So far I have talked about my property class and legal writing course. As a refresher, 1Ls have a very structured first year. Over the summer, the school sent us an email telling us what classes, at what time and with which professors we would be taking. One of the classes we are required to take our first semester is Torts, a classic.
A tort is essentially a wrongful act that creates harm. The purpose of tort law is to make the injured party “whole.” This is different than criminal law where the purpose is to punish. To illustrate, this point, say someone stole your car and sold it. The thief may go to jail as a punishment in the criminal justice system. However, you may want to sue the thief to pay you back for the cost of the car. Once you have the money, you will become “whole” again, as you were before the theft.
In general, tort law is about suing for money as repair for damages. However, this obviously gets complicated. What amount of money could make a person whole who lost their arm in car crash? What amount of money could make parents whole again after losing their child?
The course starts off with easy to understand concepts, such as assault and battery or conversion. Someone punches me and breaks my rib; she has assaulted and battered me and is liable to pay for expenses from the injury. Someone borrows my IPod and drops it in soup; she has converted it and owes me money for a new IPod.
Learning about conversion was pretty funny because I learned how many different ways I have committed the tort of conversion against my brother. Essentially, conversion means you have done enough damage to something to make it unusable to the owner and have to replace it. A common example is “You break it; you buy it.” Personal life examples: got my brothers bike stolen while borrowing it, left my brother’s IPod on a plane; my little sister left his next IPod in her coat pocket that my mom threw in the wash; we are not sure what happened to his Kindle, but since he can’t use it any more it satisfies conversion.
It gets more complicated when we moved on to negligence. A person must satisfy four requirements to be negligent: duty, breach, cause and injury. Simply put, did the person have a duty to do something that they failed to do, which was the cause of actual harm? For example, a person slips on banana peel in a grocery store and hits her head. Because of the location of the injury, it requires a plastic surgeon to prevent further damage and scarring. Is the grocery store liable to pay for the doctor’s bills? Well, did the store have a duty to keep the floors clean and safe? If yes, did they break that duty? Was the banana peal there for five minutes or two weeks? If we established they breached the duty, we ask did it cause the injury? Lastly, we ask if there was an injury. If all four requirements are satisfied, the store would then be responsible for the damages done to the shopper.
Mostly tort law is set out to make sure the responsible party bears the consequences, not the victim. This becomes difficult and requires ethical considerations. Do we always have to blame someone? Can’t there just be an accident? A blind man bumps into an elderly man who falls and breaks his hip. Do we really want to hash out who is at fault? Or sometimes even if we are comfortable accepting someone is responsible, how far do we let the blame go? For example, a person was texting while driving on a bridge and she causes an accident. I think we are comfortable with her being responsible for damages to the other cars in the accident. However, at the same time of the crash, a house caught fire and the only way to get to the house was over the bridge. Unfortunately, because of the accident, fire trucks could not get to the house. Instead of having some fire damage, the house was completely destroyed. It is clear that because of the accident the house was not saved but do we want to hold the texter liable?
We can see the system being abused by both plaintiffs and defendants. People will sue to get rich or carry out a personal vendetta. Some people will not pay for damages they did cause because they have the ability to hire good attorneys. Despite its weaknesses, tort law is important because it serves as a resolution to conflict. If people feel wronged and have damages and no legal way to pursue a remedy, what measures will they turn to?
The class teaches us how to analyze fact patterns and determine who is to be held liable for the damages. We also learn how to think about the policy implications that depend on the outcomes of cases. Back to the banana peal, if we rule with the plaintiff, are we going to have people falling in grocery stores trying to become millionaires? If we rule for the defendant, will we have really unclean and unsafe grocery stores?
As you may have started to notice, this gets very complicated and many outcomes are fact dependant. It is difficult to come up with a concrete rule. So if it is so messy how are we tested on all of this? For our final exam we are given several hypothetical situations. We are expected to analyze the situations and identify different possible torts that can be posited by plaintiffs and possible defenses by the defendants. Below is a sample of the practice exam we took in class:
Sam and Taylor were walking together down the road when a thief came running at them. The thief attacked Sam to steal her watch. Taylor tries to help fight off the thief and in the struggle Sam gets knocked unconscious. Taylor eventually gets a hold of the thief. Charlie, witnessing the fight from across the street comes to help. Unfortunately, she mistakes Taylor as the thief and tries to fight Taylor. Then Sam wakes up and sees Charlie fighting with Taylor, mistaking Charlie for the thief, so she then tries to fight Charlie, while the thief gets away with the watch. Eventually, Sam and Taylor get a hold of Charlie and trap her in the car.
Who is liable? Obviously, the thief is for the original attack and conversion of the watch, but what about all the following damages? Could Taylor sue Charlie for attacking her? Could Charlie sue Sam for attacking her? Could Charlie sue Sam and Taylor for locking her in the car? But didn’t they all have a right to defend themselves? Aren’t they entitled to make mistakes when they are in serious danger? If we rule against Charlie for attacking the wrong person, are we creating disincentives for people to help others? These are all questions that should be explored on the exam and are questions we learn how to answer in Torts.
Questions for Amie? Email law-admissions [at] luc [dot] edu with the subject “Ask Amie” and she will make sure to answer them.