TEXTBOOKS:

1. Henderson, Pearson and Siliciano, THE TORTS PROCESS (5th ed. 1999).

2. Peters, TORTS SUPPLEMENT (available at Quick Copy in the Library).

3. Riskin and Westbrook, DISPUTE RESOLUTION AND LAWYERS (Abr'd ed. 1998)

CLASSROOM COURTESY: Please turn off pagers and cell phones before entering the classroom. Thanks. If you arrive late, please sit quietly in an empty seat near the door.

GRADING: Your grade will be based on your final examination . I also reserve discretion to add up to 2 pts to the grade of students whose understanding of the material, as reflected in substantial and beneficial class participation, is not adequately reflected in their final examination. The final examination will contain issue-spotting essays, multiple-choice questions and, sometimes, a policy essay. It may also ask you to read a new case.

DISABILITIES: If you have a disability and need accommodations, please notify Associate Dean Kenneth Dean or your instructor as soon as possible. You may also contact the Access Office, A048 Brady Commons, 882-4696.

SNOW POLICY: This class is canceled whenever the Columbia public schools are closed on account of dangerous road conditions (not simply because it is too cold).

OPTIONAL REFERENCE SOURCES: For further background on the law of torts, your best resources are PROSSER AND KEETON ON TORTS (5th ed.) and DOBBS, THE LAW OF TORTS. There is also a "nutshell" on torts by Kionka. For more detailed research, try the RES TATEMENT SECOND OF TORTS and the multivolume treatise by Harper, James and Gray. These books should be on reserve in the law library

1. Basic Battery: 11-14, 20-22 (skip Vosburg v. Putney). Questions to consider:

(1) Under the Restatement (Second) of Torts §§ 13 and 18, what kind of conduct gives rise to an action for battery? (In law school, you learn, that is what we mean when we ask what the "elements" are of the cause of action.)

(2) What legal role does the Restatement play?

Some "hypos":

1. Between her law school classes, Alice sees Ben and Jerry approaching from two hallways that intersect right in front of her. Each has his hands full and is unlikely to see the other. Anxious to see the collision, she says nothing. They col lide and Ben falls and breaks his wrist. Battery?

2. John hates Bill. He shoots at Bill with the desire to kill Bill and succeeds.

3. Ticked off at the world, Postal Worker declares that she will shoot the next person through the door. She does.

4. Same facts, except PW is a former postal worker and she wants to scare the pants off her mean ex-boss, not hit him. She aims to his side, but he moves at the last second and is hit by the bullet.

5. Al sees a bully who used to beat him up as a child. He pulls a knife on the bully and runs it along the bully's cheek and neck, intending only to scare the bully a bit. The bully is a hemophiliac and dies of blood loss.

6. Knucklehead likes to pinch the women in his Legal Writing section and then chuckle and ask them for a date. He tries this on Paula and she threatens to sue him.

A. Al shoots at bottles in the park. One day, a bunch of school kids are waiting for their bus right behind the shooting gallery that Al has set up. He hits one of them. Battery?

B. Al sees Bill, an old enemy of his, about 200 yards away. This is well beyond the range of his zip gun, but he fires off a shot anyway and, way against the odds, he hits his nemesis. Battery?

C. Same facts as #2, but Al misses Bill and hits Tina just as she unexpectedly comes out the door of a nearby store. Battery?

D. Assume that Al is eight years old. Can he have the requisite "intent"? (See A & B)

E. What if a physician removes a painful wart from a patient's neck during a tonsillectomy without obtaining prior consent to the wart removal. Through no fault of the physicians, the wart wound becomes infected. Battery?

A. What is the test for "offensiveness"?

B. Is there sufficient "intent" to cause an offensive contact if the defendant doesn't think the contact is offensive and therefore doesn't intend any offense? (Recall Knucklehead in the hypos for the last class.) If so, exactly what is the re quired intent?

C. In Fisher, would there be a cause of action if the defendant didn't touch the plaintiff's plate?

D. Think about Prob. 34. What is your job here? Who is your client?

A. Della throws a knife at Pria with desire to hit her. Assault? Battery? Both?

B. Pria sees the knife, is alarmed and ducks out of the way.

C. Pria sees it, ducks, but is hit.

D. Pria never sees it and is hit.

E. Pria never sees it, but it misses.

F. Now assume that Della meant to frighten Pria, but not to strike her. What causes of action would be available in A-E?

5. False Imprisonment: 759-68 (We will swiftly cover this material. Here is an outline to help with these readings). The elements of False Imprisonment are:

A. Act or Omission

B. Intent to confine

1. Desire or knowledge with substantial certainty will suffice

2. Transferred intent applies

C. Confinement to a bounded area.

1. Victim must be aware of confinement [or harmed]

D. Causation

E. No damages need be proven

Why were courts reluctant for centuries to recognize an action for emotional distress? Why is the first case in the readings an "easy" case for recognizing an action for emotional distress?

