Week 1
- Tort
Private law is mainly National law
› Predominantly national law
- Exceptions are treaties such as the Convention on the International Sale of Goods or European
directives and regulations
› 2 influential systems of private law in the world: civil law (blue) and common law (red)
DCFR & Restatements
› Where local/national laws differ the need for an overview/synthesis arises
› USA => Restatements by the American Law Institute (used in American law schools)
› EU => Draft Common Frame of Reference
What is tort law about?
- Tort = wronged someone
› Key question: You have caused damage to somebody else, do you have to pay compensation (= are you
liable)?
- Need to increase strictness of application of rules as claiming compensation can financially ruin
someone, open ended legislation allowing judge to decide if someones was careless
- Terminology
› liable person = tortfeasor
› person entitled to compensation = victim
› damage = loss or harm (e.g. physical injury)
› damages = money (e.g. € 100,000)
- Examples
1. Injuries caused by (traffic) accidents
2. Injuries caused by faulty products
3. Injuries caused by physical abuse, stalking
4. Economic loss caused by unfair competition,
5. patent infringement
6. Violation of privacy, injury to reputation (e.g. prince Harry vs NGN: NGN paid € 1.201.780.000)
7. Nuisance (e.g. loud noise)
8. Crimes, human rights violations
,Requirements tort liability
› Civil Law:
1. Negligence/intent (legal element we focus on)
2. Causation
3. Damage
Damage
› One tort can cause several types of losses
E.g. a traffic accident causes physical injury
›The victim has various losses:
- medical costs
- loss of income, e.g. if the victim becomes permanently handicapped
- pain and suffering
- loss of amenity = impact on enjoyment of life
Two types of torts
1. Intentional torts (e.g. crimes) (Art. VI.-3:101 DCFR) (negligent intent)
2. Tort of negligence (carelessness) (Art. VI.-3:102 DCFR)
› Focus is on 2
Two categories of tort of negligence
1. Violation of statutory law, e.g. traffic laws
2. Unwritten rules of social conduct
> Focus is on 2 and within that:
● Dangerous situations
- What level of care is required?
Germany: Reichsgericht 23 February 1903
On an evening in 1901, the plaintiff fell on steps of municipality open to public use Steps were slippery
because of snow. Also, they were in a very neglected state and unlit.
› Is the municipality liable?
Conclusion = yes because steps owned by municipality and open to the public
,Lettuce leaf (OLG Hamm 1981)
Plaintiff fell in shop because he slipped on a lettuce leaf
› Is the shopkeeper liable?
Court:
› Shop must prove that leaf has been on floor for only short period of time
› Customer must take care, esp. in vegetable and fruit department + busy because of Friday afternoon
› Shop liable, but 1/3 reduction due to contributory negligence victim
- What is negligence?
› The weighing of the following 3 factors:
● Nature and extent of potential loss (purely financial, physical injury) (= L)
● Probability of loss (= P)
● Costs of preventive measures (=C)
› Economists say that negligence is when L x P > C
● Preliminary question in common law (of the duty of care)
- Duty of care
› Common law asks a preliminary question: Is there a duty of care?
› Do you need to take somebody’s interests into account at all?
If yes: there is a duty of care
If no: there is no duty of care
- In civil law they limit the duty of care through causality
› How does a judge determine whether or not there is a duty of care?
Donoghue v. Stevenson
› Mrs. Donoghue goes to a pub with a friend
› This friend buys her a ginger ale
› The bottle of the ginger ale is opaque
› Mrs. Donoghue bottle contains the remains of a decomposed snail
› She falls ill and wants to hold someone liable
› Who can she hold liable? The owner of the pub? The producer of the ginger ale?
› Does the producer of the ginger ale owe a duty of care to Mrs. Donoghue?
, - Lord Atkin ruled that “must take reasonable care to avoid acts or omissions which you can
reasonably foresee are likely to cause injury” (Can now directly sue producer)
Foreseeability test
- Depends on level of abstraction that judge adopts to the circumstances the case
❖ Present test for duty of care
- Foreseeability is very vague
› Caparo v. Dickman: 3 stage test for duty of care
› Whether a duty of care exists, depends on the weighing of the following 3 factors:
1. foreseeability
2. proximity (= nearness)
3. imposing a duty of care is fair, just and reasonable
● Liability for intentional torts of other people
France: L’Olympique v. Fuster
› 21-year-old Serge Fuster dies during a football match when a hooligan causes an Explosion. His parents,
brothers and sisters claim compensation from organizer of the game, the football club (compensation for
emotional distress)
› Is the football club liable? What level of care is required by a football club?
Conclusion - Football club is liable
● Organizer of a sporting event is under a duty to take adequate security measures
● There were 33.000 spectators
● There were strong indications of violent incidents
● No inspection to prevent spectators from carrying objects which could cause injury
● Supporters of both teams were not seated at safe distance from each other
Smith v. Littlewoods Organisation Ltd (1987)
› Vandals make fire on premises (old movie theatre) of Littlewoods
› Fire causes damage to neighbor Smith
› Is Littlewoods liable to Smith because he failed to take preventive measures?
Court:
› No liability for pure omissions
› Special circumstances are required, where the defendant negligently permits or creates a source of
danger
Strict liability = Liability without negligence/personal misconduct
- What if liability would be limited to negligence?
Example: Employee A causes damage to B in the course of his duty
Is A’s employer liable towards B?
