Torts Burkett Fall 2006 - I In order to win a torts case...

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I. In order to win a torts case against a defendant, the victim/plaintiff must show EITHER A. The injurer/defendant misbehaved (i.e., acted wrongfully or acted unreasonably under the circumstances) and that misconduct caused harm to the victim. OR B. The injurer/defendant caused harm to the victim in one of those special circumstances in which defendants are liable in the absence of fault. II. Imposing tort liability usually means imposing the obligation to pay money damages that are designed, to the extent practicable, to restore the victim to the position that he or she would have been in but for the conduct of the defendant. III. The burden of proof: exceptions in favor of plaintiffs A. Sometimes, for reasons of fairness concerning the proof of misconduct, the burden may be shifted to the defendant to show that he/she was not at fault. B. Sometimes, for fairness reasons concerning proof of causation, either (1) the burden may be shifted to the defendant to show that he/she was not the cause of the injury or (2) the “but for” test of causation is not applied. IV. There are two major ways for defendants to escape liability (who otherwise might be held liable) A. The defendant convinces us that the harm suffered by the plaintiff as a result of the defendant’s conduct was outside the scope of the risk taken by the defendant and therefore not fairly attributable to the defendant (the so-called “proximate cause” issue). B. The defendant convinces us that, for reasons of public policy, he/she owed no legal obligation to the plaintiff to avoid harming the plaintiff (the so-called “no duty” issue). V. Sharing the costs of injuries A. If the defendant would otherwise be liable to the plaintiff, the defendant’s obligation may be reduced if the victim unreasonably failed to prevent the injury that he/she suffered. B. Where more than one defendant appears to be liable to the plaintiff, then the rules governing the sharing of liability among defendants apply. 1
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P just has burden to prove by a preponderance of the evidence 1. Apparent Agency or Scope of Employment (form of S/L on ER for EE’s / IC’s neg) 2. Neg per se 3. Neg Entrustment 4. Ordinary Neg: In order to win a negligence claim against a defendant, the plaintiff must show the defendant’s conduct fell below the reasonable standard of care. A. Duty: i. Person has a duty to act as a reasonable person would have acted in the same or similar circumstances ii. Business has duty to act as a reasonable business would in the same or similar circumstances (to prevent harm to its patrons or employees.) B. Breach: list all possible breaches when first talk about brech i. Custom for any possibility that it applies ii. Hand Formula for each possibility: “economically rational or irrational” 1. “If jury finds that B<PL for each breach then P will have established that D breached his duty.” C. Cause-in-fact: for each breach i. But-for ii. Substantial factor: (if multiple causes) “also the substantial factor test will be applied to each breach to determine whether D’s breaches were a substantial factor in causing P’s injuries. Here…”
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  • Spring '05
  • Schlag
  • Tort Law, duty, neg

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