Torts

Refresh this page throughout the semester in case I adjust later assignments.

Key materials

1. Torts syllabus
2. Practice exams
3. Torts notes (per heading when assigned)

Introduction

Welcome

Before class

1. Welcome to Torts! This is your first assignment. You may start it at any time, and you must complete it prior to our first class session. There is a lot to do! For example, reading the practice exam (part six of the assignment) may take a couple hours.
2. Read our Torts syllabus. Carefully.
3. Consider registering to vote. For information on voter registration in South Carolina, visit SC Votes. Our state requires voters to "be registered at least 30 days prior to any election in order to vote in that election."
4. Do something healthy.
   1. Yes, this is part of your assignment.
   2. Choose and complete an activity -- such as getting physical exercise, eating nutritious food, practicing breathing techniques, meditating, or maintaining a meaningful social connection -- that is healthy, attainable, and sustainable.
   3. Remember: Law school is not a sprint. Or a marathon. In fact, very little movement is involved. That's too bad. Moving around is healthy.
   4. Law school is much more like a job. A full-time, long-term, professional job. You want to start strong, and you need to stay strong one, two, four months later.
   5. Your physical, mental, and emotional wellbeing matters. You matter.
5. Prepare to tell me about yourself.
6. Read this practice exam (including the supplement). Reading the packet should take about one hour; do not spend more than two hours reading (unless you receive or plan to receive accommodations). You can find the login information on the law school's First Readings webpage.
7. Take this reading comprehension quiz. You should score 100 percent. Note that the "Torts notes" page contains exercises for the entire semester; complete each heading only when assigned. (In other words, at this point you should complete only "Reading comprehension" and not "Reading and math skills.")
8. Complete David Leonhardt and You, A quick puzzle to test your problem solving, N.Y. Times (2015).
   1. "I can't access this article" is not a valid reason for not completing your assignment.
   2. When in doubt, ask our outstanding librarians -- in person or online.
   3. They will likely point you to this guide.

After class

1. Benj Edwards, Why it’s a mistake to ask chatbots about their mistakes, Ars Technica (2025)
2. After each class you should take a few minutes to reflect on class, identify key takeaways, correct and update the notes you took before class, and incorporate any (brief) notes you took during class.
3. In addition, you will frequently have a post-class reading assignment summarizing and detailing the "black-letter law" that we began to explore in class.
4. What were the major themes from today's class?

Key takeaways

1. Welcome!
2. In law school, you are responsible for your own learning. Your professors are here to guide, help, and challenge. Reach out to us.
3. Torts will be challenging and can be rewarding. Try! It's okay to trip.
4. Law is about embracing ambiguity and navigating uncertainty. Run toward, not away, from what is confusing or difficult. Make order out of chaos -- but recognize that every model is flawed.
5. Your statements of law and fact must be accurate. They may, and often should, be precise. Check your confidence to build your competence.
6. Many law students find particular value in building a community. Respect (and get to know) each other.
7. Adopt some cats.

Goals of tort law

Before class

1. Fatalities
   1. Centers for Disease Control and Prevention, 10 leading causes of death by age group, United States - 2018
   2. Centers for Disease Control and Prevention, 10 leading causes of death by age group highlighting unintentional injury deaths, United States - 2018
   3. Centers for Disease Control and Prevention, Top ten leading causes of death in the U.S. for ages 1-44 from 1981-2023
2. Roadway casualties
   1. Roadway safety
   2. David Wallace-Wells, Why Is America Such a Deadly Place?, New York Times (2023)
   3. Eric Jaffe, Car emissions vs. car crashes: Which one's deadlier?, Bloomberg (2014)
   4. US NHTSA, Economic and societal impact of motor vehicle crashes (2010): Read through page 21 (PDF page 26)
3. CCC: A blank slate
   1. You can coordinate with your team via Blackboard's Discussion page.
4. Reading and math skills

After class

1. Post-class check-in: How are you doing? If you feel like you are starting to fall behind, reach out.

Key takeaways

1. It is important to distinguish among descriptive, predictive, and prescriptive/normative analyses.
2. The crux of tort law is: If I hurt you, do I have to pay you? And if so, how much?
3. The key goals of tort law are safety and compensation.
4. There are many ways to seek these goals. Tort law is not the only way and is not necessarily the best way. The same may be true of any given rule within tort law.
5. Tort law (the subject) involves statutory law, administrative law, and common law.
6. Tort Law (the course) is mostly about common law.
7. Common law is judge-made law. Making common law is different from interpreting statutory law.
8. Common law is mostly state law and therefore varies by state.

Procedural basics

Before class

1. ALDF, The legal process in the United States: A civil case
2. Lesson on procedure
3. Baltimore & O.R. Co. v. Goodman, 275 U.S. 66 (1927)
   1. This means you should find and read the relevant parts of this case.
   2. Draw a detailed map of the crash location that you are able to share in class.
4. Testing your reading

Reading hints

1. The terms explained in the ALDF reading will come up repeatedly throughout the semester -- and then again in Civil Procedure next semester. Creating a simple flowchart may be especially helpful.
2. Can you accurately, precisely, and succinctly describe the circumstances of the crash in Goodman?
3. For every case, you should have three clear sentences that convey the facts that matter. You will learn more about what this means in the days ahead. Always ask yourself:
   1. Am I including a detail that isn't important?
   2. Am I excluding a detail that is important?

