Essay on "Torts Before Entering the Matter Proper"

Essay 10 pages (2680 words) Sources: 0

[EXCERPT] . . . .

Torts

Before entering the matter proper of torts, the book presents a very brief overlook and introduction to the notion of torts. This is quite useful, because it placed the notion of torts between the two variables that define it: the harm that the plaintiff alleges and the nature of the defendant's alleged conduct. With these two in mind, the concept of tort can then be divided into different categories depending on the two, such as the three main bases of liability, following the nature of the defendant's conduct (intent, negligence and strict liability).

Chapter 1 in the Gilbert Law Summaries: Torts deals with intentional torts. The obvious common trait among all these is the fact that the defendant had a particular intent to inflict harm to the plaintiff and the entire legal case is based on the existence of such an intention.

The notion of intent is important to be defined in this case. There are several elements that tend to prove that an intent existed on the part of the defendant in the case of a harmful act. Among these, determining and proving that the defendant acted with the desire to commit the harmful act, as well as the belief that his own actions would certainly lead to the respective effects, are among the important ones in showing intent from the defendant. All these notions are keenly developed in the subchapter a, referring to "torts to the person." The same subchapter details more on the different types of torts to the person, including battery, assault, false imprisonment or intentional infliction of emotional distress. This subchapter is excellently written so as to balance each of this act by its reflection on what the conduct of the defendant should be in order for that particular action to occur and the circumstances leading there.

Subchapter B in this chapter is important in that it deals with defenses and privileged invasions of personal interests, among them, the notion of consent. Most courts treat this as an affirmative action, while others requiring the plaintiff to show lack of consent. The chapter describes the several types of consent, among them actual, apparent or consent implied by law. As always, the chapter is keen to go into details, including in terms of the particular cases when a consent is not considered a defense (usually, when there is a fraud, duress or mistake involved, when there is an incapacity to consent or a criminal act).

Subchapter C refers to torts to property, including the particular cases of trespassing to land or chattels, or conversion of chattels. The subchapter and each case in part usually has a structure that includes elements such as an analysis of the nature of the act of the defendant, the nature of the intent, causation and the damages incurred by the respective act.

Finally, subchapter D deals with the defenses and privileged invasions of land and chattels. The subchapter is similarly structured, with the effect of the defendant's misconduct concluding this subchapter.

Chapter 2 deals with the legal notion of negligence. This is considered to be the second broad category of tort liability, with the main difference from the others being that the defendant had no intention for the effect to have occurred. Usually, the defendant has not performed a certain legal obligation.

An important notion discussed in the first part of this chapter is about the duty of due care. The duty of care is based on two pillars, namely whether D. owed a duty of case and what the scope of the respective duty was. The concept of due care has several variances in practice, including due care in the case of children, of persons with physical disability or of special skills (such as medical skills). With a keen description of the different types of due care, the chapter follows on to discuss how the breach of duty occurs and what elements need to be proved in order for such an allegation to stand in court. Discussions on the notions of actual and proximate causes complete this part of the chapter.

An extensive subchapter covers the special duty questions, notably issues related to affirmative duty to prevent harm, duty owed by common carrier or duty to control third parties. Finally, the last subchapter of chapter 2 deals with the different defenses to negligence. These include contributory negligence, comparative negligence, assumption of the risk etc. The chapter ends with the effect of liability insurance: the most immediate being that this instrument protects the insured against legal liability to others.

Chapter 3 discusses strict liability, the type of liability that is not caused either by intent or by negligence. This is a category that includes liability occurring, for example, from trespassing livestock, but also from abnormally dangerous activities. The chapter details all these different categories and then proceeds to identify the defenses that can be used in each case, as well as the extent of liability.

Chapter 4 deals with products liability, namely that liability that potentially occurs for suppliers of defective products. Again, there are several different categories of products liability, such as liability based on intentional acts (when the manufacturer or supplier actually knows the product to be defective) or liability based on negligence (there is no prior knowledge). After detailing these different types of products liability, the subchapter on strict liability in tort describes the elements that point to liability determined by the defect of the product, which caused injuries to the client. The range of causes for liability here is vast, ranging from the product design defects to inadequate warnings.

The scope of liability and the different defenses to strict tort liability complete this chapter. The different defenses include contributory negligence, comparative fault, assumption of the risk, as well as disclaimers, statute of limitations or preemption. The final subchapter is on liability based on breach of warranty. Warranties are express or implied and several other related notions are included here, such as the effect of breach of warranty.

Chapter 5 introduces the concept of nuisance. In general, in the case of a prima facia case, the defendant commits an act that constitutes a nontrespassory interference with the plaintiff's interest in the use of the latter's land, with substantial or unreasonable harm. The chapter mentions, from its beginning, the difference between private and public nuisance, whereby the interference affects either the possessory interest of an individual or the public at large.

Chapter 5 is defined somewhat differently from the rest of the chapters in that it discusses the different approaches and perspectives that either the plaintiff or the defendants can take. From the plaintiff's interest, he must have the right of possession, while the defendant's conduct needs to incur intent or negligence to ascertain available defenses.

The chapter includes several references, in shorter subchapters, to issues such as causation, remedies or defenses that the defendant can use. In the latter case, two seem essential: contributory or comparative negligence and assumption of risk.

Chapter 6 discusses several miscellaneous factors that may affect the right of the plaintiff to sue. The common law generally provides that the legal cause for tort will not survive either the potential plaintiff or the defendant. However, with survival statutes in almost states, personal injury or property actions can generally be enacted even in the case of the deaths of either the plaintiff or the defendant.

The same difference between common law and statutes is described in the case of wrongful death, as well as the case of the injuries to members of the family. In the latter case, modern law pertains that either spouse may recover for loss of services or consortium. The chapter seems again exhaustive in the manner that the information is provided.

Chapter 7 refers to statutory changes in personal injury law. There are several subchapters that expand this legal concept. These include changes targeting specific kind of tort claims (such as workers' compensation, "no-fault" insurance or products liability), as well as changes affecting tort claims generally. Most of the subchapter include the legal motivation behind the change, as well as the general rules and approaches.

Chapter 8 is perhaps one of the most interesting of the book, dealing with the concept of defamation. The idea behind defamation is that the plaintiff's reputation has been affected due to a certain fact that was published in the media. The prejudice for the plaintiff can be notionally extended to include harm to his right of privacy or the wrongful causing of emotional distress.

The chapter details some of the issues that must be contained in the publication in order for a defamation suit to be valid. Among these, the defamation must have been published/communicated to a third party. The respective subchapter continues to list several criteria that are taken into consideration for someone to be considered a publisher (different categories of publishers are described, including original publishers, republishers and disseminators).

The second part of the chapter defines several elements that have to be included… READ MORE

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