American Private Law

History, Sources, Views&

An Introduction to Torts

What is Private Law?

● Some argue it is common to organize Anglo-American law into private and public spheres.➢ Within private law there is a division between

property and obligations.➢ Within obligations there is a division between

contract and tort.➢ Each subcategory generally has separate and

distinct rules and theories.

What is Private Law?

● Some argue there is no pure “private law” in America.➢ “The first thing for European lawyers to understand

about American law is that the distinction between public and private law is in America seldom noticed.”

● Prof. Dr. Paul D. Carrington, Duke Law School➢ These people generally believe there is a significant

overlap between “public” and “private” law.

The Overlap

● This overlap includes idea of “private attorney generals” enforcing laws and regulating conduct.

● This overlap grows out of:➢ distrust of top-down regulation

over-powerful legislature➢ trust in judges to respond to specific cases➢ the role of the Constitution in traditional “private

law” areas.

The Political Dimension

● Founders had aversion to strong legislature➢ resulting in less regulation from above➢ leaving a significant regulatory role for private

litigation.

● Distrust of legislature + trust of judiciary created tendency to accomplish by litigation what many countries accomplish by legislation.➢ EXAMPLE – punitive damages➢ some see American tort law as regulatory system.

Systemic Dimension

● Judges are trusted not only to apply law but to create it!➢ This is consistent with distrust of legislature

● In civil system, law is created by legislature with broad public good in mind, then applied to individual cases.

● In common law system, rulings on individual cases can later become rules (law) that are applied for the public good.

Constitutional Dimension

● Every civil case involves a constitutional question: jurisdiction.➢ courts look to constitutional due process principles to

determine whether a court has jurisdiction over the defendant.

● 7th Amendment right to a jury trial➢ impacts rules of evidence➢ which impacts how evidence is gathered➢ which impacts the structure leading up to the trial

(discovery).

The Key to a “Private” Regulatory System: Contingency Fees

● Allows lawyers to be compensated only if they are successful.➢ General rule is lawyer takes 33% of any award or

settlement.➢ Means that people without money to pay lawyer can

still access courts.

● No loser pays aspect to this system.

Punitive Damages as Regulation

● The Purpose:➢ punishment➢ adequate compensation➢ deterrence of future similar uncivilized conduct and ➢ reward to the plaintiff for carrying out an important

function of a comprehensive judicial system.– Entscheidungen des Bundesgerichtshofes (Zivilsachen)

BGHZ 118, 312 (1993\ (IX ZR 149/91 Civil Division)

● Note – because of this, some scholars in the U.S. actually argue tort law is public law!

Sources of Law

● Common Law (case law)● Statutory Law

➢ Contracts → U.C.C.➢ Torts → state and federal statutes➢ Property → state and federal statutes

● Regulations● Restatements

➢ aim is “to distill the 'black letter law' from cases, to indicate a trend in common law.”

What is Tort Law?

● Common law courts have developed over time the principle that people have certain interests which others have the obligation or duty to respect. ➢ these are social obligations

● The violation of the duty to respect these interests is called a "tort," ➢ tort law defines interests, duties, and the

remedies available when the duties have not been met.

Negligence v. Intentional Tort

● Negligent conduct is that which unintentionally creates an unreasonable risk of injury to an identifiable plaintiff.

● Main differences:➢ Intent➢ Duty

Terminology

● Claim for Negligence➢ cause of action for negligence➢ Tort with four basic elements, all of which must be

proven for P to be successful

● Negligence➢ A narrow term used to describe the standard of due

care.➢ Usually refers to “breach of duty” element.

Basic Elements of Negligence

● Duty● Breach● Causation● Injury

General Principles

● Courts generally refuse to impose liability for doing nothing.● The couch potato is safest.● Some of states have passed laws changing this old

common law principle.

● Those who do act:● choose to engage in activities create a risk of injury● thus, they do have a duty to exercise care to avoid

injuring others.

Van Horn v. Watson

● What duty does own to a person in need of help?

● If a person acts to help another, what duty of care is imposed in her actions?➢ How has the legislature modified this duty of care?

● What is the Court being asked to decide in this case?➢ put differently, what is the ISSUE?

Van Horn v. Watson: Case Brief

● Procedural History● Material Facts● Cause of Action● Issue● Holding● Rationale● Result

Categories of Duty

● General test – ordinary care● Special Standards of Duty

➢ Professionals➢ Attractive Nuisances➢ Duties created by law➢ Duties created by importing legislative standards➢ Duties to Act

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Breach of Duty

● Breach – determining whether person has violated a duty.

● Three general “standards”:➢ Reasonable Person➢ Negligence Per Se➢ Res Ipsa Loquitur

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Standard of Reasonable Care

● Basic premise – we generally owe our fellow citizens a duty to exercise care in the conduct of our own affairs.➢ Avoid injuring others by carelessness.

● Duty is breach by failing to exercise reasonable care.

● Who is this “reasonable person”?

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The Relevance of Personal “Circumstances”

● Not just “reasonable person.” Must also look at circumstances.

● Duty = reasonable person under the circumstances.➢ some individual characteristics of D are

considered part of “the circumstances.”➢ but not an “I did the best I could” standard

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Negligence Per Se

● Unrelated statute can be used to show what duty is required and whether a breach has occurred.

● Elements:➢ Statute clearly states conduct required of D➢ Statute clearly defines protected class➢ P falls within this protected class➢ Civil remedy is consistent with purpose of statute

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Res Ipsa Loquitur

● The things speaks for itself.● Allows P to prove duty and breach using

circumstantial evidence.● Direct v. Circumstantial Evidence

➢ The car case➢ The banana peel case

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Causation

● Goal is making defendant liable only for those damages he caused.

● Courts have tried to achieve this goal using a two part causation test:➢ Causation in Fact (“but for” causation)➢ Proximate Cause

● Cause in fact is often clear from the event itself.

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Traditional “But For” Test

The defendant's conduct is a cause of the event if the event would not have occurred but for that conduct; conversely, the defendant's conduct is not a cause of the event if the event would have occurred without it.

Legal Cause

● Proximate Cause = Legal Cause● Question is whether liability should be

imposed, not whether D's act caused the injury.➢ Cause-in-Fact asks “what happened”➢ Proximate Cause asks “what should be done

about it?”

● Proximate Cause is a limit on liability!➢ limits absurd, unforeseeable results

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Injury

● The primary purpose in tort is to compensate injury.

● Compensation = compensatory damages➢ Intended to “repair plaintiff's injury or make him

whole as nearly as possible by an award of money.

Yet another legal fiction

● Injury = any loss resulting from impairment of legally protected right or interest.

Defense to Negligence

● Effect of successful defense = avoid or reduce liability

● Two Main Defenses➢ Comparative Negligence➢ Assumption of Risk

Comparative Negligence

● Contributory v. Comparative Negligence in the United States➢ negligence on the part of a plaintiff which,

combining with the negligence of a defendant, contributes as a cause in bringing about the injury.

➢ Contributory Negligence = absolute bar➢ Comparative Negligence = limit on liability

Assumption of Risk

● Distinguishing Contributory Negligence➢ assumption of risk requires actual knowledge of

danger and choice to proceed nonetheless (subjective)

➢ contributory negligence applies where P should have known the risk, but did not, and chose to proceed nonetheless. (objective)

● In practice it is not easy to distinguish● Assumption of Risk is a complete bar to

recovery.