#19802 - New Fall 2024 Tort Long Summary 2 - Intentional Torts

Both Torts & Contracts involve Primary & Secondary Obligations

Primary Obligations: Tell people how they ought to act

Secondary Obligations (remedial): Tell people how they must act after primary obligations are broken

If contract and tort come into conflict then contract has primacy over tort.

EXAMPLE: Suppose that the plaintiff visited the defendant’s ski resort. The plaintiff was injured as a result of the defendant’s negligence.

• In tort law, the plaintiff is prima facie entitled to recover damages from the defendant. The result will be different, however, if the parties had previously entered into a contract that contains an exclusion clause that prevents the plaintiff from suing in tort.

• Tort law says liability; contract law says no liability. Unless an exception applies, the contract will prevail.

Given the law’s respect for personal autonomy, contract generally has primacy over tort.

Obligations in tort are imposed by law on the basis of circumstances (obligation to society as a whole)

• “Default rules”

Contractual obligations are generally created by the parties - who voluntarily agree to do so (obligation only to the other party)

• “Voluntarily undertaken”

Assault can be a tort (if personal rights are violated) and a crime (if it breaches criminal statutes)

Drinking and driving causing an accident: crime for the act, tort for the harm caused to the individual (like injury).