Stetson University

Torts

 

Analysis of the judicial process involves analysis of the genesis and growth of law, and this involves a study of functions and of ends. What do we mean by law, and how is it created? After it is created, how is it extended or developed? What are the principles that guide the choice of paths when the judge, without controlling precedent, finds himself standing uncertain at the parting of the ways? What are the directive forces to be obeyed, the methods to be applied, the ends to be sought? These are problems of philosophy. Every decision, where the judicial process is creative, and not merely static or declaratory, is a reflection of the problem and an expression of the answer.

 

BENJAMIN CARDOZO
THE GROWTH OF THE LAW (1924)

The law of Torts denotes the inclusive concept of a civil wrong, other than breach of contract, for which the law will provide a remedy in the form of an action for damages. See Prosser & Keeton, Torts (5th Ed. 1984), pp. 1, 2. This definition, though vague and inadequate, properly emphasizes to the beginning student that the Law of Torts is "private law", protecting those personal interests of the individual which are valued in a democratic society, and deserving of protection against invasion by others. A tort is not a crime, and does not rely upon a theory of breach of contract, or necessarily trespass to property, although the Law of Torts "overlaps" the criminal law, as well as the law of contracts and property to some extent, and may provide a civil cause of action related to an action for breach of contract, or trespass stated in the same lawsuit.

The distinction of the Law of Torts, if any, for the student of the subject is that liability in tort is based upon "...the relation of persons with others; and these relations may arise generally, with large groups or classes of persons, or singly, with an individual...The common thread woven into all torts is the idea of unreasonable interference with the interests of others." Prosser & Keeton, supra, p. 5. The chief aim of the action in Tort for civil reparation is the compensation of the individual for the loss she has suffered within the scope of her legally recognized private interests, where the law demands that compensation is required as the best method of relief, i.e., when the injured person cannot strictly be restored to the status quo ante.

Prior to the mid 1800's common law tort actions described a form of strict liability, allowing recovery of damages for direct invasion of another's rights. The Massachusetts Supreme Court's decision in Brown v. Kendall, 6 Cush. (60 Mass.) 292 (1850), is credited with rewriting modern tort law to generally provide that a finding of liability in tort rests upon a fault premise, that is, that the actor-wrongdoer has acted with intent, or without the concern for the care that a reasonably prudent person would exercise under like or similar circumstances (negligence). This fault-based liability is based essentially upon the finding of a duty, arising from: The affirmative conduct of the actor, or a special relation of the parties; breach of that duty; a causal nexus between the wrongful act and the victim's injury; and actual injury [actual or presumed damages]. The intentional torts are unique in that they require a distinct state of mind of the actor, and appropriately the victim, as a condition precedent to liability. Exceptions to the central fault theory, and concepts of strict liability are recognized - principally in the law of worker's compensation, products liability law, and in cases where the actor is engaged in an abnormally dangerous activity. A hybrid of strict liability - known as vicarious liability, or imputed fault - is examined in the context of the employer's liability for the negligence of employees or independent contractors.

Selected topics will be emphasized in the course, and the student's understanding of the nature of legal doctrine, and its application - both in the treatment of cases and preventively - will be emphasized more than the rote memorization of so-called "black-letter law."


Opinions of Judges in Tort CasesBack to top

In his 1987 essay entitled "Moral Argument and Social Vision in the Courts: A Study of Tort Accident Law", Professor Henry J. Steiner observes that the opinions of judges in tort accident cases describe three categories within legal argument or analysis: legal doctrine, moral justification, and social vision. Professor Steiner describes the role of each of these categories in the adjudication of cases which define the parameters of the common law of torts:

"How are these three elements of legal argument to be understood? Imagine a characteristic modern appellate decision awarding damages to an accident victim, and consider the diverse strands of the court's argument. Suppose that defendant corporation is held strictly liable because plaintiff's injury stemmed from its "abnormally dangerous activity" -- perhaps blasting during building construction that injures a pedestrian. A typical appellate opinion might invoke prior decisions imposing strict liability for such abnormally dangerous activities. It would seek support in opinions that characterized analogous activities, or perhaps characterized blasting itself, as abnormally dangerous.

The court may recite reasons for imposing strict liability in these circumstances and employ those reasons to help resolve any ambiguities in characterization of the relevant activity. (Blasting, for example, would find specific historical precedent, but other activities such as crop dusting or the transportation of inflammable fuel would be more problematic.) Such reasons may include a "policy" such as the attribution of accident costs to the business that "caused" the harm or to the party that can best control such costs. They may involve a "principle" of fairness, such as one requiring those who benefit from the activity -- the defendant and third-party consumers of the defendant's services -- to share the victim's loss. In the course of developing reasons that justify its decision, the court may observe that the accident victim was helpless to protect himself against this risk of injury, that the defendant corporation is better situated than the victim to reduce that risk, and that business will not be unduly burdened because it can spread the losses assigned to it.

That each of these arguments or observations could be countered by other arguments or observations antagonistic to strict liability, is here beside the point. They illustrate the three interrelated strands of common law adjudication and change -- doctrine, moral argument or justification, and social vision. * * *

Doctrine refers to the formal, conventional expression of law through rules and standards. It is captured in the Restatements' black letter. In the imagined opinion, doctrine enjoys a typically prominent role as the court draws on precedents characterizing the defendant's or analogous activity as abnormally dangerous, as well as on the strict-liability rules that those precedents have developed to resolve claims growing out of such activities. Argument based primarily on doctrine may proceed in a formal and even mechanical way, perhaps by the extrapolation of rules from precedents and the application of those rules to the present case through deductive logic. Doctrinal argument may proceed more complexly, as courts support their conclusions by drawing analogies to prior decisions.

However absorbed into courts' argument and decision making, doctrine constitutes the core of most lawyers' and teachers' discourse. It is also our clearest indicator of changes or trends in the law. * * *

By justification I mean the moral argument supporting a decision. Justificatory argument seeks to demonstrate why one rule or standard is to be preferred to another, why doctrine is what it ought to be or why it ought to be changed. It means to ground an opinion in reason, to put a rational face on it. * * *

Social vision, a more amorphous category, . . . constitutes the pivotal and unifying concept within this portrait of common-law adjudication and change. It refers broadly to perceptions of courts about accidents, about the socioeconomic context for the resolution of accident claims, and about the character and capacities of the victims and defendants before them. It embraces empirical statements, observations about social actors, evaluative characterizations of social life, and understandings of older and prevailing ideologies. Relative to justification, it has a less abstract and more contextual and graphic character. It enters opinions less as reasoned argument than as fragments of description, evaluation, or insight. The observations in the imagined appellate opinion about victims, business defendants, and corporations' capacity for loss spreading illustrate this notion. * * *

More than merely ornamenting or influencing doctrine, justification and social vision form and inform it. They give it life and meaning. These two elements of argument are as much a part of doctrine as distinct from it. They are themselves mutually dependent, reciprocally influential categories of thought and imagination, complementing and indeed shaping each other even as both shape doctrine."


Steiner, "Moral Argument and Social Vision in the Courts: A Study of Tort Accident Law" (University of Wisconsin Press, 1987), pp. 4-9.

A Comment Based on The History and Basic Taxonomy of Torts
by Dr. Tim Kaye
Professor of Law
Stetson University College of Law

"There was no separately taught field of 'Torts' at all in England prior to 1870 ..."
The old common law had made little attempt to articulate standards of conduct of general applicability. In the well-known English case of Rylands v. Fletcher, for example, where a reservoir overflowed and flooded a neighbor's coal mine, it is striking that, although the House of Lords found the defendant reservoir owner liable for the damage caused, it did not do so by generalizing from rules of law already laid down in other cases. Because Rylands involved a set of facts that were entirely new to the law, the judges considered the case novel and so were free to treat it as one of first impression. There was, accordingly, no legal imperative that the judges fit their decision within a broader conceptual framework, whether of trespass to land, nuisance, or some form of negligence. On the contrary, having decided (presumably, by subconsciously applying some moral criteria) that liability should attach, they were free to create an entirely new category of law relating to overflowing reservoirs, which is precisely what they purported to do.

