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5 - Antitrust and Intellectual Property: A Brief Introduction
- from Part II - Institutional Design: Country Overviews
- Edited by Roger D. Blair, University of Florida, D. Daniel Sokol, University of Florida
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- The Cambridge Handbook of Antitrust, Intellectual Property, and High Tech
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- 04 May 2017
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- 07 April 2017, pp 81-91
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Frontmatter
- Keith N. Hylton
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- Tort Law
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- 05 June 2016
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- 06 June 2016, pp i-iv
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Contents
- Keith N. Hylton
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- Tort Law
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- 05 June 2016
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- 06 June 2016, pp v-vi
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7 - Customs, Statutes, and the Reasonable Person
- Keith N. Hylton
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- Tort Law
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- 05 June 2016
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- 06 June 2016, pp 122-135
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Summary
The previous chapter explored the individual characteristics taken into account in the reasonable person standard and the ways in which these characteristics are assessed under the standard. This chapter explores external factors, such as customs and statutes.
The reasonable person standard is largely an objective test, though sometimes it takes individual incapacities into account. Judge Learned Hand's Carroll Towing opinion (previous chapter) suggests that the reasonable person standard operates as a cost-benefit test at its core, though it often incorporates factors that cannot be quantified as part of such a test.
The reasonable person standard also takes into account rules that people follow as customs, norms, or laws. This takes the test even further away from the cost-benefit formulation suggested by Judge Hand.
This chapter looks at the extent to which customs and statutes affect the application of the reasonable person test. Compliance with custom would appear to be a natural way of determining whether an actor's conduct was reasonable. Similarly, the violation of a statute would appear to be a natural way of determining whether an actor's conduct was unreasonable. Of course, any student of history knows that there have been customs and statutes in the past that have been harmful to society overall but were imposed because the winners had greater political power than the losers. Because of this, not every custom or statute should be presumed to be reasonable. Still, the customs and statutes that have the broadest application, that burden and benefit almost everyone in the same way, such as rules of the road, are likely to be the sort that have a strong claim to being regarded as reasonable.
One question lying slightly beneath the surface throughout this chapter is the extent to which an external standard, such as a custom or a statute, supplants or displaces the reasonable person test. No court has argued that external standards entirely displace the reasonable person test. However, one court famously held that compliance with custom should be treated as negating any theory of negligence, and another court said that violation of a safety statute is “negligence in itself.” The case law has not uniformly supported such strong statements, especially the claim regarding custom, but has indicated factual conditions under which custom is a defense, and has provided legal tests for determining the effects of statutes on the negligence assessment.
4 - Intentional Torts
- Keith N. Hylton
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- Tort Law
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- 05 June 2016
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- 06 June 2016, pp 48-90
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Summary
The law on intentional torts is a broad area of tort law, governing physical assaults, takings of property, and related direct invasions of rights. The question of how much care an individual should take to avoid an accidental injury to someone else, treated abstractly in the second chapter, will have less relevance in this chapter. Intentional torts result from conduct that clearly will impose a loss on someone. Tort law regulates intentional conduct by determining how those losses ultimately will be allocated.
THE INTERNALIZATION PRINCIPLE
When a man goes upon his neighbor's land, thinking it his own, he intends the very act or consequence complained of. He means to intermeddle with a certain thing in a certain way, and it is just that intended intermeddling for which he is sued.…One who diminishes the value of property by intentional damage knows it belongs to somebody. If he thinks it belongs to himself, he expects whatever harm he may do to come out of his own pocket. It would be odd if he were to get rid of the burden by discovering that it belonged to his neighbor.
The foregoing passage from Holmes pretty well sums up the function of liability for intentional torts. Put simply, liability serves an internalization function, by shifting the losses an actor imposes on others through intentional conduct back to the actor. For example, if A throws a rock through B's window, the internalization principle requires A to pay for the loss he imposed on B.
