Tort Law: Principles in Practice 3rd Edition by James Underwood, ISBN-13: 978-1543838817
[PDF eBook eTextbook]
- Publisher: Aspen Publishing; 3rd edition 2022
- Language: English
- ISBN-10: 9781543838817
- ISBN-13: 978-1543838817
Tort Law: Principles in Practice is an approachable and engaging casebook, with a variety of pedagogical features and tools to examine tort law doctrine and rules and their application in practice. Introductory text for each chapter, subsection, and cases frame the issues under discussion, aiding student comprehension.
– Text boxes and photographs, sample pattern jury instructions, checklists, and end-of-chapter essay questions.
– Chapter Goals are listed at the beginning of each chapter to highlight the key areas of coverage and provide a checklist for students when reviewing material.
– New key cases (e.g., new cases dealing with “but-for” causation and cutting edge coverage of the seat-belt defense showing a recent trend toward acceptance of this defense).
– Expanded short practice problems after most cases.
Table of Contents:
1. Introduction to Torts
2. Intentional Torts
3. Defenses to Intentional Torts
4. Negligence: Breach of Duty of Reasonable Care
6. Special Duty Rules
7. Affirmative Defenses
10. Strict Liability
11. Products Liability
13. Business Torts
Table of Cases
From a macro perspective, it is worth considering at the inception of our study the broad objectives that tort law seeks to vindicate. These objectives can be isolated and identified in many instances as we study the various tort causes of action. You may ask yourself, “what difference does it make?” There are multiple layers of response to that question. First, understanding the purposes behind tort law and its many doctrines and rules makes the study fascinating. Second, knowing the purposes behind the rules that you will discover in this book will increase the depth of your knowledge regarding those rules. A parrot might be trained to repeat certain tort phrases, but this does not make the bird into a lawyer. Being a good lawyer (or law student) is much more than memorizing a list of rules or laws. The rules themselves are very basic in terms of your education of tort law. Being able to articulate not only how a rule of law applies, but also when it applies, why it applies, and perhaps when it needs to be changed is the stuff of a torts master. Third, if you understand the rationale behind tort doctrines it will help you to articulate answers to questions that have not yet been addressed by courts. As you will see, the common law of torts evolves with every case decided because the unique facts of each case become a part of the law. Because factual circumstances underlying a tort claim are always potentially unique, judges and lawyers constantly have to determine if certain tort doctrines still apply as the facts are modified from one case to the next.
You might divide the world of tort scholars into two camps — roughly, those who believe the primary purpose of tort law is to regulate conduct by deterring (through the punishment of awards of damages) certain antisocial behavior, and those interested in “corrective justice” between the particular litigants. When a judge requires a tortfeasor who has beaten the plaintiff with a stick to pay for the harm caused, the thought is that this tortfeasor (and others who are aware of our system of civil justice) will think twice before whacking another with a stick. In addition, when the judge awards damages in favor of the victim and against the tortfeasor, the judge is implementing justice by providing compensation in favor of a worthy victim. Some torts scholars argue that these purposes stand in conflict with one another. They assert that if you push deterrence as the principal goal, then you will be more demanding of proof of fault by the defendant before you enter judgment. On the other hand, they assert that if compensation is the chief goal then a system that rewards plaintiffs without too many legal hurdles is superior. The truth is that these rather large and general goals are not in conflict but work together:
“Identifying the goals of tort law seemed to be a relatively easy task. Reduced to its essentials and stripping away all that is unnecessary, the consequence of a successful tort lawsuit is to invoke the power of the state (in the form of a judgment) to compel one person (the defendant) to compensate another (the plaintiff) for injuries for which the defendant may be judged “responsible” in some way. As a result of this invocation of sovereign power, the injured person is compensated, and the tortfeasor (and all who might find themselves in a situation similar to that of the tortfeasor in the future) is deterred from engaging in whatever conduct caused the injury. The twin pillars of tort law — compensation and deterrence — were born of the legal realist movement and the simple act of describing the most obvious consequences of a successful tort lawsuit.”
J. Clark Kelso, Sixty Years of Torts: Lessons for the Future, 29 Torts & Ins. L.J. 1 (1993).
Beyond these rather noble goals of regulating conduct and seeking justice, there is another important goal of tort law — resolving civil disputes in a peaceable manner. The truth is that when one person is perceived to misbehave and cause harm to another, it is important that the parties believe there is a civil justice system prepared to resolve their dispute in what is perceived to be a fair and non-arbitrary manner. It is possible to simply have a referee flip a coin to resolve such disputes, but the parties would quickly realize there was no point taking their dispute to the local government to do this. Short of a civil and peaceable system to resolve these disputes, the fear is that the parties would simply engage in violent acts to get even or extract some payment for the initial injury. At this very basic level, the civil justice system is designed to avoid gunfights in the town square. If it can regulate conduct and thereby reduce injuries or at least provide justice after an injury has occurred, that’s icing on the cake.
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