*SUPPLEMENTS* TORTS. “Torts in a Nutshell” Does not have a precise definition but the closest we can get is: a civil wrong, wherein one person conduct causes a compensable injury to the person, property, or recognize interest of another, in violation of a duty imposed by law. The various ways to think about the aims would start by looking behind the rules to try to see what motivated them. Particular rules might reflect: 1. morality or corrective justice, 2. social utility or policy, 3. process or procedural considerations, 4. purely formal reasoning, 5. some combination of these sometimes a court will stay to justification for a tort law rule that falls into one or more of these categories but often they will not and we are left to guess The victim of a tort has sustained farms or losses that we will call “costs”… tort law is predicated on the idea that all these costs, both tangible and intangible, can be measured in money; AKA a compensatory damages 'cause in fact: causation is essential. Tort liability is only just if the actors conduct was a substantial factor in bringing about the victims loss or harm. fault is usually a necessary element of the liability equation. It is not enough that one has caused harm to another period ethically we find it difficult to justify liability unless the actors conduct was somehow culpable. In most cases, one is not required to ensure others against the risks inherent in socially accepted conduct. Clearly, if one intentionally harms another, or knows that his conduct creates a substantial certainty of harm, liability naturally follows. However fault also includes conduct where the actor did not intend any harm or even foresee that harm would result, where an ordinary person should have foreseen that such conduct created an unreasonable risk of harm to others fault without liability: there are cases where the actors conduct is a cause in fact of anothers harm, and all of the usual fault requirements are met, but for reasons of social policy no tort liability exists. The concepts duty, proximate cause, privilege, and immunity are the means by which the courts and legislatures balance the burden of liability against other social values Negligence: unlike trespass, the action on the case in most instances required allegation and proof of fault to establish a breach of duty to plaintiff… this fault could be the performance of a lawful act in a dangerous manner. Thus negligence, often under a different name, was until recently merely one basis of liability in a number of different civil actions for which case was the appropriate writ The preeminent power in resolving tort cases lies with the Trier of fact, most often a jury. commonly said that questions of law are for the court and questions of factor for the jury though this can be misleading… because George is possessed the ultimate power to decide which is which and legal issues frequently have a fact component But well established rules and customs and the use of general verdict juries are given wide latitude to decide these controversies without court interference jury questions are of three kinds: first the jury must determine what in fact occurred: was the light red or green when defendant drove through it? Then in most cases the jury is required to make one or more decisions as to the legal consequences of these facts: was plaintiff or defendant negligent? Finally the jury must determine whether plaintiff was damaged by defendants tortious act and the dollar value of plaintiffs compensable damages questions of law for the court are also of three kinds: A. first certain issues are invariably issues of law such as: 1. whether defendant owed plaintiff any recognized legal duty, or conversely, whether plaintiff has illegally protected right; 2. the elements of proof necessary to establish liability (or non liability) and the measure of damages; 3. weather, on the fax, some particular rule of law imposes or excuses liability as matter of law By embodying particular standards of conduct and rules of law courts take from the jury the power to determine the legal consequences of certain facts and thereby transform questions of fact into questions of law and enable the court to decide the case instead of the jury B. in civil cases all issues that are ordinarily questions of fact for the jury become questions of law for the court if the judge decides that the evidence on that issue so overwhelmingly favors one result that reasonable persons could not reach the opposite conclusion C. Judges alone supply rules of procedure, which may have an important effect upon the outcome of the case, especially rules concerning the admission and exclusion of evidence, burden of proof, presumptions, and the applicability of res ipsa loquitor. (???) cause in fact -some causal connection between the act or omission of the tortfeasor and plaintiff’s injury Most cause in fact problems are nothing more than fact questions involving the adequacy of P’s circumstantial evidence linking P’s injury and D’s tortious conduct The issue is: has P met his burden of going forward with the evidence, in other words, made a sub miscible case, on the issue? Is P’s evidence sufficient to permit a rational factfinder to infer causation? tort law classifieds the cases involving physical harm to persons and property according to the degree of fault inherent to the conduct: intentional; Negligent; reckless or willful and wanton misconduct; and a category called strict liability, absolute liability, or liability without fault. Strict liability: Legal fault is not the same as moral blame; It is merely a deviation from some standard of conduct required by society for the protection of its members - Activities that give rise to strict liability are sufficiently dangerous or create sufficiently unusual risks that the law requires them to be carried on at the actors peril; Thus, it has been