After class

1. Mini-outline. Imagine that our entire course consists solely of this one class (which includes both the readings and the class session itself). Create a brief outline for it.
2. Case briefs
3. Retesting your reading

Key takeaways

1. The most important word in law school is "reasonable." It means neither "correct" nor "average."
2. Details can matter -- but not every detail matters.
3. Civil procedure refers to the rules that govern civil litigation. You will study these rules in depth next semester. For now, you should understand the key actors, documents, steps, and concepts explained in your reading.
4. Factual issues are not the same as legal issues.
5. Evidence is what brings facts from the real world into the courtroom. It can be direct or circumstantial.
6. Preview: In this course, a "holding" is a unique combination of law and fact that (1) is necessary to the outcome of the present case and (2) can be applied as a rule of decision in a future case.
7. Thorough case briefs can be helpful but are generally not required in this course.

Culpability

Before class

1. Definitions: Use Black's Law Dictionary to look up "Tort."
2. Pleasant v. Johnson, 312 N.C. 710 (1985)
3. Jones v. Willamette Indus., Inc., 120 N.C. App. 591 (1995)
4. Levels of culpability (in tort law)

Reading hints

1. What does "culpability" mean? (Always pay attention to our topic for the day!)
2. What levels of culpability can you discern from our two cases for today?
3. Can you state the facts of each case in three clear sentences?
4. What is workers' compensation?
5. Pleasant gets confusing in the middle (don't worry about the legal details) and more straightforward in the final two paragraphs of the majority opinion.
6. What is a potential holding from Pleasant? (Soon we will learn more about holdings.)
7. What's the difference between a "Woodson claim" and a "Pleasant claim"? (This is a good gauge of your comprehension and analysis, but these terms have no meaning outside of North Carolina.)

After class

1. Table of Contents in "Understanding Torts"
2. Theories of liability

Key takeaways

1. A tort is a civil wrong. A "person" (human, company, government, etc.) that commits tortious conduct is called a tortfeasor.
2. There are many different kinds of torts. In litigation and probably in life, negligence is the most common tort.
3. The victim of a tort can sue the tortfeasor to try to "recover" (i.e., obtain monetary compensation) for the injury.
4. The legal basis for this "recovery" is called a theory of liability, a cause of action, or a claim. (It might also be called a tort.) There are different legal bases for different civil wrongs. For example, someone whose negligence causes injury can be sued for negligence. Someone who commits assault can be sued for assault. Someone who trespasses onto land can be sued for trespass to land.
5. These legal bases also correspond to one or more levels of culpability -- but this gets messy. I suggest recreating the chart from class; we will refer to it often.
6. While different courts may use different language, the key levels of culpability are intentionally harmful, knowingly harmful, reckless, grossly negligent, negligent, and faultless/reasonable/innocent. Negligent means careless or unreasonable.
7. Our cases relate these key concepts -- tortious, theories of liability, and levels of culpability -- to each other using the example of workers' compensation laws.
8. Workers' compensation laws create insurance programs that pay injured employees certain amounts for injuries they sustain at work. Employers are required to fund these programs and in turn are not liable to those employees for those injuries.
9. An element is a necessary constituent part: It needs to be present for the thing to exist. A water molecule (H2O), for example, necessarily consists of two parts hydrogen (H2) and one part oxygen (O). Because they are each essential, elements are linked by "and" rather than by "or."
10. Torts have elements.

Elements

Before class

1. Guide to Logical Reasoning Questions
2. LSAC Logical Reasoning Sample Questions
3. David Leonhardt and You, A quick puzzle to test your problem solving, N.Y. Times (2015) (again)

Reading hints

1. The LSAC materials may be familiar to you from your LSAT preparations. You can skip parts about the test itself in favor of parts that are still relevant to you as a law student.
2. What are "necessary conditions"?
3. What are "sufficient conditions"?
4. What might it mean for one thing to be an "element" of another thing?

During class

1. CCC: Necessary conditions

After class

1. Restatement (Third) of Torts: Phys. & Emot. Harm § 6 (2010): "An actor whose negligence is a factual cause of physical harm is subject to liability for any such harm within the scope of liability, unless the court determines that the ordinary duty of reasonable care is inapplicable."
2. Elements of negligence

Key takeaways

1. For this course, the tort of negligence consists of five elements. You should quickly learn these five elements by heart. This is consistent with the model of the Restatement (Third) of Torts (about which we will soon learn more).
2. There are other models of negligence that have different numbers of elements that in turn have different names. Indeed, you might be familiar with one of these models, and you will encounter them in our readings. But we are learning tort law broadly rather than the tort law of any one state, and it is easier to move from our model to other models than vice versa.
3. A complaint is the document in which the plaintiff tells the defendant and the court what the plaintiff wants and why. A good complaint alleges material facts for each of the elements of each of the plaintiff's claims.