What are the elements of the cause of action today?

7. More on emotional distress: 778-86

Were the cases in the book correctly decided? Will the jurisdiction matter? The era?

Can you see why these cases are "harder" cases than Siliznoff? Or are they?

A. Patient consented to surgery on her left knee. Physician was given the wrong chart in the operating room and removed her appendix. Battery?

B. Physician recommends gall bladder surgery and patient agrees. Patient has the surgery. Patient does not have any of the more common complications, but she does have frequent nausea. Nausea occurs in about 2% of the patients who have this particular gall bladder surgery. She says that her physician never mentioned this risk prior to the surgery. Cause of action?

C. In order to seduce the patient, psychologist tells patient that a sexual relationship with psychologist is the best available therapy for patient's emotional disorder. Psychologist knows this is incorrect. Patient consents. Battery?

D. Patient consents to an exploratory surgery of his kidneys, but expressly refuses to have the condition corrected without a opportunity to consider it further. Physician finds a dangerous lesion on the kidney and successfully excises it. Bat tery?

E. Patient consented to a knee reconstruction. During the surgery, the patient had a life-threatening heart attack. Physician performed open-heart surgery and in doing so, injured the lining of the patient's chest cavity resulting in chronic p ain and inflammation. Patient sues. Tort?

F. Patient consented to a tonsillectomy. During the surgery, the physician noticed and removed a painful wart from the patient's neck, but in doing so cut a nerve.

G. Abdominal pain. Exploratory surgery anticipating scar tissue but finding endometriosis. Surgeon removes it, but damages a nerve. Battery?

H. Surgery for kidney ailment. Surgeon finds unrelated lesion on patient's ovaries and removes. Patient becomes infertile and sues. Battery?

10. Self-Defense: 59-71 and SUPP. 1 (Probably a role-playing day in the courtroom).

11. More Self-Defense and Defense of Others: 71-77

12. Defense of Property: 77-88

13. Necessity and Misc. Defenses: 88-100

1. What is the value of the qualified privilege conferred in Ploof if it requires the trespasser to pay for the damage caused, as held in Vincent?

2. Think hard about Prob. 5.

CHAPTER 3 - NEGLIGENCE [anticipated assignments are divided by asterisks]

Supp. 2-27

Was the outcome of the McDonald's case defensible? What if the evidence showed that McDonald's kept its coffee 40-50 degrees hotter than home brewed coffee and 20 degrees hotter than its competitor? That 180-190 degree liquids cause third degree burns within 2 seconds of skin contact?

Would the proposed Congressional response have changed the outcome?

What are Huber's arguments in favor of tort reform?

As we proceed through the semester, keep in mind the following questions: Do we have a tort crisis? What do we mean by a "Crisis"? (More litigation? More plaintiffs' verdicts? Unfair verdicts?) To what extent is the perceived crisis due to ch anges in tort rules and to what extent is it do to other causes (like juries? Societal expectations about compensation? Other causes?) What are the cures?

*******

More on the Tort Crisis

SUPP. at 28-43

*******

A. Origins and Development of the Negligence Concept

HPS 163-75

Historically, why did courts shift from strict liability to negligence?

Which rule of liability is fairer: negligence or strict liability? Why? To put the question differently, who should pay for the harm done to Mr. Brown: Brown or Kendall? Why? (Exactly what is the fairness argument in favor of strict liability? I n favor of negligence?)

Which rule will encourage more safety precautions? Why so?

Which will spread the costs less catastrophically? How so? What role would insurance play? Whose insurance? Which should we rely upon?

Which rule is more administrable?

B. The General Standard

HPS 175-78; Supp. 42

How is the standard of care defined? Compare Restatement § 283 with MAI 11.02. Is the standard objective or subjective? (Is objective or subjective more consistent with the fault rationale for a negligence standard?)

Is the distinction between mental and physical disabilities defensible? Can you square the rules governing mental impairments with the rationales behind negligence doctrine? How should we classify Down syndrome?

Hypo: Ally backs her delivery truck out of the driveway and into an oncoming car. She claims that a shrub blocked her view. The other driver claims that she was negligent.

1. Can the jury take the blocked visibility caused by the shrub into account?

2. Could it consider the fact that Ally is only 16?

3. If Ally had a hearing deficit and never heard the oncoming car, could the jury take her hearing loss into account? If so, what standard would she have to meet?

