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Dwnload Full Essentials of Torts 3rd Edition Ebook PDF Version PDF
Dwnload Full Essentials of Torts 3rd Edition Ebook PDF Version PDF
Dwnload Full Essentials of Torts 3rd Edition Ebook PDF Version PDF
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contents in brief
vii
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contents
CHAPTER 3 Battery 27
Introduction 28
Act 28
Material Touching 29
Person 30
Intent 30
Harmful or Offensive Contact 31
Damages 33
Consent and Privilege 33
CHAPTER 4 Assault 41
Introduction 42
Act 42
Apprehension 42
Harmful or Offensive 43
Intent 44
Damages 46
ix
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x C O NTE NTS
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CONTENTS xi
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xii C O NTE NTS
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CONTENTS xiii
C H A P T E R 22 Misrepresentation, Tortious
Interference, and Other Torts 383
Misrepresentation 384
Interference with Contract Relations 390
Interference with Prospective Advantage 393
Wrongful Discharge 394
Disparagement 395
Injurious Falsehood 397
Prima Facie Tort 398
Bad Faith Liability 398
Dram Shop Liability 399
G L O S SA RY 44 7
INDEX 465
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table of exhibits
1–1 Tort trials in state courts in the nation’s 75 9–2 Elements of strict liability for abnormally
largest counties. 3 dangerous conditions or activities
1–2 Tort action and criminal prosecution (SLADCA). 114
for the same misconduct: Two separate 10–1 Coverage of negligence topics. 124
proceedings. 4 10–2 Elements of the tort of negligence. 124
1–3 Torts and related causes of action: The 11–1 Foreseeable and unforeseeable
elements. 6 plaintiffs. 135
1–4 Example of an Internet site relevant to tort 11–2 Affirmative conduct versus a failure to
law: Consumer Product Safety Commission act. 137
(www.cpsc.gov). 13 11–3 Special relationships that create a duty to use
2–1 Foreseeability spectrum: How foreseeable, if reasonable care in nonfeasance cases. 139
at all? 19 12–1 Factors to be assessed in the determination of
2–2 Factors that determine foreseeability. 20 reasonableness. 148
3–1 Elements of the tort of battery. 28 12–2 Reasonableness by comparison. 149
3–2 Battery and assault as torts and as 12–3 Comparison of the conduct of a perfect
crimes. 29 person, a reasonable person, and an
4–1 Elements of the tort of assault. 42 unreasonable person. 151
4–2 The transferred-intent rule: Unintended 12–4 Breach-of-duty equation. 151
plaintiffs and unintended torts. 45 12–5 Objective and subjective standards. 156
5–1 Elements of the tort of false 12–6 Spectrum of likelihood. 160
imprisonment. 54 12–7 How to determine whether the violation of a
5–2 Comparison of peace officer’s and private statute will become the standard of care in a
citizen’s privilege to arrest without a negligence action. 169
warrant. 60 12–8 Three categories of vicarious
5–3 Privilege and immunity. 61 unreasonableness. 172
6–1 Elements of the tort of malicious 12–9 Checklist of factors used to determine scope
prosecution. 71 of employment. 174
6–2 Probable cause in malicious prosecution 12–10 Liability for torts of independent
suits. 72 contractors. 176
6–3 Elements of the tort of wrongful civil 12–11 Medical malpractice damage award
proceedings. 74 trends. 180
6–4 Elements of the tort of abuse of process. 75 12–12 Elements of informed consent. 182
7–1 Elements of the tort of intentional infliction 12–13 Professional liability claims against law firms
of emotional distress. 82 by error group. 187
8–1 Elements of the torts of conversion and 12–14 Mistakes of attorneys. 188
trespass to chattels. 102 13–1 The tests of proximate cause. 201
8–2 Factors considered by a court to 14–1 Jury instructions on damages. 223
determine whether an interference with
14–2 Software to help calculate damages. 225
a chattel is serious enough to constitute
conversion. 103 15–1 Breach-of-duty equation. 238
9–1 Elements of strict liability for harm caused by 16–1 Annual injuries associated with selected
animals. 112 consumer products. 252
xv
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xvi TABL E O F E XH I BI TS
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preface
CHAPTER FORMAT
Each chapter includes features designed to assist the student in understanding
the material:
• A chapter outline at the beginning of each chapter provides a preview of the
major topics in the chapter.
• Chapter objectives, also at the beginning of each chapter, present a more de-
tailed listing of the themes and skills covered in the chapter.
• Exhibits and tables are used extensively to clarify concepts and present de-
tailed information in an organized chart form.