Facts

Before class

1. Gadson v. ECO Services (packet)
2. Drafting a complaint

Reading hints

1. What are the three courts to hear this case?
2. Who are the parties? What are they called at each court?
3. What are the key facts?
4. What are the three tort claims at the trial court? Remember: "[The plaintiff] has a claim of [a tort] against [the defendant] for [harming the plaintiff] by [engaging in some tortious conduct]."
5. What happens to each claim over the course of the litigation?
6. For this class, your complaint can be short: Mine has a total of 20 succinct sentences.
7. At this point, don't worry about reconciling the legal analyses in the three opinions. That will be the focus of our next class.

After class

1. Model complaint
2. CCC: Complaint search

Key takeaways

1. Facts and procedural history are both essential to understanding a case -- and to understanding which parties are arguably happy with the outcome and which are not.
2. A plaintiff can bring more than one cause of action against a defendant, including multiple causes involving the same theory of liability (e.g., negligence).
3. Complaints allege facts that satisfy elements of causes of action. In general, a good complaint lists each cause of action separately -- and therefore also describes the elements of each separately.

Case law

Before class

1. Gadson v. ECO Services (packet) (again)

Reading hints

1. What does the South Carolina Court of Appeals think negligent entrustment is? Why?
2. What does the South Carolina Supreme Court think negligent entrustment is? Why?
3. What is the point of Justice Pleicones's concurrence?

After class

1. Restatement of the Law - Torts
   1. Use your legal research tool of choice to locate:
      1. Restatement (Second) of Torts
      2. Restatement (Third) of Torts: Liability for Physical and Emotional Harm
   2. You are welcome to skim these, but at this point you need only locate them.
2. Full case briefs of the Gadson appellate decisions

Key takeaways

1. The costs of injury are necessarily borne by someone -- always by the victim and, ultimately, by the public.
2. Good lawyers understand their community and use their language carefully.
3. Negligent entrustment is just a special kind of negligence.
4. The South Carolina Supreme Court and the South Carolina Court of Appeals use very different definitions for negligent entrustment. You should have the elements for both of these definitions in your notes.
5. Rules can be overinclusive (by applying to situations where we think they should not) or underinclusive (by not applying to situations where we think they should). Other domains speak about false positives and false negatives or about sensitivity (whether a test result correctly includes a true positive) and specificity (whether a test result correctly excludes a true negative).
6. A "Restatement" is a persuasive authority, created by legal scholars, that attempts to describe (and occasionally to prescribe) commonalities in the caselaw among the various states within a particular area of the law. The Restatement (Second) of Torts and the Restatement (Third) of Torts are both very influential.
7. In legal citation, the signal (see; see, e.g.; cf.; contra; etc.) indicates the level of support that the cited source offers for the stated proposition.
8. Always ask: Why am I reading what I'm reading? What does it have to do with what we're studying? And how does it relate to what we've already read and discussed?

Holdings

Before class

1. Jackson v. Price, 288 S.C. 377, 342 S.E.2d 628 (Ct. App. 1986)
2. McAllister v. Graham, 287 S.C. 455, 339 S.E.2d 154 (Ct. App. 1986)
3. Am. Mut. Fire Ins. Co. v. Passmore, 275 S.C. 618, 274 S.E.2d 416 (1981)
4. Nettles v. Your Ice Co., 191 S.C. 429, 4 S.E.2d 797 (1939)

Reading hints

1. According to the SC Supreme Court in Gadson, what are the elements of negligent entrustment?
2. Where does the Supreme Court get these elements?
3. How do the key facts in Gadson compare to the key facts in Jackson?
4. What is the outcome in Jackson?
5. Accordingly to Jackson court, what are the elements of negligent entrustment?
6. Where does the Jackson court get these elements?
7. How do the key facts in Jackson compare to the key facts in McAllister?
8. According to the McAllister court, what are the elements of negligent entrustment?
9. Where does the McAllister court get these elements?
10. As long as you understand why they were assigned, you can skim both Passmore (skipping the discussion of insurance and contract law entirely) and Nettles.

After class

1. Holdings: Create a chart showing how Nettles v. Your Ice Co. led to Gadson v. ECO Services. Was this path inevitable?
2. Many of our readings from this point will consist largely of entire case opinions without notes or quizzes. This means that you should complete each assignment even more carefully. Why are you reading these materials? What connections can you draw? What might we discuss in class? What would you like to discuss?

