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CHAPTER 1 Overview of Tort Law CHAPTER 1 Overview of Tort Law 1. What is one of the arguments regarding risk allocation in reference to tort law? a. What is the counterargument that could be raised in opposition to that argument? 2. What is one definition of a tort? 3. What are the three categories of torts? a. b. c. 4. What are the problems inherent in proving the reasonableness of one’s conduct? 5. Under what circumstances is reasonableness of conduct not relevant? 6. What ideals dominate any public policy discussion regarding tort law? 7. For what reason do some people argue that societal interests need to be considered even when mediating disputes between individuals? a. Why do others argue that society should have minimal impact on disputes between individuals? 8. What is the relationship between morality and tort law? 9. What is a slippery-slope argument? a. Give an example of such an argument. b. In what way are the courts influenced by slippery-slope arguments? 10. From what sources is tort law derived? 7 a. What is the Restatement and how is it used? 11. What are four differences between torts and crimes? a. b. c. d. 12. What are two differences between torts and contracts? a. b. 13. What was the role of the blood feud in barbaric societies? a. What alternative to the blood feud was developed in early Anglo- Saxon history? b. How did the “moot” process influence the development of the common law? 14. What is an action in trespass? a. What has to be proved? 15. What is a trespass on the case? a. How does it differ from an action in trespass? 16. What is the status of the action in trespass and trespass on the case today? 17. What effect did the development of public transportation have on tort law? 18. In what sense have we come full circle in tort law? a. How was the notion of no-fault connected to the ideal of social justice? 8 b. How does an understanding of how tort law has developed help us better understand the tort reform proposals of today? REVIEW QUESTIONS 1. Who do you think should bear the responsibility for injuries caused if no one is at fault for those injuries? What is the basis for your opinion? a. Who do you think should be responsible if both the victim and the person responsible for the victim’s injuries are partially at fault? Why? 2. What factors are taken into consideration in deciding whether an individual should be held liable for his or her actions? 3. How does the purpose of tort law differ from criminal law? From contract law? 4. Describe the evolution of tort law. PUTTING IT INTO PRACTICE Suppose that a friend of yours is complaining about a case she read in which someone sued a cigarette manufacturer after contracting cancer. Your friend argues that pretty soon everyone who is hurt will be able to make someone pay for his or her injuries. Explain to your friend the reasoning behind holding manufacturers strictly liable. Include a brief description of how tort law has changed over time. Explain also why some people are in agreement with her and tell her why the argument she is using is characterized as a slippery-slope argument. KEY TERMS Define the following: Action in trespass Slippery-slope argument Public policy Trespass on the case 9 CHAPTER 2 Overview of a Tort Case 1. What is the purpose of a demand letter? 2. What are the four basic elements of a complaint? a. b. c. d. 3. How much factual detail is required in a complaint? 4. What is a verification? a. Must a verification always be submitted? 5. In what circumstance would it be appropriate for a party to file a default judgment? 6. What are five things a defendant can do in response to a complaint? a. b. c. d. e. 7. Who has the burden of proving an affirmative defense? 8. What is the difference between a counterclaim and a cross-claim? 9. What is a defendant asserting when he or she files a motion for failure to state a claim upon which relief can be granted? a. What is the relationship between this motion and a demurrer? 10. What is the theory underlying discovery? 10 a. What is the significance of the discovery process? 11. What is the difference between interrogatories and a deposition? a. In what circumstance might an attorney prefer interrogatories to a deposition? b. In what circumstance might an attorney prefer a deposition to interrogatories? 12. What is the purpose of sending out requests for admissions? a. What are the consequences of failing to respond to a request for admissions? 13. What is the purpose of a request for production of documents? 14. What is the purpose underlying a request for medical examination? 15. What is the difference between a motion to compel and a motion for a protective order? 16. When is it appropriate to file a motion for summary judgment? a. How is a motion for summary judgment rebutted? 17. What is the purpose of a pretrial conference? 18. At what point, and for what purpose, would an attorney make a motion in limine? 19. What is a bench trial? 20. What is the purpose of voir dire? 21. What is the difference between a challenge for cause and a peremptory challenge? a. Is there any limit put on the number of such challenges an attorney 11 can raise? 22. What does an attorney attempt to do during opening statements? a. Of what importance to jurors are opening statements? 23. What burden of proof does the plaintiff in a tort case bear? 24. What is the purpose of cross-examination? 25. At what point, and for what reason, might an attorney move for a directed verdict? a. What is the result if such a motion is granted? 26. What does an attorney attempt to do during closing arguments? 27. What is the purpose of charging the jury? a. Why do attorneys put so much emphasis on jury instructions? 28. What is the difference between a general verdict and a special verdict? 29. What is the difference between a motion for a new trial and a motion for a judgment notwithstanding the verdict (JNOV)? a. What conditions must be met before such motions can be made? 30. If an issue is res judicata, what does that mean? REVIEW QUESTIONS 1. Make a list of all the tools that can be used for discovery. 2. Review the four elements of a complaint and establish a reason justifying the need for each of these elements. 3. Make a chronological list of all of those acts that an attorney performs during the course of a trial and establish the purpose for each of those acts. 12 4. Identify those words in the Key Terms with which you are unfamiliar. If you have difficulty remembering any of these words, create sentences in which you use the terms. For further practice, without using the text, try to engage someone in conversation using these terms. If you find this too embarrassing to do, have an imaginary conversation. PUTTING IT INTO PRACTICE Have another person role play the part of a new client and you play the part of a legal assistant. Explain to the client, who has been injured in an automobile accident and wants to sue, what steps your firm will have to go through prior to going to trial, during trial, and possibly after trial. Be sure to explain the purpose behind each step. KEY TERMS Define the following: Affirmative defense Interrogatories Answer JNOV Bench trial Motion for protective order Challenge for cause Motion for summary judgment Charging the jury Motion in limine Complaint Motion to compel Counterclaim Peremptory challenge Cross-claim Pretrial conference Default judgment Res judicata Demand letter Request for admissions Demurrer Request for medical examination Deposition Request for production of documents Directed verdict Special verdict Discovery Verification General verdict 13 CHAPTER 3 Intentional Torts 1. What intent is required to commit an intentional tort? a. Must the tortfeasor intend to harm the plaintiff? b. Is it enough that the tortfeasor knows with substantial certainty that a certain result will occur? (1) What if the consequences are highly likely but not substantially certain? c. Is it possible that an intentional tort may also be a crime? 2. What is the transferred-intent doctrine? a. Is this doctrine applicable if the defendant intends to commit one tort but ends up committing another? 3. How is battery defined? a. Must the contact be with a part of the plaintiff’s body? b. Must the defendant actually touch the plaintiff? c. Must the plaintiff suffer pain or bodily damage? d. What is meant by “offensive” contact? e. Must the plaintiff be aware of the contact at the time it occurs? (1) Give an example. f. Is the defendant liable for unforeseeable consequences? 4. How is assault defined? a. What are two ways an assault can be committed? 14 (1) (2) b. Is the transferred-intent doctrine applicable to assault? c. Must the plaintiff be aware of the impending contact? d. Must the plaintiff be afraid that he or she will be harmed by the defendant? e. Must the defendant have the ability to carry out the threatened contact? f. Can the plaintiff recover if he or she feared that someone other than him or herself would be harmed by the defendant? g. Can a plaintiff recover for assault due to threats of future harm? h.
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