Ironically, the decision in Rylands seems swiftly to have become a victim of the very individuation of cases that had initially made it possible. It was apparently never followed in England in any subsequent instance of an overflowing reservoir and, in a succession of cases heard soon after, quite different principles of law were laid down which were said to govern liability for "the vast majority of large reservoirs." Certainly, no general law of ultra-hazardous activities ever developed in English law. The decision in Rylands was so individuated as forever to be known in England simply as 'the rule in Rylands v. Fletcher.' Indeed, "the only individual in Britain who ever seems to have employed the rule in Rylands v. Fletcher to recover damages for a burst reservoir is Thomas Fletcher himself." Rylands was taken to lay down a general rule governing all ultra-hazardous activities only by American jurists (urged on by Holmes) but, even then, only once the individuation of cases had been overtaken by the new law of torts.

The individuation of cases had arisen because, until the late nineteenth century, the common law was not really organized according to the substantive issues at stake, but according to a highly formal writ system, which permitted actions for personal injury only if they could be considered to be some form of trespass. As the industrial revolution gained pace, the old actions for trespass to the person became awkward vehicles for dealing with the types of cases with which the courts increasingly found themselves having to deal: Particularly in cases involving strangers, whether on the highway, at grade-crossings, or in other public areas, pre-industrial ... conceptions provided little direct guidance. Within a short time, the courts were confronted with recurrent injury situations having no close analogue in earlier common law. Railroads and motor vehicles, for example, created a variety of risks to strangers that bore no likeness to the harm caused by animals, stealthy poachers, or irresponsible innkeepers. Moreover, as Mathias Reimann has pointed out, "America faced a problem of sheer quantity." Federalism, with its multitude of jurisdictions and courts, produced an unprecedented volume of reported case law. "By 1870 the case reports were piling up by the hundreds ..." This chaotic and increasing pile of case law needed to be put in some sort of order.

B. The New, Tripartite Taxonomy of Torts

Thus was the body of 'tort law' conceived. This new, discrete field differentiated between torts according to the degree of culpability with which a person acted. Tortious conduct was divided according to whether the person concerned had acted negligently, intentionally, or "irrespective of culpability." Somewhat ironically, given that only two years earlier, he had declared that: "Torts is not a proper subject for a law book," it is an essay by Oliver Wendell Holmes that is usually credited as being the first to mark out the field of torts in this manner. Holmes developed his approach further in Lecture III of his most famous work, The Common Law.

A. The Similar-but-Different Conundrum

Tort law scholarship is not well served by simplistic theories that attempt to reduce the complexity of the law to one fundamental variable. Tort law is not just the product of some economic imperative, nor is it simply a reflection of a particular conception of rights, morality or justice. On the contrary, tort law is a product of both economics and ideas of justice - as well as of the social practices in which we all engage. The challenge, therefore, is to develop a theory of law that can accommodate all these influences without lapsing into vagueness or incoherence. We talk of the law of torts - plural - for a reason. Unreasonableness does not mean the same thing in negligence as it does in nuisance, nor does the term, in itself, explain the degree of unreasonableness that constitutes offensiveness in the torts of assault, battery and the intentional infliction of emotional distress. In other words, tort law does not create one universal right to redress for wrongdoing. A plaintiff must instead show that the alleged wrongdoing satisfies the requirements of one or more specific torts. Finally, it is also important to recognize that even nominally identical torts do not work in the same fashion in every jurisdiction. The law of California regarding duty of care in negligence, for example, is not identical to that in Florida.

The two basic "schools of thought" as inadequate, if used separately to define tort law: If the guiding principle of torts really were the idea that the law imposes liability only for inefficient conduct, how could it be that the notion of efficiency changes at the borders of every state? Why is California's conception of duty efficient there, but not in Florida? However, theories of corrective justice fare little better. They are predicated on the idea that a tortfeasor should be required to make up for the harm he or she has caused the victim. But, once again, state courts are singularly unable to explain why victims who would be recognized as having a valid claim in Florida would be denied any tort remedy in California on the grounds that they were owed no duty of care. Again the answer is obvious: it is patently absurd to believe that the single notion of corrective justice can explain these different outcomes any more legitimately than a single notion of efficiency.

Yet it is equally dangerous simply to accept the idea that every tort, or the precise implementation of doctrine within each state, is simply an ad hoc judicial or legislative response to the perception of a particular social problem. The common law jurisdictions - both within the United States and throughout the world - currently reveal very similar bodies of tort law, even though each one has been free to go its own way for decades or, in the case of American states, for over two centuries. Perhaps even more remarkably, common law tort doctrines seem to have become strikingly similar to that in operation in many civil law countries.

The partial answer to approaching the taxonomy of tort law: The conundrum with which any theory of torts has to grapple is precisely that, while the form and structure of the law of torts has long been very similar across many jurisdictions, the specific rules and doctrines (the specific content of doctrine, or rules) differ from one jurisdiction to another. So all common law jurisdictions have both a law of negligence and a law of nuisance. And each common law jurisdiction's law of negligence demands proof of the same elements of duty, breach, causation, and harm in order for a prima facie case to be established. Moreover, each one relaxes the requirement to prove causation in certain cases; and each one considers a plaintiff's own fault to be some sort of defense. Yet, on the other hand, some jurisdictions keep negligence and nuisance distinct, while others seem happy to blend them together. Some jurisdictions hold that a duty is owed in circumstances where others deny that it is. Some treat as questions of duty what others treat as questions of breach or causation; and there is no universal agreement on when and how to relax causation requirements. Some jurisdictions deny entirely any claim where a plaintiff is partially at fault, whereas others simply reduce the award of damages.
To this, one additional factor must be added: It is essential to view the law through the prism of time in order to identify clear trends and long-term characteristics, because the evolution of a society will produce ever-changing views of morality and economic efficiency.

[Professor Kaye observes that the current capitalist model in the U.S. has significantly shaped tort law, but he also observes that notions of morality remain influential - suggesting that as the relationship between capitalism and democracy evolves, so could significance of these factors - morality and economic efficiency - reshape tort law].

* * *

This commentary is from a forthcoming article by Dr. Kaye, entitled "RIGHTS GONE WRONG: THE FAILURE OF FUNDAMENTALIST TORT THEORY."

Course MaterialsBack to top

Required Text:

John L. Diamond, Cases and Materials on TORTS, Second Edition (American Casebook Series, Thompson-West, 2008), ISBN 0-314-15410-1

Recommended Secondary Resource:

The course (and the examination) focus exclusively on the Diamond Casebook and the materials presented in the online course page. Students are expected to carefully prepare, discuss and review the assigned material. However, if you feel the need to do additional reading, the Understanding Torts text (Legal Text Series, LEXIS), also co-authored by Professor Diamond, is suggested.

Course ObjectivesBack to top

Course objectives usually defy precise definition. However, it may be said that the following goals are established by the professor:

1. That the student understand and appreciate the case method of law study and the proper use of the Restatement, Second, and Restatement, Third, TORTS, legal texts, and other so-called "black letter" statements of the law;

2. That the student learn to identify and properly define the elements of tort causes of action, and how to establish them in a court of law;

3. That the student learn the role of the court and the role of the jury in a civil action based upon tort concepts, by identifying those aspects of tort cases that present questions of law for the court, and those aspects of the cases that depend upon the evaluation of the conduct of the parties or related issues of fact;

4. That the student examine the arguments and social policy that justify tort law doctrine.

5. That the student be exposed to the promulgation of tort law rules by statute, and the role of the courts in interpreting statutory tort law.

6. That the student acquire an understanding of the lawyering process, including the role of the lawyer outside the context of litigation - i.e., the role of the lawyer as advisor and the practice of "preventive" law;

7. That the student enhance her/his skills of analysis and written advocacy through participation in classroom discussion and the completion of a written examination;

8. That the student be introduced to the subject of professionalism within the context of a tort law based practice.

Examination and GradingBack to top

In accord with the Standards of the American Bar Association, the student's grade in this course will be based upon the student's performance on a written final examination.

Study guidance, power points, and readings outside the Casebook, including practice exercises, are presented throughout the online course page, either as textual readings, or as >>prompts which link the students to an article, power point, or other readings. The practice exercises are presented simply to facilitate application of the assigned readings. No submission is required and none of these exercises will be graded. The student's grade will be based on one four (4) hour final examination. This final examination will be administered at the time established by the Registrar for all 1L Torts exams, and will be taken utilizing the "Exam-Soft" unsecured process.  During the examination, the Exam-Soft unsecured program will allow you to access the online course page for the course. Be sure to register in advance for Exam-Soft at the time prescribed by the Registrar.

