and they argue their case to persuade others to agree with them.
History of Tort Law
Chapter 1 is about how tort law got started.
Although there is dispute about how tort law was founded, for the purpose of studying law, most torts were developed during the industrial revolution.
The cases outlined in this chapter develop a “narrative ark”. The purpose was to show how tort law originated, developed, and returned to its origin.
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
