The Boundaries of, and Between, Tort and Contract

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The Boundaries of, and Between, Tort and Contract

• Recovery of Distress Damages
• in Tort and Contract

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Dichotomy

• Torts
• Generally concerned with physical harm
• MA damages awarded as matter of course with
  physical contact
• Some torts do not require PH

• Contract
• Generally concerned with economic losses
• MA damages not awarded as a matter of course with
  breach
• Some breaches do permit recovery of MA

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Physical Contact as a Tort Boundary

• Tort largely addresses preventing physical harm
• General rule if no physical harm to plaintiff,
  no claim.
• Exceptions to be explored

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The Tort Impact Rule

• Georgia Georgia applies the impact rule to
  cases in which a party seeks to recover for
  emotional distress in a claim involving negligent
  conduct.
• Impact doesnt take much - some contact caused
  by defendant.
• MBE (Our rule) If plaintiff is ______________ or
  _____________, then MA recoverable in negligence
• MA are parasitic damages recoverable if caused,
  certain amount.
• thin skulled plaintiff rule applies.

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Exceptions and Derivative Claims

• Some claims are cognizable in tort even without
  physical impact to the plaintiff, and a few
  without physical impact to anyone at all.

• Absent physical impact, courts generally require
  some surrogate for impact before allowing a
  remedy
• (1) _____________
• (2) _____________ or
• (3) _____________

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MA Recoverable in Tort If PH to Another Person

• Zone of Danger
• E.g., recover for harm caused to plaintiff by
  seeing someone injured while in ZOD.

• Cf. Loss of Consortium
• Recover for losses caused to plaintiff by contact
  to spouse
• MA is best viewed as a component of intangible
  damages.

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(No Transcript)
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Elements of ZOD Goldberg (666)

• Facts
• Elements of ZOD
• (1)
• (2)
• (3)

• Here, why no ZOD?
• (2)
• (3)

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Other Exceptions

• Negligent death-related claims
• (1)
• (2)

• Intentional torts.

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Georgia

• A party claiming negligent infliction of
  emotional distress must therefore show a physical
  impact resulting in physical injury. On the
  other hand, where the defendants conduct is
  intentional recovery can be had without the
  necessity of an impact.

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Traditional MBE Intentional Torts

• Assault
• Elements
• (a) Act by D that ___ ________________
• (b) of ____________ _________________
• (c) done with _____
• (d) that causes _____.
• Why exception?

• False Imprisonment
• Elements
• (a) act or omission by D that _____________
  _________________
• (b) to a ____________
• (c) done ____________
• (d) which causes _____

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IIED

• Defendant is liable if plaintiff proves
• (1) act by D that is _______________________ (2)
  inflicted __________________________
• (3) that _______
• (4) _______ emotional distress
• Why didnt Goldberg plaintiff have claim for
  IIED/outrageous conduct?
• Why did plaintiff in Rubin state one?

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Reputational Torts

• Libel
• Slander

• Plaintiff must show
• (1) At least one _______ and _______________
  statement of ________
• (2) regarding _________
• (3) ______ to a _______ by the _____________
• (4) resulting in ________ to plaintiff
• - The key remedial issue.

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Need Proof of Special Damage?

• If Per Se, plaintiff ___ _____ allege or
  prove special damages.
• (1)
• (2)
• (3)
• (4)
• (5)
• - Applies when trait is __________ with the
  proper conduct of the trade, not just when it is
  a ______ reflection on the plaintiffs ___________

• All others Plaintiff must plead and prove
  _____ damages by proving loss of something of
  ________ value which must ______________ from the
  ___________ __________________ and not from
  _________.

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Absolute Qualified Defenses

• Truth
• Absolute Privilege
• (1)
• (2)
• (3)
• (4)
• (5)

• Qualified Privilege (QP)
• (1)
• (2)
• (3)
• (4)

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Overcoming QPs

• Where QP is proven by defendant, plaintiff can
  overcome it by proving statement was made either
  _____________ or with ____________ disregard for
  the truth of the matter asserted.

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Nicholls

• Facts?
• Per se or not?

• What QP is argued here?
• Why is that a QP?
• Result?

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Bullock (GA 1997)

• Facts (PG version, please!)
• Is swearing at someone per se?
• When can it be?

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MA Boundaries of Contract

• Purpose Protect economic interests by enforcing
  the expectancies of the parties.
• MA damages not recoverable for breach of
  contract.
• With exceptions
• Independent tort claim can be stated
• Others (below).

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Rubin (704)

• Whats the policy behind the rule and K
  exception? Hadley?
• Result on the K claim here?
• Hanke?
• What results on two other claims?
• (1)
• (2)

• Facts?
• K general rule
• K exceptions
• (1)
• (2)
• Examples
• (a)
• (b)

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Some Hypos

• Plaintiff contracts with funeral home to prepare
  body in particular, Buddhist, way. Defendant
  fails to do so, may have inter-mingled ashes, and
  caused grief to family member, plaintiff.
• MA? What are the damages?

• Plaintiff locomotive engineer runs train into
  defendants truck, which was negligently on the
  tracks. Train and plaintiff are fine, though
  plaintiffs seat did move during the wreck.
  Plaintiff claims post-traumatic stress disorder.
• MA? What are the damages?

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More Hypos

• You take your poodle, Poopi, to the vet for a
  teeth cleaning and the vet also makes an incision
  to spay her, and then discovers shes already
  been spayed.
• Any claim you can get MA for? Whats your
  damages?

• Your kids Barbie car catches fire, burning down
  the house including all your neat personalty.
• Any claim you can get MA for? Whats your
  damages?