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Unformatted text preview: Torts Outline I. INTRODUCTION TO ACCIDENTAL INJURIES A. When Should Unintended injury result in liability? 1. Main Goal of Torts- to make people pay for their accidents so they adequately take risks into account, thus deterring dangerous behavior a.Deals with a common law response to injury b.About what we owe each other as human beings B. Who Really Pays? 1. When should a Ps loss be shifted to someone else? a. Functions of Tort Law i. Corrective Justice ii.Optimal Deterrence iii. Loss Distribution iv. Compensation v.Redress of Social Grievances 2. Negligence v. Strict Liability The tort system reflects a tensions between these two theories ( Hammontree) **Want to bring about efficient, cost-justified rules of liability a. Negligence i. Focuses on the reasonableness or fault of D ii.Arguments for Negligence: All we need is an appropriate standard of care Courts fear a no fault system Strict Liability could discourage action; over deterrence Unforeseeable events occur Transaction and Administrative Costs b. Strict Liability i. Responsibility even if D is w/out fault ii.Arguments for Strict Liability Insurance concerns A D should be held liable for foreseeable consequences Fairness to innocent victims Negligence can be inaccurate Cost internalization If the action occurred for your profit, you should have to pay for the costs. If not, the action shouldnt have been taken Activity Level pressure 3. Vicarious Liability- a. Arguments for Doctrine of respondeat superior i. Employer is in a better position to spread loss ii. Employer is in a better position to minimize accidents (care in hiring, enforcing behavior, defining scope of employment) iii. Insurance iv. Proper allocation of costs: based on fairness or economics (employer is benefiting from actions employees take in the cope of employment) v. Sometimes, you cant identify the specific employee but you CAN prove that something went wrong b. Rule: Employer is liable for N of an employee acting within the scope of employment ( Christianson v. Swenson) c. Exceptions i. Independent Contractor Ostensible/Apparent Agency Baptist Memorial Hospital- Hospitals NOT vicariously liable for Dr.s b/c they are independent contractors except when agency makes it reasonable for P to believe that the Dr. or agent is an employee Undelegable Duty II. NEGLIGENCE A. History of Negligence 1. Before the 20th century, tort law was not really concerned with fault, but worked off of a system of writs a. trespass viet armis with force and arms, had to be immediate (precursor to Strict Liability)...
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- Spring '08