Although you will have the advantage of the unsecured mode in Exam-Soft, thus allowing access to the online course page, you should prepare for the examination as if it were a "closed book" exam.  Four hours is a quite limited time, and you should not use the "open book" format to re-examine the subject of the questions de novo. Being too dependent on, or misunderstanding the "open book" format, could result in answers that are shorter and poorer than the more extensive answers that take full advantage of the four-hour time limit.

More complete instructions will be presented in the examination as distributed to students. [Click here for the detailed instructions which accompany the final examination].

 AttendanceBack to top

Pursuant to applicable ABA Standards, The Stetson University College of Law requires that each student attend at least 80% of the regularly scheduled classes in each subject. Attendance will therefore be recorded and absences noted. Since no "excused" absences are available under the "80% rule," students need not submit excuses for absences. Attendance will be recorded at the beginning of class. In the event a student is late for a class, s/he should inform the professor immediately after class. A student who is consistently late for class sessions will be referred to the Dean's office for appropriate counseling.

Office Hours: Student CounselingBack to top

Each student should consider class time as the most important period of contact with the professor. The professor's availability to students outside of class time must, of necessity, be limited in order that the professor is able to meet his other responsibilities to the College of Law, including his own preparation for class, other classes, research and writing for publication, administrative assignments, responsibility for the supervision of individual practicum students, and professional development.

If you arrive at my office and observe that I am talking with another student or professor, please feel free to knock on my door. If I am not in at the time of your visit, please feel free to email me at bickel@law.stetson.edu. I also encourage you to email me to schedule a mutually convenient time to see me. Please do not leave messages taped to or under my door.

Course Outline and MethodBack to top

The materials in the casebook will generally be followed as presented. Invariably, some students think the course is too "fast-paced," while others think it too "slow-paced"; in other words, some students think that too much time is spent on certain individual cases, while at other times too much material is mentioned in a single class period. It is my objective to develop the students' appreciation for the detail (regarding both law and fact) of individual cases, while recognizing that each case cannot receive the attention it deserves. Thus our pattern of study will vary, to allow for in-depth analysis of certain individual cases and, on other occasions, a more general approach. More specifically, some cases may be examined in detail, as to doctrine, facts, and analysis; other cases will be examined only for the rule of law and its basis in policy. In sum, my concern is that the student appreciate that s/he should never dismiss the importance of individual study of each case, or series of cases, and note materials. In practice, a single case may be directly applicable, even dispositive, in a given situation; in other situations, the student/lawyer may have to build upon a series of cases, appreciating the manner in which they collectively define the approach to be taken in resolving one or more legal issues.

The Restatement, Second, and Restatement, Third, Torts, and the recommended legal text provide an outline of the subject which should be helpful as you review what you have studied. However, these reference works are not primary authority for your position in a torts case, unless they are cited and followed by a court as authority for its holding or reasoning. They are, as Professor Prosser has stated, merely "restatements" of the caselaw, as it has been interpreted by the reporters of the Restatement Second and Third, and the authors of the legal texts. These resources are helpful in identifying the elements of a tort cause of action, and otherwise stating in a summary fashion basic rules of the law of Torts. However, in tort cases, facts may be dispositive. There may be little disagreement concerning rules of law. It is therefore important that the Restatements of the law of Torts, and legal texts not be seen generally as primary authority for the law of a case.

AssignmentsBack to top

Each assignment - designated by a bullet point - will be the intended subject of one class session, unless otherwise noticed. Our schedule may vary, and modifications will be announced in class

  • Orientation and review of electronic/online course page
  • Review the electronic course page, "Introduction" and Section on "Opinions of Judges in Torts Cases"; also prepare Brown v. Kendall, 60 Mass. 292 (1850); and Scibelli v. The Pennsylvania R.R. Company, 108 A.2d 348 (Pa. 1954).
Case Digests
Click case name to access cases


Study Tips
As you begin your study of law, you will immediately appreciate the many 'facets' of the cases and materials you are reading and contemplating. Although some cases are more significant than others, you cannot simply read a case. Every major case you will study in the course is a case of significance that must truly be studied. Brown v. Kendall is not "a dog case." It is a case of great historical significance because it represents the American departure from early English Common Law notions of trespass and direct injury, and the adoption of a 'fault' principle as the basis for civil liability in personal injury cases. It is an example of the evolution of fundamental common law doctrine. And, Brown v. Kendall means even more to you as you begin your law studies. When you study Brown v. Kendall look for the following principles:

Consider how:

  1. It introduces you to the influence of certain American courts and judges;
  2. It introduces the allocation of the burden of proof in civil actions and begins to enlighten you about the posture of a civil action before a court;
  3. It introduces you to judicial writing that draws upon, and then criticizes the language and formality of the English Writs that defined the early common law of Torts;
  4. It introduces you to the role of the law in people's lives and, more particularly, the role of the courts, and juries, in the resolution of civil disputes - and the relation between law and social policy. Cf. Professor Steiner's essay, and Justice Musmanno's passionate dissenting opinion in the Scibelli case.

Study Questions
Considering Professor Steiner's definition of the elements of legal argument:

  1. What is the rule of law or legal standard that defines the rights and responsibilities of the parties in Scibelli v. Pennsylvania Railroad Company?
  2. Is there agreement or disagreement among the judges whether the so-called "playground doctrine" should be applied in the case?
  3. Is there agreement or disagreement between the "majority" and Judge Musmanno regarding the interpretation of the precedents which have defined and applied the so-called "playground doctrine"? The majority, and Judge Musmanno, draw analogies to prior decisions to support their conclusions; how are their analogies different?
  4. To what extent does the point of reference of the judges influence their explanation of the rule of law or standard which governs the rights and responsibilities of the parties? How do the majority, and Judge Musmanno, differ in their perception of the accident, the socio-economic context for the claims of the parties, and the character and capacities of the parties (i.e., the Scibelli family as accident victims, and the Railroad as a social actor being subjected to possible liability for Frank Scibelli's injuries?
  5. What is the justification for the majority's decision? Is the moral argument reflected in Judge Musmanno's reasoning the defining characteristic of his dissent?

  • A Brief Overview of The Relationship of Tort Law, Contract Law and Property Law: Reflecting on the Commentary by Professor Kaye, study the following cases from the Diamond Casebook, focusing on their consideration of the relationship of Tort Law, Contract Law, and Property Law, as well as the relationship (within the basic taxonomy of Torts) among Intentional Torts, Negligence and Strict Liability:

    Foley v. Interactive Data Corp., a decision of the Supreme Court of California, presented in Chapter 1, Section I, at page 104 - 107, and Notes 1 through 4, at pages 107 - 109;

    J'aire Corp. v. Gregory, a decision of the Supreme Court of California, presented in Chapter 2, Section H, at Page 407 - 412;

    Curd v. Mosaic Fertilizer, 39 So. 3d 1216 (Fla. 2010), a decision of the Supreme Court of Florida, presented in the online course page materials in the Section on Strict Liability and Vicarious Liability [Click on the >> citation to access the case digest].


The Concept of Intent and Selected Intentional Torts

  • A study of the concept of intent, and its application in battery cases: Study Chapter I, Section A, Garratt v. Dailey, and Notes 1 through 5.

    Perspective and the Case Method
    Note from the outset, that the case method of law study teaches a rule of law in the context of a factual situation in which a lawsuit has emerged from unresolved, competing interests. Legal doctrine is presented through the case by the rule of law - or the so-called "black letter" law followed or announced by the court. The "law of the case" represents the application of the rule to the dispute before the court. This application of the rule of law facilitates the student's understanding of the rule per se, and the parameters of the rule. Moreover, even though the rule of law is considered and applied by the lawyer in both her resolution of formal legal disputes (before a court), and in preventive practice - its application in either sense is shaped and defined by the cases in which the rule has been announced and applied. This is the value of the case method and why we do not simply study law as presented in the secondary resource. Secondary texts are "user-friendly" in presenting the student with rules of law - but they focus almost exclusively upon doctrine, and do not expose the student to the mixed questions of fact and law which truly define tort law in both its treatment and preventive character.

    * * *
    The case method and the recommended secondary text: The secondary resource, "Understanding Torts," is helpful, and may assist the student in understanding legal rules, as well as the author's view or interpretation of a case presented in the Casebook - especially since the author team includes Professor Diamond. However, the student should see the major cases, and related note materials, as the focus of our class discussions. Even though these cases present the law through appellate opinions which review, rather than initiate, the findings of fact and conclusions of law that characterize an original judicial decision, such cases still subsume the mixed questions of fact and law essential to the understanding of tort law principles.