Key takeaways

1. We can think of "entrustment" as near-term or long-term.
   1. In some of our cases, the defendant temporarily hands their car keys to someone else who begins driving almost immediately. For these cases, the driver's actual intoxication (drunkenness) should matter.
   2. In some of our cases, the defendant hands their car keys to someone who they expect will use the car for a long time. For these cases, the driver's habit of drinking (drunkardness) should matter.
2. The South Carolina Supreme Court's mistake in Gadson was applying a rule for long-term entrustment to a situation of short-term entrustment -- and thereby focusing on drunkardness rather than drunkenness.
   1. In McAllister, the Court of Appeals comes up with a rule for a particular set of facts (giving a drunkard long-term access to a car).
   2. In Jackson, the Court of Appeals carelessly quotes this rule in an opinion on a different set of facts (giving a drunk short-term access to a car) but nonetheless affirms the judgment for negligent entrustment.
   3. In Gadson, 21 years later, the Supreme Court resurrects this rule in a case that is similar to Jackson (alleged drunk) and not to McAllister (alleged drunkard).
   4. Based on this rule, the Supreme Court says that negligent entrustment is only about drunkards, when really that's just one type.
   5. This time, unlike in Jackson, the court follows the rule as written (except for the part about having to actually own the vehicle). And plaintiff loses.
   6. However, as the concurrence points out, the court could have adopted the Restatement's rule and nonetheless found for the defendant based on the facts of the case. But it didn't.
3. Our upshot is that holdings matter.
4. In this course, a holding is a unique combination of law and fact that (1) was necessary to the outcome of the instant case and (2) can be used as a rule in future cases.
   1. The language must decide who wins and who loses in the instant case (i.e., the case from which the holding comes).
   2. The language must be abstract enough that it can be applied as easily to a future case as to the instant case.
5. Holdings are malleable.
   1. The court deciding the case does not get to dictate the holding. Rather, judges and lawyers later distill and argue about the holdings of prior cases.
   2. A holding can be stated broadly or narrowly. Like an accordion, it can be stretched or shrunk. It can be analogized. It can even be argued against.
   3. In the theory of law, a court's actions speak louder than its words. A proper characterization of Jackson's holding would refer to its actual facts rather than to its quotation of an earlier case with different facts.
   4. But in the practice of law, a court's words can sometimes distract from its actions.
6. So don't be sloppy.

Materiality

Before class

1. Hansen v. Dominion Nuclear Connecticut, Inc., No. 5100038, 2006 WL 3491639 (Conn. Super. Ct. Nov. 13, 2006)
2. Gagliano v. Gosling, 99-0168 (La. App. 4 Cir. 12/1/99), 768 So.2d 47
3. Summary judgment in Gadson

Reading hints

1. What's a legal question from Gadson?
2. What's a factual question from Gadson?
3. What are the key facts of Hansen?
4. What facts do the plaintiff and defendant disagree on?
5. Who moved for summary judgment?
6. What is summary judgment? When does it occur?
7. What is the standard for summary judgment?
8. What are the key facts of Gagliano?
9. What facts do the plaintiff and defendant disagree on?
10. Who moved for summary judgment?
11. That's all you need to know about Gagliano.

After class

1. Gadson questions
2. ECO's Memorandum in Support of Its Motion for Summary Judgment
3. Looking ahead: This memo addresses a legal theory that the South Carolina Supreme Court and Court of Appeals did not discuss in their opinions. What is it?

Key takeaways

1. The judge (aka "the court") decides questions of law.
2. The finder of fact (the jury in jury trials and the judge in bench trials) decides questions of fact. The reasonableness of a party's conduct is generally a question of fact.
3. We will see that cases often involve mixed questions of both law and fact.
4. You should know the meaning of terms such as motion, dispositive motion, moving party (movant), and nonmoving party (nonmovant).
5. Summary judgment is resolution of a claim by the court after discovery but before trial.
6. The standard for summary judgment is that there is no genuine issue of material fact.
   1. A genuine issue is one where the evidence actually before the support could reasonably support two contradictory factual conclusions (e.g., who was actually driving the truck in Gadson?).
   2. A material fact is one that actually matters to the outcome of the case (e.g., the number of wine coolers that John drank).
7. A party that moves for summary judgment is saying that there are no genuine issues of material fact and that, when the law is applied to the facts, they win.
8. In deciding a motion for summary judgment, the judge views the facts in the light most favorable to the nonmoving party. The judge is essentially giving that party the benefit of the doubt and then asking whether it even matters. You should understand why. If you don't, work your way through the alternatives.
   1. If a court grants a motion for summary judgment, then the case ends for those claims subject to that judgment. The losing party can then appeal.
   2. If a court rejects a motion for summary judgment, then the case proceeds to trial. The losing party can make a later motion for a directed verdict or wait for the verdict and then appeal.
9. Summary judgment is important.
   1. Many of the opinions we will read are appellate reviews of trial court decisions granting summary judgment.
   2. Summary judgment is about law: What are the correct rules of decision for the case?
   3. Summary judgment is also about facts: Where is the line between reasonable factual conclusions and unreasonable factual conclusions?
10. "As a matter of law" has two distinct meanings:
    1. "This is a question of law that is answered by a judge rather than a question of fact that is answered by the factfinder."
    2. "This is a question of fact that is typically answered by the factfinder, but in this case there is only one reasonable answer."
11. You should be able to identify (genuine) issues of (material) fact in our cases for today (and in our future cases).
    1. In Hansen: Whether a special circumstance required the defendant to clear the snow or ice even if the storm was ongoing.
    2. In Gagliano: Whether the plaintiff drove reasonably prior to striking the alligator, including in her speed, vigilance, and reaction.

