描述
开 本: 16开纸 张: 胶版纸包 装: 平装-胶订是否套装: 否国际标准书号ISBN: 9787509392508
本书是北京外国语大学法学精品教材“普通法案例教学系列”的一本，是针对中国学生，经过北京外国语大学法学院十多年课堂教学经验的积累，吸取国外法学教育方法中的有益成分的基础上编写而成的。通过美国法院判例原文，系统介绍了过错原则、诉因、不可预见性、抗辩理由、侵权救济、医疗事故、严格产品责任、精神损害赔偿、诬陷、隐私权和侵害经济权等内容。
Table of Contents
Chapter Ⅰ?INTRODUCTION 1
Unintentional Harm 5
Hammontree v. Jenner 5
Supplemental Reading 9
Ⅰ. Ashtray Falling from Above 9
Ⅱ. Definition of Tort Law (Selected) 10
Ⅲ. For Every Wrong There is a Remedy … Or is There? 11
Chapter Ⅱ?NEGLIGENCE (Ⅰ) 17
Standard of Care 17
Probability, Burden and Liability 19
United States v. Carroll Towing Co. 19
Negligence 22
Davison v. Snohomish County 22
Effect of Statute 24
Martin v. Herzog 24
Standard of Care and Unreasonable Risk 26
Adams v. Bullock 26
Aggravated Negligence 28
Chapter Ⅲ?NEGLIGENCE (Ⅱ) 31
Proof of Negligence 31
Byrne v. Boadle 32
Larson v. St. Francis Hotel 35
Multiple Defendants 37
Ybarra v. Spangard 37
Chapter Ⅳ?CAUSATION 43
Cause in Fact 43
Perkins v. Texas and New Orleans Ry. Co. 43
Summers v. Tice 47
Sindell v. Abbott Laboratories 48
Chapter Ⅴ?UNFORESEEABLE CONSEQUENCES 53
Unexpected Result 53
In re an Arbitration Between Polemisand AnotherAnd Furness,
Withy Co., Ltd. 53
Unexpected Victim 55
Palsgraf v. Long Island Railroad Co. 55
Proximate Cause 59
Petition of Kinsman Transit Co. 59
Intervening Causes 66
Derdiarian v. Felix Contracting Corp. 66
Secondary Accidents 69
McCoy v. American Suzuki Motor Corp. 69
Chapter Ⅵ?DEFENSES (Ⅰ) 75
Plaintiff’s Conduct: Contributory & Comparative Negligence 75
Contributory Negligence 76
Butterfield v. Forrester 76
Comparative Negligence 77
Daly v. General Motors Corporation 77
Assumption of Risk 85
Winterstein v. Wilcom 85
Assumption of Implied Risk 89
Rush v. Commercial Realty Co. 89
Chapter Ⅶ?DEFENSES (Ⅱ) 91
Statutory Bars 91
Statute of Limitations and Repose 91
Teeters v. Currey 92
Tort Liability of Municipalities 94
Riss v. City of New York 94
Immunity 98
DeLong v. Erie County 98
Chapter Ⅷ?REMEDIES 101
Compensatory & Punitive Damages 101
Damages For Physical Harm 102
Allocation Among Tortfeasors 110
Personal Injury Remedies 115
Anderson v. Sears, Roebuck & Co. 115
Richardson v. Chapman 118
“Grossly Excessive” Punitive Damages 124
BMW of North America, Inc. v. Gore 124
Intentional Trespass 131
Jacque v. Steenberg Homes, Inc. 131
Chapter Ⅸ?MEDICAL MALPRACTICE 139
Doctor/Patient Relationship 139
Moore v. Regents of University of California 139
Helling v. Carey 144
Henning v. Thomas 145
Chapter Ⅹ?PRODUCT LIABILITY & STRICT LIABILITY 151
Product Liability 151
MacPherson v. Buick Motor Co. 151
Strict Liability 156
Greenman v. Yuba Power Products, Inc. 156
Abnormally Dangerous Activity 160
Rylands v. Fletcher 160
Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. 164
Manufacturing Defect 171
Rix v. General Motors Corp. 171
Design Defect 173
O’Brien v. Muskin Corp. 173
Chapter Ⅺ?INTENTIONAL INFLICTION OF MENTAL DISTRESS 179
State Rubbish Collectors Ass’n v. Siliznoff 179
Emotional Distress 181
Womack v. Eldridge 181
First Amendment Over Parody 184
Hustler Magazine, Inc. v. Falwell 184
Adventures of Larry Flynt 189
Chapter Ⅻ?DEFAMATION 193
Defamation 193
Defamation and Freedom of Speech 194
New York Times Co. v. Sullivan 194
Private Individuals 207
Gertz v. Robert Welch, Inc. 207
Commercial Speech 212
Dun & Bradstreet, Inc. v. Greenmoss Builders 212
Chapter ⅫⅠ?PRIVACY & PUBLICITY 217
Privacy 217
Flake v. Greensboro News Co. 218
Celebrity and Paparazzi 221
Galella v. Onassis 221
Gallela and Paparazzi 224
Right of Publicity 225
Carson v. Here’s Johnny Portable Toilets, Inc. 225
Bi-Rite Enters., Inc. v. Button Master 229
Chapter ⅩⅣ?ECONOMIC INJURIES (Ⅰ) 235
Misrepresentation 235
Concealment and Nondisclosure 235
Swinton v. Whitinsville Savings Bank 235
International Products Co. v. Erie R.R. Co. 236
Misrepresentation to Third Persons 239
Credit Alliance Corporation v. Arthur Andersen & Co. 239
Chapter ⅩⅤ?ECONOMIC INJURIES (Ⅱ) 247
Tortious Interference With Advantageous Relations 247
Lumley v. Gye 247
Testing Systems, Inc. v. Magnaflux Corp. 248
Della Penna v. Toyota Motor Sales, U.S.A., Inc. 250
Family Relations 261
Nash v. Baker 261
Chapter Ⅰ
INTRODUCTION
Tort originated from an ancient wrong of twisting another – an uninvited
and unwelcome touch or a trespass of that other’s body – which resulted in the
bodily injury. In England, since it was a breach of the King’s peace, it was
originally treated as a criminal offense, and as such the defendant would be
treated as a criminal, with criminal penalties when indicted.