    * * *
    Read Garratt v. Dailey, once through. Then return to the case, and perform the following exercises: (1) Identify the ultimate facts which appear to be directly related to the legal issue before the court - whether Brian Dailey acted intentionally - as that term is applied to the law of battery - when he pulled the chair from under Ruth Garratt (Note that the State Supreme Court includes in its opinion the fact findings of the trial court, including the trial court's finding that Brian Dailey "did not have any willful or unlawful purpose" in removing the chair, nor did he have any intent, purpose, or design to injure her, or play a prank on her); (2) Define the basic premise of a tort case, as stated by the court: That, to be civilly liable in tort for Ruth Garratt's injuries, Brian Dailey must have committed a "wrongful act;" (3) Note the appellate court's identification of the elements of the tort of Battery (adopting the elements as stated in Restatement, Torts, § 13, and then the specific issue in the case: Since there is no question that (a) Ruth Garratt fell to the ground and sustained physical injuries, (b) she did not consent to Brian's actions, and (c) his actions were not privileged, the only element of the tort of Battery at issue is the character of Brian Dailey's intention; (4) Examine the court's opinion on the concept of intent, as influenced directly by the Comment to clause (a), and its application of the concept to the facts of the case - and specifically to Brian's actions. Note the court's view - coming from the Restatement - that intent is present where the injury-producing act is done "for the purpose of causing the contact…" or is done "with knowledge on the part of the actor that such contact…is substantially certain to be produced"; (5) Determine the holding of the case, and why the court's holding requires the case to be remanded back to the trial court.

    * * *
    Note 3 following the case is important, especially insofar as it emphasizes that any state of mind short of substantial certainty as to the harmful contact is insufficient to support a finding of battery. In other words, where the actor knows that his act will cause a risk of harmful contact, he is liable for negligence, but not battery. Note 4 is also important for its illustration of the importance of the "substantial certainty" rule, and its relevance/application in Environmental and Workplace Litigation. See also Note 1, p. 9, that, unlike in criminal law, insanity is not a defense to intentional torts, citing two subjects of media attention - a school shooting case and the John Hinckley case.

  • Section B. Battery: Bohrmann v. Maine Yankee Atomic Power Co., & Notes 1-8.
Click on title for Slide Show
(PowerPoint Presentation)


Case Study Hypothetical
An explosion at a ChemEx, Inc. chemical plant killed Robert Adams and seriously injured Carl Harold, both ChemEx engineers. The explosion was caused by a mixture of three chemicals in the research phase of a project ChemEx hoped would lead to the development and marketing of metal coatings. Marilyn Adams, Robert's wife and personal (legal) representative of the estate of Robert Adams, seeks legal advice whether she should file a wrongful death action against ChemEx, Inc., alleging that ChemEx wrongfully caused the death of her husband. The law firm consults well known experts in chemical engineering and chemistry at a local university. The experts advise that the chemicals in question are highly reactive and prone to spontaneous and violent decomposition. They advise that it is well known in the field of research chemistry that the chemicals in question must be handled with extreme care in highly specialized research facilities. They discover upon inquiry that the manufacturer of one of the chemicals had advised ChemEx that it was planning to discontinue supplying the chemical to industrial research and development companies because of its dangerously hazardous character, as applied. ChemEx decided to continue the use of the remaining chemical in its inventory, and the project in question, without change, and did not provide this information to any of its employees. The explosion in question occurred during the seventh run of the research process following the advisory to ChemEx from the manufacturer. ChemEx had experienced three 'smaller' explosions within the past two years, both of which involved the chemical in question, but which resulted in only minor injuries to employees. After reviewing ChemEx's process for the conduct of this project, and the circumstances of the prior explosions, the law firm's experts opined that the process, and specifically the use of the chemical in question in combination with the two other chemicals that were involved, was fundamentally unsafe, and the environment in question, including the equipment being used, was out-of-date and absolutely unsuited to the experiment being conducted.

Question: Using the assigned cases and note materials as authority, prepare a brief analysis or legal argument (identifying the principal issue in the case; discussing the rule of law in its general context, and as it is viewed in workplace litigation cases; and, explaining the reasoning which is likely to determine whether Ms. Adams could seek civil damages on a theory of battery). You are to assume that ChemEx did not act with malice toward Adams, but that its continuation of the process, after the advisory, was conscious and deliberate, as was its withholding of the advisory from its employees.


Case Study Hypotheticals
Several of the case studies draw upon facts and reasoning presented in one or more reported cases; however, all names and identities are fictional, and are used solely to give the question, and the student's answer some reference to the parties to a dispute, as is the custom in academic exams. None of the parties or entities in the case studies is an actual person or entity.


Non-graded Case Study Practice Questions
The case study practice questions appearing throughout the online course page are provided to facilitate student small group discussion of the assigned cases, text materials, power points, and other assigned readings.

While I encourage students to write a practice answer to one or more of the practice questions, and to discuss their response with their study group, I cannot review or grade individual "answers." My teaching responsibilities include the dedication of approximately 8 work weeks in the year to the careful grading of first year final examinations, and papers in upper level courses. More generally, the first year of law school is unavoidably a lecture-based introduction to basic legal principles and legal argument. Individual tutoring in any form is simply not possible with any degree of fairness to all. The study notes, additional readings, power points and hypotheticals attempt to facilitate both individual and group discussion and mastery of the basic principles and the analytical approach to tort cases.

  • Section C. Assault: Castro v. Local 1199, National Health & Human Services Employees Union, & Notes 1-6, pp. 19-21; Section D, Notes on the doctrine of Transferred Intent; Sections E & F. False imprisonment, false arrest and malicious prosecution, intentional infliction of emotional distress: Maniaci v. Marquette University, and Rulon-Miller v. IBM .

  • Section G. Defenses to intentional torts: Drabek v. Sabley, & Notes 1-10.

  • Section I. Wrongful termination of employment contracts: Foley v. Interactive Data Corp., & Notes 1-3.

    Study and Discussion Questions
    The major case and note cases all recognize the employment-at-will doctrine, and agree that public policy may limit the employer's legal right to terminate an at-will employee, without cause. However, do the reported cases apply the rule in a predictable manner? The California court does set forth, in the Stevenson case, the "elements" of a wrongful discharge claim - thus facilitating the conceptual structure of a pleading alleging such a claim against an employer. Are the holdings in the other reported cases different because of different perceptions of the nature of the public policy exception, or because the cases can be distinguished factually as to the reasons for the employee's discharge?

The Law of Negligence

  • Chapter II, Negligence: Omit Section A, and instead click on the following prompt and carefully study the article by Professor David Owen.  Professor Owen's article will serve as our guide for the consideration of the Cases and Materials on Negligence.

» A Review of the Elements of Negligence
Owen, "The Five Elements of Negligence"
35 Hofstra Law Rev. 1671 (2007)

 

 

  • Duty and the American Conceptualization of Foreseeability:  As you begin to examine the subject of Negligence in relation to the distinct types of harm depicted in the previous Elements of Negligence chart (i.e., physical harm, economic loss, and emotional distress), you will note a corresponding change in the judicial view of the concept of foreseeability or proximity.  As you study these cases, you may find the matrix presented in the following link will help you better visualize the relationship between Duty and the concept of proximity or foreseeability.

 

  • Section F. Duty & Proximate Cause:

    A reading of Sections 1 and 4 of Professor Owen's commentary reveals a relationship between the elements of Duty and Proximate Cause/Scope of Liability - a relationship that has a basis in "logic, fairness, policy and practicality."  More specifically, these concerns beg the role of the court in determining the scope of tort liability. 

    Read Palsgraf v. Long Island R. Co., as presented in Section F of the Casebook.  Scholars debate the present significance of the Palsgraf case. Some claim it is important only in a historical sense, while others (including Diamond) continue to suggest it as mandatory reading.  Most would agree that Judge Cardozo's view that remote (unforeseeable) plaintiffs should not recover in private tort actions remains valid today, but most jurisdictions have departed from his strict statement of the Duty element. In 1928, when Cardozo wrote in Palsgraf, courts followed a rule that extended liability to all natural, unbroken consequences of the defendant's negligent act - a so-called "direct cause" rule, associated with In re Polemis, Furness, Withy & Co., a 1921 English case. American courts have since, for the most part, adopted the rule associated with Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. (The Wagon Mound), a decision of the Supreme Court of New South Wales which limits the liability of a defendant to the reasonably foreseeable consequences of his act or omission. Carefully consider the Palsgraf case, and the debate between Justices Cardozo and Andrews about the relationship between the elements of Duty and Proximate Cause. Then study the following Power Point presentation on the subject of McCain v. Florida Power Corporation and examine how the Florida Supreme Court defines the relationship between the elements of Duty and Proximate Cause in Negligence analysis. Pay particular attention to the distinction between questions of law and questions of fact, and the role of the court, and the fact-finder in Negligence cases.

