TORTS_OUTLINE--print

TORTS_OUTLINE--print - TORTS OUTLINE CORBETT, FALL 2008 I....

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TORTS OUTLINE CORBETT, FALL 2008 I. INTRODUCTION A. DEFINITION OF A TORT 1. Short. A compensable wrong that is not a contract. 2. Long. “An event, arising out of the action or omission of another party, which causes injury to: a. the human body or personality, b. property, or c. economic interests, in circumstances where the law deems it just to require compensation from the person who has acted or failed to act.” --Marshall Shapo, Basic Principles of Tort Law 3. Ultimate Question. Is there a preponderance of evidence (“more probably than not”) that the defendant is liable ? B. STEPS IN TORT LITIGATION. 1. Event occurs. 2. Pre-suit demand is usually made. a. Either a settlement is reached out of court, b. Or, process continues… 3. Plaintiff files complaint. a. Alleges facts. b. possibly specifies the theory of recovery c. possibly specifies remedy sought 4. Defendant is served. a. Either ∆ fails to respond… i. ∏ files motion for summary judgment. ii. Receives default judgment. iii. ∆ can appeal.* b. Or, process continues… 5. Defendant files a demurrer. (aka, motion for failure to state a claim, aka motion 12(b)(6) - even if ∏’s facts are true, there is no tort.) a. Either judge agrees… i. Case is dismissed. ii. Case is barred from subsequent filing by res judicata. iii. ∏ can appeal.* b. Or, process continues… 6. Defendant files a response. This can include: a. Affirmative defense - even if ∏’s facts are true, he cannot collect because of: i. ∏’s own conduct (such as prescription – claim is barred by statute of limitations), ii. The nature of the ∆ (such as immunity – ∆ is not subject to suit under certain circumstances), or iii. The relationship between the parties. b. Or, he admits or denies each allegation. 7. Parties discover the facts. Through collecting of evidence, depositions, other interrogatories, etc. 8. Defendant may file a motion for summary judgment. He does by presenting affidavits or other written forms of evidence which disprove one or all of ∏’s allegations. a. Either judge agrees… 1
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i. Case is dismissed. ii. Case is barred from subsequent filing by res judicata. iii. ∏ can appeal.* b. Or, process continues… 9. Case goes to trial. a. Pretrial conference. i. Parties agree to certain facts. ii. Parties discuss possible issues which may arise in trial. iii. Judge determines the rules of the case. b. Either there is a bench trial… i. Judge finds the facts. ii. Judge enters judgment. iii. Losing party can appeal.* c. Or, there is a jury trial… This is necessary if: i. Either party requests it, or ii. In La., the claim exceeds $50,000. 10. Jury is selected. a. Parties question the jurors – voir dire b. Parties may excuse jurors for cause or peremptorily 11. Plaintiff presents evidence. ∏ has the burden of evidence – must prove all the material facts as alleged. 12. Defendant may move for directed verdict.
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TORTS_OUTLINE--print - TORTS OUTLINE CORBETT, FALL 2008 I....

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