4. If Ally has Attention Deficit Disorder and it makes her impatient and prone to poor judgment at times, can the jury take that into account?

******

HPS 178-86; Supp. 45

In United States v. Carroll Towing, how did the court give content to the test for negligence? How did it apply this test to the facts of the case? What if the accident had occurred at night? What if the bargee had gone ashore to get medical at tention?

How does the Restatement approach of page 179-80 compare to B v.PL? How does the Restatement's risk/utility test relate to the test stated in § 283?

Who decides whether disputed conduct was reasonable? Why? What crucial value judgment must be made when applying a risk/utility test?

*****

HPS 186-93

In a case like Washington v. Louisiana Power and Light Co., why doesn't the decedent's death outweigh the cost of safety precautions?

How is Weirum v RKO General, Inc. different from the previous cases? Did the difference(s) preclude liability?

*****

HPS 194-200

Why has the risk/utility approach been criticized? What are the alternatives? Which would be best?

*****

1. Violation of Criminal Statutes

HPS 201-13, Supp. 46-47

What was the issue on appeal in Martin? Why doesn't Cardozo give the issue of negligence to the jury?

What if a driver swerved to the wrong side of the road to avoid hitting a darting child and hit a parked car?

What is left of Martin after Tedla?

Compare the following jury instructions. How has negligence per se changed the instructions?

Ordinary NEGLIGENCE Instruction

Plaintiff has the burden of proving:

1. Defendant failed to signal before turning

2. Defendant was thereby negligent

3. The failure to signal harmed the plaintiff

NEGLIGENCE PER SE Instruction

Plaintiff has the burden of proving:

1. Defendant failed to signal before turning

2. Defendant was thereby negligent?

3. The failure to signal harmed the plaintiff

NEGLIGENCE PER SE Instruction WITH EXCUSE DEFENSE

Plaintiff has the burden of proving:

1. Defendant failed to signal before turning

2. Defendant was thereby negligent

3. The failure to signal injured the plaintiff

However, you must find for the defendant if the defendant proves that:

1. Defendant was not negligent in failing to signal [because a child darted into the intersection]

Negligence per se?

1. Head-on collision. Defendant's rear taillights were not operational and had not been for months in violation of state statutes. Per se?

2. Collision. Plaintiff learns that defendant was illegally driving her car despite her failure to pay personal property taxes on the car.

3. Collision. One driver was unlicensed. Per se?

4. Driver swerves to wrong side of road to avoid a darting child and hits a parked car. Per se?

5. Driver goes 80 in 65 mile zone because the road is straight, visibility is good and the road is dry. Cannot stop for darting child. Per se?

6. Burned out light violates highway safety statutes? Per se?

7. Driver isn't aware that the state she is vacationing in requires snow tires or 4wd in the winter.

******

HPS 334-37; 213-15

In Gorris, what outcome if no statute at all? Given the statute, what outcome if the sheep had, instead, contracted a disease and died while on board?

What are the issues in the Problems?

*****

2. Custom

HPS 215-30, Supp. at 48-53

Why are industry customs relevant? How much weight does custom receive? How does that compare with criminal statutes? Why the difference? Can the plaintiff use evidence of custom as a "sword" (To prove breach of duty by the defendant)? Can the defendant use evidence of custom as a "shield" (to prove absence of breach)? In which of these settings is the jury likely to assign the evidence the most weight?

In Prob. 13, which custom should govern the case?

Who should decide the standard of care? Judges? Juries? Legislatures? Industry Custom?

******

More Custom

HPS 230-36

*****

4. Res Ipsa Loquitor

HPS 236—42

When does a plaintiff need to use res ipsa? What is the gap in proof that would potentially be a problem without this doctrine?

What was the gap in proof in Boyer?

What must the plaintiff prove in order to use res ipsa to fill the gap?

*****

HPS 242-47 (skip Prob. 14)

Why was the plaintiff denied resort to the doctrine in Shutt? City of Louisville?

*****

HPS 248-52

SUPP. at 54

When you look at the old exam question, concentrate on Part B for class. This problem asks you to apply an old rule to a new set of facts. How are the facts different here than in Marrerro (p. 279-80)? Is the difference relevant? Why/not?

1. 299 (Ford v. Trident Fisheries), 101-10

2. 110-19

3. 301-304, 634-40

4. 119-33

5. 134-44

6. 144-48

7. 149-61 and Edgewater Motels, Inc. in SUPP. 55-58.

1. 309-20, 299-301 (Lyons)

2. 320-29 & SUPP. 1-3.

3. 329-33 (Prob. 19)

4. 337-44

End of syllabus #1.

RETURN TO TOP