Torts- Calhoun- Fall 2005- Makar

Torts- Calhoun- Fall 2005- Makar - Tort Policy Issues-...

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Unformatted text preview: Tort Policy Issues- Private accountability system- Private parties use expensive social resources o Reasonableness Standard Deterrent Exceptions: Children, Disability- Three Types of Torts o Intentional Shift loss from victim o Negligent Fault-based o Strict Liability Categorical someone caused injury to another- Instrumentalist Approach o Law designed to achieve social goal Means to an end Promotes civil society not retribution Encourage appropriate behavior ahead of time no lawsuit occurs o Reduce burden on system Prevent frivolous claims Reduction of transaction costs Concern: Over-deterrence excessive punishments o Cost Goal: maximize social wealth by reallocating resources 3 Types Injury Cost after injury Transaction costs- Non-Instrumentalist Approach o Specific parties & facts before the court o Fairness Punish wrongdoers Battery ~ Intentional- Prima Facie Case o Intentional, unprivileged harmful or offensive contact o Causal connection between contact and harm o Subjective Desire to harm, contact, or unlawful act o Constructive Knowledge to substantial certainty- Intent o Malice Proof: subjective state of mind o Unlawful Act Proof: circumstance If act unlawful w/ contact intent unlawful Vosburg v. Putney Rule based law o Knowledge that unauthorized or offensive harm will result Proof: more than risk Constructive Not appreciation of grave risk Knowledge that action will lead to harm Garratt v. Dailey- Contact o Harmful Loss or detriment R.2d 7 Alteration in ones person R.2d 15 Unwanted medical treatment o Offensive Reasonable sense of personal dignity R.2d 19 Ordinary person Social Usages Time & Place (Jury) Not necessarily actual bodily contact o Object associated w/ body Fisher v. Carousel Motor Hotel Particulate matter Leichtman v. WLW Jacor Communications- Privilege o Consent Subjective is willing in fact for contact to occur Apparent reasonably believes is consenting to contact Failure to object OBrien v. Cunard Steamship Co. o Policy social benefit b/c of disease o Concerns equal status? Informed Unlawful but understanding of nature and quality of action Barton v. Bee Line o Can minors know nature and quality? o Criminal statutory rape not applicable b/c consent Majority Rule o Policy willing participant sues for damages Standard of Conduct Physicians duty disclosure of obvious risks o Permission needed or unauthorized operation Bang v. Charles T. Miller Hospital Implied in Law Discover a diseased condition w/in the area of original incision o General consent Kennedy v. Parrott o Unless: consent can be had from or authorized person....
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This note was uploaded on 02/12/2008 for the course LAW 5425 taught by Professor Schlag during the Fall '05 term at Colorado.

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Torts- Calhoun- Fall 2005- Makar - Tort Policy Issues-...

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