Monday, November 10, 2008

TORT ANALYSIS

The plaintiff in a tort case must meet two tests. The Burden of Production requires the plaintiff to show enough evidence of a tort action to avoid a directed verdict. He must also meet the Burden of Persuasion by a preponderance of the evidence showing the liability of the defendant. This week as you take the Tort Law test, here are a few pitfalls to avoid.

A danger in tort law analysis is leaping ahead. It is very important to carefully read the scenario. Avoid letting your mind jump to deciding what type of proximate cause to pursue, before you have actually found all the elements of a tort. Refrain from adding anything to what you have read; all you have to work with is what is written down. Ask the following questions:

Is it a tort? The situation may be for the criminal courts, not civil. Remember also that torts can be actions or OMISSIONS.
What type or theory of torts? A grammatically perfect answer based on the negligence theory will not suffice if the scenario was an intentional tort.
What subcategory applies? A battery…a trespass…a nuisance…product liability…abuse of process…misrepresentation.
If a negligence tort, are all the elements there (duty, breach, causation, damages)? The defendant may have done wrong, but if no harm was sustained, then you cannot proceed. Or damages may have been sustained, but the defendant may not have had a duty in the first place.
Which type of damages can be requested? The plaintiff may be able to request more than one. (i.e. special and punitive)
What defenses might the defendant raise? If the plaintiff consented or assumed the risk, he is barred from recovering damages.

Another challenge is remembering the meaning of Latin phrases, and under what theory and element the phrase is pertinent. The theory of negligence has three Latin phrases.

Negligence Per Se” may be used to show a breach of duty. If a harm was caused due to the violation of a state/federal statute, and the statute was designed to protect the person who was harmed, then negligence per se arises.

Res Ipsa Loquitur” also applies to the element of breach. Use this phrase to prove the defendant is liable for the breach: the event normally only happens if someone is negligent; the plaintiff did not negligently contribute to his own injuries; the objects or situation were under the defendant’s exclusive control; or the defendant is better able to explain the events.

Sine Qua Non” refers to the “but for” test. This concept is handy for trying to prove causation, in particular actual cause. Show Tony was the actual cause of Antonia’s head injury by explaining, “but for Tony negligently swinging his bat, Antonia would not have been hurt.”

Two other interesting phrases are:

Respondeat Superior” means let persons higher up answer. This can be applied under nearly all of the theories. Once you have shown that the defendant has committed a tort action, and all the elements have been proved, then you can proceed to investigate if the defendant’s bosses/company can be held liable to pay the damages. If the tort was committed under the scope of the defendant’s work, the employer may be liable. This is called going after the deep pocket.

Slander Per Se” falls under the category of defamation torts. This concept will simplify your answer greatly if it applies. If spoken defamation occurs towards a private person about a private matter involving an item on the list, then damages are presumed! The list includes: criminal behavior, loathsome disease, sexual misconduct, or unfitness to conduct business.

Best wishes on your tests. God bless.

Jessica

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