• Assignments that ask the student to apply concepts to particular fact situa-
tions are included within most chapters.
xvii
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
xviii P R E FAC E
• The Ethics in a Torts Practice feature asks the student to read a fact situation
and identify ethical problems that may exist. These exercises may tangentially
cover the topics of the chapters in which they are found. Their main purpose,
however, is to review the major ethical issues that apply to any law office.
• A chapter summary at the end of each chapter provides a concise review of
the main concepts discussed.
• Key terms are presented in boldface type the first time they appear in each
chapter. Also a list of key terms is found at the end of each chapter to help
review important terminology introduced in that chapter.
• Helpful websites are added at the end of each chapter to provide additional
materials on the topics of the chapter.
• Margin definitions are presented for each term in boldface type in the chapter.
• Examples are used extensively to highlight critical doctrines and practices.
• After the discussion of each major tort in a chapter, there is a comprehen-
sive checklist called Definitions, Relationships, Paralegal Roles, and Research
References. It is designed to provide the “big picture” by making connections
between the particular tort examined in the chapter and related material on
other torts discussed in other chapters. The checklist also serves as an on-the-
job refresher for individual torts.
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PREFACE xix
• Chapter 16 gives additional background on the Stella hot coffee case and
raises the question of whether there can be strict liability for defective web-
sites and movies.
• Chapter 16 adds the RICO litigation to the strategies leveled against the to-
bacco industry.
• Chapter 19 discusses the case against Craigslist for public nuisance and the
statutory immunity given to the firearms industry.
• Chapter 22 adds additional material on wrongful discharge and deceptive
trade practices.
Paralegal CourseMate
Essentials of Torts, Third Edition, includes Paralegal CourseMate, a complement to
your textbook.
Paralegal CourseMate includes:
*an interactive eBook, with highlighting, note-taking, and search capabilities
*interactive teaching and learning tools, including
• Quizzes
• Case studies
• Chapter objectives
• Flashcards
• Web links
• Crossword puzzles
• PowerPoint™ presentations
• And more!
*Engagement Tracker, a first-of-its-kind tool that monitors student engagement in
the course
Go to www.login.cengagebrain.com to access these resources, and look for this
icon which denotes a resource available with CourseMate.
Instructor’s Manual
An Instructor’s Manual and Test Bank by the author of the text accompanies this
edition and has been expanded to incorporate changes in the text and to provide
comprehensive teaching support. It includes the following:
• teaching options, such as lecture ideas and suggestions for using selected
assignments
• answers to Ethics in a Torts Practice and Review Questions
• a test bank of over 450 questions, which include a variety of questions in
true/false, multiple-choice, completion, matching, and essay formats
Instructor Resources
Delmar Cengage Learning’s Instructor Resources to accompany Essentials of Torts
can provide valuable assistance with course design and student evaluation.
This instructor CD-ROM allows you anywhere, anytime access to all of your
resources:
• The Instructor’s Manual contains various resources for each chapter of the
book.
• The Computerized Test Bank in ExamView facilitates the generation of tests
and quizzes. With many questions and different styles to choose from, you
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
xx P R E FAC E
can easily create customized assessments for your students. You can also add
your own unique questions.
• Customizable PowerPoint ® Presentations focus on key points for each
chapter.
(PowerPoint® is a registered trademark of the Microsoft Corporation.)
To access additional course materials (including CourseMate), please go to http://
login.cengage.com, then use your SSO (single sign-on) login to access the materials.
All of these instructor materials are also posted on our website (http://www
.paralegal.delmar.cengage.com/) in the Online Resources section.
Web Page
Visit our website at www.paralegal.delmar.cengage.com, where you will find valu-
able information such as hot links and sample materials to download, as well as
other Delmar Cengage Learning products.
Please note that the Internet resources are of a time-sensitive nature and URL
addresses may often change or be deleted.
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
PREFACE xxi
SUPPLEMENTS AT-A-GLANCE
Online Instructor’s Resources for the instructor, posted online • Instructor manual with lecture ideas,
Manual at www.paralegal.delmar.cengage.com in suggested answers, and test bank with
the Online Resources section answer key
• PowerPoint® presentations
Instructor Resources Resources for the instructor, available on • Instructor manual with lecture ideas,
CD-ROM CD-ROM suggested answers, and test bank with
answer key
• Computerized test bank in ExamView
with many questions and styles to
choose from to create customized stu-
dent assessments
• PowerPoint® presentations
Torts Online Course Robust online course available on both Includes 16 lessons with introduction,
Blackboard and WebCT. (Availability upon objectives, lecture outline, video activities,
request for eCollege, Angel, Desire2Learn, journal activities, group activities, Inter-
and more.) net activities, discussion questions, ethics
questions, glossary terms, weblinks, study
The course can be used along with this
notes, and quizzes for the student.
textbook or any book for an introductory
course. See a demo at http://cengagesites Instructor materials include PowerPoint
.com/academic/?site=4074. slides and test banks.
