Torts- Calhoun- Fall 2005- Makar

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

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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
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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 one’s 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 π is willing in fact for contact to occur Apparent ∆ reasonably believes π is consenting to contact Failure to object – O’Brien 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 Physician’s duty – disclosure of obvious risks
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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 π or authorized person.
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