    Finally, consider how this concern for determining questions of law and questions of fact influences the concept of Summary Judgment.  Summary Judgment indicates the entry of judgment for one party (usually the defendant) as a matter of law, because the dispositive question is a question of law for the court, or because there is no genuine dispute as to one or more material facts essential to the proof of an element of the plaintiff's tort claim.  Section F is examined early in our coverage of Negligence to emphasize that the elements of Duty and Proximate Cause are related in that they present questions of law that influence the court's inquiry into the facts of the case, ab initio - and to reveal the frequent influence of the elements of legal argument on the court's analytical approach to a particular case or category of cases.
  • On the subject of Superceding (Intervening) Cause as a part of the proximate cause concept, we will discuss Bigbee v. Pacific Telephone & Telegraph Co.

    The So-Called "Risk Utility" Test
    Most student casebooks, including the one used in this course, suggest that courts employ an aggregate risk-utility test to determine liability for negligence. As in our text, the primary reference is to the so-called "calculus" identified with Judges Learned Hand and Richard Posner. As Professor Richard Wright points out, Posner claims that the so-called "Hand calculus" expresses "an economic efficiency interpretation of negligence" that is "implicit in judicial opinions (see, e.g., United States Fidelity & Guaranty Co. v. Plovidba, p.142 and notes following the case. According to Hand, and Posner, a person's conduct is negligent only if the risk, expressed as P x L, created by the conduct is greater than the utility of the conduct, expressed as B - where P is the probably of injury, L is the magnitude of injury, and B is the cost of avoiding the injury-producing conduct). Professor Wright properly criticizes this assertion, and correctly observes that this aggregate risk-utility test "is infrequently mentioned by courts" and rarely employed to explain the actual results reached by courts in negligence cases.

    I agree with Professor Wright that the academic emphasis of this "assumption" or approach to negligence cases may cause students to pay too little attention to the approach actually taken by courts - and specifically to overlook the criteria of reasonableness applied by courts in deciding most negligence cases. I therefore avoid an explicit discussion of this aggregate risk-utility test as some sort of universal expression of negligence analysis. See generally, R.W. Wright, "Hand, Posner, and the Myth of the Hand Formula," Theoretical Inquiries in Law, Volume 4, Number 1 (Cegla Center for Interdisciplinary Research of the Law, Tel Aviv University, 2003). Professor Wright is Professor of Law, Chicago-Kent College of Law.

See also Michael J. DeVinne, "The Reasonable Person as Living Fossil," 37 Litigation, Vol. 1 (Fall, 2010): "[The] conduct of a reasonable person is a curious standard. For it is no more than a standard to establish a standard. Whenever instructed to use it, the jury creates its own, one-of-a-kind reasonable person, whose hypothetical conduct, under the facts as the jury finds them, establishes the standard by which the allegedly negligent party is judged…. A survey of contemporary pattern jury instructions across the country shows that the reasonable person is also called the "reasonably prudent person" the "reasonably careful person," the "reasonably prudent and careful person," the "person of ordinary caution and prudence," and the "ordinary, careful person." The reasonable person, then, possess - and always has possessed - at least three essential attributes: ordinary reasonableness, ordinary prudence, and ordinary carefulness. 'Ordinary' means the middle of the bell curve….Underlying these three essential attributes is one more: An essential element of negligence is a knowledge of facts which render foresight possible…."

DeVinne describes the "Hand Calculus" and its recognition as early as the first Restatement of Torts, noting the attempted rationalization of the reasonable person standard by an analysis that weighs risk against utility or cost against benefit. However, consistent with Professor Wright's commentary, DeVinne suggests that "Hardly any contemporary pattern jury instructions mention risk-utility or cost-benefit analysis….Complexity arises because P,L and B "are practically not susceptible of any quantitative estimate, and the second two are generally not so even theoretically."

After carefully analyzing attempts to apply an economic approach to the reasonable person standard, DeVinne concludes (with reference to the first Restatement) that "the value attached by the law to the great majority of interests is identical with the value that popular opinion attaches to them…what the majority of people in the community think; the combination of community norms, customs, practices, and expectations about how people ought to behave toward one another." The Restatement (Third) he concludes, while suggesting P,L and B as 'factors to consider,' "at least acknowledges that the jury, through the reasonable person it creates, does something 'ethical' or 'moral' when it decides how much care is due." * * *

  • Section B. Standard of conduct: Read the Cordas case, but focus on Notes 1-4 following the case, and the Notes following the Bruenig case; then prepare Neuman v. Shlansky and the Notes following the case; finally, prepare the cases and note materials on the subject of the standard of conduct for professionals.

  • Section D. Negligence per se: Prepare both Wawanesa Mutual Insurance Co. v. Matlock and Stachniewicz v. Mar Cam Corporation, and the Note materials following the cases.

  • Section E. Cause-in-fact: East Texas Theatres v. Rutledge Notes 1-4, and Summers v. Tice. After examining the Rutledge case, students should prepare a response to the following Case Study Hypothetical, and then consider the power point and related readings on the subject of Saelzler v. Advanced Group 400. These materials will be the subject of considerable discussion reviewing the analytical approach to negligence cases.

    Multiple Topic Case Study Hypothetical
    Roberta Sullivan is an employee of Delivery Services, Inc., a company which contracts with national retailers of specialty products for the delivery of their products to customers who purchase such products via the Internet. National retailers ship such items via air, or ground to local areas, where DSI trucks meet such shipments and deliver individual items to the ultimate customer. Urban Living, Inc. owns and operates a 20 building, 300 unit apartment complex in the central city section of Metropolis. In mid-afternoon, Sullivan attempted to deliver a package to one of Urban's tenants. As she entered the complex through one of the three "gated entrances," she saw two young men "loitering" outside a "security gate" that was propped open. While walking across the grounds, she saw another young man already on the premises. Sullivan's attempt to deliver the package was unsuccessful because the resident was not at home. As she left the apartment to return to her vehicle, using a sidewalk, she was confronted by the three men, who beat her and attempted to rape her. The men fled, and were never identified or apprehended. Evidence showed that Urban Living, Inc. knew of frequent criminal activity on the premises of the apartment complex. The community itself was a high crime area, with significant juvenile gang activity both on and off Urban's premises. Police reports and logs showed that, within one year of the assault on Sullivan, Urban had received 41 reports of trespass, and 45 reports of gates or perimeter fences being broken or rendered inoperable. Known criminal activity on the premises included: incidents of gun shots; robberies; nighttime rapes and other sexual assaults of women; and gang activity in two apartments, including drug transactions. This activity was perceived by Urban's site manager as a threat to her own safety, and she used an escort to her vehicle whenever she entered or left the premises. Urban's security measures included the employment of security guards on a daily basis, from 9:00 P.M. - 5:00 A.M., and the occasional, random use of 24 hour patrols. Urban also posted notices threatening the eviction of tenants participating in drug-related or gang activity. Urban's security guards regularly checked access gates for forced entry or broken locks, and Urban had, on two occasions, evicted tenants found to be engaging in gang or drug-related activities. In spite of these measures, police officers advised both the apartment manager and the CEO of the security firm with which Urban contracted for its guards that daytime security patrols should be regularly conducted.

    When Urban refuses to accept responsibility for Sullivan's medical expenses, she seeks legal advice from an attorney specializing in personal injury law. Using the assigned cases and materials as authority, prepare a legal analysis of the elements of a potential civil action by Sullivan against Urban. Identify and evaluate the specific issues regarding duty, standard of care/negligence, cause-in-fact, and duty and proximate cause that are raised by the facts. Define and discuss, in the context of your analysis, the likely procedural issues in the case.

    Once you have completed your analysis, and discussed it within your study group, see and discuss the opinion of the California Supreme Court in Saelzler v. Advanced Group 400, 107 Cal.Rptr.2d 617. Note the substantive and procedural issues that divided the justices 4-2, and discuss the conflicting views within the court in the context of your understanding of duty and proximate cause.

