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Some Legal Anatomy: Thinking Like a Tort Lawyer


Some Legal Anatomy: Thinking Like a Tort Lawyer


If you had chosen medical school, your course in human anatomy would probably have been broken down into topics, like the brain, the circulatory system, the digestive system, the skeletal system, and so on. But bodies don’t operate that way, they function as a unified system in which all elements interact to form a living organism.

Similarly, while most of the chapters in this book, like the Torts course itself, focus on particular elements or types of tort claims, cases do not arrive in lawyers’ offices in such neat categories. Accidents present complex, miscellaneous, unorganized facts that lawyers must reconceptualize in terms of the theoretical framework of tort law. The challenge of a torts practice is to fit these unorganized real world facts into the recognized elements and defenses of a negligence claim. This chapter provides a brief opportunity to look at tort claims the way a practitioner does, to reason from raw data to legally supportable claims for damages.

To begin with, remember that the plaintiff must prove all the basic elements of a negligence claim in order to recover. If Bernhart is injured in a boating accident, the fact that she is seriously injured and needs compensation is not enough to support recovery. She must also prove that the pilot of the other boat was negligent, and that her negligence caused the accident. If Terry sells stock at a serious loss after an inaccurate financial statement is published by the corporation’s accountants, she will still not recover if the court concludes that the accountants owed her no duty, or that the drop in value of the stock was not caused by the accountants’ negligence. A torts chain is only as strong as its weakest link; you have to examine the whole chain to give a realistic assessment of the chances of recovery.

In addition, while we often speak broadly of a “claim for negligence,” many types of negligence claims require more specific analysis. A plaintiff cannot recover for infliction of emotional distress, for example, simply by showing that the defendant’s negligent conduct caused her distress. Courts have imposed additional requirements to limit emotional distress claims, such as physical contact, the Dillon standards, or presence in the “zone of danger.” See generally Chapter 14. Similarly, plaintiffs seeking recovery for loss of consortium must show more than negligence, causation, and damages: Courts generally conclude that a defendant only owes a duty to avoid loss of consortium if a close relationship exists between the plaintiff and the direct victim. See Chapter 14, pp. 304-306. Similarly, in wrongful death cases, only certain parties are allowed to recover. See Chapter 19. Counsel must analyze such cases with a view to these constraints on recovery for negligence.

Third, counsel must consider carefully what damages are recoverable in a negligence case. The fact that a defendant is liable does not necessarily mean that she is liable for every loss the plaintiff has suffered. This may be true because the law limits the types of damages recoverable (as in wrongful death cases), because the defendant did not cause all the plaintiff’s damages (as in some multiple tortfeasor situations), or because, as a matter of policy, the law refuses to shift the loss for certain damages, under a proximate cause or duty analysis.

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