Copyright 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s).
Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
xxii PR E FAC E
ACKNOWLEDGMENTS
Many thanks to the reviewers who made valuable suggestions for improving
this text:
Linda Anderson
Woodbury College
Burlington, VT
Beverly Broman
Duff’s Business Institute
Pittsburgh, PA
Mimi Flaherty
RETS Technical Center
Charlestown, MA
Christie Highlander
Southwestern Illinois College
Belleville, IL
Elizabeth Mann
Greenville Technical College
Greenville, SC
Alvin McDonald
New Mexico State University at Alamagordo
Alamagordo, NM
Christine Thiltgen
American River College
Sacramento, CA
Copyright 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s).
Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
c h a p t e r
1
introduction to tort
law and practice
CHAPTER OUTLINE
• Scope
• Definitions and Purposes
• Elements of All the Torts
• Categories of Torts
• Introduction to Causation
CHAPTER OBJECTIVES
After completing this chapter, you should be able to:
• Understand the financial and human scope of unintended injuries in society.
• Define tort, damages, criminal law, civil law, and related concepts.
• Know the four purposes of tort law.
• Know what is meant by stating a tort cause of action.
• Distinguish among intentional torts, negligence, and strict liability.
• Know the meaning of proximate cause.
• State the two tests for actual cause (cause in fact).
1
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2 C H A P TE R 1 introduction to tort law and practice
SCOPE
tort A civil wrong (other than a Accidental or unintentional injuries take a staggering toll on society. Each year,
breach of contract) that causes the total economic cost of such injuries is $652 billion according to the National
injury or other loss for which our Safety Council. This includes medical expenses, property damage, wage losses, pro-
legal system deems it just to
provide a remedy such as damages.
ductivity losses, legal costs, police costs, and related administrative expenses. Each
Injury or loss can be to the person year, over 23 million people need medical attention and 120,000 die from unin-
(a personal tort), to movable prop- tended injuries.1
erty (a personal property tort), or to Some of these injuries are caused by torts, which brings us to the subject of
land and anything attached to the this book. Broadly speaking, a tort is a civil wrong that can be redressed by award-
land (a real property tort). ing damages. A more precise definition is that a tort is a civil wrong (other than a
damages 1. Monetary pay- breach of contract) that causes injury or other loss for which our legal system deems
ments awarded to compensate it just to provide a remedy such as damages. We’ll have more to say about this defi-
someone for a legally recognized nition shortly when we examine the categories of personal torts, personal property
wrong (noun). 2. Causes harm or torts, and real property torts. See Exhibit 1–1 for statistics on tort cases in selected
other loss (verb). (The word damage state courts in the country.
means injury, impairment, or other Federal courts also handle tort cases when the parties suing each other are cit-
loss to person or property.)
izens of different states (diversity of citizenship) or when the suit is against the
diversity of citizenship The federal government for a tort committed by a federal employee. Fourteen percent of all
disputing parties are citizens of dif- civil cases filed in U.S. district courts (the main federal trial court) are tort claims. Plain-
ferent states. This fact gives jurisdic- tiffs won about 51 percent of these cases. The median award for plaintiffs in state courts
tion (called diversity jurisdiction) to is $24,000. The median award in federal courts is considerably larger, $179,000.2
a United States district court when
the amount in controversy exceeds
Our goal in this book is to help you understand the law behind these statistics
$75,000. and the roles played by paralegals in a legal system designed to determine when
injured parties should be compensated for losses caused by torts.
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
C H AP TE R 1 introduction to tort law and practice 3
Exhibit 1–1
Trials Percent change
Tort trials in state courts
Type of tort trial characteristic 2005 1996–2005 in the nation’s 75 largest
counties.
How many tort trials were disposed?
All tort trials 7,038 –31.5%
Automobile accident 3,545 –29.0
Medical malpractice 1,219 1.5
Premises liability 1,067 –52.2
Intentional tort 352 –28.4
Product liability 225 –46.7
What percentage of plaintiffs won?
All tort trials 48.0% –0.3%
Automobile accident 61.0 6.1
Medical malpractice 19.4 –17.0
Premises liability 38.9 –1.7
Intentional tort 50.4 –11.5
Product liability 37.9 –15.6
How much did prevailing plaintiffs win?