Why internalize losses caused by intentional conduct? Because, as Holmes suggested, if you take an action that directly imposes a loss, such as breaking a window, that loss will have to be borne by someone. Internalizing the loss compels the actor to take the loss into account in deciding which action to take. Thus, internalization induces the actor who handles someone else's property to follow the same decision process he would follow when handling his own property, to treat the losses he imposes on others as if they were his own.
What is desirable about making actors treat the losses they impose on others as their own? Return to the window-breaking example. Why would a person choose to break his own window? There are many reasons.
13 - Proximate Cause
- Keith N. Hylton
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- Tort Law
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- 05 June 2016
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- 06 June 2016, pp 227-253
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Summary
While cause-in-fact doctrine addresses the question whether the accident would have happened even if the defendant had not breached his duty to take care, proximate cause doctrine fundamentally addresses the issue of foreseeability. In both areas, factual causation and proximate causation, the analysis begins with the plaintiff's identification of a specific breach theory – that is, some precaution that the defendant failed to take. After the breach theory is specified, factual causation analysis asks whether the accident would have happened even if the breach identified by the plaintiff had not occurred. In this sense, factual causation analysis works backward from the accident to the moment of the breach. In contrast, proximate causation analysis starts with identification of a specific breach and looks forward to determine whether the accident that occurred was foreseeable given the breach.
The language of foreseeability appears frequently in proximate causation cases, but the key concerns of the doctrine can be put into several categories. First, proximate cause doctrine is concerned with the predictability of the victim's injury, conditional on a particular instance of negligence. Second, proximate cause doctrine is concerned with the precision with which damages align with or target the most important source of the accident risk. Third, proximate cause doctrine attempts to avoid or reduce undesirable consequences of expansive and unpredictable tort liability. In short, proximate cause doctrine attempts to make tort liability operate on incentives a bit less like a mallet and more like a scalpel.
In carrying out this function, proximate cause doctrine appears to be shaped more by the general utilitarian policy reflected in the analysis of breach than by an effort to limit liability to the set of statistically predictable harms resulting from a given failure to take care. However, proximate cause analysis takes into consideration a broader set of consequences connected to holding the defendant liable than are considered in the breach phase of the negligence inquiry.
PROXIMATE CAUSE AS A LIMITATION ON THE SCOPE OF LIABILITY
Let's start with a comparison of factual and proximate causation doctrine in the context of the following Lightning Strike Hypothetical. Suppose an actor commits a negligent act that causes the victim to divert his path or delays the victim in his travel.
10 - Contributory Negligence, Comparative Negligence, and Incentives for Care
- Keith N. Hylton
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- Tort Law
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- 05 June 2016
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- 06 June 2016, pp 170-179
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Summary
The contributory negligence rule developed early in the common law. It has been criticized for its harshness to plaintiffs and its seeming generosity to well-funded defendants, such as the railroads. Many legislatures, in response to these sentiments, enacted comparative fault statutes over the 1900s – though comparative fault developed within the common law of Georgia in the 1800s. Under comparative fault, the plaintiff is permitted to collect some percentage of his damages against a negligent defendant, even though the plaintiff is guilty of negligence too. This is different from contributory negligence, which sets the plaintiff's damages at zero whenever he is guilty of any substantial degree of negligence.
COMPARATIVE FAULT BASICS
The percentage of damages that the plaintiff is permitted to collect under comparative fault is based on an assessment of the relative fault levels of plaintiff and defendant. A court, under comparative fault, might award a plaintiff 50 percent of his damages, based on its conclusion that the plaintiff and defendant were “equally at fault” or “guilty of equal degrees of fault.”