Vicarious liability

Before class

1. Snee v. Trice, 2 S.C.L. 345 (S.C. Const. App. 1802)
2. Puryear v. Thompson, 24 Tenn. 397 (1844)
3. Doe v. Uber Techs., Inc., 184 F. Supp. 3d 774 (N.D. Cal. 2016)
4. Gadson: What was Gadson's vicarious liability claim against ECO Services? Why do you think it failed? How was it different from Gadson's negligent entrustment claim against ECO Services?

Reading hints

1. This reading should be emotionally difficult. I plan to rely on volunteers to discuss it.
2. What are the key facts of Snee?
3. What is the claim in Snee? Remember: "[The plaintiff] has a claim of [a tort] against [the defendant] for [harming the plaintiff] by [engaging in some tortious conduct]."
4. What does the court mean by "other salutary checks"?
5. What are the key facts of Puryear?
6. What is the claim in Puryear? Remember: "[The plaintiff] has a claim of [a tort] against [the defendant] for [harming the plaintiff] by [engaging in some tortious conduct]."
7. What are the key facts of Uber?
8. What are the claims in Uber? Remember: "[The plaintiff] has a claim of [a tort] against [the defendant] for [harming the plaintiff] by [engaging in some tortious conduct]."
9. Of these claims, only the theory of respondeat superior involves vicarious liability. Therefore, given the topic of this class, which of these claims should you focus on? You can skim the others (including the discussion of common carriers).
10. What are the elements of a vicarious liability claim?
11. Whose culpability matters for the vicarious liability claims in Uber?
12. In contrast, whose culpability matters for the negligence claims in Uber?

After class

1. Vicarious liability exercises

Key takeaways

1. Feeling safe is not the same as feeling comfortable: My hope is that we create a classroom space where you feel safe enough to feel uncomfortable.
2. Tort law is in part a story about community: Who is inside and who is outside the dominant power structures. The legal is not always moral, and the moral is not always legal.
3. Slavery was a paramount concern for courts, at least insofar as it implicated the interests of white enslavers. The economic value of an enslaved person was, in today's dollars, somewhere between a car and a house; and the "combined value of enslaved people exceeded that of all the railroads and factories in the US." Courts often treated enslaved persons as mere "chattel."
4. Precedent is valuable in several ways.
   1. Formally, cases are precedential because of their holdings.
   2. Less formally, cases are useful for the rules they state.
   3. Even less formally, cases are valuable for their dicta.
5. You should understand the difference between binding authority and persuasive authority and the difference between holdings and dicta.
6. A rule split is an instance where a legal rule varies in space (between different jurisdictions) or in time (between different years).
7. Regardless of whether abstract versions of the holdings of Snee and Puryear might comport with modern rules for vicarious liability, no one should favorably cite these cases.
8. Modern vicarious liability in the principal-agent context (respondeat superior) has three elements:
   1. An actor tortiously injured the plaintiff.
   2. The actor was an employee of the defendant (which might be established by showing that they were under the defendant's control).
   3. The actor was acting within the scope of their employment (including if they were at most on a detour rather than on a frolic).

This completes the final class of our Torts introduction! Before we turn to negligence, you should organize and reflect on our material to date.

Negligence: Duty

Generally

Before class

1. MacPherson v. Buick Motor, 217 N.Y. 382 (1916)
2. E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858 (1986)
3. Duty rules from the introduction: Consider all the cases we have read so far in this course. Did the defendants have a duty? How would you formulate these duties?

After class

1. Making sense of duty

Affirmative acts that cause physical harm

Before class

1. Artiglio v. Corning Inc., 18 Cal.4th 604 (Cal. 1998)
2. Kubert v. Best, 432 N.J. Super. 495 (N.J. App. Div. 2013)
3. Restatement (Third) of Torts: Phys. & Emot. Harm § 7 (2010)
   1. Unless otherwise stated, the comment to each assigned Restatement section is optional (but may be helpful).

After class

1. Looking ahead: Reflect on the rules for duty that you have learned so far. In what ways are they underinclusive? In other words, in what other situations should a duty exist?
2. CCC: After you have reflected individually, discuss this question with your circuit court circuit.

Duty to act affirmatively

Before class

1. Tarasoff v. Regents of University of California, 17 Cal.3d 425 (Cal. 1976)
2. Nash v. Port Auth. of New York & New Jersey, 51 A.D.3d 337 (2008)
   1. This opinion briefly references the court's earlier rejection of the Port Authority's claim of governmental immunity. The New York Court of Appeals (the state's high court) ultimately agreed with the Port Authority and accordingly reversed this opinion in In re World Trade Ctr. Bombing Litig., 17 N.Y.3d 428 (2011).
   2. This opinion also discusses apportionment. Don't worry if this part of the opinion is particularly confusing. Apportionment is a difficult topic that we will discuss near the end of the course.