All tort trials $31,000 –18.4%
Automobile accident 16,000 –27.3
Medical malpractice 679,000 91.8
Premises liability 90,000 26.8
Intentional tort 100,000 150.0
Product liability 748,000 210.4
What percentage of plaintiffs won punitive
damages?
All tort trials 3.6% 8.5%
Automobile accident 1.6 134.3
Medical malpractice 2.6 144.7
Premises liability 0.5 –89.5
Intentional tort 24.3 1.2
Product liability 1.3 –83.8
How long did disposition of tort case take?
All tort trials 23.0 mo. 5.3%
Automobile accident 20.0 5.6
Medical malpractice 30.7 3.5
Premises liability 24.0 –2.5
Intentional tort 25.3 22.8
Product liability 30.0 –7.5
Source: Bureau of Justice Statistics, Tort Bench and Jury Trials in State Courts, 2005, Table 12, p. 12
(November 2009) (bjs.ojp.usdoj.gov/content/pub/pdf/tbjtsc05.pdf). Note: The table includes all jury
trials, bench trials, trials with a directed verdict, trials that ended in a judgment notwithstanding the
verdict, and jury trials for defaulted defendants concluded in a sample of the nation’s 75 most popu-
lous counties. Product liability includes cases of asbestos exposure. Data from Civil Justice Survey
of State Courts (1996, 2001, and 2005). Data can be obtained from the University of Michigan Inter-
University Consortium for Political and Social Research.
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
4 C H A P TE R 1 introduction to tort law and practice
whereas in most civil cases, the elements of the tort or other cause of action must
preponderance of the be established against the defendant by a preponderance of the evidence. One can
evidence The standard of proof conclude that the preponderance of evidence establishes that someone committed a
that is met when the evidence certain act, and also conclude that there is some reasonable doubt about whether he
establishes that it is more likely than
or she committed it. See Exhibit 1–2 for more examples of the differences between
not that the facts are as alleged.
civil and criminal cases.
Exhibit 1–2 Tort action and criminal prosecution for the same misconduct: Two separate proceedings. © Cengage Learning 2012
Example Facts: Jim pushes Mary against the wall, grabs her purse containing valuable
jewelry, and flees.
Tort Case Criminal Case
The wrong committed The tort of conversion (wrongfully taking or The crime of robbery (using force or violence
seriously interfering with another’s personal to take personal property from the person of
property). another).
Nature of the wrong A private wrong. Jim took Mary’s private A public wrong. When robbery occurs, the
property. public peace has been disturbed.
Court hearing the case A suit for the tort of conversion is a civil A robbery prosecution is a criminal action
action heard in a civil court. heard in a criminal court.
Parties Mary sues Jim. The moving party is Mary, The state prosecutes Jim. The moving party
who is the plaintiff; Jim is the defendant. is the state. Jim is the defendant, also
Someone accused of committing a tort is an called the accused. (Mary is the complaining
alleged tortfeasor. witness.)
Standard of proof Mary must prove the elements of the tort The state must prove the elements of rob-
of conversion by a preponderance of the bery beyond a reasonable doubt.
evidence.
Representation Mary can represent herself or she can hire The state is represented by the prosecutor
(and pay for) a private attorney to represent (sometimes called the district attorney). Jim
her. Jim can represent himself or he can hire may be able to represent himself or he can
(and pay for) a private attorney to represent hire (and pay for) a private attorney to repre-
him. sent him.
Right to counsel If Jim cannot afford a private attorney, in most If Jim cannot afford a private attorney, in most
cases he does not have the right to be repre- cases he has the right to be represented by
sented by assigned counsel paid by the state. assigned counsel paid by the state.
Procedural rules Rules of civil procedure Rules of criminal procedure
Testimony of defendant The defendant (Jim) may be forced to testify. The defendant (Jim) has a constitutional
right to silence; he cannot be forced to
incriminate himself.
Jury verdict Many states allow jury verdicts by less than Most states require jury verdicts by unani-
unanimous vote. mous vote.
Conclusion of proceeding The defendant is found liable or not liable. The defendant is found guilty or not guilty. If
The final judgment of the court includes a guilty, the final judgment includes the punish-
determination of liability. ment imposed during sentencing.
Monetary payments A defendant who is found liable may be A defendant who is found guilty may be
forced to pay money (damages) to the victim forced to pay restitution to the victim of the
of the tort. crime. The defendant might also be incarcer-
ated and forced to pay a fine. The fine is
paid to the state, not to the victim.
