Home > Preview
The flashcards below were created by user
on FreezingBlue Flashcards.
Civil wrong, other than a breach of contract, for which the law provides a remedy.
Tis area of law imposes duties on persons to act in a manner that will not injure other persons.
A person who breaches a tort duty has committed a tort and may be liable to pay damages.
Major Purposes of Tort Law
- 1. To provide a peaceful means for adjusting the rights of parties who might otherwise "take the las into their own hands.
- 2. To deter wrongful conduct.
- 3. To encourage socially responsible behavior.
- 4. To restore injured parties to their original condition through compensation for their injury.
- 5. To vindicate individual rights of redress.
What is in back of the tort system?
The insurance system.
Most people have some form of liability insurance. Major "crises" arise in tort law arise out of difficulty obtaining or affording liability insurance.
Forms of Action (Early English Law)
In early English law (13th century), remedies for wrongs depended on the issuance of writs to bring a defendant into court. No one could be brought to King's Common Law Courts court without the King's writ. This also set limitations on what kinds of cases could be brought (i.e. what was considered a legal wrong and when a plaintiff could seek money for damages... if your case didn't fit into one of the writ categories, it could not be brought.)
What are the two English Common Law writs that are the genesis of tort law?
Writ of trespass.
Writ of trespass on the case, often called action on the case.
What does "trespass" mean in English Common Law?
Transgression. Like in the Lord's Prayer... "forgive us our trespasses as we forgive those who trespass against us."
Writ of Trespass
Form of action for transgressions that involved the direct application of force
by the wrongdoer to the victim.
Defined in terms of directness and forcefulness, not
in terms of intent to do harm
As a result, many accidental physical injurings were actionable under the writ as batteries.
- EXAMPLE: Weaver v. Ward - English Court of Common Pleas rejected Ward's (D) argument that he was not liable because he accidentally and unintentionally shot Weaver (P). Court stated that the writ of trespass covered forcible harms committed accidentally. NOTE: Court did establish a defense for trespass defendants that they would not be liable if they could prove the accidental injury was utterly not their fault. FURTHER NOTE: Ward (D) was still found liable because he intended to fire his gun (see your brief).
The courts hearing cases of trespass had two purposes:
- -Punishment of the crime.
- -Later added the injured party's satisfaction in claim for redress (compensation).
Why was the writ of trespass limited to direct and forcible wrongs?
Jurisdictional considerations. Royal courts competed with lower and church courts for litigation businesses.
Royal courts chose to focus on disputes that undermined civil order (or disturbed the "king's peace).
Writ of Trespass on the Case (Action on the Case)
Developed out of demand by victims for access to royal courts, and because royal government wanted to expand its authority.
Designed to cover instances of injury that somewhat fit the mold of the original trespass writ, but did not include direct application of force
- NOTE: Most modern tort and contract law developed from action on the case.
- Types of tort law: nuisance, conversion, deceit, defamation, malicious prosecution, interference with economic relations, and negligence.
What is the distinction between trespass and case?
- Trespass - only for direct and forcible injuries, whether or not they were intended (INTENT DOESN'T MATTER), and it DID NOT REQUIRE PROOF OF ACTUAL DAMAGE (invasion of plaintiff's person or property was enough of a criminal act / tort in and of itself).
- Action on the case - not direct or forced, BUT THERE MIGHT BE INTENT, and REQUIRES PROOF OF ACTUAL DAMAGE otherwise there could be no liability.
- EXAMPLE: A log is thrown into the highway. A person struck by the rolling log could maintain trespass against the thrower, since the injury was direct and immediate. A person who was later hurt by stumbling of the stationary log could only maintain an action on the case.
Notes on criminal aspects of trespass disappearing.
Criminal aspect of trespass disappeared in 1967 with a statute.
- Scope of trespass not extended beyond the existing precedents,
- Maybe from belief that punishment was the function of the criminal law; civil action should be only to compensate for harm done.
Results that came from the eventually blurred distinction between writ of trespass and case.
(from one of the review books...)
Plaintiff's lawyers increasingly sought to frame the claims of certain clients as claims for trespass on the case.
- Because a case could be thrown out if they chose the wrong writ.
Plaintiff is run down by defendant's horse drawn carriage. Lawyer brings case as a writ of trespass because of the direct application of force. BUT Defendant says the horse got away from him and ran off on his own with the carriage. Judge says the case should have been brought under the case writ because the action was not a direct application of force by the defendant, but indirect. Case is thrown out.
More cases kept coming in under the writ case to avoid this.
Eventually writ of trespass went away and everything went under the case writ.
World of torts became divided between intent and negligence of the wrongdoer. No longer looking at direct vs. indirect.
Requiring proof (present day)
With certain exceptions, actions for injuries to the person or to tangible property now require proof of intent to inflict them of failure to exercise proper care to avoid them.
Necessity of proving actual damage (today)
Maintain distinctions form past (actions of trespass and case)
I'm not sure what this means.