Copyright 2014, Richard P. Clem
Richard P. Clem Continuing Legal Eduction
Clem on Torts is a comprehensive review of the material covered in a first-year torts class in an American law school. It is available free of charge on this website, and is also available for purchase as an Amazon Kindle book.
My inspiration for this book actually came a quarter century ago, after struggling with torts class for the first several weeks. We had been discussing the concept of battery for weeks. I finally stopped for a moment to reflect upon what I had learned so far. And essentially, all I had learned from several weeks of study was that you’re not supposed to beat up other people, and if you do, you’ll probably be successfully sued.
And then it occurred to me: I already knew that! Indeed, I had never beaten anyone up, and I haven’t beaten anyone up since. During my twenty five years of practicing law, I don’t recall representing anyone who beat up someone else, nor have I represented anyone who got beat up. In other words, my professor was hiding the ball, and making the material more difficult than it really was. Most of what we had covered so far was nothing more than common sense.
Now, there’s a good reason for the way the material is presented. You need to learn the correct terminology. You need to learn the right way to put the issues in context. And you need to learn how to separate the relevant facts from the irrelevant facts: If I ever do get a client who has been beaten up, I probably wouldn’t be too successful in my representation if I went to court and merely said, “Judge, my client got beat up!” I need to use the right words, and I need to present it as a lawyer presents things. But I already knew the substantive law before I went to law school: If you beat people up, you’re probably going to have to pay damages.
Some of the concepts get slightly more complicated. But the overall material isn’t particularly difficult. By reading this book, you’ll have a good understanding of the substantive law of torts. In fact, you’ll probably realize that you had a good understanding even before you got to law school.
Before we begin, we need to define the word tort. A tort is simply an act of wrongdoing for which the person committing the act (the tortfeasor, the person who will be the defendant) is obligated to pay damages to the victim (the person who will be the plaintiff).
All of tort law can be summed up in the following four sentences:
Everyone has a duty to refrain from causing intentional injury to others. They also have a duty to use due care (in other words, be careful) in all of their activities in order to prevent injury to others. In addition, there are some special cases where someone engaging in a particular activity has a duty to prevent all injuries to others, regardless of how careful they were being. If a person breaches one of these duties, then they are liable for the harm caused to the other person.
Now, obviously, the law is somewhat more complex than this. There are obviously exceptions, and some of these statements need to be explained in more detail. But tort law is not considerably more complex than what I stated in these four sentences. Every question on your final exam will require you to state one of these four principles and explain why it does or does not apply to the facts you have been given. Before you go any further, you should be able to express each of those four principles in your own words. As you progress through this book and through your class, you’ll be able to use more formal terminology. And you’ll learn the times when these sentences apply and when they don’t apply. But those four sentences summarize virtually everything you’re going to learn this year.
When it finally occurred to me that we had spent several weeks learning that you’re not supposed to beat up other people, I came to the realization that torts wasn’t going to be particularly difficult, as long as I learned the language, the right way of looking at the material, and learning some of the details. By the time you are finished, you’ll be able to say all of the following in a somewhat more sophisticated manner. But everything you learn this year can be summed up in the following four sentences. I’ll repeat them, and as you progress through the material, you can make a mental note of where everything fits in to the big picture:
We’ll start by looking at the first of these statements. This is the area we call intentional torts.
Clem on Torts is also available at Amazon as a Kindle book.
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PO Box 14957
Minneapolis, MN 55414
Minnesota Attorney Registration Number 0192648