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
C H AP TE R 1 introduction to tort law and practice 5
There are four major purposes of tort law: peace, deterrence, restoration, and
justice.3
1. Peace: To provide a peaceful means for adjusting the rights of parties who might
otherwise “take the law into their own hands.” A courtroom is a neutral setting
where allegations can be aired in order to reach a rational resolution that the
parties and the community can accept.
2. Deterrence: To deter wrongful conduct. Tort litigation takes place in public. The
media is free to report what occurs in court. News that certain conduct forced
someone into court and led to the payment of a large money judgment can en-
courage the public to avoid that kind of conduct for fear of being subjected to
a similar fate. This is sometimes called the “behavior modification” purpose of
tort law. It has the effect of encouraging socially responsible behavior such as
making safer automobiles and removing ice from sidewalks.
3. Restoration: To restore injured parties to their original position, insofar as this
is possible, usually by compensating them for their injury. This is sometimes re-
ferred to as being made whole. Of course, it is often impossible to restore some- made whole Restored to the
one to the condition that existed before the injury occurred. If you negligently condition that existed before the
break my leg, I may never be restored to full health. Yet by providing compensa- wrong was committed against the
victim insofar as this is possible. To
tion (damages), I am being made as whole as is humanly possible.
be compensated for a loss.
4. Justice: To identify those who should be held accountable for the harm that re-
sulted. A tort case can involve one or more victims and one or more defendants
alleged to have a role in causing a particular injury. The law of torts is designed to
sort through the involvement of all of the participants in order to identify who is
culpable or blameworthy and to determine who, in fairness, should be made to pay. culpable At fault; blameworthy.
Whenever someone suffers a serious loss caused by another, our tort system
could become involved. If it does, the overriding question of tort law—and the
theme of this book—is whether that loss should be shifted to someone else in light
of the peace, deterrence, restoration, and justice objectives of tort law.
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
6 C H A P TE R 1 introduction to tort law and practice
Exhibit 1–3 Torts and related causes of action: The elements. © Cengage Learning 2012
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
C H AP TE R 1 introduction to tort law and practice 7
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
8 C H A P TE R 1 introduction to tort law and practice
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
C H AP TE R 1 introduction to tort law and practice 9
Intentional Torts
An intentional tort is a tort in which a person either desired to bring about the intentional tort A tort in which a
result or knew with substantial certainty that the result would follow from what the person either desired to bring about
person did or failed to do. Some of the major intentional torts are battery, assault, the result or knew with substantial
certainty that the result would follow
trespass, and false imprisonment. Many of the cases asserting these torts are rela-
from what the person did or failed
tively straightforward. An easy battery case, for example, occurs when one person to do.
punches another in the nose. Other cases, however, are not so easy:
EXAMPLE
Jim rides his bicycle through a large puddle of water directly in front of a bench
where Mary is sitting. The water splashes on Mary who now sues Jim for bat-
tery. Mary v. Jim (battery)
When we study battery, we will see that a main issue in the battery case of Mary v.
Jim will be whether Jim desired to hit Mary with the water or knew with substantial
certainty that this would happen if he rode through the water.
It is often difficult to get into someone’s head to prove desire. Hence, plaintiffs
can use the alternative test of substantially certain knowledge. Compare the follow-
ing two cases:
• I place a lighted match to the newspaper you are reading, which then catches
fire. Assume that I was just joking around; I didn’t want the newspaper to go
up in flames.
• I light a cigarette in a room full of gasoline vapors, which then explode. As-
sume that I did not want this explosion to occur.
In the first case, a jury would probably conclude that I had substantially certain
knowledge that your newspaper would catch fire when I placed a lighted match to
it. To reach this result, the jury would rely on common sense and the everyday ex-
perience of all adults. The jury, however, might not conclude that I had substantially
certain knowledge that the explosion would result in the second case. I may have
been stupid to light a cigarette in that room, but stupidity or carelessness is not the
same as substantially certain knowledge.
In the case of Mary v. Jim, suppose (a) that the jury believes Jim when he asserts
that he never wanted (desired) to splash Mary (perhaps because he was riding the
bike so fast when he turned a sharp corner that he never saw anyone on the bench)
or (b) that the jury concludes he did not know with substantial certainty that he
would splash her (perhaps because he was riding the bike so slowly). In short, the
jury believes Jim when he says that he splashed Mary by accident. If the jury accepts
this version of the facts, there is no intentional tort because the element of intent
has not been proven. There is, however, another tort that Jim may have committed:
negligence.
