Tort Law: Chapter 1

what are the primary differences between tort law and contract law?

A contract is a virtue of an agreement of the parties, whereas tort laws are imposed by laws owed to society, as well as relationships (employer/employee)

What are the primary differences between law and criminal law?

A crime is considered an offense against society, whereas a tort is an offense against another individual or group of individuals. Criminal: the state must prove beyond a reasonable doubt Tort: the plaintiff must prove by a preponderance of the evidence Compensation, tort: punitive damages and crime: restitution

what role do public policy arguments and morality play in tort law?

All laws including tort laws are based on some part of public policy, which can be found by looking for the rationale or reason for the law. Tort law generally agrees that the sense of what is universally regarded as right and wrong.

describe the evolution of tort law

Blood feud Action in trespass (direct use of force) trespass on the case (wrongful intent or negligence) negligence strict liability

Action in Trespass (vi et armis)

Early cause of action involving serious, forcible breaches of peace that evolved to encompass even physical contact; no showing of fault was required.

how do restatement-torts affect tort law?

It was compiled by eminent legal scholars and practitioners as an attempt to provide lawyers and judges with black-letter principles which is generally accepted by the legal community.

nolo contendere

Pleas of "no contest"; not an admission of guilt.

how does the concept of reasonableness relate to tort law?

Socially unreasonable torts should be penalized and the victims need to be compensated. The overall goal is to balance the plaintiff's need in protection with the defendant's claim of freedom to pursue his own ends.

how does statutes affect tort law?

Some statues directly address issues such as wrongful death and survival acts, whereas other statues serve as guidelines to help establish policy.

what are some purposes of tort law?

The purpose of tort law, was to provide justice rather to simply just punish and deter inappropriate conduct.

How does case law affect tort law?

Tort law is a product, which involves case by case decision making. Courts are mandated by statutes to follow which affect this decision process. Some statues directly address issues such as wrongful death and survival acts, whereas other statues serve as guidelines to help establish policy.

slippery slope argument

argument that one you take a first step in allowing something in one instance, you are in danger of sliding bottomless pit of circumstance requiring comparable treatment.

case law

case-by-case decision making by the court.

tort

civil wrong for which victim receives compensation in the form of damages.

clear and convincing evidence

clear and convincing evidence requires a higher burden of persuasion than the "preponderance of the evidence" but less than that required by the "proof beyond a reasonable doubt." In most states the standard requires the judge or jury to find the evidence submitted is substantially more likely to be true than not true.

restitution

compensations for a crime given to the victim

trespass on the case

early cause of action involving injuries inflicted indirectly and requiring some showing of fault

what is a slippery slope argument, and how does it affect court decisions?

if that use of an argument in one case will allow the same application in innumerable cases. The court fears that if it finds negligence in a sympathetic plaintiff, then hundreds of other plaintiffs will seek the same redress. Examples include: physician assisted suicides, racial composition, use of marijana for medical purposes. Courts often make decisions that render short term goals of justice that are untenable over the long run

black-letter law

legal principles generally accepted by the legal community.

tortfeasor

one who has committed a tort

public policy

policy of the public or a community that dictates the norms of the community based on its beliefs and values regarding justice, fairness and equality

beyond a reasonable doubt

standard of proof requiring a showing of almost absolute certainty for each element.

preponderance of the evidence

standard of proof requiring a showing that each element is probable than not