Witt’s Torts

1. Intentional Physical and Mental Harms [1]================================================

a. Physical [1]
b. Emotional [1]
c. Defenses [2]

2. Negligence Standard [3] =============================================================

a. History [3]
b. The Reasonable Person [3]
c. The Hand Formula/Cost Benefit [4]
d. Custom [5]
e. Statutes and Regulations [5]
f. Judges and Juries [5]
g. Proof of Negligence [6]

3. Plaintiffs’ Conduct [7] ===============================================================

a. Contributory Negligence [7]
b. Comparative Negligence [7]
c. Assumption of Risk [8]

4. Cause in Fact [9] ===================================================================

a. Proving [9]
b. Lost Chance Problem [9]
c. Multiple Tortfeasors [9]
d. Alternative Liability and Market Share Liability

5. Proximate (Legal) Cause [11] =========================================================

a. Unexpected Harm [11]
b. Unexpected Manner [11]
c. Forseeable Damages [12]
d. Unexpected Person [12]
e. Completely Unexpected? [12]

6. Duty [13] ========================================================================

a. No duty to act [13]
b. To whom does a D owe a duty [13]
c. Negligent infliction of emotional distress [14]
d. Pure Economic Loss [14]
e. Relational Interests [14]
f. Tort Immunities [14]

7. Strict Liability for Unintended harm [15] =================================================

a. Vicarious Liability [15]
b. Abnormally Dangerous Activities [15]
c. Nuisance [16]
d. Public Nuisance [16]
e. Products Liability [17]

8. Damages [19] =====================================================================

a. Compensatory Damages [19]
b. Punitive Damages [20
 WITT’S 4 REASONS FOR TORT LAW
1. Deterrence: law is trying to shape and incentivise behavior.
a. Goal is OPTIMAL deterrence (not total).
b. Information Asymmetry: shifts burden of compensation to the party best positioned (information, resources etc) to
avoid injury, encouraging precaution
c. Social Utility vs. Costs
d. Problem: Moral Hazard of imposing liability on one party is disincentivizing appropriate precaution-taking by the
other party
e. Problem: public service provided is an additional benefit not weighed in revenue. Do not wan to overdeter public
goods.
2. Corrective Justice: restoring a moral balance
a. Insurance and large corporations that pass on the cost to consumers & shareholders bears the burden
b. Problem when there is no fault or it was only negligence
3. Compensation: restoring a (financial) deficit
a. Incomplete justification by itself (not every harm is compensated): serves other goals of corrective justice and
deterrence
b. Loss Distribution: broad distribution of losses is an advantage of imposing liability on business and institutions
i. Not a justification in itself: we don’t always default to the best loss spreader
ii. Insurance solves loss distribution better than law
iii. Regressive tax problem when incorporated into the price of products
c. Deep Pockets: Impose liability on parties in the best position to pay for losses. However, Bill Gates does not pay
for every tort.
4. Everything else:
a. Legitimacy of the State in the eyes of the people
b. Punishment
c. Avoiding self help
d. Privatization/Insurance
e. Information forcing: pressure on the party with the information.
5. Administrative Cost: Minimize costs of procedure and maximize efficiency.

ANALYTIC FRAMEWORKS
Rules v. Standards: Rules are bright lines, good for Admin Cost & predictablity. Standards are loose principles that guide decisions
in order to consider context and get cases “right”
• However, rules sometimes work
• Juries are imperfect, rules good for em
• Rules an Standards trade off
Formalism v. Functionalism
• Apply rule mechanically vs. use rules to achieve results
Welfarism, Utilitarianism vs. Rights
Torts v. Contracts: Assign liability through default rules that parties may “Contract around”
• Coase Theorm: Doesn’t matter where the liability is imposed – parties allocate losses to the one able to bear the
cost most effectively and split the difference
• Stranger cases v. relational cases: Torts essential to compensating for the inability of strangers to coordinate and
distribute losses efficiently
Injunctions v. Damages

TORT: (Harm) A civil wrong, not arising out of contract?

Witt’s Torts:
1. Duty owed to D
2. Act in breach to Duty
3. Causing
c. Damages to the P