Introduction to Torts

Class Objectives Learn The Basics of Tort Law Learn The Basics of Tort Law  Broad overview  More detail in the advanced torts courses  You learn material better by going over it more than once Learn How To Read Real Cases Learn How To Read Real Cases  Full text, unedited cases, just like a lawyer would use

Become Familiar With MO Law More than any other area of law, tort law is state law. More than any other area of law, tort law is state law. Very few United States Supreme Court tort decisions that bind all states Very few United States Supreme Court tort decisions that bind all states Congress can preempt most state tort law, but has done so only in very limited circumstances. Congress can preempt most state tort law, but has done so only in very limited circumstances.

Develop Your Own Practice Materials You will get cases and other materials that will form the basis of a Mo torts practice You will get cases and other materials that will form the basis of a Mo torts practice You will add to these if you take my advanced torts class on health care torts You will add to these if you take my advanced torts class on health care torts

Attendance School Policy School Policy Sign the Role Sheet Sign the Role Sheet False Certification is an honor code violation False Certification is an honor code violation Tell Dean Davis about absences Tell Dean Davis about absences Do not tell me about your reasons for being absent – it is none of my business Do not tell me about your reasons for being absent – it is none of my business

Class Seating Fill from the front so the only empty seats are in the back Fill from the front so the only empty seats are in the back Pick your seat next time - we use a seating chart Pick your seat next time - we use a seating chart

Class Participation 1) Read the material 1) Read the material 2) Show up 2) Show up 3) Pay attention 3) Pay attention 4) Stand up and answer intelligently when called on, or at least convince me you are in the right class and have read the material 4) Stand up and answer intelligently when called on, or at least convince me you are in the right class and have read the material

“Unprepareds” Being unprepared is a bad thing. Being unprepared is a bad thing. You get two free "unprepareds“ You get two free "unprepareds“  Leave a note on the podium for me by the beginning of class if you need one  Do not explain why, just your name and unprepared After 2, each unprepared costs you a - (minus) on your final grade. After 2, each unprepared costs you a - (minus) on your final grade.

Final Exam The final exam will be in class, closed book and notes The final exam will be in class, closed book and notes Some of the exam will be short answer Some of the exam will be short answer There will be an ungraded practice midterm There will be an ungraded practice midterm

Class Materials Your materials will be on the WWW site: Your materials will be on the WWW site:  Study Questions Study Questions  I will give you extensive sets of study questions to help you prepare for the exam  It is your responsibility to find the answers

Using the WWW Law is an information business and that business has moved online. In some areas the books have already been discontinued. Law is an information business and that business has moved online. In some areas the books have already been discontinued. Online is cheaper and faster Online is cheaper and faster You need to learn how to do online and how to organize electronic materials You need to learn how to do online and how to organize electronic materials You need your own computer, either desktop or laptop, to keep track of your notes and materials You need your own computer, either desktop or laptop, to keep track of your notes and materials

Computers in Class You do not need a laptop in class - bring in printed notes, annotate them, put the changes back in later - less distracting to you and less prone to disaster. You do not need a laptop in class - bring in printed notes, annotate them, put the changes back in later - less distracting to you and less prone to disaster. You are responsible for learning to lookup cases on Lexis or Westlaw from citations that I give you. You are responsible for learning to lookup cases on Lexis or Westlaw from citations that I give you.

Types of Law

Criminal Law Between the state and an individual Between the state and an individual Only laws that can lead to imprisonment for punishment Only laws that can lead to imprisonment for punishment Defendant must pay own fees in most cases Defendant must pay own fees in most cases Right to counsel is very limited Right to counsel is very limited Most closely controlled by the United States Supreme Court Most closely controlled by the United States Supreme Court

Administrative Law Includes Includes  Environmental Law  Consumer Protection Law  Health Law  Banking Regulations At least 50% of all legal work At least 50% of all legal work  Federal agencies to the local zoning board Take ad law! Take ad law!

Private Law Contracts Contracts  agreements between individuals  damages are about money Property law Property law  issues with ownership and convenience of property, usually land Family law Family law  Children and divorce  State and federal law

Torts Compensation for accidents and intentional wrongdoing Compensation for accidents and intentional wrongdoing Deterrence for future acts Deterrence for future acts Punishment for past acts Punishment for past acts Substantial overlap with criminal and administrative law Substantial overlap with criminal and administrative law

Tort Litigation

Plaintiffs Contingency Fees Contingency Fees  30%-50%, plus expenses off the top  Some firms make the client pay expenses up front MO law allows the firm to advance expenses and finance the case as part of the contingency MO law allows the firm to advance expenses and finance the case as part of the contingency What is the incentive? What is the incentive?

Defense Hourly or Fixed Fee Hourly or Fixed Fee Very expensive Very expensive Usually paid by insurance in negligence cases Usually paid by insurance in negligence cases What is the incentive? What is the incentive?

Who Pays When The Case Is Over? Each side pays their own attorney Each side pays their own attorney Defendant pays Plaintiff if Defendant loses Defendant pays Plaintiff if Defendant loses Under some rules of procedure, Plaintiff sometimes has to pay defendant’s costs if Plaintiff rejects a reasonable settlement from defendant and then loses at trial Under some rules of procedure, Plaintiff sometimes has to pay defendant’s costs if Plaintiff rejects a reasonable settlement from defendant and then loses at trial

Constitutional Issues No US constitutional requirement that there be more than a most rudimentary tort system. No US constitutional requirement that there be more than a most rudimentary tort system. Must be fairly applied, if you have one Must be fairly applied, if you have one Some state constitutions guarantee access to a tort system Some state constitutions guarantee access to a tort system All states have abrogated these to some extent for worker's compensation systems All states have abrogated these to some extent for worker's compensation systems

Why Have Tort Law? Prevents Self-Help Prevents Self-Help  No eye for an eye  Limits feuds Tries To Substitute For Morality Tries To Substitute For Morality  Imposes duties that once belonged to religion  Traditionally tort law was in the church's courts  Basic enforcement was going to hell

Tort Populism Vents Populist Angst Vents Populist Angst  Power of big business  Perception that society is out of control  Little guy’s revenge Modern version of the Roman bread and circuses Modern version of the Roman bread and circuses

Substitutes For Governmental Regulation And Policy Contraceptives Contraceptives Breast Implants Breast Implants Tobacco Tobacco No proper health insurance system? No proper health insurance system?  Sue HMOs No proper disability and retraining system? No proper disability and retraining system?  Sue other motorists

Fills The Gaps In Law  Whenever societal mechanisms fail, tort law provides a cushion  California Child Molesters Relief Act and the Missouri Cokeheads Relief Case  Conflicting policy between retribution/punishment and compensation so that state does not have to pay.

What Can You Recover? Money Money That Is It: Money That Is It: Money  Never say that you cannot put a price on human life.

Damages Only physical injuries? Only physical injuries? Emotional Suffering Emotional Suffering Dignitary injuries Dignitary injuries Reputation injuries Reputation injuries No money? - no recovery No money? - no recovery 10/20 Policies 10/20 Policies

Basis For Liability Intentional Torts Intentional Torts Negligence Negligence Strict Liability Strict Liability Defamation Defamation Statutory Torts Statutory Torts

Core Concepts Intent Intent Consent And Assumption Of Risk Consent And Assumption Of Risk Assumption Of Obligations Assumption Of Obligations Notice Notice Liability For Others Liability For Others Liability for Products Liability for Products