Thursday, September 02, 2004


Tort is Latin for "You fucked up". Torts can be broken down into two categories: civil wrongs and French pastries. We are concerned with the former.

Civil wrongs can be broken down into sub categories such as:

1) Negligence;
2) Intentional Torts;
3) Strict Liability;
4) Peach Newtons (which may also be a criminal offense).

We'll begin with negligence. The elements of a cause of action sounding in negligence are:

1) Duty
2) Breach of Duty
3) Proximate Cause
4) Injury
5) Damages
6) Settlement Check (always make sure it's divisible by 3)

Negligence is all about being careful. That's it. That's all you need to remember. Was the defendant careful enough when he plowed his car into the Plaintiff. Or, to be more accurate, would a reasonable person have plowed into the Plaintiff after blowing off a stop sign.

The reasonable person standard is the sine quo non of negligence and its greatest fiction. The law's reasonable person is very reasonable and very careful. Don't be surprised if you and your friends do not have the sensibilities of the law's reasonable person. In fact, Tweed successfully passed his torts classes using the George Costanza method - determining what he thought the law's reasonable person might do, and then using the opposite to answer questions.

Recent research indicates that the law's reasonable person would look something like one of the Easter Island statues. Others speculate that the law's reasonable person would look exactly the opposite of a composite of Ariel Sharon and Yasir Arafat.

Regardless, Stockton & Tweed suggest that if you ever come across the law's reasonable person, either kidnap him or her for your torts examine, or run shrieking.

Duty and Foreseeability

For some reason, law students get quite confused about these concepts. It may have to do with the atrocious writing that often graces judicial opinions. Duty and foreseeability are important concepts in negligence. Always remember, Duty is almost always a legal question. That is, for the judge to determine. Foreseeability is all wrapped up in determining whether an act is reasonable, a question for the jury.

If there is no legal duty, there can be no negligence. It does not matter how foreseeable an injury might be. Without a legal duty, you're off the hook.

Intentional Torts

Intentional Torts include assault, battery, false imprisonment, false arrest, all the really fun stuff.

This is where it gets tricky. In New York, the Statute of Limitations for negligence is three (3) years, with some exceptions. The Statute of Limitations for Intentional Torts is one (1) year. I'll assume most jurisdictions have a longer Statute of Limitations for negligence than for Intentional Torts. So, if you're going to commit a tortious act, say, against the asshole sitting next to you in Contracts, you have a decision to make. Go with the Intentional Tort when you punch him or feign a negligent act. This will all depend on how easy it will be for you to evade the Process Server. If you think you can get away with it, go with the negligent act. You'll have to lay low longer but there are generally no punitive damages. If it has to be an Intentional act, you'll only have to lay low for a year (+120 days, but that's another post). Also, try and avoid witnesses.


Audacity said...

Man. Torts was my lowest grade.. this blog shouldve been in action then!

Stockton and Tweed said...

I was ok with torts. For some reason contracts ended up confusing the hell out of me, at least the first semester. Stockton

vesna said...

Ah, how I would have loved to get my torts prof (did I say torts prof? I meant Erie, Byrd and Hanna) for intentional infliction of emotional distress...