Torts and Compensation : Personal Accountability and Social Responsibility for Injury

by DOBBS DAN B.

• ISBN13: 9780314250957
• ISBN10: 0314250956
• Edition: 4th
• Format: Hardcover
• Copyright: 2001-02-01
• Publisher: West Group

Table of Contents

Preface	v
Table of Cases	xxxix
PART I. A FIRST LOOK AT TORTS
Tort Law: Aims, Approaches, and Processes	2	(18)
What Is Tort Law?	2	(1)
The Aims and Approaches in Tort Law-Justice and Policy, Compensation and Deterrence	3	(8)
Implementing Tort Law Purposes with Damages Awards	11	(9)
Reading Torts Cases: Trial Procedures	20	(15)
Looking for Facts, Rules, and Reasons	20	(1)
Procedures at Trial	21	(2)
Procedures Raising Legal Issues	23	(12)
PART II. FAULT-BASED LIABILITY FOR PHYSICAL HARMS TO PERSONS AND PROPERTY
TOPIC A. DIRECT INTENTIONAL WRONGS
Establishing a Claim for Intentional Tort to Person or Property	35	(43)
Battery	35	(21)
Assault	56	(7)
False Imprisonment	63	(3)
Torts to Property	66	(5)
Forcible Harms as Civil Rights Violations	71	(7)
Defenses to Intentional Torts-Privileges	78	(27)
Protecting Against the Apparent Misconduct of the Plaintiff	78	(8)
The Special Case of Consent	86	(8)
Privileges Not Based on Plaintiff's Conduct	94	(11)
TOPIC B. THE SCHEME OF NEGLIGENT WRONGS
The Prima Facie Case
The Prima Facie Case for Negligence	105	(32)
The Fault Basis of Liability
Negligence and Fault	105	(1)
Institutions and Elements of Negligence	106	(2)
Duty and Breach
The General Duty of Care	108	(29)
Negligence: The Breach or Negligence Element of the Negligence Case	137	(53)
Breach: Assessing Reasonable Care by Assessing Risks and Costs	137	(16)
Assessing Responsibility When More Than One Person Is Negligent	153	(3)
Proving and Evaluating Conduct	156	(16)
Proving Unspecified Negligence: The Special Case of Res Ipsa Loquitur	172	(18)
Harm and Causation in Fact	190	(26)
Actual Harm	190	(2)
Cause In Fact	192	(24)
Negligence: The Scope of Risk or ``Proximate Cause'' Requirement	216	(33)
The Principle: Scope of Risk	216	(12)
Assessing the Scope of the Risk	228	(18)
The Lawyer's Role and the Future of Proximate Cause Analysis	246	(3)
Defenses
Defenses	249	(59)
Contributory/Comparative Negligence
Contributory Negligence: The Common Law Rule	250	(1)
Contributory Negligence: Adopting Comparative Fault Rules to Permit Recovery	251	(11)
Traditional Exceptions to the Contributory Negligence Bar in a Comparative Fault Regime	262	(3)
Causation and Comparative Fault	265	(3)
Allocating All Responsibility to Defendant	268	(7)
Assumption of the Risk
Contractual Assumed Risk	275	(2)
Implied Assumption of the Risk-Comparative Fault or Contractual Limitation on Liability?	277	(4)
Assumed Risk as Limited Duty or No Defendant Negligence	281	(6)
Limitation of Actions
Statutes of Limitation	287	(17)
Compliance with Statute	304	(4)
PART III. LIMITING OR EXPANDING THE DUTY OF CARE ACCORDING TO CONTEXT OR RELATIONSHIP
TOPIC A. LIMITING DUTIES ACCORDING TO CLASS OR STATUS OF THE PARTIES
Carriers, Host-Drivers and Landowners	308	(29)
Carriers and Host-Drivers	308	(2)
Landowners' Duties to Trespassers, Licensees, Children, and Invitees	310	(10)
The Firefighter's Rule	320	(5)
Adopting a Reasonable Care Standard for Landowners	325	(4)
Recreational Uses: Re-Creation of the Status Categories	329	(2)
Lessors	331	(6)
Duties of Medical and Other Professionals	337	(49)
Traditional Duties of Health Care Providers in Traditional Practice	337	(14)
Res Ipsa Loquitur	351	(7)
Informed Consent	358	(8)
Changing Medicine, Changing Law	366	(10)
Nursing Homes, Long-Term Care and Elder Abuse	376	(7)
Intentional Torts and Sexual Harassment by Professionals	383	(3)
Family Members and Charities	386	(7)
Family Members	386	(4)
Charities	390	(3)
Governmental Entities and Officers	393	(31)
Traditional Immunities and Their Passing	393	(1)
The Federal Tort Claims Act	394	(10)
Immunities Under State Law	404	(10)
Officers	414	(4)
State and Municipal Liability Under § 1983	418	(6)
TOPIC B. RELATIONSHIPS OR THEIR ABSENCE: NONACTION, CONTRACT AND PROTECTION FROM OTHERS
Nonfeasance	424	(19)
The No Duty to Act Rule	424	(3)
Exceptions, Qualifications and Questions	427	(16)
Contract and Duty	443	(19)