 

 

 

A CLOSING COMMENT: The assigned cases and materials have revealed that scholars and courts disagree about how the elements of negligence should be formulated.  This disagreement clearly affects the analytical approach taken by lawyers and courts in negligence cases.  The article by Professor David Owen has been a point of reference throughout our discussion of the assigned cases and materials on Negligence.  Beginning with a reminder of the seminal formulation of negligence theory in Brown v. Kendall, Professor Owen's discussion of the elements of duty, breach, cause-in-fact, and proximate cause has facilitated your critical evaluation of the judicial opinions and scholarly commentary we have considered.  In reviewing the cases and materials on Negligence, we have emphasized Professor Owen's discussion of the relationship between duty and proximate cause, his discussion of the concept of foreseeability, and his concluding suggestion that concerns for the propriety of imposing negligence liability influence not only the element of duty, but the proximate cause inquiry as well.  A careful consideration of his preference for a five element view of negligence analysis certainly assists your final assessment of the analytical approach taken by courts in applying the elements of Negligence, and the identification of the role of the court and the role of the jury, especially in the consideration of the Summary Judgment standard.  The materials related to the Saelzler case provide a basis for reviewing Professor Owen's seminal commentary, the basic lessons of McCain, and your concluding evaluations of the five elements of Negligence cases, as illustrated by the cases and materials we have considered.

  • Section G. Proof of negligence (rebuttable presumption of negligence): The doctrine of Res Ipsa Loquitur will be the subject of discussion when we consider Chapter III, Section A. However, we may briefly mention it here and students should read Krebs and Notes 1-6.

  • Section H. Limitations on duty: Although we have essentially completed the negligence framework, including a significant discussion of the element of duty, casebooks traditionally return to the element of duty for the purpose of examining limitations of liability as a matter of law via duty/no duty rules. What this means is that tort law recognizes both affirmative and negative duty - that is, the duty to act to prevent an abnormal risk to another, and the concept that, when one does act affirmatively, s/he must act with reasonable care (Thus, tort law imposes liability for both "nonfeasance" and "misfeasance", but limits liability for nonfeasance.) In subsection 1, the author introduces the subject of liability for the failure to act, in L.S. Ayres & Co. v. Hicks, Notes 1 & 2, and Miller v. Arnal Corp., (illustrating the exceptions to the general no-duty rule, as outlined in Note 2, following L.S. Ayres v. Hicks) The assigned materials continue, examining, in more detail, the influence of the foreseeability of harm on affirmative duty doctrine, in Tarasoff v. Regents of the University of California, & the Notes following the case.

    Case Study Hypothetical
    Family and Child Services, Inc., a nonprofit corporation providing services to dependent and other special needs children and families in the greater Metropolis area, routinely places children in temporary homes while developing permanent placement opportunities for those children. FCS also temporarily places children in special service facilities, including alternative schools, in situations where the child is adjudicated dependent, removed from school for disciplinary reasons, or is the subject of judicial intervention, subject to a probation plan, etc. In these situations, social workers employed by FCS supervise the placement, and regularly interact with school officials, the receiving institution or family. William Doe, age fourteen, was adjudicated dependent and delinquent, and was assigned to the Vision Academy, an alternative school in the Metro School District, following a series of instances in which, without provocation, he physically attacked two classmates in his regular public school. As a result of these instances, Doe was evaluated by Dr. Robert Dale, a clinical psychologist (in private practice) under contract with FCS, who advised FCS, school administrators, and juvenile authorities that criminal adjudication should be withheld, on the condition that Doe should be placed in the alternative school and enter a program of therapy. Dr. Dale advised that medication could be delayed until the results of further counseling and evaluation. He also suggested close supervision of Doe at all times, until evaluation was completed, and therapy (which was conducted at the Vision Academy) produced some indication of Doe's progress. Doe was adjudicated dependent on the basis of a judicial finding of parental neglect.

    Specifically, the juvenile court had determined that Doe's parents lived 'off-and-on' at the homes of various relatives or friends and had not supervised him for six months. He had, during this time, lived with friends a few nights at a time. FCS asked Hal and Marilyn Sullivan to take temporary custody of Doe, and informed them that he had been adjudicated a dependent child because of parental neglect. The Sullivan's were also told that Doe would be attending the Vision Academy, because of his need to be in an alternative school environment. The Sullivan's had heard of the Vision Academy, but knew little about it, and assumed that it provided programs for dependent children, or other special needs children, i.e., children with physical or learning disabilities. During the first few days in the Sullivan home, Doe appeared happy, with the exception of brief 'arguments' about his desire to go out at night. However, these arguments became more frequent over the next few weeks, and one night, when Ms. Sullivan denied him permission to go out for the evening, he assaulted her, causing serious permanent injuries to her back and neck.

    Question: The Sullivan's seek reparation from FCS and Dr. Dale, asserting that they were negligent in placing Doe in the Sullivan home. FCS responds that it regretted the incident, but that the Sullivan's were aware that they were accepting an at risk child. The Sullivan's file a civil action against FCS and Dr. Dale, alleging negligence, and the defendants move for Summary Judgment, arguing that they have breached no duty to the Sullivan's. Should the court grant Defendants' Motion for Summary Judgment? Explain your analysis, based upon the assigned materials.

  • Section H2. Limited liability for the negligent infliction of mental distress: Thing v. La Chusa, & Notes 1-8; Potter v. Firestone Tire and Rubber Co., and Notes 1 & 2.

  • Section H3-5: Read the cases and note materials in Sections H3-5. These materials will be the subject of brief discussion in class.

  • Section H6. Landowners and occupiers: Read Younce v. Ferguson and Notes 1-4, and then carefully prepare Rowland v. Christian. The following study exercise is intended to facilitate both your understanding of the court's view of doctrine (here the choice between a "status-based" duty rule and traditional negligence principles) and how this choice influences the court's analysis of a landowner liability case, including the issue of summary judgment.

    The Rowland Case: Illustrating Pleadings, Rule Choices, and Summary Judgment
    In premises liability cases - until about the 1960's, the common law of torts (negligence law) engaged in a balancing of rights identified directly with status - that is, whether the person seeking to hold the landowner accountable for negligence was a trespasser, a gratuitous licensee, or a business or public invitee (The assigned note materials explain these so-called "classifications" or description of status, as does the Rowland case to some extent. Then, in Rowland v. Christian, the California Supreme Court considered whether this status-based rule should give way to the application of the same negligence and reasonableness doctrines in landowner cases that are applied in the general run of torts cases that we have studied.

    Rowland v. Christian was decided by the California Supreme Court, sitting en banc. Plaintiff was a social guest of the defendant in her apartment. He was injured when a cracked bathroom faucet cut his hand, severing tendons and a nerve. In this exercise, we will examine the rule choices discussed by the state supreme court, and examine: (1) How the plaintiff's complaint and the defendant's answer addressed the rule of law and the ultimate facts that make up the cause of action, and (2) the role of the trial court at the summary judgment stage of litigation - i.e., how the trial court looks at issues of law, and issues of fact.

    Imagine the complaint:

    Plaintiff alleged in his complaint before the trial court:

    (1) That he was (on November 30, 1963), at the defendant's apartment by her invitation; (2) that the defendant was aware of a cracked faucet in her bathroom (her actual knowledge of this defect is demonstrated by her request to her landlord that the faucet should be replaced); (3) that the fixture was dangerous; and (4) that plaintiff's injuries were caused by the damaged faucet. [His complaint, having addressed duty, breach and causation, would have also included an allegation of damages (not discussed here)].

    Now imagine the defendant's answer:

    Defendant alleges: (1) That plaintiff was a social guest (Since a social guest enjoyed only limited protection at common law, this allegation suggests the appropriateness of summary judgment in defendant's favor at the outset); (2) She admits that she told the landlord that the faucet was broken and should be replaced; (3) She generally denies all other allegations (She essentially denies plaintiff's allegations that she owed him a duty under negligence law, and/or that she breached that duty).

    In the event that the court were to recognize a duty, defendant affirmatively alleges that plaintiff was comparatively negligent, or assumed the risk because he was - or should have been - aware of the condition of the faucet. This affirmative defense would have been a separate part of defendant's answer - identified as an affirmative defense - and raised issues that are addressed in our assigned materials at Chapter 2, Section I (Defenses to negligence: comparative negligence and assumption of risk).

