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American Tort Law

American Tort Law. University of Insubria , Como, Italy Ann C. McGinley William S. Boyd School of Law University of Nevada, Las Vegas. Class 1. The Court System; Branches of Government Intentional Torts. Three Branches of Government. The Courts (state and federal)

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American Tort Law

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  1. American Tort Law University of Insubria, Como, Italy Ann C. McGinley William S. Boyd School of Law University of Nevada, Las Vegas

  2. Class 1 The Court System; Branches of Government Intentional Torts

  3. Three Branches of Government • The Courts (state and federal) • The Legislature (state and federal—Congress) • The Executive (The President and Administrative Agencies; in states – the Governors and Administrative Agencies)

  4. The United States’ Federal Court of Appeals

  5. Amy E. Sloan, Basic Legal Research: Tools and Strategies 7 (4th ed. 2009).

  6. Amy E. Sloan, Basic Legal Research: Tools and Strategies 7 (4th ed. 2009).

  7. Amy E. Sloan, Basic Legal Research: Tools and Strategies 201 (4th ed. 2009).

  8. Lexis-Nexis Congressional Universe, How Does a Bill Become Law?

  9. American Tort Law • State law • Common Law system • Sometimes codified in statutes • Common law vs Code law? • The Restatement of Torts

  10. Tort cases in federal court • Some federal laws governing torts • Diversity jurisdiction – citizens are of different states (or of a state and a foreign country) • Federal courts apply the law of the state whose law applies (usually where the injury occurred)

  11. Importance of Facts • How do courts decide cases? • Importance of facts • Binding or Persuasive Precedent • If Binding and it goes against you – Distinguish the Facts; If it goes with you, Analogize the Facts • Argue policy

  12. Importance of Procedure • Due Process – Constitutional Guarantee – “Fairness” “Opportunity to be Heard” • Jury Trials • Role of Judge (determines applicable law) • Role of Jury (finds facts and applies law) • Motions to Dismiss; Summary Judgment

  13. Appellate Courts • Did lower court err in law? • May not revisit the facts unless the lower court is the fact finder and the fact finding is clearly erroneous • Will not usually overturn the jury’s fact finding but may find that the judge’s jury instructions were erroneous - case may be tried again

  14. Standards of Review - Appellate Courts • Questions of law -- look at the issue “de novo” • Questions of fact -- overturn a court’s finding of facts only if “clearly erroneous” • Appellate courts do not take testimony – fact finders had opportunity to see the witnesses testify – more qualified to decide the facts

  15. Supreme Court (federal) or (state) • Binding precedent • Stare decisis

  16. Lawyers’ Fees in Tort Cases • Contingency Fees

  17. What are torts?

  18. Types of Torts • Intentional • Negligence • Strict Liability • Products Liability • Personal and Emotional Harms • Defamation • Privacy • Intentional Infliction of Emotional Distress

  19. Intentional Torts • Assault • Battery • False Imprisonment • Intentional Infliction of Emotional Distress • Trespass • Conversion

  20. What does “intent” mean? • Acting with purpose to bring about the result • Acting with knowledge that result is a substantial certainty

  21. Cohen v. Smith • Battery • Intentional Infliction of Emotional Distress • Facts? • Procedure? • What court decided this case? • Issue? • Holding?

  22. Definition of Battery • The Restatement (Second) of Torts: • "(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and • (b) a harmful contact with the person of the other directly or indirectly results.”) • Liability for battery = plaintiff's lack of consent to the touching. "Offensive contact“ occurs when the contact "offends a reasonable sense of personal dignity.“

  23. Battery -- Elements • A voluntary act • Touching • Harm or Offense • Intent to touch • Intent to cause harm or offense (or knowledge to a substantial certainty that harm or offense will occur)

  24. Definition of Intentional Infliction of Emotional Distress • (1) extreme and outrageous conduct • (2) intent to cause, or reckless disregard of probability of causing emotional distress • (3) severe or extreme emotional distress; and • (4) an actual proximate causation of emotional distress by the defendant's outrageous conduct

  25. Practice Problems • Cohen v. Smith – What if the plaintiff had not told the doctors that she did not want to be viewed naked or touched by a male doctor? Would there still be a battery? Why? Why not? • Consent can be a defense to battery. How would a defendant attempt to make out this defense in a case similar to this case?