Assessments of relative fault are not made with scientific precision. It is not clear how one would explain, in algorithmic form, the process by which a court determines the allocation of fault percentages. Some scholars have suggested mathematical algorithms. But it is unlikely that a judge, after passing the question to the jury, could determine whether the jury correctly applied a particular algorithm to assign fault percentages. It appears that courts fix fault percentages by trying to determine, after finding that both plaintiff and defendant were negligent, the degree to which each party's negligence contributed to the cause of the injury. To be sure, one could be more precise and much more rigorous in setting out a process for determining fault percentages but that would be pointless. Fault percentages are not determined by computers employing algorithms; they are determined by juries interpreting facts.
Suppose, then, that a plaintiff suffers an injury equal to $100 in an accident in which both he and the defendant were negligent. Suppose the jury determines that the plaintiff's negligence is 30 percent of the cause of the injury, and the defendant's negligence is 70 percent of the cause of the injury. Under comparative fault, the court will award the plaintiff $70 – that is, 70 percent of his damages.
Index
- Keith N. Hylton
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- Tort Law
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- 05 June 2016
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- 06 June 2016, pp 435-457
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3 - Evolution of Tort Law
- Keith N. Hylton
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- Tort Law
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- 05 June 2016
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- 06 June 2016, pp 32-47
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Summary
The previous chapter introduced the basic concepts of strict liability and negligence, and examined incentives under the two standards. But these tort standards have not always been available to plaintiffs. The tort system began with a very narrow scope of application, basically restricted to giving victims of crime a forum in which to seek compensation from their injurers. As time passed, tort law expanded to permit victims of less serious infringements, such as accidents on the roads, a means of seeking redress in the courts. This chapter examines how this change came about.
The short answer is that the change occurred through an evolutionary process. As the tort system expanded, the old rules that worked reasonably well under its early narrow scope began to generate unintended consequences and poor results. This led, in turn, to pressure to reform the tort system within the common law process, through modifications of tort doctrine, which is what occurred over the centuries. This chapter examines this process of evolution from the earliest to the modern tort cases.
Along the way this chapter explores one long-standing controversy in tort theory: whether the underlying norm of ancient tort law was strict liability or liability based on fault (negligence). This question was addressed by Holmes in his book on the common law.
Holmes argued that the fault principle was evident in the earliest tort cases, and distinguished his position from two alternatives: that an individual always acts at his peril (strict liability) and that tort liability results from a failure to comply with moral norms (ethical liability). The strict liability theory, a prominent account of tort liability at least since the mid–nineteenth century, has received additional support from the modern thesis that courts adopted the fault principle near the end of the Industrial Revolution to subsidize emerging industries. The ethical theory has also been a prominent account, but it has not featured much in the historical controversy over the nature of ancient tort liability. Hence, in this chapter I will explore the broader distinction between strict liability and fault as foundational principles in tort law – not the more fine-grained distinction between objectivist and ethical theories of fault.
9 - Contributory Negligence and Assumption of Risk
- Keith N. Hylton
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- Tort Law
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- 06 June 2016, pp 147-169
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Summary
Recall from Chapter 4 the three-part structure of arguments available to defendants: denials, justifications, and excuses. This chapter examines two powerful justifications in negligence law: contributory negligence and assumption of risk. Contributory negligence is a defense based on the plaintiff's failure to take reasonable care. Assumption of risk is a defense based on the notion that the plaintiff consented to the defendant's conduct, which annuls the plaintiff's theory of negligence.
CONTRIBUTORY NEGLIGENCE
The law of contributory negligence repeats much of what has been said in previous chapters about negligence. Since damages are asserted in the plaintiff's negligence claim against the defendant, the defendant's contributory negligence charge involves only three elements: duty, breach, and causation. Since it is the defendant who is asserting the contributory negligence claim, he has the burden of proving its elements. If the defendant is successful in proving contributory negligence, the plaintiff's claim for damages is rejected – that is, the plaintiff gets nothing.
There are many ways in which a plaintiff can fail to take reasonable care. In the cases where the plaintiff is injured and the defendant has suffered no injury, the question of relevance is whether the plaintiff exercised reasonable care for his own safety. However, the determination of reasonable care may require a broader outlook than just the plaintiff's own safety. The plaintiff may have failed to take reasonable care not only for his own safety but for the safety of others, including the defendant, as well.