suggested that the fault is conditional, arising only if and when harm results, or that there is an element of fault in carrying on the activity at all but the activity is privileged so long as it does not cause harm The reasonable person: conduct that creates an unreasonable risk of harm is no less dangerous simply because the actor lacked the capacity to conform to an acceptable level of performance… - - a creature of laws imagination he or she is not the average or typical person, but rather an idealized image of such a person; A composite of the communities judgment as to how the typical community member ought to behave in each of the infinite variety of circumstances and activities in which there is a potential or actual risk of harm to the actor or others the test is not what the typical respectable citizen in fact does nor what the majority of the community does however the reasonable person is not perfect or infallible; She is permitted errors of judgment, mistakes in perception; but such errors must have been reasonable or excusable under the circumstances; They must have been consistent with the exercise of ordinary care attributes of a reasonable person… and how liability for physical harm is founded: - knowledge: actual or constructive, of the risk and of some degree of probability that it will be realized (harm to the plaintiff) negligence: the actor does not desire the injurious consequences of his conduct; he does not know that they are substantially certain to occur, nor believe that they will; There is merely a risk of such consequence is sufficiently great that they ordinarily prudent person will anticipate them and guard against them; Thus, the normal actor is charged with his actual - knowledge and perceptions, and also was certain basic knowledge common to the community and with the ability to observe and understand his environment perception: most persons are deemed to have the knowledge and experience and the ability to perceive, understand and remember, of the hypothetical reasonable person; thus in the absence of overriding extenuating circumstances, one must see the clearly visible and hear the clearly audible. Whether conduct was negligent is preeminently a question of fact, which means it is ordinarily for the jury. Fundamentally, the attributes of the reasonable person are matters of common sense and community values, and so are the factors that determine whether a risk was unreasonable. Thus, it is common practice to give the jury merely a short general definition of negligence and the reasonable person test, leaving it to the jury to apply it's common experience to the evidence. - in certain cases, the decision is one for the court. A judge may decide based on her own experience and legal knowledge of the underlying principles that there is no question for the jury because the conduct in question so clearly was or was not negligent that no reasonable person could reach any other conclusion Burden of proof and presumptions: to win a negligence case, the plaintiff must produce sufficient evidence to tip the scales of probability in his favor with respect to each element of his cause of action: duty, negligence, causation, and damages*** - - - Negligence law has its own set of legal presumptions. Most presumptions are merely formalized rules of circumstantial evidence. Upon proof of a fact or facts A, called the basic facts, the law presumes the existence of fact B, the presumed fact. Res ispa loquitur And circumstantial evidence: like the rules of presumptions, Res ispa loquitur, is basically a rule of circumstantial evidence, and the doctrine can only be understood as such. It does not shift the burden of proof or change the standard of care period it is merely a method of proving negligence by circumstantial evidence, except that the interference has been formalized into a rule of law. Res ispa loquitur = The thing speaks for itself: nearly a special application of this rule to proof of defendants conduct; Perhaps more accurately, it permits plaintiff to establish negligence by circumstantial evidence that the defendant must have performed some act under circumstances where negligence may be inferred Substantial factor test: - - the substantial factor requirement has been a laminated as part of the definition of cause in fact, but it may be relevant as a scope of liability issue. When defendants negligent conduct makes only a trivial contribution to multiple factual causes of plaintiffs harm, the harm is not within the scope of the defendants liability. However, this rule does not apply if the trivial contributing causes necessary for the outcome; It only applies when the outcome is over determined * It is always to be determined on the facts of each case upon makes considerations of logic, common sense, justice, policy, and precedent... the best use that can be made of the authorities on proximate cause is merely to furnish illustrations of situations which judicious men upon careful consideration have a judged to be on one side of the line or the other thus, it is better to view proximate cause or legal cause as several distinct scope of liability problems, more or less unrelated. The principal ones are unforeseeable consequences and intervening cause. CONTRACTS. TIMELINE: (acing contracts, p.14) Formation avoiding the deal performance/non-performance third parties remedies I. Formation a. Do we have a deal? i. MUTUAL ASSENT. OFFER + Objective Test = ACCEPTANCE (CONTINUE P. 14!!!!!!!!!!!!!!) and use p. 17 as well!!! II. III. IV. V. Avoiding the deal Performance/non-performance Third parties Remedies Offer and Acceptance. o In finding assent the courts will apply an “objective test” which looks to the party's words and actions and not to what they may have subjectively believed. o The test of a party's intent is viewed from the perspective of a reasonable person in the position of the other