Negligence
Negligence is the failure to use reasonable care that an ordinary prudent person negligence The failure to use
would have used in a similar situation, resulting in injury or other loss. An example reasonable care that an ordinary
might be colliding with someone while driving under the influence of medication prudent person would have used in
a similar situation, resulting in injury
that causes intense drowsiness. An ordinary prudent person taking such medication
or other loss.
would not drive. Hence the driver was negligent.
To understand the distinction between negligence and intentional torts, we need
to compare an unreasonable risk of harm and a substantial certainty of harm:
• negligence: The heart of a plaintiff’s negligence case is to show that the defen-
dant created an unreasonable risk of harm, which is a risk that an ordinary
prudent person would not take.
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10 C H AP TE R 1 introduction to tort law and practice
• intentional tort: The heart of a plaintiff’s intentional tort case is to show that
the defendant wanted (desired) the harm to result or knew that there was a
substantial certainty of harm based on what the defendant did or failed to do.
In our bicycle example of Mary v. Jim, assume that Mary does not sue for bat-
tery because of the difficulty of proving intent. Instead, she sues Jim under a neg-
ligence cause of action. Now the question will be whether Jim was so careless in
riding the bike near the bench that he created an unreasonable risk of splashing
people with water. The answer may depend on a variety of facts (which a paralegal
might be asked to help uncover through interviewing and investigation) such as:
• how fast Jim was riding,
• how deep was the puddle,
• whether Jim knew his riding through other puddles in the area was causing
splashes,
• how visible to Jim was Mary on the bench, etc.
A jury might believe that Jim never wanted (desired) to splash Mary and that
he did not have substantially certain knowledge that he would splash her, but still
come to the conclusion that he created an unreasonable risk of splashing her and
that an ordinary prudent person would not have taken this risk. Hence, he commit-
ted negligence. In later chapters, we will examine other examples of this important
distinction between negligence and intentional torts.
Strict Liability
strict liability Responsibility for The general meaning of strict liability (also called absolute liability or liability
harm even if one did not intend the without fault) is responsibility for harm whether or not the person causing the harm
harm and used reasonable care was at fault or engaged in moral impropriety. If the defendant engages in a certain
to try to prevent it. Responsibility kind of conduct that causes harm, liability will result irrespective of intent or negli-
for harm whether or not the person
causing the harm was at fault or
gence. An example would be performing an abnormally dangerous activity such as
engaged in moral impropriety. Also blasting. If the plaintiff is injured because of the explosion of the defendant’s dyna-
called absolute liability and liability mite, the latter will be responsible (i.e., liable), regardless of whether the defendant
without fault. desired to injure the plaintiff or knew with substantial certainty that the plaintiff
or anyone else would be injured (intent), and regardless of whether the defendant
liable Obligated in law; legally
responsible.
acted unreasonably in setting off the explosive (negligence). As we will see, however,
it is sometimes difficult to distinguish strict liability from negligence, especially in
the area of products liability.
One final caution about definitions of legal terminology: use the definitions as
points of departure only. The most dangerous definitions are the ones that give the
appearance of universality. The meaning of a word or phrase may change when the
context changes. In the practice of law, great care is needed to localize all definitions
by determining what a particular court in your state meant by a word or phrase.
Also, keep in mind that as courts struggle to do justice, they sometimes stretch the
definitions to accommodate the result they want to reach on the facts before them.
Again, consider all definitions as no more than starting points from which you need
to make further inquiry.
proximate cause A cause that
is legally sufficient to impose liabil-
ity for the results of one’s wrongful
act or omission. There are two com-
ponents of proximate cause: actual INTRODUCTION TO CAUSATION
cause (which answers the question
of who was the cause in fact of the In Chapter 13 we will study causation extensively. Since causation will be re-
harm or other loss) and legal cause
(which answers the question of
ferred to throughout the book, a brief introduction is in order here. Proximate cause
whether the harm or other loss was is a cause that is legally sufficient to impose liability for the results of one’s wrongful
the foreseeable consequence of the act or omission. Unfortunately, courts use the phrase proximate cause in different
original risk). ways. In this book, we will use it to mean both actual cause and legal cause:
Copyright 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s).
Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
C H AP TE R 1 introduction to tort law and practice 11
• actual cause, which answers the question of who was the cause in fact of the
harm or other loss
• legal cause, which answers the question of whether the harm or other loss
was the foreseeable consequence of the original risk
For now, let’s focus on actual cause, which means cause in fact as established actual cause Cause in fact.
by one of the following two tests: Causation established either by the
but-for test or by the substantial-
• but-for test: Would the event (e.g., the injury) have happened without the act factor test. But-for test: can it be
or omission of the party? But for the act or omission, would the event have said that an event (e.g., the injury)
occurred? would not have occurred without
• substantial-factor test: Did the party have a significant or important role in the act or omission of the party?