Not every failure to take reasonable care for one's own safety constitutes contributory negligence. In general, only those failures that contribute, with the defendant's negligence, in bringing about the plaintiff's harm constitute contributory negligence. This has been the common law rule at least since Greenland v. Chaplin, an English case decided in 1850. The defendant's steamboat negligently collided with the steamboat in which the plaintiff was a passenger. The collision caused the anchor of the steamboat carrying the plaintiff to fall on the plaintiff's leg, breaking it. The court rejected the defendant's argument that the plaintiff should not be allowed to recover for negligently placing himself so close to the anchor, holding that only negligence of the plaintiff that contributes to the cause of the accident can bar the plaintiff from recovery.
17 - Products Liability
- Keith N. Hylton
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- Tort Law
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- 05 June 2016
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- 06 June 2016, pp 332-376
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Summary
Early law on products liability, of roughly the mid-1800s, applied the privity rule. Under this rule, a seller of a product was responsible in negligence only to the party to whom he sold the product. As a result, consumers of defective products often lost their lawsuits against manufacturers, because they were not in privity of contract. Winterbottom v. Wright, a leading case, rejected a suit by a mail deliverer, brought against the supplier of mail coaches to the Postmaster-General, for injury resulting from a latent defect in a coach because the deliverer was not a party to the contract between the supplier and the Postmaster-General.
Almost from the moment the privity rule became established, exceptions began to appear. Judge Cardozo's MacPherson v. Buick Motor Co. opinion provides a fascinating description of the growth of exceptions to the privity rule, a growth that culminated in his own decision in MacPherson to effectively abolish the rule by giving one of its exceptions an extremely broad interpretation.
The privity rule may appear at first glance to have been a formalist doctrine unrelated to any functional purpose. However, the rule can be understood in functional terms using assumption of risk theory. The simple idea behind it is that in the absence of some warning from the intermediate purchaser about risks to others and an effort to get the original seller to accept responsibility for those risks, the original seller should not be assumed to accept responsibility for harms to third parties that the intermediate purchaser could have foreseen much easier than the original seller. For example, when Wright agreed to supply mail coaches to the Postmaster-General, he may not have known how often the coaches would be used, under what conditions (a defect under some circumstances might not be worrisome, while under others it would be), and by whom. If he were asked to guarantee compensation for injuries suffered by coach drivers, Wright would have inquired into these matters to get a sense of the scope of his liability. Once aware of the scope of liability, he would have priced the product accordingly, perhaps charging an especially high price for coaches that would be used on potholed roads in rural areas and a comparatively low price for coaches that would be used in well-paved cities.
15 - Strict Liability: Conversion, Abnormally Dangerous Activities, and Nuisance
- Keith N. Hylton
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- Tort Law
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- 05 June 2016
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- 06 June 2016, pp 271-300
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Summary
Two sources of strict liability evolved early in the common law: trespass and Rylands v. Fletcher. Liability under trespass law is strict in the sense that the plaintiff does not have to prove fault on the part of the defendant. In a trespass action, the facts need only show that the defendant was aware of what he was doing when he interfered with the plaintiff's exclusive right of possession.
Similarly, the Rylands strict liability doctrine does not require the plaintiff to prove fault on the part of the defendant. The defendant will be held liable under Rylands if he keeps something on his property that escapes without the plaintiff's fault and causes harm, provided that certain conditions determining the unreasonableness of the defendant's activity are satisfied. Those conditions were examined in Chapter 5 and are reexamined in much greater detail here.
While Chapters 4 and 5 developed functionalist accounts of trespass and Rylands liability, this chapter will extend those perspectives to the doctrines of conversion, abnormally dangerous activities, and nuisance. Conversion is an offshoot of trespass, whereas abnormally dangerous activities and nuisance are offshoots of Rylands.