    Procedure: Defendant seeks Summary Judgment and alleges that plaintiff had actual knowledge of the defect, or was unaware of it because he failed to be observant. Under state and federal rules of civil procedure, a court may enter summary judgment for the defendant if plaintiff creates no genuine issue of material fact (here regarding the elements of negligence) and if appropriate legal principles require judgment for defendant on the facts in the record. If, during pre-trial discovery, plaintiff produces material facts which, if true, would support the elements of negligence, the court may not enter summary judgment, but must allow a jury determination of plaintiff's claim. Her affidavit in support of the Motion for Summary Judgment alleged facts showing that plaintiff was a social guest in her apartment when, as he was using the bathroom, the porcelain handle of one of the water faucets broke in his hand causing injuries to his hand, and that plaintiff had used the bathroom on a prior occasion. (This allegation is instructive to the student because it relies on the rule in many jurisdictions at the time that, in premises cases, an 'open and obvious' condition was not considered a defective condition, if plaintiff is as capable as defendant regarding the risk of injury. The rule would deny recovery even to an invitee, but allows recovery where a reasonably prudent landowner would recognize that plaintiff would be exposed to unreasonable risk, despite his knowledge of the condition - e.g., where he is distracted).

    Plaintiff responds to the Motion for Summary Judgment by affidavit, asserting that defendant had actual knowledge of the defect and that when plaintiff told Ms. Christian that he was going to use the bathroom, she failed to warn plaintiff of the condition of the faucet, and that the defect was 'non-obvious' or 'concealed.'

    The trial court granted Summary Judgment for the defendant. On appeal, the State Supreme Court held: That there was a genuine issue of material fact whether the defect was 'obvious' or 'concealed.' (Nothing in the defendant's affidavit in support of Summary Judgment established or contradicted plaintiff's implied allegation that the condition of the faucet was 'concealed' or non-obvious). Plaintiff could establish at trial that the crack was not obvious (If he can establish this at trial, then - since defendant admitted she reported the defect to her landlord, if it was in fact not obvious to plaintiff, defendant might have a duty to warn plaintiff of the defect).

    Opinion of the Court: The court explained the "majority" rule that the landowner is subject to liability for negligence only as to persons who may be "classified" as invitees - meaning business or public invitees, and that others of lesser status are not entitled to hold the landowner to a general duty of reasonable care. The court explains the "status" categories - trespasser (a person without privilege to enter or remain on the landowner's property); licensee (a person - like a social guest - "permitted" to come onto the landowner's property by the consent of the landowner, but with no "business" benefit to the landowner), and invitee (a visitor whose presence is invited or permitted because of some benefit to the landowner - that is, directly or indirectly connected with "business" dealings between the landowner, and the invitee. Recall Notes 1-5, following Younce v. Ferguson). In jurisdictions which follow this rule, this balancing of status determines the duty owed by the landowner/occupier/operator of premises: The landowner owes a duty of reasonable care only to the invitee. He may assume that - as to defective conditions of the property that cause personal injury - the licensee or trespasser take the property as they find it, and that the landowner owes them only a duty to refrain from willful or wanton conduct that injures them [The Restatement actually suggests that this "willful and wanton" standard has been replaced - in the case of licensees - with a duty to exercise reasonable care toward licensees where there is a known, dangerous condition on the property which the possessor can reasonably anticipate the licensee will not discover or recognize (Such a standard would benefit the plaintiff in Rowland, even if the court were to adhere to the "majority rule"); and - in the case of known or anticipated trespassers - a rule requiring landowners to warn or make safe known concealed artificial conditions. See Notes 2 & 3, following Younce].

    The "Rowland" Rule: The Rowland Court rejects the rote application of a rule of classification and announces that it is appropriate to follow the "fundamental concept" of negligence law in premises liability cases - that owners and occupiers of land should have a single duty to exercise reasonable care, under the circumstance, and that this duty should not be based upon "classifications" depicting status, but instead should draw upon social policy concerns that balance the rights of the landowner and the injured party…and enumerating those factors - later repeated in Tarasoff v. Board of Regents, another California case. Note the court's concern that the old "classification-based" rule actually creates an immunity - placing the landowner beyond the reach of the injured party without affording an opportunity to even examine the circumstances that led to the injury, or why imposing responsibility would be appropriate under the circumstances. This concern restates the court's reaffirmation of the "value of life and limb" (first seen in the 1971 Iowa case, Katko v. Briney, 183 N.W.2d 657) when balancing landowner rights with the right of a third party to expect the landowner to exercise reasonable care.

    Application of the Rowland rule to the facts of the case: Even as to a gratuitous social guest, the defendant lessee has a duty to warn of premises defects known to her, and not obvious to her guest, that create an unreasonable risk of personal injury (here where she knows the guest is about to come in contact with the broken faucet). Since material facts are disputed on these questions, summary judgment for the defendant is inappropriate, and therefore the trial court's entry of summary judgment is reversed (Justice Tobriner later writes for the majority in Tarasoff).

    Question: Could the court have reached the same result, using similar reasoning, by simply following the Restatement view of a landowner's duty to "licensees" under the "traditional" rule? It might be said that the court's holding in Rowland simply treats licensees the same as invitees, thereby merging these "classifications," and such a "merger" would permit a finding for plaintiff in the case. However, the court takes the occasion of this case to reinforce its social policy analysis, and makes it clear that, while trespassers will not generally be entitled to recover from a landowner under a theory of simple negligence, there are circumstances where a traditional rule should impose a duty of reasonable care and deny the landowner immunity as a matter of law. What is the advantage of the "fundamental rule"? Is it simply proper to follow the fundamental rule, rather than allowing landowners special immunities? What problems are caused by the "classifications and sub-classifications" recognized by the traditional common law rule? What factors should determine the limitations - if any - on a landowner's duty to persons injured on his property? Do these factors reflect a change in the concept of duty? What is the point of Justice Burke's dissent? Note his view of the limited role of state supreme courts in the evolution of "established" rules of law. Is he correct, or should courts have authority to "evolve" rules of negligence law?

Rowland and Tarasoff were widely acclaimed for emphasizing that a finding of duty should be based upon a broader social policy analysis which distinguishes between or clarifies the terms negligence and liability. Such a social policy analysis may expand or limit duty, and its importance is that it sees the decision to impose duty as a judicial conclusion reached on the basis of social policy factors which include, but are not limited to the foreseeability of general or specific risk. See also Nichols, v. Progressive Northern Insurance Company, 746 N.W.2d 220; 2008 Wisc. LEXIS 13

Reviewing "Foreseeability" and Affirmative Duty
Limiting the McCain duty - proximate cause analysis in mental distress and premises liability cases:
Is it possible to accept the California Supreme Court's conclusion in Thing v. La Chusa that "foreseeability" is not a realistic indicator of liability in so-called mental distress cases, and to also accept the Court's recognition of a McCain "foreseeability" analysis in premises liability cases, as illustrated by Rowland v. Christian? Consider that the Court's insistence on the need for a relational analysis in Thing is based on the Court's concern for the scope of liability - i.e., its observation that the class of so-called "foreseeable" plaintiffs in a mental distress case would include persons unreasonably remote from the accident (persons who suffer a loss no different than that commonly suffered when hearing that a loved one has been injured or has died). By contrast, in bodily injury cases, including injuries suffered because of negligently maintained premises, the class of "foreseeable" plaintiffs subsumes only those reasonably "proximate" in relation to the accident (e.g., the social guest of the tenant in Rowland).

This distinction may explain the California Supreme Court's observation in Rowland that, "[once] the ancient concepts as to the liability of the occupier of land are stripped away, the status of the plaintiff relegated to its proper place in determining such liability, and ordinary principles of negligence applied, the result in [Rowland] presents no substantial difficulties. * * * "


A Note on Artificial Conditions Dangerous to Trespassing Children
Justice Musmanno's suggestion in the Scibelli case that, as idiosyncratic actors, "child trespassers" receive special treatment under the law of negligence, and that the concept of foreseeability of harm - rather than affirmative acquiescence - may raise the issue of duty, is discussed in the Restatement of Torts, Section 339, as presented in the notes at pp. 376-377. Review these note materials, and then reconsider the result in Scibelli.


