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Tort law is primarily concerned with injuries to people. These injuries may be caused by the actions of other human persons, corporations, governmental entities, and other legal actors. Persons may be injured through direct action, such as a punch in the mouth, or through passive instrumentalities, such as guns or defective products. In answering a tort law examination the student must identity the injured persons, the torts related to these injuries, possible defendants, defenses, etc. In tort practice the lawyer must also analyze the cost effectiveness of the litigation. Defendants identified on a torts' examination might not be sued in a real case. This checklist is designed to help analyze fact situations and to develop a written analysis that is suitable for an examination.
You should make these lists, not just run through them in your mind. You should outline your answer, write it out, and then REWRITE IT TO ELIMINATE EXCESS VERBIAGE! Remember, brief is not just a form of underwear!
1) List the people in the problem.
Identifying the people helps to assure that you do not miss any potential parties. It is more important to identify all the parties than to exhaustively list the torts and miss a party.
2) Identify the injured people.
This includes the injured persons who have not been named in the problem, such as family members. Every injured person is a potential plaintiff.
3) Identify the relationships between the injured persons and all other persons, injured or uninjured.
The key to analyzing these relationships is identifying those persons who owed a duty to an injured person. If there is no duty, there can be no tort. For those who owed a duty, determine if they arguably breached the duty, triggering a tort analysis.
4) Identify unnamed persons or legal entities who breached a duty to the plaintiff.
This analysis is to identify employers, building owners, and others who may have breached a duty to the plaintiff through their own actions or the actions of their agents.
5) Identify instrumentalities that contributed to the harm.
Was a person injured by a product? Was the product defective? Who manufactured the product, sold it, repaired it, etc.?
6) Was the person directly injured or injured as a bystander?
7) For each situation in which you have identified a possible breached duty, determine if the defendant has an argument as to why he did not owe the plaintiff a duty.
This is usually an immunity issue, but it may also involved mistaken identify. For example, the plaintiff may mistakenly identify a physician who never had a relationship with the patient.
8) For each situation in which you have identified a possible breached duty, determine if the defendant has an argument as to why he did not breach his duty to the plaintiff.
9) Determine the theory of causation for each breached duty.
Is there but for (proximate) cause? Is this a product theory? Is this substantial factor causation?
10) What is the defendant's theory about causation?
Are there intervening causes? Were the consequences foreseeable?
11) What are the defenses?
Is there comparative negligence? Assumption of risk? Misuse of a product? Try to anticipate every possible defense to the tort.
10) What are the damages suffered by each injured person?
Are the injuries direct or derivative (consortium)? Are they permanent? Are there future wage claims? Medical care costs? Pain and suffering? Etc.? (Second semester!)
11) How are the actions of the defendants related
Is there joint and several liability?
12) Have you presented the strongest torts?
Are your theories sound and supported by specific facts in the problem?
13) HAVE YOU FOLLOWED THE INSTRUCTIONS?
Have you gone over the word count? Have you ignored instructions limiting the parties or actions to be considered? Did you put your number on each page? Do not forget to turn in the exam!
14) Have you checked your answer against your lists of parties and torts and outline?
There are always a few exams where major issues are dropped inadvertently.
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