Substantial-factor test: can it be
bringing about the event (e.g., the injury)? said that the party’s acts or omis-
Either test is sufficient to establish actual cause. The but-for test is used when there sions had a significant or important
is only one alleged cause of an event in question. The substantial-factor test is used role in bringing about the event?
primarily when more than one causal entity is alleged. but-for test Would the event
(e.g., the injury) have happened
EXAMPLES without the act or omission of the
• But for. George fires his gun at Bill. Bill’s left arm is paralyzed by the bullet. party? But for the act or omission,
But for the gunshot wound, Bill’s arm would not have been paralyzed. There- would the event have occurred?
fore, George’s act of firing the gun was the actual cause of the paralysis. Also called the sine qua non test.
• Substantial factor. Ajax Manufacturing Co. and Winthrop, Inc., pour chemicals substantial-factor test Did the
into a stream. After they do so, the stream is so polluted that it is no longer party’s acts or omissions have a sig-
suitable for fishing. nificant or important role in bringing
— The dumping by Ajax had a significant role (i.e., was a substantial factor) about the event (e.g., the injury)?
in making the river unfishable. Therefore Ajax was an actual cause of this
result.
— The dumping by Winthrop had a significant role (i.e., was a substantial
factor) in making the river unfishable. Therefore Winthrop was an actual
cause of this result.
Again, in Chapter 13 we will have a lot more to say about these two tests for actual
cause and we will also cover legal cause, the second component of proximate cause. legal cause The loss or other
harm was the foreseeable conse-
quence of the original risk created
Common Law and Statutes on Tort Law by the defendant (see Chapter 13).
A great deal of tort law consists of court opinions and statutes covering wrong-
ful personal injury and property damage. Most of the court opinions interpret and
apply these statutes. Occasionally, court opinions will also create tort law. When it
does, the outcome is referred to as the common law. This is judge-made law created common law Judge-made law
in the absence of statutes or other controlling law. In effect, the courts create tort in the absence of statutes or other
law when there is a vacuum. If, for example, the court has a dispute before it that controlling law.
has never been litigated in the courts and is not governed by any statute or consti-
tutional provision, the court can create law to govern that dispute. What it creates
is called the common law. An example is invasion of privacy, which, as we will see
in Chapter 21, consists of four separate torts. The courts created privacy tort law at
a time when there were few or no statutes in this area. When a court creates com-
mon law, it relies primarily on the customs and values of the community from time
immemorial. Very often these customs and values are described and enforced in old
opinions, which are heavily referred to (i.e., cited) by modern courts in the continu-
ing process of developing the common law.
The statutes passed by legislatures affect tort litigation in three significant
ways:
Statutes can change the common law Generally, statutes are superior
in authority to court opinions. If the legislature desires to change the common law
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Another random document with
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Nous franchissons deux portes voûtées et bastionnées, et nous
voici en ville. C’est d’abord une place, ou mieux une cour de
forteresse entourée de bâtiments militaires auxquels des galeries
extérieures, à chaque étage, enlèvent le caractère de tristesse et de
nudité particulier à l’architecture des casernes. Des soldats font
l’exercice, et de tous points éclatent des commandements, des
coups de clairon, des roulements de tambour.
On débouche dans une rue étroite, l’artère principale, Main
Street, qui suit le rocher jusqu’à la pointe d’Europe. Des ruelles
tortueuses escaladent, à gauche, les premiers contreforts et
s’arrêtent brusquement, barrées par le roc, tandis qu’à droite, elles
sont coupées par les bâtiments militaires et les ouvrages de
défense.
En une double ligne de magasins, d’entrepôts, de boutiques
gorgés de marchandises et de denrées anglaises se presse une
population étrange :
Espagnols, Marocains, Grecs, Arabes, juifs de Tanger, nègres,
Allemands, malandrins de toutes les races, « tous gens, dit Richard
Ford, qui se sont expatriés pour le bien de leur pays ». Oh ! la
curieuse foule et la belle collection de coquins ! Je retrouve la ville
algérienne d’il y a vingt-cinq ans, avec son peuple de
banqueroutiers, de renégats, de déclassés, d’aventuriers suspects,
de colons marécageux, de forbans des deux mondes.
Des fantassins en jaquette rouge, des artilleurs bleus, des
tirailleurs noirs, des officiers en tenue ou en bourgeois tranchent par
leur méticuleuse correction avec le négligé des Levantins, la
malpropreté des juifs, le débraillé des Latins, tandis que la blonde
fraîcheur et la raideur des jeunes misses contraste avec le teint mat
et la gracilité des brunes Gibraltariennes.