After class

1. Restatement (Third) of Torts: Phys. & Emot. Harm § 37 (2010)
   1. What are the specific "affirmative duties provided in §§ 38-44"?
2. Understanding Torts §§ 8.01-8.06
3. Complaint, Criss-A-Less, Inc. d/b/a Third Planet Sci-Fi & Fantasy Superstore v. ASDN Houston, LLC d/b/a Crowne Plaza River Oaks

Pure emotional harm

Before class

1. Mower v. Baird, 422 P.3d 837 (Utah 2018)
2. Restatement (Third) of Torts: Phys. & Emot. Harm §§ 47-48 (2010)

After class

1. Understanding Torts § 10.01

Pure economic harm

Before class

1. People Exp. Airlines, Inc. v. Consol. Rail Corp., 100 N.J. 246 (1985)
2. Huggins v. Citibank, N.A., 355 S.C. 329 (2003)

After class

1. Understanding Torts § 10.04

Statutory duties

Before class

1. Ball v. Heilig-Meyers Furniture Co., 35 F. Supp. 2d 1371 (M.D. Fla. 1999)
2. Betts v. Costco Wholesale Corp., 558 F.3d 461 (6th Cir. 2009)
3. Crosby v. Glasscock Trucking Co., 340 S.C. 626 (2000)
4. 42 U.S.C. § 1983

After class

1. Understanding Torts §§ 10.02-10.03
   1. Which are statutory duties? Which are common law duties?

Premises liability

Before class

1. Am. Ind. Life v. Ruvalcaba, 64 S.W.3d 126 (Tex. App. 2002)
2. Rowland v. Christian, 69 Cal. 2d 108 (1968)
3. CCC: Rowland arguments

After class

1. Restatement (Third) of Torts: Phys. & Emot. Harm §§ 51-52 (2010)
2. Center for Justice and Democracy, FAQ: Trespasser liability (2014)
3. S.C. Code Ann. §§ 27-3-10 through 27-3-60
4. Understanding Torts §§ 9.01-05

Duty summary

Before class

1. Restatement (Third) of Torts: Duty rules
2. Role of special relationships in duty
3. Practice question

After class

1. Model answer
2. Panopto lecture on "Exam Strategies"
   1. You may watch this video now or later
   2. You should watch this video before you take the practice exam near the end of the semester

Negligence: Breach

Reasonable care

Before class

1. Sullivan v. Jefferson Ave. Ry. Co., 133 Mo. 1, 34 S.W. 566 (1896)
2. Baltimore & O.R. Co. v. Goodman, 275 U.S. 66 (1927) (again)
3. Pokora v. Wabash Ry. Co., 292 U.S. 98 (1934)
4. Restatement (Third) of Torts: Phys. & Emot. Harm § 8 (2010)

After class

1. Previous cases: Using your case briefs, review all the negligence cases we have read to date and answer the following questions:
   1. Does the case consider (a) the reasonableness of the defendant's conduct, (b) the reasonableness of the plaintiff's conduct, (c) both the reasonableness of the defendant's conduct and the reasonableness of the plaintiff's conduct, or (d) neither the reasonableness of the defendant's conduct nor the reasonableness of the plaintiff's conduct? (Remember: Whose conduct is relevant to the element of breach?)
   2. Has a judge or jury already determined whether the defendant acted unreasonably? If so, what was their (explicit or implicit) conclusion?
   3. What information in the case is relevant to the applicable standard of care? In particular, how does the opinion give substance to the "reasonable person" standard?
   4. How specifically did the defendant (actually, allegedly, or arguably) conform to or deviate from this reasonable person standard?
   5. Does the opinion blend, confuse, or conflate the elements of duty and breach?

The reasonable person

Before class

1. Christopher Gray, When a monster plied the West Side, N.Y. Times (2011)
2. Madeline Berg, The history of "Death Avenue, High Line (2015)
   1. Check out the photos. The text itself is optional.
3. Washington & G.R. Co. v. Wright, 7 App. D.C. 295 (D.C. Cir. 1895)
4. Breach versus comparative fault
5. Creasy v. Rusk, 730 N.E.2d 659 (Ind. 2000)
   1. You need not read the "concurrence in part."
6. Mowrey v. Cent. City R. Co., 51 N.Y. 666 (1873)
7. Bjorndal v. Weitman, 344 Or. 470 (2008)
8. Weitz v. Baurkot, 267 Pa. Super. 471 (1979)
9. John Boyd, OODA loop: What you can learn from fighter pilots about making fast and accurate decisions (2018)