In the common law system, the law of torts remains very much the case law,
perhaps for one reason: all torts investigations involve determination of
negligence, and negligence would necessarily mean the breach of some duty of
care toward others. And for that reason, it is hard – if not impossible – to
predefine a legal duty under different situations without considering the
factual surroundings over the occurrence of an event.
Normally, we do not owe any duty of care, general or special, toward
another unless under privity; everyone should and is supposed to watch for the
best of his own interest.
For example, when you walk down the street, the person next to you falls
for some unknown reason and has a broken ankle. You are not to be blamed merely
because you are the closest to him (with quite a comfortable distance, though),
or simply because you are the first to notice his fall.
In another example, a person is injured by a large ashtray falling from
above while he is walking between two apartment buildings. No one admits it. So
a court holds all residents responsible – unless he can prove otherwise – to do
“fairness” for the victim in the court’s words.1 This would mean that by being a
resident, one could be held “strictly” liable for anything and everything that
happens which can remotely be traced to his being there. What is butterfly
effect?
The result of the ashtray case was highly appraised by one notable scholar
(who, perhaps, has a significant role in drafting the current statute of Tort
Liability Law) that “fairness” dictates sufficient compensation under strict
liability.2
What Is Tort Law
It is extremely hard, if not impossible, to define what the law of tort is,
for the simple reason that it is regarded as (1) the law of negligence, to which
many Chinese scholars are opposed as it would result in insufficient
compensation, (2) the law of remedial compensation, which in effect turns it
into strict liability law, treating humans as industrial product of their own,
and thus responsible for everything that happens, no matter what, and (3) as the
code of conduct for human behaviors, which is nothing but a mere joke – even a
prison could not predefine everything about what to do, or what not for the
prisoners.
Tort is generally distinguished from infringement, although when translated
into Chinese, they both are simply侵权, violation of rights. Infringement applies
to invasion of economic interest, but tort refers generally to injury to the
body of a person or persons, despite the fact that most forms of infringements
originate from so-called “economic torts,” such as those acts against patents,
trademarks and copyrights, or methods of unfair competition.
A tort is not a crime, although the two were somewhat similar, and at one
time, tort is part of the criminal law. Even an intentional tort, such as
assault and battery, may not be treated as a crime in the absence of statutory
definition (a felony or a misdemeanor) which is essential for criminal
liabilities.3
Tort law is not about compensation, although in most cases, monetary
compensation ensues once a defendant is held to be responsible for his negligent
wrongdoing that causes injury to his victim. But compensation is not guaranteed
under tort law, unless a plaintiff can prove the necessary elements of tort,
such as actual or proximate cause and the resulting injuries, etc.
Why Do We Study Tort Law
The common law tort system is very different from the legislatively enacted
statutory Tort Liability Law; nor is it the same as the hornbook rules of the
Restatement of Torts. Torts in the United States remain very much case law,
although each and every state has its own statutes on some respects of torts. To
find someone liable for compensation to an injured person, fault is generally a
necessary ingredient.
There are many injuries that cannot be redressed through torts. For
instance, one struck by lightning, or buried in earthquake rubbles, or wounded
in the actions of war, may not normally blame a particular person and get
compensation, as he cannot individually locate the source of the wrongdoing (or
maybe there is none), or scientifically prove that that source is the direct
cause of his injury.
In our normal course of life, we all act in a way toward others which we
expect others to act in the same way. We don’t want to injure other people
because we don’t want to be injured by other people.
If we follow the rules of traffic law by waiting at the red light and going
through at the green, and when everyone does so, ideally, no accidents would
take place. But accidents do happen once in a while – no matter how careful we
are. My car brake might fail, e.g., and I run through the red, resulting in
injury of another. Should I be responsible for the resulting injury? Should I be
held absolutely responsible for every mechanical failure of my car, suppose I
take every precaution to have my car properly maintained? If so, how?
Most of the tort cases involving such issues as “reasonable care” and
liability go to trial, in which the issues are to be resolved by a jury – twelve
people randomly selected – to determine which version of the litigants is more
credible. The jury system is unique to common law, and torts cases in
particular, where the judge determines the legal issues (which law to apply) and
the jury determines the facts (what really happens and what follows under the
instruction of the judge). In the absence of a jury system, such as in China and
all other civil law countries, both issues of law and issues of facts are
determined by a judge (sometimes, one presiding judge, with a number of
accompanying assistant judges), and on appeal, there is usually no standard of
review, meaning that the case in the second instance would be tried again, most
often, with the same result.
In the above car-brake-failure hypothesis, I apparently did not do anything
wrong, and therefore should not be responsible for the accident, with a
miserable result for the victim to shoulder the injury.
Or, there might be somebody else who has done something wrong in this case.
Somewhere in the process of making the car available for use, there is a
mechanical problem which escaped the notice of the manufacturer, the dealer or
the service mechanics. If it is true, shouldn’t we take a closer look at the
road accident case to see who the person is in causing this accident? Hence, the
development of product liability law.
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