TRESPASS-BASED STRICT LIABILITY
The major categories of trespass-based strict liability are trespass to real property, trespass to chattels (personal property), and conversion. The law across these categories is consistent.
Trespass is the intentional interference with exclusive possession of real property. A trespass claim can be brought against the interfering party by the owner of the property or by someone who has a right to possess the property. Interference means ousting or physically displacing the plaintiff from some space on his land, as occurs when the defendant physically occupies the space or sends some object, such as a rock, over to the plaintiff's land (Chapter 4). The law defines this interference on the basis of visual cues, not science. One could argue that on a sufficiently small scale of measurement, at the molecular or atomic level, the plaintiff's exclusive possession has been invaded when the defendant's cigarette smoke wafts across the property boundary to the plaintiff's land. But this type of invasion generally has not been recognized as a trespass.
2 - Policy and Tort Law
- Keith N. Hylton
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- 06 June 2016, pp 10-31
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Tort law has been shaped by the policies, often unarticulated, that appear most attractive and persuasive to courts. The two main sources of policies embraced by courts are the fields of economic reasoning and moral reasoning. But there are other sources of policy in addition to these.
Policy rationales can provide either a positive or a normative theory of the law. A positive theory seeks to explain and understand the law as it is. A normative theory seeks to provide a description of an ideal legal system. Positive theories are presented in an effort to provide a deeper understanding of a body of case law. Normative theories, in contrast, are used to criticize existing law and to suggest alternatives, though they sometimes can provide a deeper understanding of the law too. Since this book aims primarily to describe and explain existing tort law, it draws on policy arguments as sources of positive theory for the most part. This chapter surveys the most prominent policies reflected in tort law.
ECONOMIC PRINCIPLES
Economics has increasingly become an important perspective and set of tools to use in analyzing tort law. The reason is easy to see when you examine the cases. Many tort cases involve an explicit tradeoff between costly precautionary effort and risk. The standard example in our lives is driving. A driver can take more precaution by reducing his speed and looking to both sides of the road more frequently. Each time he does so he reduces the likelihood of running into a pedestrian or another car. But each additional precautionary effort costs the driver something – perhaps he arrives to work late as a result.
The tradeoffs tort law grapples with can be classified into two types. One is the tradeoff between instantaneous care and risk. Again, the typical example is driving with more or less care. The other is the tradeoff between activity and risk – that is, doing more or less of an activity, irrespective of how careful you are. For example, even if you are the most careful driver in the world, you can still reduce the risk that you will harm someone by driving less frequently. The first type of tradeoff is described in the economics literature as the care-level decision. The second type of tradeoff is the activity-level decision.
11 - Joint and Several Liability, and Vicarious Liability
- Keith N. Hylton
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- 06 June 2016, pp 180-194
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Joint and several liability governs the allocation of damages when there is more than one tortfeasor. Under joint and several liability, any one of the tortfeasors may be held liable for the entire damage award if the other tortfeasors are not parties in the lawsuit (say, because they have disappeared and cannot be found) or are unable to pay the judgment. Under several liability, tortfeasors are presumptively liable in equal shares, unless the court allocates the damages according to some other criterion such as relative fault. The inability to pay or the absence of some of the tortfeasors does not alter the court's allocation of responsibility for damages under several liability.
For example, suppose there are two tortfeasors, each equally responsible for the plaintiff's loss, and joint and several liability applies. If the plaintiff sues only one of the tortfeasors, that one tortfeasor may be held liable for the entire damages award. Alternatively, if the plaintiff sues both tortfeasors, and one of them does not have enough money to pay the damages award, the other can be held responsible for the entire award. Suppose, on the other hand, the several liability rule applies, and the plaintiff sues both tortfeasors (again, each equally responsible for the harm). Under several liability, each tortfeasor will be held liable for only 50 percent of the plaintiff's loss. If one of the tortfeasors cannot pay his share, the other tortfeasor's share of the damages (50 percent) remains the same.