- Tort
Private law is mainly National law
› Predominantly national law
- Exceptions are treaties such as the Convention on the International Sale of Goods or European
directives and regulations
› 2 influential systems of private law in the world: civil law (blue) and common law (red)
DCFR & Restatements
› Where local/national laws differ the need for an overview/synthesis arises
› USA => Restatements by the American Law Institute (used in American law schools)
› EU => Draft Common Frame of Reference
What is tort law about?
- Tort = wronged someone
› Key question: You have caused damage to somebody else, do you have to pay compensation (= are you
liable)?
- Need to increase strictness of application of rules as claiming compensation can financially ruin
someone, open ended legislation allowing judge to decide if someones was careless
- Terminology
› liable person = tortfeasor
› person entitled to compensation = victim
› damage = loss or harm (e.g. physical injury)
› damages = money (e.g. € 100,000)
- Examples
1. Injuries caused by (traffic) accidents
2. Injuries caused by faulty products
3. Injuries caused by physical abuse, stalking
4. Economic loss caused by unfair competition,
5. patent infringement
6. Violation of privacy, injury to reputation (e.g. prince Harry vs NGN: NGN paid € 1.201.780.000)
7. Nuisance (e.g. loud noise)
8. Crimes, human rights violations
,Requirements tort liability
› Civil Law:
1. Negligence/intent (legal element we focus on)
2. Causation
3. Damage
Damage
› One tort can cause several types of losses
E.g. a traffic accident causes physical injury
›The victim has various losses:
- medical costs
- loss of income, e.g. if the victim becomes permanently handicapped
- pain and suffering
- loss of amenity = impact on enjoyment of life
Two types of torts
1. Intentional torts (e.g. crimes) (Art. VI.-3:101 DCFR) (negligent intent)
2. Tort of negligence (carelessness) (Art. VI.-3:102 DCFR)
› Focus is on 2
Two categories of tort of negligence
1. Violation of statutory law, e.g. traffic laws
2. Unwritten rules of social conduct
> Focus is on 2 and within that:
● Dangerous situations
- What level of care is required?
Germany: Reichsgericht 23 February 1903
On an evening in 1901, the plaintiff fell on steps of municipality open to public use Steps were slippery
because of snow. Also, they were in a very neglected state and unlit.
› Is the municipality liable?
Conclusion = yes because steps owned by municipality and open to the public
,Lettuce leaf (OLG Hamm 1981)
Plaintiff fell in shop because he slipped on a lettuce leaf
› Is the shopkeeper liable?
Court:
› Shop must prove that leaf has been on floor for only short period of time
› Customer must take care, esp. in vegetable and fruit department + busy because of Friday afternoon
› Shop liable, but 1/3 reduction due to contributory negligence victim
- What is negligence?
› The weighing of the following 3 factors:
● Nature and extent of potential loss (purely financial, physical injury) (= L)
● Probability of loss (= P)
● Costs of preventive measures (=C)
› Economists say that negligence is when L x P > C
● Preliminary question in common law (of the duty of care)
- Duty of care
› Common law asks a preliminary question: Is there a duty of care?
› Do you need to take somebody’s interests into account at all?
If yes: there is a duty of care
If no: there is no duty of care
- In civil law they limit the duty of care through causality
› How does a judge determine whether or not there is a duty of care?
Donoghue v. Stevenson
› Mrs. Donoghue goes to a pub with a friend
› This friend buys her a ginger ale
› The bottle of the ginger ale is opaque
› Mrs. Donoghue bottle contains the remains of a decomposed snail
› She falls ill and wants to hold someone liable
› Who can she hold liable? The owner of the pub? The producer of the ginger ale?
› Does the producer of the ginger ale owe a duty of care to Mrs. Donoghue?
, - Lord Atkin ruled that “must take reasonable care to avoid acts or omissions which you can
reasonably foresee are likely to cause injury” (Can now directly sue producer)
Foreseeability test
- Depends on level of abstraction that judge adopts to the circumstances the case
❖ Present test for duty of care
- Foreseeability is very vague
› Caparo v. Dickman: 3 stage test for duty of care
› Whether a duty of care exists, depends on the weighing of the following 3 factors:
1. foreseeability
2. proximity (= nearness)
3. imposing a duty of care is fair, just and reasonable
● Liability for intentional torts of other people
France: L’Olympique v. Fuster
› 21-year-old Serge Fuster dies during a football match when a hooligan causes an Explosion. His parents,
brothers and sisters claim compensation from organizer of the game, the football club (compensation for
emotional distress)
› Is the football club liable? What level of care is required by a football club?
Conclusion - Football club is liable
● Organizer of a sporting event is under a duty to take adequate security measures
● There were 33.000 spectators
● There were strong indications of violent incidents
● No inspection to prevent spectators from carrying objects which could cause injury
● Supporters of both teams were not seated at safe distance from each other
Smith v. Littlewoods Organisation Ltd (1987)
› Vandals make fire on premises (old movie theatre) of Littlewoods
› Fire causes damage to neighbor Smith
› Is Littlewoods liable to Smith because he failed to take preventive measures?
Court:
› No liability for pure omissions
› Special circumstances are required, where the defendant negligently permits or creates a source of
danger
Strict liability = Liability without negligence/personal misconduct
- What if liability would be limited to negligence?
Example: Employee A causes damage to B in the course of his duty
Is A’s employer liable towards B?