party. o By looking to the other parties reasonable understanding, the objective test takes into account her experience, training, the relationship between the parties, and the context of this specific transaction. o To qualify as an offer, the terms must be certain and definite. It must be reasonably clear to the offeree that her acceptance will bind the parties as soon as it is given. The offeror appears to retain the right to make the final decision, then it is not an offer but an invitation to the other party to start negotiating or to make a proposal. Offer and acceptance checklist: [COMMON LAW] A. Offer: has the offeror made an offer? Has a manifestation of willingness to enter a bargain been so as to justify the offeree in understanding that her assent to the bargain is invited and, if given, would conclude it? To determine whether and offer capable of acceptance has been made consider the following: 1. intent: was their intent to make an offer? The words or conduct used in the proposal must be words of offer and not just words of preliminary negotiation. a. Language: what words were used? Were they words of promise and commitment or invitations to negotiate? b. Surrounding circumstances: what were the surrounding circumstances? Were the parties intoxicated or at a party? Words may sound like an offer but clearly be made in jest. Surrounding circumstances may alter the normal meaning of words. c. Advertisements to the public: to whom was the offer made? Proposals made to the public or a large group of persons are more likely to be considered invitations to make an offer. 2. Definite and certain terms: are the terms sufficiently clear and definite so that a court could determine what the parties intended and fixed damages in the event of a breach? a. yes. If such significant terms as the parties to the contract, the subject matter of the contract, the time for performance, and the price to be paid are identified, then it is more likely to be an offer. b. No. If essential terms are missing or vague, then offer may fail for indefiniteness unless it can be cured. Even if some terms have been left open, it may still be possible to meet the requirement for definiteness by the time for performance arrives. 3. Communicated: has the offer been communicated to one capable of acceptance? a. Yes. If so, then the power of acceptance has been created in the offeree. b. No. If not, then there is no power of acceptance. B. Acceptance: has there been a valid acceptance? Has the offeree manifested assent to the offer? In order for a contract to be formed, there must be an acceptance of the offer on the same terms and in the manner requested or authorized by the offeror. To determine whether there has been a valid acceptance, consider the following: 1. who is accepting the offer: is the proper party accepting the offer? Only the party with the power of acceptance can accept the offer. Ask the following: a. invited to accept? b. Knowledge of the offer? 2. Manner of acceptance: has the offer re accepted the offer in the manner required by the offer? a. Acceptance by promise? Does the offer invite acceptance by a return promise? If so, then ask if the following have been met to determine whether there has been a valid acceptance by a promise: 1. was there an expression of commitment? The offeree must express an unequivocal intent to be bound. 2. Was it unconditional? The offer is expression of assent cannot be conditional on some further act by either party. 3. Was it a mirror image of the offer? The acceptance must be on the same terms as proposed in the offer and cannot bury them. If the terms of the acceptance very from the terms of the offer then it is a counter offer. … PICK UP ON P. 44!!!!!!!!!!!!!!!!!! CONSIDERATION. o the first requirement for the formation of a contract is the mutual assent of the parties o this second requirement is that of consideration [however, you will find that consideration is not always necessary or sufficient to make a promise enforceable] How the restatement second defines consideration: o consideration consists of a performance or return promise that is barred in foreign exchange for the promise sought to be enforced o “bargained for exchange” the requirement of exchange: o the bargain theory of consideration recognizes that contracts are voluntary exchange relationships where performance or return promise is said to be bargained for if it is sought by the promise or in exchange for a promise and is given by the promisee in exchange for that promise o this means that the promise and the consideration assume a reciprocal relationship or of motive or inducement: the consideration induces the making of the promise and the promise induces the furnishing of the consideration. o It can be a promise or act of doing something or it may be refraining from doing something that one has the legal right to do. Adequacy of consideration: o because parties are free to make their own bargains, the consideration doctrine does not require the exchange of promises or performances to be of equal value. So long as the parties bargain for the exchange, the court will not review the adequacy of consideration, even if one party promises something of great monetary value in exchange for something as insignificant as a peppercorn. Sham and nominal consideration: o the question often arises whether a promise is supported by consideration when there is a payment of a nominal sum such as a dollar in a transaction worth considerably more or when there is a recital of consideration and none is actually paid. o The question of whether a nominal sum can be effective as consideration arises most frequently in the context of a disguised gratuitous promise; where a promise or really intends to make a gratuitous promise and cast the transaction in the form of a bargain in order to make it enforceable. continue on page 72!!!!!!!!!!!!!!!!!!!!!