Joint and several liability applies to cases involving conspiracy, concert of action, and concurrent tortfeasors. Conspiracy, familiar to students of criminal law, is an offense committed pursuant to an agreement among two or more actors, with intent to harm the plaintiff. If two offenders join to beat up the plaintiff, the court will apply the rule of joint and several liability in the plaintiff's battery lawsuit against the offenders.
Concert of action exists when two or more tortfeasors act according to a common plan or arrangement. The common plan could be an intentional tort, or it could be a course of conduct in which their negligence causes an injury to the plaintiff.
1 - Introduction
- Keith N. Hylton
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The purpose of this book is to provide something that in my view has so far not been provided in the literature: a reasonably comprehensive, functionalist presentation of tort law that hews closely to doctrine. As I worked on the manuscript, I envisioned the final product serving as a textbook, mainly for law students. But I have also held onto the vision that it would provide a more thorough policy-grounded justification for the common law of torts than has been provided to date.
I use the word functional here as a less formal way of saying utilitarian. It conveys my immediate goals while helping me avoid being dragged into debates about the merits of utilitarianism as a theory of law. If you do not like utilitarianism, at least you should have some interest in understanding the functions of common law doctrines, or the effects these doctrines are likely to have on rational agents, or the manner in which they influence social interaction and its consequences. Another sense in which the word functional is useful to me is that it signals an interest in advancing a positive theory of the law rather than a normative theory. Positive theory seeks to understand, explain, and justify the legal doctrines that exist, rather than to design anew some area of the law, which is the aim of normative theory. Utilitarianism can provide a framework for redesigning the law, as Bentham demonstrated. But I have made few efforts toward this end in this book. I have criticized specific decisions, and specific portions of the case law, but on the whole the aim here is to explain and make sense of tort doctrine as it is. To that end, I offer a set of consistent policy perspectives that might enable one to better predict the outcomes of tort disputes.
Another way of describing this book is to compare it to paleontology. Studying individual cases is like studying parts of the skeleton of an animal buried in the ground for millennia. One can know the details of the skeleton's parts without having a sense of how the animal moved.
8 - Inferring Negligence
- Keith N. Hylton
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- 06 June 2016, pp 136-146
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As Justice Shaw made clear in Brown v. Kendall (Chapter 4), it is the plaintiff's burden to prove negligence. In some cases, however, only circumstantial evidence of negligence is available to the plaintiff. If courts demanded that plaintiffs prove negligence in every case, plaintiffs would lose most negligence suits based on circumstantial evidence. The defendant could prevail simply by asserting that the plaintiff had not proved his case.
To avoid this outcome, courts have developed a special doctrine of inference for negligence cases. The label for this doctrine, res ipsa loquitur, means “the thing speaks for itself.” The doctrine of res ipsa loquitur consists of rules that guide courts in their disposition of negligence cases involving circumstantial evidence.
In general, courts dispose of negligence cases involving circumstantial evidence by dismissing the plaintiff's case, allowing the case to reach a jury, or issuing a directed verdict in favor of the plaintiff. The core issue in res ipsa loquitur cases is whether the evidence is sufficient to warrant submission of the plaintiff's case to a jury.
Given the importance of the jury to this topic I will start with a brief review of the respective roles of judge and jury in negligence cases before introducing res ipsa loquitur doctrine.
JUDGE AND JURY: A BRIEF OVERVIEW
Legal disputes present questions of law, questions of fact, and mixed questions of law and fact. In theory, these questions could be answered by a judge or by a jury.
A question of fact is one that can be answered without any reference to the law. Suppose the defendant says that he was on the corner of Main Street and Elm Street at 8:00 a.m. on Tuesday morning, and the plaintiff says that the defendant was not on that corner at that time. Since this is a disputed question of fact, some decision maker in the court, either judge or jury, has to determine which factual claim the court will accept as valid.
