1. American Private Law History, Sources, Views & An Introduction to Torts
2. What is Private Law?● Some argue it is common to organize Anglo- American law into private and public spheres. ➢ Within private law there is a division between property and obligations. ➢ Within obligations there is a division between contract and tort. ➢ Each subcategory generally has separate and distinct rules and theories.
3. What is Private Law?● Some argue there is no pure “private law” in America. ➢ “The first thing for European lawyers to understand about American law is that the distinction between public and private law is in America seldom noticed.” ● Prof. Dr. Paul D. Carrington, Duke Law School ➢ These people generally believe there is a significant overlap between “public” and “private” law.
4. The Overlap● This overlap includes idea of “private attorney generals” enforcing laws and regulating conduct.● This overlap grows out of: ➢ distrust of top-down regulation over-powerful legislature ➢ trust in judges to respond to specific cases ➢ the role of the Constitution in traditional “private law” areas.
5. The Political Dimension● Founders had aversion to strong legislature ➢ resulting in less regulation from above ➢ leaving a significant regulatory role for private litigation.● Distrust of legislature + trust of judiciary created tendency to accomplish by litigation what many countries accomplish by legislation. ➢ EXAMPLE – punitive damages ➢ some see American tort law as regulatory system.
6. Systemic Dimension● Judges are trusted not only to apply law but to create it! ➢ This is consistent with distrust of legislature● In civil system, law is created by legislature with broad public good in mind, then applied to individual cases.● In common law system, rulings on individual cases can later become rules (law) that are applied for the public good.
7. Constitutional Dimension● Every civil case involves a constitutional question: jurisdiction. ➢ courts look to constitutional due process principles to determine whether a court has jurisdiction over the defendant.● 7th Amendment right to a jury trial ➢ impacts rules of evidence ➢ which impacts how evidence is gathered ➢ which impacts the structure leading up to the trial (discovery).
8. The Key to a “Private” Regulatory System: Contingency Fees● Allows lawyers to be compensated only if they are successful. ➢ General rule is lawyer takes 33% of any award or settlement. ➢ Means that people without money to pay lawyer can still access courts.● No loser pays aspect to this system.
9. Punitive Damages as Regulation● The Purpose: ➢ punishment ➢ adequate compensation ➢ deterrence of future similar uncivilized conduct and ➢ reward to the plaintiff for carrying out an important function of a comprehensive judicial system. – Entscheidungen des Bundesgerichtshofes (Zivilsachen) BGHZ 118, 312 (1993 (IX ZR 149/91 Civil Division)● Note – because of this, some scholars in the U.S. actually argue tort law is public law!
10. Sources of Law● Common Law (case law)● Statutory Law ➢ Contracts → U.C.C. ➢ Torts → state and federal statutes ➢ Property → state and federal statutes● Regulations● Restatements ➢ aim is “to distill the black letter law from cases, to indicate a trend in common law.”
11. What is Tort Law?● Common law courts have developed over time the principle that people have certain interests which others have the obligation or duty to respect. ➢ these are social obligations● The violation of the duty to respect these interests is called a "tort," ➢ tort law defines interests, duties, and the remedies available when the duties have not been met.
12. Negligence v. Intentional Tort● Negligent conduct is that which unintentionally creates an unreasonable risk of injury to an identifiable plaintiff.● Main differences: ➢ Intent ➢ Duty
13. Terminology● Claim for Negligence ➢ cause of action for negligence ➢ Tort with four basic elements, all of which must be proven for P to be successful● Negligence ➢ A narrow term used to describe the standard of due care. ➢ Usually refers to “breach of duty” element.
14. Basic Elements of Negligence● Duty● Breach● Causation● Injury
15. General Principles● Courts generally refuse to impose liability for doing nothing. ● The couch potato is safest. ● Some of states have passed laws changing this old common law principle.● Those who do act: ● choose to engage in activities create a risk of injury ● thus, they do have a duty to exercise care to avoid injuring others.
16. Van Horn v. Watson● What duty does own to a person in need of help?● If a person acts to help another, what duty of care is imposed in her actions? ➢ How has the legislature modified this duty of care?● What is the Court being asked to decide in this case? ➢ put differently, what is the ISSUE?
17. Van Horn v. Watson: Case Brief● Procedural History● Material Facts● Cause of Action● Issue● Holding● Rationale● Result
18. Categories of Duty● General test – ordinary care● Special Standards of Duty ➢ Professionals ➢ Attractive Nuisances ➢ Duties created by law ➢ Duties created by importing legislative standards ➢ Duties to Act
19. Breach of Duty● Breach – determining whether person has violated a duty.● Three general “standards”: ➢ Reasonable Person ➢ Negligence Per Se ➢ Res Ipsa Loquitur 19
20. Standard of Reasonable Care● Basic premise – we generally owe our fellow citizens a duty to exercise care in the conduct of our own affairs. ➢ Avoid injuring others by carelessness.● Duty is breach by failing to exercise reasonable care.● Who is this “reasonable person”? 20
21. The Relevance of Personal “Circumstances”● Not just “reasonable person.” Must also look at circumstances.● Duty = reasonable person under the circumstances. ➢ some individual characteristics of D are considered part of “the circumstances.” ➢ but not an “I did the best I could” standard 21
22. Negligence Per Se● Unrelated statute can be used to show what duty is required and whether a breach has occurred.● Elements: ➢ Statute clearly states conduct required of D ➢ Statute clearly defines protected class ➢ P falls within this protected class ➢ Civil remedy is consistent with purpose of statute 22
23. Res Ipsa Loquitur● The things speaks for itself.● Allows P to prove duty and breach using circumstantial evidence.● Direct v. Circumstantial Evidence ➢ The car case ➢ The banana peel case 23
24. Causation● Goal is making defendant liable only for those damages he caused.● Courts have tried to achieve this goal using a two part causation test: ➢ Causation in Fact (“but for” causation) ➢ Proximate Cause● Cause in fact is often clear from the event itself. 24
25. Traditional “But For” TestThe defendantsconduct is a cause ofthe event if the eventwould not haveoccurred but for thatconduct; conversely, thedefendants conduct isnot a cause of the eventif the event would haveoccurred without it. 25
26. Legal Cause● Proximate Cause = Legal Cause● Question is whether liability should be imposed, not whether Ds act caused the injury. ➢ Cause-in-Fact asks “what happened” ➢ Proximate Cause asks “what should be done about it?”● Proximate Cause is a limit on liability! ➢ limits absurd, unforeseeable results
27. Injury● The primary purpose in tort is to compensate injury.● Compensation = compensatory damages ➢ Intended to “repair plaintiffs injury or make him whole as nearly as possible by an award of money. Yet another legal fiction● Injury = any loss resulting from impairment of legally protected right or interest. 27
28. Defense to Negligence● Effect of successful defense = avoid or reduce liability● Two Main Defenses ➢ Comparative Negligence ➢ Assumption of Risk
29. Comparative Negligence● Contributory v. Comparative Negligence in the United States ➢ negligence on the part of a plaintiff which, combining with the negligence of a defendant, contributes as a cause in bringing about the injury. ➢ Contributory Negligence = absolute bar ➢ Comparative Negligence = limit on liability
30. Assumption of Risk● Distinguishing Contributory Negligence ➢ assumption of risk requires actual knowledge of danger and choice to proceed nonetheless (subjective) ➢ contributory negligence applies where P should have known the risk, but did not, and chose to proceed nonetheless. (objective)● In practice it is not easy to distinguish● Assumption of Risk is a complete bar to recovery.