Çà et là, cependant, des cheveux blonds émergeant de dessous
une mantille indiquent le mélange des races et prouvent que le
vertueux John Bull n’a pas passé toutes ses soirées au prêche ni
ses nuits dans la chasteté.
Malgré huit mille hommes de garnison et une population flottante
de matelots de toutes races, gens de grands appétits et de morale
peu farouche, les commis voyageurs chercheraient vainement dans
la ville, des demoiselles « qui vont en journée la nuit ». La Mission
protestante et la Société évangélique pour la surveillance des
mœurs, qui ont pignon sur la rue principale, boutique de vertu et
entrepôt de crétinisation, ne pouvaient souffrir le trafic de Cythère
dans un siège épiscopal d’évêque anglican. Libre aux catholiques,
aux mécréants, aux infidèles d’être impurs ; un protestant ne l’est
jamais, surtout un protestant anglais. Si les privations du célibat
jointes aux aphrodisiaques climatériques harcèlent Tom Atkins [16] , il
doit sortir de Gibraltar et aller dans les villes espagnoles voisines
chercher pâture à ses « impropres » appétits, à San Roque, San
Felipe, Mayorqa, Algéciras, lieux de perdition que les évangélistes
comparent dans leurs prêches aux sept villes maudites ensevelies
dans la mer Morte ; à moins qu’il ne prenne pour autel de ses
sacrifices au dieu Éros la femme ou la fille de son camarade, plus à
sa portée et à sa convenance.
[16] Surnom du soldat anglais.
FIN
TABLE DES MATIÈRES
Pages.
I. Entrée en Espagne 1
II. Les Passages 12
III. De Saint-Sébastien à Deva 17
IV. Le capitaine Bonelli 21
V. Loyola 26
VI. A travers les Andes 40
VII. Le palacio d’Urvaza 46
VIII. Messe au palacio 54
IX. Estella 60
X. Logroño 67
XI. Le col de Piqueras 73
XII. Histoire de brigands 79
XIII. La vieille Castille 88
XIV. Les ruines de Numance et Soria 93
XV. Madrid 101
XVI. Flamencos et peteneras 107
XVII. A los Toros ! 118
XVIII. Les toreros 134
XIX. L’Escorial 140
XX. Tolède 146
XXI. La petite dévote de Compostelle 152
XXII. La Vierge en chemise et le Christ en jupon 158
XXIII. Les bonnes lames de Tolède 164
XXIV. Visite aux fous 170
XXV. Le coin des folles 175
XXVI. A travers la Manche 180
XXVII. Mançanarès 185
XXVIII. El Muradiel 191
XXIX. La Carolina 196
XXX. De Baylen à Cordoue 201
XXXI. Grenade 211
XXXII. Les gitanos 217
XXXIII. Les bandoleros 223
XXXIV. Une exécution 228
XXXV. Route de Motril 233
XXXVI. La posada du Paradis 238
XXXVII. Motril et Malaga 245
XXXVIII. L’auberge du Grand Saint Iago 253
XXXIX. A travers l’Andalousie 259
XL. Séville 263
XLI. Les deux Maria de don Pedro 270
XLII. Les cigarières 277
XLIII. Sur le Guadalquivir 282
XLIV. Cadix 289
XLV. De Cadix à Algéciras 299
XLVI. Gibraltar 304
VOYAGES
THÉOPHILE GAUTIER
Voyage en Russie 1 vol.
L’Orient 2 vol.
Voyage en Espagne 1 vol.
Voyage en Italie 1 vol.
GÉRARD DE NERVAL
Voyage en Orient 1 vol.
GASTON LEMAY
A bord de la Junon 1 vol.
KOHN-ABREST
Zigzags en Bulgarie 1 vol.
VICTOR FOURNEL
Voyages hors de ma chambre 1 vol.
G. FERRY
Scènes de la vie sauvage au Mexique 1 vol.
Baron ERNOUF (traduit de l’allemand)
Du Weser au Zambèze. — Chez les Zoulous 1 vol.
JULES ARÈNE
La Chine familière et galante 1 vol.
J. VILBORT
En Kabylie, Voyage d’une Parisienne au Djurjura 1 vol.
SIMONIN
A travers les États-Unis 1 vol.
Le Grand-Ouest des États-Unis 1 vol.
THOMAS ANQUETIL
AVENTURES ET CHASSES DANS L’EXTRÊME-ORIENT
Hommes et Bêtes 1 vol.
Le Sport de l’éléphant 1 vol.
La Chasse au tigre 1 vol.
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