Nonperformance of Promises	443	(3)
Promises to Third Persons	446	(10)
Action as a Promise or Undertaking	456	(6)
The Duty to Protect from Third Persons	462	(36)
Defendant's Relationship with the Plaintiff	462	(13)
Defendant's Relationship with Dangerous Persons	475	(23)
TOPIC C. LIMITING DUTIES TO PROTECT AGAINST SPECIAL TYPES OF HARM
Emotional Harm	498	(36)
Interntional and Reckless Harms
Intentional Infliction of Emotional Distress	498	(8)
Negligent Infliction of Distress or Emotional Harm
Fright or Shock from Risks of Physical Harm	506	(14)
Duties of Care to Protect Emotional Well-Being Independent of Physical Risks	520	(6)
Toxic Exposures: Fear of Future Harm: Limits on Recovery?	526	(8)
Prenatal Harms	534	(11)
Prenatal and Preconception Injury	534	(3)
Wrongful Life, Birth, or Conception	537	(8)
Death	545	(12)
PART IV. THE EBB AND FLOW OF COMMON LAW STRICT LIABILITY FOR PHYSICAL HARMS
Vicarious Liability	557	(33)
Respondeat Superior and Scope of Employment	557	(16)
Employers Who Are Not Masters	573	(13)
Other Forms of Vicarious Responsibility	586	(4)
The Development of Common Law Strict Liability	590	(33)
Strict Liability for Trespassory Torts and the Advent of Fault Theory	590	(8)
Strict Liability After Brown v. Kendall	598	(17)
Strict Liability Today	615	(8)
Tort Liability for Defective Products	623	(94)
Developing Core Concepts
Evolution of Liability Theories	623	(3)
Rationales for Strict Products Liability	626	(4)
Excluding Stand-Alone Economic Harm	630	(4)
Establishing a Prima Facie Case
Manufacturing Defects	634	(5)
Design Defects	639	(16)
Warning or Information Defects	655	(11)
Special Issues of Proof	666	(10)
Defenses and Defeats
Comparative Fault and Assumption of Risk	676	(5)
Distinguishing Defenses from Failure to Prove Defect: Proximate Cause and Misuse	681	(9)
Compliance with Overriding Standards-Statute, Specifications and Federal Preemption	690	(10)
Statutes of Limitation	700	(3)
Extending the Scope of Products Liability
Beyond the Manufacturer of New Goods	703	(14)
PART V. PRACTICALITIES AND VALUES
Settlement, Apportionment, and Damages	717	(90)
Insurance and Settlement
An Introduction to the Institution of Insurance	717	(4)
Settlement and Negotiation	721	(9)
Settlement and Trial With Multiple Defendants
The Traditional Allocation of Responsibility Among Multiple Defendants	730	(7)
New Forms of Apportionment Among Tortfeasors	737	(13)
Multiple Defendants: Settlement and Suit in a Joint and Several Liability System	750	(6)
Multiple Defendants: Settlement and Suit (Mostly) in a Proportionate Share System	756	(10)
Multiple Claimants
Settlement and Trial, with Multiple Claimants	766	(7)
Damages
Compensatory Damages Generally	773	(20)
Adjustments in Damages	793	(5)
Punitive Damages	798	(9)
Evaluating Tort Law	807	(13)
Rules, Practices and Theories of Tort Law	807	(1)
Tort Wars	808	(2)
The Impact of Tort Law on the Injury Problem	810	(10)
PART VI. ALTERNATIVES TO TORT LAW
Worker's Compensation	820	(50)
Introduction	820	(7)
Job Related Injury	827	(18)
Workers' Compensation as the Exclusive Remedy	845	(12)
Tort Claims Against Third Parties	857	(13)
Public Compensation Systems, Including Social Security	870	(15)
Taxing Industry and Eliminating Its Tort Liability	870	(2)
Social Security Disability Benefits	872	(13)
Private Insurance Solutions	885	(12)
Evaluating Injury Systems: A Discussion Agenda	897	(4)
PART VII. ECONOMIC AND DIGNITARY TORTS
Communication of Personally Harmful Impressions to Others	901	(33)
Defamation-Libel and Slander	901	(17)
Malicious Prosecution and Other Abuses of the Legal System	918	(8)
Privacy	926	(5)
Interference with Family Relationships	931	(3)
Communication of Commercially Harmful Impressions to Others	934	(26)
Injurious Falsehood	934	(3)
Trademark Infringement	937	(6)
Misappropiration of Commercial Value	943	(7)
Interference with Contract and Other Economic Values	950	(10)
Misrepresentation and Other Misdealings	960	(19)
Theories of Liability and Their Consequences	960	(9)
Reliance and Related Doctrines	969	(6)
Duty to Disclose	975	(4)
Tort Actions to Protect Civil Rights	979	(16)
Privacy	979	(4)
Due Process	983	(4)
Discrimination	987	(8)
Index	995