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Tort Law

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Created: September 13, 2002
Latest Update: September 13, 2002

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Site Teaching Modules Some Basics of Tort Law

Site Copyright: Jeanne Curran and Susan R. Takata and Individual Authors, September 2002.
"Fair use" encouraged.

When someone dies as the result of something having gone wrong, the case falls under tort law. This is civil law, not criminal. Individual sue other individuals. In criminal law, the state prosecutess the alleged perpetrator. I chose this site for you to look at the law with respect to accidental deaths and the apportioning of the costs of that accident. To that end we look at the facts of the case to see who had a duty. Did anyone have a special relationship that carried with it the duty to protect the Other? If no one had a duty, then there was no tort. There is no cause of action in that case, civil or otherwise.

On the other hand, if someone created a situation in which there was reliance, in that someone had a reasonable belief that they would be cared for or protected, then that duty may have been breached. Then we have a cause of action in tort. Then we have a civil case in which the one who suffered the harm sues the one who failed in a duty. At each level of this description of the alleged facts we're making judgment calls. This is not an exact science.

Not only that, but even if there were a duty, the person harmed may have had the last real chance to have avoided the harm, in which case most states rule that there is no recovery. Tort is state law, and the case may very well be decided differently in different states. Or the person harmed may have chosen to assume the risk involved. As the courts try to sort out such complexities, they will turn to precedent.

Precedent is cases, opinions, which have been previously ruled upon in the appropriate jurisdiction. Appropriate jurisdiction means the court that has jurisdiction where the injury or tort took place, or sometimes where the party resides. That means you can't rely on Nevada using a California case as precedent, because California is a sister state and has no jurisdiction over Nevada. I've put up Jones v. Kappa Alpha as a sample case by a lawyer who specializes in hazing law. First the case is about a hazing incident. That get's us in the ballpark. But the lawyer, Douglas Fierberg, Esq., gives his address as Washington, D.C. That may mean that the law to which he is accustomed is the law in D.C., but may not be the law in California. A jurisdiction problem. Also, the attorney may not be licensed to practice in California. All these niceties must be addressed in the system of law.

Assuming, however, that we have a case in California and an attorney admitted to the bar in California. Next step: We have to compare the fact pattern in the hazing incident that concerns us to the fact pattern in the precedent case we've found. Many hazing cases are tried when fraternity pals talk friends into drinking so much they pass out and die. There is a California case in which a 21 year-old drank so much on his 21st birthday that he passed out, was put to bed by his friends, and smothered on his own vomit. But that wasn't a fraternity hazing. That was just a plain old everyday friends' hazing.

Assuming arguendo that we have a similar fact pattern, then we must decide how to handle the precedent case. If the holding is the one we're looking for, in other words, if we're defense attorney's claiming that the Defendant had no duty to protect the plaintiff, and the precedent case found that the defendant had no duty and that no liability was incurred, then that's a case on our side. We want to carefully note all the law argued, and the fact pattern. Then we want to show that the facts in our case are as near as possible to the precedent case, so that the court should rule the same way for us.

If, on the other hand, the case was decided against the Defendant, finding that the defendant did owe a duty to the plaintiff, and somehow a tort was incurred, then the case is against us. Since that is not the result we want, we argue as well as we possibly can that the fact pattern in our case is different from the fact pattern in the precedent case. We distinguish the cases. And, in doing so, we argue that the court should not decide our case as the precedent case was decided.

Naturally, there are a zillion fact patterns, for rarely will the exact same case occur. Attorneys make lots of money for having the ingenuity to argue the law and the facts to distinguish their cases from cases with results they don't want, and to show the similarity between their cases and precedent cases with the results they do want.

With these principles in mind, we'll take a look at the Jones v. Kappa Alpha case.

Liability for hazing after Jones v. Kappa Alpha Interview by Gary Pavela. Synthesis: Law and Policy in Higher Education