The Measure of Injury: Race, Gender, and Tort Law

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Torts, 3rd edition LexisNexis Study Guide.

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Item Added: The Measure of Injury. View Wishlist. Our Awards Booktopia's Charities. Are you sure you would like to remove these items from your wishlist? It can include the intentional infliction of emotional distress, negligence, financial losses, injuries, invasion of privacy, and many other things. Tort law, where the purpose of any action is to obtain a private civil remedy such as damages , may be compared to criminal law , which deals with criminal wrongs that are punishable by the state. Tort law may also be contrasted with contract law which also provides a civil remedy after breach of duty; but whereas the contractual obligation is one chosen by the parties, the obligation in both tort and crime is imposed by the state.

In both contract and tort, successful claimants must show that they have suffered foreseeable loss or harm as a direct result of the breach of duty. The person who commits the act is called a tortfeasor. Although crimes may be torts, the cause of legal action in civil torts is not necessarily the result of criminal action; the harm in civil torts may be due to negligence , which does not amount to criminal negligence.

The victim of the harm can recover their loss as damages in a lawsuit. In order to prevail, the plaintiff in the lawsuit, commonly referred to as the injured party , must show that the actions or lack of action was the legally recognizable cause of the harm.

The Measure of Injury

The equivalent of tort in civil law jurisdictions is " delict ". Legal injuries are not limited to physical injuries and may include emotional, economic, [note 3] or reputational injuries as well as violations of privacy , property, or constitutional rights. Torts comprise such varied topics as automobile accidents , false imprisonment , defamation , product liability , copyright infringement , and environmental pollution toxic torts. Compared to criminal cases, tort lawsuits have a lower burden of proof, namely " preponderance of evidence ", [note 4] rather than beyond a reasonable doubt.

Sometimes a claimant may prevail in a tort case even if the defendant who allegedly caused harm were acquitted in an earlier criminal trial. For example, O. Simpson was acquitted in criminal court of murder but later found liable for the tort of wrongful death. Roman law contained provisions for torts in the form of delict , which later influenced the civil law jurisdictions in Continental Europe , but a distinctive body of law arose in the common law world traced to English tort law.

The word 'tort' was first used in a legal context in the s, [note 5] although different words were used for similar concepts prior to this time. Torts and crimes at common law originate in the Germanic system of compensatory fines for wrongs OE unriht , with no clear distinction between crimes and other wrongs.

Books & Treatises - Torts - Research Guides at University at Buffalo

Weregild , which was a murder fine based on a victim's worth, was intended to prevent blood feuds. Assessing intention was a matter for the court, but Alfred the Great 's Doom Book did distinguish unintentional injuries from intentional ones, whereas culpability depended on status, age, and gender. After the Norman Conquest , fines were paid only to courts or the king, and quickly became a revenue source. A wrong became known as a tort or trespass , and there arose a division between civil pleas and pleas of the crown.

The trespass action was an early civil plea in which damages were paid to the victim; if no payment was made, the defendant was imprisoned. The plea arose in local courts for slander , breach of contract , or interference with land, goods, or persons. Although the details of its exact origin are unclear, it became popular in royal courts so that in the s the writ of trespass was created and made de cursu available by right, not fee ; however, it was restricted to interference with land and forcible breaches of the king's peace.

It may have arisen either out of the "appeal of felony", or assize of novel disseisin, or replevin. Later, after the Statute of Westminster , in the s, the "trespass on the case" action arose for when the defendant did not direct force. The English Judicature Act passed through abolished the separate actions of trespass and trespass on the case.

In , the English case Beaulieu v Finglam imposed strict liability for the escape of fire; additionally, strict liability was imposed for the release of cattle. Liability for common carrier , which arose around , was also emphasized in the medieval period.

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As transportation improved and carriages became popular in the 18th and 19th centuries , however, collisions and carelessness became more prominent in court records. The right of victims to receive redress was regarded by later English scholars as one of the rights of Englishmen. United States tort law was influenced by English law and Blackstone's Commentaries on the Laws of England , with several state constitutions specifically providing for redress for torts [8] in addition to reception statutes which adopted English law.

However, tort law was viewed [ who? Long Island Railroad Co. The law of torts for various jurisdictions has developed independently. In the case of the United States, a survey of trial lawyers pointed to several modern developments, including strict liability for products based on Greenman v. Yuba Power Products , the limitation of various immunities e. However, there has also been a reaction in terms of tort reform , which in some cases have been struck down as violating state constitutions, and federal preemption of state laws.

Modern torts are heavily affected by insurance and insurance law , as most cases are settled through claims adjustment rather than by trial, and are defended by insurance lawyers, with the insurance policy , a deep pocket limit, setting a ceiling on the possible payment.