After class

1. Restatement (Third) of Torts: Phys. & Emot. Harm §§ 9-12 (2010)
2. Understanding Torts §§ 3.01-3.06

B vs. PL

Before class

1. How much is your life worth? Come up with (1) a methodology and (2) a dollar figure.
2. US v. Carroll Towing, 159 F.2d 169 (1947)
3. Viar v. N.C. Dep't of Transp., 162 N.C. App. 362 (2004)
4. Viar v. N. Carolina Dep't of Transp., 359 N.C. 400 (2005)
5. Lynne Duke, Buffalo family seeking millions for fatal lack of a bus stop, Washington Post (1999)
6. Robert J. McCarthy, Bus stop uncertain at new Walmart, raising echoes of Cynthia Wiggins tragedy (2016)
7. The Kirki disaster
8. "The Front Fell Off" (spoof)

After class

1. Understanding Torts §§ 4.01-4.02

Statutory standards

Before class

1. Sibert-Dean v. Washington Metro. Area Transit Auth., 721 F.3d 699 (D.C. Cir. 2013)
2. Elaine S. Povich, States Braced for a Wave of COVID Lawsuits. It Never Arrived, Stateline (2021)
3. Bissinger v. New Country Buffet, No. M2011-02183-COA-R9CV, 2014 WL 2568413 (Tenn. Ct. App. June 6, 2014)

After class

1. Restatement (Third) of Torts: Phys. & Emot. Harm §§ 14-16 (2010)
2. Understanding Torts §§ 6.01-6.07

Custom

Before class

1. The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932)
2. Trimarco v. Klein Ct. of App. of N.Y., 56 N.Y.2d 98 (1982)
3. Husain v. Olympic Airways, 316 F.3d 829 (9th Cir. 2002)
4. Randall Munroe, Bridge, xkcd.com
5. Kenny Torrella, Most animal cruelty is legal on the farm. A judge is questioning that, Vox (March 9, 2022)

After class

1. Restatement (Third) of Torts: Phys. & Emot. Harm § 13 (2010)
2. Understanding Torts §§ 4.03-4.04

Professional standards

Before class

1. Calcagno v. Emery, No. A11-1212, 2012 WL 1813389 (Minn. Ct. App. May 21, 2012)
2. Restatement (Third) of Torts: Phys. & Emot. Harm § 12 (2010)

After class

1. Understanding Torts §§ 7.01-7.04
2. Nicole Saitta, MS; Samuel D. Hodge, Jr, JD, Efficacy of a physician's words of empathy: An overview of state apology laws, JAOA (2012)
3. Victor R. Cotton, MD, Esq., Legal pitfalls of medical apology laws, Inside Medical Liability (2014)
4. Michael Craig Miller, MD, Learning how to say "I'm sorry" (2018)

Proving breach

Before class

1. McKeough v. Rogak, 288 A.D.2d 196 (2001)
2. Kambat v. St. Francis Hosp., 89 N.Y.2d 489 (1997)
3. Yvonne Wenger and Mark Puente, Baltimore to pay Freddie Gray's family $6.4 million to settle lawsuit before it's filed, The Baltimore Sun (2015)

After class

1. Restatement (Third) of Torts: Phys. & Emot. Harm § 17 (2012)
2. Understanding Torts §§ 5.01-5.04

Breach summary

Before class

1. Individually review the practice exam that you read for the first day of class. What issues can you spot based on the material we have covered so far?
2. CCC: Outline clear answers to questions 4 and 5 of the practice exam based on the material that we have covered so far.
3. Hazing hypo
4. Prepare your materials for and any questions about the element of breach.

After class

1. There is no formal after-class assignment.

Negligence: Factual cause

The tests

Before class

1. Caruso v. Cutone, 93 Mass.App.Ct. 1118, 2018 WL 3287247 (2018)
   1. Note: This is an "unpublished" case that you cannot find by the Mass.App.Ct. citation alone.
2. But-for test
3. Clark v. Leisure Vehicles, 88 Wis. 2d 766 (Ct. App. 1979)
4. Substantial factor test
5. Language
6. Brown ex rel. Brown v. Park Nicollet Clinic HealthSystem Minnesota, No. C0-00-1525, 2001 WL 506722 (Minn. Ct. App. May 15, 2001)
7. Maday v. Yellow Taxi Co. of Minneapolis, 311 N.W.2d 849 (Minn. 1981)
8. More factual cause

After class

1. Restatement (Third) of Torts: Phys. & Emot. Harm §§ 26-27
2. Understanding Torts §§ 11.01-03
3. Factual cause for informed consent
4. Understanding Torts § 7.03
   1. Although you have previously read this section, you may wish to review it now that we have shifted from breach to factual cause.
5. Understanding Torts §§ 13.01-02

Uncertainty (part one)

Before class

1. Summers v. Tice, 33 Cal. 2d 80 (1948)
2. Tessa Koumoundouros, Lead exposure in childhood linked to future crimes, study finds (2023)
   1. Optional: Maria Jose Talayero et al., The association between lead exposure and crime: A systematic review (2023)
3. Reading Thomas v. Mallet
4. Thomas ex rel. Gramling v. Mallett, 285 Wis.2d 236 (2005)
   1. This is a very long opinion by our standards -- and yet a relatively short opinion compared to many others involving "toxic torts."
5. WMC election campaign ad
   1. Wisconsin Manufacturers and Commerce (WMC), the major business lobbying association in the state, ran this ad during the 2008 Wisconsin Supreme Court election campaign.
   2. If you are interested in the rule at issue in State v. Jensen, read our very own Dean Colin Miller's short blog post.
6. Wisconsin Statutes Section 895.046 (Remedies against manufacturers, distributors, sellers, and promoters of products)