A pure question of law is one that can be answered without any reference to the facts in a dispute. Suppose the defendant argues that to be held liable for battery there must be evidence that he intended to harm the plaintiff (see Vosburg v. Putney, Chapter 4).
18 - Damages
- Keith N. Hylton
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Damages traditionally have been classified under two categories: compensatory and punitive. Compensatory damages are awarded to compensate plaintiffs for losses suffered as the result of some tort. Punitive damages are awarded to plaintiffs to punish and deter tortfeasors.
COMPENSATORY DAMAGES
Compensatory damages can be subdivided into pecuniary and nonpecuniary awards. Pecuniary damages compensate plaintiffs for provable objective losses, such as lost wages and medical expenses. Nonpecuniary damages compensate plaintiffs for emotional injuries, often described as pain and suffering.
Some courts have said that compensatory damages serve the purpose of restoration, that is, to restore the plaintiff, as much as possible, to the level of utility he had obtained before the tort occurred. Since individual utility is impossible to measure, the restoration goal has been a persistent source of controversy in the calculation of compensatory damages.
Pecuniary Damages
For the most part, there is relatively little controversy surrounding pecuniary damages. If a plaintiff comes to court with proof that he suffered $10,000 in medical expenses as a result of the defendant's tort, the defendant will be held liable for those expenses. Questions regarding adequacy of proof may arise, but these are issues of evidence and not of tort law.
Probably the most important exception in the law governing compensatory damages is that for economic harms. Economic harms, such as the loss of a profitable opportunity, can be objectively determined in most cases. In spite of this, the general rule is that damages for purely economic harms caused by negligence are not recoverable in the absence of a physical impact or physical injury. To the extent that this rule is grounded in theories of proximate causation, it is not applicable to intentional torts (Vosburg v. Putney, Chapter 4). For example, an economic loss resulting from a false imprisonment, with no physical impact, is recoverable.
Nonpecuniary Damages
In comparison to pecuniary damages, nonpecuniary damages are controversial because of the absence of an objective measure of harm. If a tort victim is left a quadriplegic as the result of an accident, how should a court measure the emotional harm suffered by the victim?
In addition to the controversy over measurement, there is a broad exclusion from recovery for pure emotional injury caused by negligence, similar to the general denial of recovery for pure economic losses caused by negligence.
16 - Defamation
- Keith N. Hylton
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- 06 June 2016, pp 301-331
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Defamation law governs liability for the dissemination of words that tend to disgrace, injure the reputation, or diminish the esteem others hold for a person. The words that can have this effect are uncountable, but a few common ones are easy to state: liar, cheat, thief.
This simple definition of defamation veils many complicated questions explored in this chapter. And even before we encounter any complicated questions, there are some obvious ones raised immediately by this straightforward definition.
First, a tort based on an injury to esteem is subject to the varying norms that govern social opinions on merit and value. Esteem, unlike a direct injury to person or to property, is a “social construct.” A punch in the nose is a breach of reasonable conduct norms at all times and wherever you go. But esteem varies over time and across communities. Over the years, views have changed within many societies on what is considered disgraceful or repugnant. Similarly, across communities within any given time period, views differ on the nature of disgrace. Should society continue to recognize a tort based on such an ephemeral and parochial notion as social esteem?
Second, the compensatory function of defamation law generates the question whether liability is strict, based on negligence, or based on intent to harm. Is defamation a strict liability tort, as Prosser teaches, or is it a specific intent tort (requiring proof of intent to harm), as suggested by Holmes? The evidence favors Prosser's characterization, but there is a basis for Holmes's view too.