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In the international comparison of modern tort law, common law jurisdictions based upon English tort law have foundational differences from civil law jurisdiction, which may be based on the Roman concept of delict. Even among common law countries, however, significant differences exist. For example, in England legal fees of the winner are paid by the loser the English rule versus the American rule of attorney fees. The Jewish law of rabbinic damages is another example although tort in Israeli law is technically similar to English law as it was enacted by British Mandate of Palestine authorities in and took effect in There is more apparent split between the Commonwealth countries principally England, Canada and Australia and the United States.

The United States has been perceived as particularly prone to filing tort lawsuits even relative to other common law countries, although this perception has been criticized and debated.

3 Torts Maxims - Torts for CLAT

When comparing Australia and the United States, Australia's tort law is similarly state law ; however, there is a federal common law for torts unlike the United States. The influence of the United States on Australia has been limited. The United States may have influenced Australia's development of strict liability for products indirectly through legislation affected by European Union , and in the s class actions were introduced in Australia.

In certain instances, different jurisdictions' law may apply to a tort, in which case rules have developed for which law to apply. This occurs particularly in the United States, where each of the 50 states may have different state laws , but also may occur in other countries with a federal system of states, or internationally. Torts may be categorized in several ways, with a particularly common division between negligent and intentional torts. Quasi-torts may be used to refer to torts which are similar to but somewhat different from typical torts.

Particularly in the United States, "collateral tort" is used to refer to torts in labour law such as intentional infliction of emotional distress "outrage" ; [15] or wrongful dismissal ; these evolving causes of action are debated and overlap with contract law or other legal areas to some degree. The most common action in tort is negligence. The tort of negligence provides a cause of action leading to damages, or to relief, in each case designed to protect legal rights, including those of personal safety, property, and, in some cases, intangible economic interests or noneconomic interests such as the tort of negligent infliction of emotional distress in the United States.

Negligence actions include claims coming primarily from car accidents and personal injury accidents of many kinds, including clinical negligence, worker's negligence and so forth. Product liability cases, such as those involving warranties, may also be considered negligence actions or, particularly in the United States, may apply regardless of negligence or intention through strict liability. Intentional torts include, among others, certain torts arising from the occupation or use of land.

The tort of nuisance, for example, involves strict liability for a neighbor who interferes with another's enjoyment of his real property. Trespass allows owners to sue for entrances by a person or his structure, such as an overhanging building on their land. Several intentional torts do not involve land. Examples include false imprisonment, the tort of unlawfully arresting or detaining someone, and defamation in some jurisdictions split into libel and slander , where false information is broadcast and damages the plaintiff's reputation.

In some cases, the development of tort law has spurred lawmakers to create alternative solutions to disputes. For example, in some areas, workers' compensation laws arose as a legislative response to court rulings restricting the extent to which employees could sue their employers in respect of injuries sustained during employment. In other cases, legal commentary has led to the development of new causes of action outside the traditional common law torts. These are loosely grouped into quasi-torts or liability torts.

Negligence is a tort which arises from the breach of the duty of care owed by one person to another from the perspective of a reasonable person. Although credited as appearing in the United States in Brown v.

Kendall , the later Scottish case of Donoghue v Stevenson [] AC , followed in England, brought England into line with the United States and established the 'tort of negligence' as opposed to negligence as a component in specific actions. Donoghue drank from an opaque bottle containing a decomposed snail and claimed that it had made her ill. She could not sue Mr. Stevenson for damages for breach of contract and instead sued for negligence.

The majority determined that the definition of negligence can be divided into four component parts that the plaintiff must prove to establish negligence. The elements in determining the liability for negligence are: [ citation needed ]. In certain cases, negligence can be assumed under the doctrine of res ipsa loquitur Latin for "the thing itself speaks" ; particularly in the United States, a related concept is negligence per se.

For example, in the business realm, the auditor has a duty of care to the company they are auditing - that the documents created are a true and reliable representation of the company's financial position. However, as per Esanda Finance Corporation Ltd v.

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Peat Marwick Hungerfords , such auditors do NOT provide a duty of care to third parties who rely on their reports. An exception is where the auditor provides the third party with a privity letter, explicitly stating the third party can rely on the report for a specific purpose.

The Measure of Injury: Race, Gender, and Tort Law

In such cases, the privity letter establishes a duty of care. The case Chapman v Hearse added to the precedent of negligence where in previous cases reasonable foreseeability was applied narrowly to include all predictable actions, Chapman v Hearse extended this to include all damages of the same nature which could be reasonably foreseen. Proximate cause means that you must be able to show that the harm was caused by the tort you are suing for.

A common situation where a prior cause becomes an issue is the personal injury car accident, where the person re-injures an old injury. For example, someone who has a bad back is injured in the back in a car accident.