Case Study Hypothetical
Robert Dale and Peter Francis are employed by Mega Corporation, which manufactures and sells electrical monitoring and security systems for hotels and resorts, shopping malls, government complexes, and industrial properties. Their duties include the development of marketing approaches and contacts for the identification of prospective clients. As a part of their job, Dale and Francis attend a national convention of the Resort Industry Association of America, for the purpose of exhibiting and explaining their company's products and design services. Pursuant to an exhibiter's contract with RIAA, they operate an exhibiter's "booth" in an "exhibition" area of the space allocated for the convention. The convention is attended by more than 500 executives employed by hotels and resorts from around the country, and Mega Corporation is one of dozens of exhibiters. Dale and Francis rent two sleeping rooms at the hotel, and interact with current and prospective clients from 8:00 A.M. - 5:00 P.M. each day. The hotel is comprised of two twenty story towers, containing sleeping rooms, a lobby, shops and restaurants, group banquet facilities, and a two story Convention Center - located between the towers. Entry to the Convention Center was by way of upper and lower walkways connecting the Center with each tower at the first and second floors of the hotel. The walkways contain potted plants and trees, sitting areas, and artwork.

On the first day of the convention, Dale and Francis noticed a story in the local newspaper that the hotel was hosting the National Basketball Association (NBA) "Draft" of collegiate players. As serious NBA fans, Dale and Francis were delighted that this event was at the same hotel. Dale and Francis thought that if any NBA players or sportscasters were "rehearsing" for the television coverage of the event, they might be able to meet such "stars" and perhaps get autographs, or a photo opportunity. At the end of the first day of the convention, they had dinner at the hotel with some prospective clients. Following this dinner meeting, at about 10:00 P.M. - with a digital camera and pen in hand - Dale and Francis walked from the lobby of the hotel across the walkway to the area of the Convention Center that was to be the site of the NBA "Draft." When they came to this area of the convention center they noticed a sign reading:

"NBA Draft
Authorized NBA Personnel and Staff and Invited Guests Only
All Entrants Must Have League Passes"

Assuming that the signs were intended to restrict entry to the actual "Draft" day events, Dale and Francis opened one of the several double doors of the large convention room that contained the tables, phone banks, and stage for the NBA event. The room was dimly lit, and they thought they heard people talking. As Dale stepped into the room, he tripped over three large sound cables that were stretched across the floor immediately inside the entry door. He fell, and struck his head on a piece of the staging that was in the process of being put in place by the hotel's convention support staff. As a result of the fall, Dale sustained serious facial injuries which required emergency and follow-up surgery, and permanently affected his sight in one eye. The cables had been placed on the floor by a sound engineer employed by the hotel to set up and operate microphones and sound mixers at the NBA event the next day. The engineer had temporarily left the room to get the microphones and sound board to which the cables were to be connected. Following conversations with the hotel from his home some months later, Dale contacted an attorney practicing tort-accident law. The attorney contacted the hotel, which denied responsibility for Dale's injuries.

Questions: (1) Identify the rules which may be applied to determine the nature and scope of the hotel's duty to Dale; (2) How, if at all, would the choice of rule affect the case substantively and procedurally? (More specifically, how would a trial court likely rule on a Motion for Summary Judgment filed by the hotel? Evaluate the ultimate issues of fact in this context, under the available rule choices, and reasoning by analogy to the Rowland court's opinion); (3) What if Francis and Dale had gone to the room in question not as NBA fans, but because of their interest in observing the quality of the location and size of the convention space made available to the NBA in comparison to that made available for the RIAA exhibition area? How would this change in the situation affect your response to questions 1 & 2?

  • Section I. Affirmative defenses to negligence (Comparative negligence and assumption of risk): Mark v. Pacific Gas and Electric Co., and Li v. Yellow Cab Co., & Note 1 following Li.; Murphy v. Steeplechase Amusement Co., and Knight v. Jewett.

    Study Aid
    The defenses presented in the assigned cases are described as "affirmative defenses." This means that - unlike a denial of plaintiff's prima facie case - they lay the foundation for the introduction of new or distinct evidence and legal doctrine allowing the defendant to avoid liability, or diminish the extent of civil reparation due the plaintiff. The particular defenses presented in the assigned cases introduce into the case the issue of the plaintiff's own conduct - as a cause of her injuries - and allow the jury to evaluate that conduct pursuant to a fault premise. Other so-called affirmative defenses, e.g., status immunities or privileges, are covered in later assignments. Affirmative defenses are also recognized in Contract law, and other topics - and in the law of civil procedure (e.g., failure of jurisdiction, statutes of limitation, etc.) Certain of these defenses, if ascertainable from the plaintiff's complaint itself, may be the subject of a Motion to Dismiss, or other pre-trial motion.

 

    • Section J. Common Law & Statutory Immunities: The history and partial abrogation of spousal & parental immunities in private civil actions, Gibson v. Gibson, and notes 1-5; Revisiting Tarasoff and the doctrine of governmental immunity, Tarasoff v. Regents of the University of California, and notes 1-3.

      Case Study Hypothetical
      Assume that the individuals and corporate entities in the "Ayres/Tarasoff" case study are instead governmental agencies and employees. Reconsider the legal issues and arguments to be considered under the topic of governmental immunity.

    • The application of tort law in cases involving pure economic loss: Chapter 1, Section J, Nader v. Allegheny Airlines, Inc.; Chapter 2, Section H8. Economic loss - Negligent misrepresentation: Bily v. Arthur Young & Co.; Section H9. Pure economic loss beyond misrepresentation - The economic loss rule: J'Aire Corp. v. Gregory.

    • Joint and several liability; personal injury damages: Students should prepare Chapter II, Section K, American Motorcycle Association v. Superior Court and then carefully review the following power point presentation. Then read Chapter V.

 

Strict Liability and Vicarious Liability

  • Chapter III. Traditional strict liability: Chapter 3A. Siegler v. Kuhlman, and Notes 1-5, and Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. and Notes 1-4. Also consider and be prepared to discuss the Florida Supreme Court's decision in Curd v. Mosaic Fertilizer (To access the instructor's case digest, click on the link below).
» Curd v. Mosaic Fertilizer
39 So. 3d 1216 (Fla. 2010)

Case Study Hypothetical
Strict liability does not focus on the defendant's conduct by applying notions of reasonable care, but rather examines the nature of the defendant's activity. It is important to recognize that, under modern doctrine, strict liability should be imposed only when the risk presented by the nature of that activity demands that loss occasioned by the activity be shifted from the injured party to the defendant. The student should identify - in his/her reading of the assigned materials - when and why that loss-shifting should occur.
* * *
Python, Inc., is a pest control and fumigation company. Python's services include the treatment of homes and commercial buildings that have sustained damage from termite infestation, preventive treatment for termites, and general pest control. Python entered into a contract with One Hyhatt Place, a condominium complex, to fumigate Building A of one of the condominium's courtyard style high rise towers, which had sustained termite damage. Buildings B, C & D, which formed the other sides of the courtyard/atrium, were thought by Python to be 'separated' by impenetrable fire walls. On the basis of this assumption, and the significant added cost of fumigating three additional buildings, Python asked the management of the condominium to evacuate only the residents of Building A. It advised residents of Buildings B, C & D that they could remain in their residences while Building A was treated. Unfortunately, several residents of Building B became seriously ill after the fumigation gas was released into Building A. Hospital physicians later advised that the illness was caused by sulfuryl fluoride poisoning from the fumigation gas. Following the incident, an architect hired by the condominium discovered that the fire wall between Buildings A and B was defective and contained a 6 x 6 inch open space through which the gas had entered Building B.

Question: The affected residents sought legal counsel. In response to counsel's inquiry, Python denies liability, claiming that it was not negligent. It alleges that third parties - the engineers and contractors who built the tower in question - had caused the injuries by failing to properly construct the fire wall between the two buildings. Is Python subject to liability under the doctrine of strict liability, or liability for abnormally dangerous activities, even if it exercised reasonable care?

  • Chapter VI, Vicarious Liability: Section 6A, Employer's Vicarious Liability for Employees, Rogers v. Kemper Construction Co., (Scope of employment); Caldwell v. A.R.B., Inc., ("Going-and-coming rule" and exceptions); Mavrikidis v. Petullo, (Limited liability of employer for Negligence of "Independent contractors"); Section 6B, Vicarious Liability of Parents for Negligent or Intentional Acts of Children, Wells v. Hickman.

  • Chapter III, Section B, Products Liability: Read Note 1, p. 518, and then read Greenman v. Yuba Power Products, Inc., and Notes 1-3. Then read Notes 1-4, pp. 545-547, and Notes 1-4, pp. 556-558 and the section on Restatement (Third) of Torts, pp. 565-568, and Note 1, p. 580 on the subject of defenses.

  • A note on other tort topics and elective courses.

    Assignments may be changed either in content or the order of their presentation. Classes may be rescheduled as necessary.

    Professor Robert D. Bickel
    bickel@law.stetson.edu
    727-562-7854
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