Third, how does defamation differ in general from other torts? Obviously, a defamatory publication is distinguishable from the typical battery or nuisance. But if we try to look at tort standards in their most general characterizations, as recommended in previous chapters, is defamation really different? Prosser suggests that defamation is just a type of strict liability, like the Rylands doctrine for abnormally dangerous activities (Chapter 5). I contend that defamation law is, in many particulars, similar in form to the Rylands doctrine, and that drawing analogies to Rylands can provide a deeper understanding of defamation doctrine and policy.
12 - Factual Causation
- Keith N. Hylton
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- 06 June 2016, pp 195-226
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A negligence action can be broken down into four components: duty, breach, causation, and damages. The causation prong subdivides further into factual and proximate causation. We looked closely, in Chapter 9, at some factual and proximate causation issues in contributory negligence cases. This chapter examines factual causation doctrine in isolation and derives some rules for navigating this most intractable part of tort law.
The hornbooks and casebooks offer abstract causation rules that sometimes fall short of explaining the outcomes of particular cases. There are many decisions in which judges seem to make special exceptions to the abstract rules. The student feels pressure, at some point, to either stick to the rules, in the hope of finding reasonable guidance, or try to understand the decisions on a case-by-case basis. Focusing on individual cases, however, could cause one to lose sight of the rules and, more importantly, the policies in this area. In an effort to resolve this dilemma, I have articulated rules in this chapter at a high level of detail, with an emphasis on functional justifications.
CAUSE IN FACT
The traditional approach to factual causation seeks to determine whether the injury would have happened even if the defendant had taken care. This is known as the but-for test: Causation can be established if the injury would not have happened but for the defendant's negligence. The but-for test is satisfied only if the defendant's negligence is a necessary condition for the injury.
Basics
As a preliminary matter, there is one strikingly prominent source of confusion in the but-for analysis of causation. Take the case of death: My negligent conduct leads to your death; for example, by driving negligently I run you over with my car, killing you. One thing certain in life is death. Hence, it would appear that I have a pretty good factual causation defense against the negligence lawsuit brought by your survivors: You would have died at some point anyway. Doesn't it follow, then, that any tort suit brought in response to a negligent killing must be rejected on factual causation grounds?
Unsurprisingly, the courts do not accept this reasoning. A sufficient policy rationale is that if such a defense were accepted, tort law would unravel.
6 - The Reasonable Person
- Keith N. Hylton
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- Book:
- Tort Law
- Published online:
- 05 June 2016
- Print publication:
- 06 June 2016, pp 102-121
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- Chapter
- Export citation
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Summary
Tort law relies heavily on the concept of reasonable care, and specifically the reasonable person standard. Negligence is typically described as a failure to act with the prudence of a reasonable person. The reasonable person standard, we will see in this chapter, is objective, in the sense that it does not depend on the particular preferences or idiosyncratic psychological features of the defendant before the court. And although it is objective, it is not easily summarized in the form of a simple cost-benefit test. The reasonable person standard incorporates the typical individual's ability to make long-term plans that might affect the risks he imposes on others and to make tradeoffs that affect those risks.
Recall that in Brown v. Kendall (Chapter 4), Chief Justice Shaw defined reasonable care as the care that a prudent and cautious man would take to guard against probable danger. In many of the early negligence cases, this is as specific as it gets in terms of a definition of reasonable care. However, even this thin formulation is sufficient to convey some important ideas. The reasonable person, it appears, will take probable losses to others into account and will modify his conduct to avoid causing harm to others.
Most of the early formulations of the reasonable person standard do not explain just how much weight the reasonable person would put on the danger to others. Would the reasonable person treat the danger to others with the same level of concern as he would treat danger to himself, or would he treat it with less concern? The difficulty in specifying precisely how much weight should be put on risks to others suggests that the reasonable person should treat them as equals and put just as much weight on probable harms to others, in his calculus of precaution, as he would put on probable harms to himself. Indeed, it would seem contradictory for the reasonable person to discount probable harms to others, because he values his own interests more than theirs, and at the same time demand that those others not discount the harms their conduct might impose on him.