  26. Problems • Cohen v. Smith – What is the difference between battery and intentional infliction of emotional distress? • If you were a member of the jury, would you vote for the plaintiff in a) the battery case; b) the intentional infliction of emotional distress case?

  27. Assault – Raess v. Doescher

  28. Jury Instruction 10C -- Assault • To establish assault, Mr. Doescher [the plaintiff] must prove, by a preponderance of the evidence, that Dr. Raess acted in such a manner that Mr. Doescher was in reasonable fear of imminent harm at the time when Dr. Raess had the ability to inflict harm. No physical contact had to occur so long as Mr. Doescher was reasonably afraid that such contact would occur.

  29. Definition of Assault • one acts intending to cause an imminent apprehension of a harmful or offensive contact with another person. • Issue here– Did Dr. Raess intend to cause an imminent apprehension of a harmful or offensive contact? • What is the evidence of intent?

  30. Assault -- Elements • Voluntary Act • Creates a fear or apprehension of imminent harmful or offensive contact • Intent to create fear or apprehension of imminent harmful or offensive contact

  31. Practice Problem • Raess v. Doescher – Should the doctor be liable for this behavior? Isn’t this ordinary behavior in workplaces, especially stressful workplaces? • Did the defendant in this case have a purpose to bring about Raess’ distress? If not, how can Raess prove intent?

  32. False Imprisonment -- Fuerschbachv. Southwest Airlines Co.

  33. Elements of False Imprisonment • Confinement of another • Within bounds • Against their will or consent • For an appreciable time, however short • Victim is aware of the confinement or harmed by the contact

  34. What was the defense here? • Did it work? • Why? Why not?

  35. Practice Problem • Fuerschback v. Southwest Airlines – The defendants in this case were playing a prank on the plaintiff. How, then, can the plaintiff prove intent in this case? Does the intent have to be to harm the plaintiff or in a false imprisonment case, to confine the plaintiff against her will?

  36. Trespass • Voluntary entry upon the land of another • Without consent

  37. Conversion • Treating another’s personal property as one’s own. Converting that property to one’s personal use. eg. – finding a watch and keeping it eg. – borrowing a car and never returning it eg. – stealing a person’s diamond ring

  38. Conversion Problem • I borrow my brother’s tie and do not return it. I begin to wear it regularly. Is this a conversion? What if I take my friend’s car on a “joy ride”?

  39. Trespass Problem • Cat howling on the wall between my neighbor’s and my property. I throw a shoe at the cat and the shoe goes into my neighbor’s yard. Is this a trespass? Image: Francesco Marino/ FreeDigitalPhotos.net

  40. Key Terminology • Liability • Battery • Consent • Privacy • Personal integrity • Damages • Complaint • Intentional Infliction of Emotional Distress • Attorney • State a claim • Allegation • Reversed and remanded • Jury verdict • Assault • Affirm the judgment • Trial court

  41. Key Terminology continued • Court of appeals/appellate court • Compensatory damages • Punitive damages • Plaintiff • Defendant • Evidence • Intent • Burden of proof • Preponderance of the evidence • Substantial evidence • Motion for summary judgment • False imprisonment • Good faith and reasonable belief • Trespass • Conversion

  42. Negligence Class 2

  43. Negligence -- Elements • Duty • Breach of duty • Causation (actual and proximate) • Harm

  44. What Duty is Owed? • Reasonable care – care that an ordinarily prudent person would take under the circumstances • Would an ordinarily prudent person drop a banana peel on the sidewalk?

  45. Was it a breach of duty to not have a handrail?

  46. Magic Johnson Photo by Rafael Amado

  47. Doe v. Johnson • Facts? • Who determines what the duty is here?

  48. How court determines duty • Balancing of the following: • (1) Foreseeability of harm to plaintiff; • (2) degree of certainty that plaintiff suffered injury; • (3) closeness of connection between defendant's conduct and injury suffered; • (4) moral blame attached to defendant's conduct; • (5) policy of preventing future harm; • (6) extent of burden to defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for the breach; and ( • 7) availability, costs, and prevalence of insurance for the risk involved.

  49. What is the issue here? • What does the court decide? • What happens procedurally in this case?

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