After class

1. Understanding Torts § 11.04[A]-[B]
2. Restatement (Third) of Torts: Phys. & Emot. Harm § 28

Uncertainty (part two)

Before class

1. Ehlinger by Ehlinger v. Sipes, 155 Wis. 2d 1 (1990)
2. Carmel v. Lunney, 70 N.Y.2d 169 (1987)

After class

1. Understanding Torts § 11.04[C]

Uncertainty (part three)

Before class

1. Butler v. Union Carbide Corp., 310 Ga. App. 21 (2011)

After class

1. Understanding Torts § 11.04[D]-[E]
2. Tony Mauro, So awkward! What to do when a justice butchers a pronunciation from the bench?, Law.com (2017)

Factual cause summary

Before class

1. Richard Heede, Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010, Climatic Change (2014)
2. Chelsea Harvey, Scientists can now blame individual natural disasters on climate change, ClimateWire (2018)
3. CCC: Emissions arguments

After class

1. Court opinion: How would you, as a judge, answer today's question? Write an individual one-paragraph judicial opinion.

Negligence: Scope of liability

Palsgraf v. LIRR

Before class

1. Palsgraf v. Long Island R. Co., 248 N.Y. 339 (1928)
2. Illustrate the scene on the LIRR platform at issue in Palsgraff v. LIRR. You can draw it, animate it, reenact it, depict it through poetry, or capture it in any other manner of your choosing (including generative AI).
3. The story of Palsgraf
4. Michael I. Krauss, Palsgraf: The Rest of the story (book review), 9 Green Bag 2d 309 (2006)
5. Kim Lane Scheppele, Cultures of facts, 1 Perspectives on Politics 363-68 (June 2003)
   1. You can access JSTOR using your UofSC credentials.
6. Roberts v. Benoit, 605 So. 2d 1032 (La. 1992) (On Rehearing May 28, 1992)
   1. Read the May 28, 1992 opinion On Rehearing by Justice Cole. It begins "This is an action ex delicto for damages sustained when a cook, commissioned as a deputy, accidentally fired a gun, seriously injuring the plaintiff."
   2. This May 28, 1992 decision replaces an original September 9, 1991 decision by Justice Hall. This earlier opinion as well as several dissents accompanying it are available just above the later decision (in Westlaw) and at 1991 La. LEXIS 3475 (in Lexis). You may find these earlier opinions to be a useful review of several concepts we have already studied. They are completely optional.
7. Juisti v. Hyatt Hotel Corp. of Maryland, 94 F.3d 169 (4th Cir. 1996)

After class

1. Optional: Bryant Walker Smith, DALL-E Does Palsgraf, 14 Journal of Law, Technology, and the Internet 82 (2023)
2. There is no formal after-class assignment today.

Foreseeability

Before class

1. Schafer v. Hoffman, 831 P.2d 897 (Colo. 1992)
2. Worsham v. Nix, 83 P.3d 879 (Ct. Civ. App. Okla. 2003)
3. Dupray v. JAI Dining Servs. (Phoenix), Inc., 245 Ariz. 578 (Ct. App. 2018)
4. Brewster v. Prince Apartments, Inc., 264 A.D.2d 611 (1999)

After class

1. Understanding Torts chapter 12
2. Restatement (Third) of Torts: Phys. & Emot. Harm chapter 6 (§§ 29-36)

Scope of liability summary

Before class

1. Eugene Volokh, Legal policy arguments (post 1 of 2) — Tying abstract arguments to concrete ones, The Volokh Conspiracy (2011)
2. Eugene Volokh, Legal policy arguments (post 2 of 2) — Morality, efficiency, and questions to ask yourself, The Volokh Conspiracy (2011)
3. Purdue Online Writing Lab, Logical fallacies
4. If you are interested: For more many logical fallacies, see, e.g., this list and this list.

Negligence: Damages

Types of damages

Before class

1. How would you describe the relationship between the duty and damage elements? In particular, recall our discussion of pure emotional harm and pure economic harm. Note, in this regard, one of the differences between how the Restatement (Third) states the general duty rule ("An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm.") and how I state the general duty rule ("An actor has a duty to exercise reasonable care when the actor's affirmative conduct results in physical harm.").
2. Marsch v. Am. Elec. Power Co., 207 W. Va. 174 (1999)
3. Spires v. Oxford Mining Co., 2018-Ohio-2769
4. German Lopez, What a lot of people get wrong about the infamous 1994 McDonald's hot coffee lawsuit, Vox (2016)

After class

1. Understanding Torts chapter 14
2. S.C. Code Ann. § 15-32-200
3. Looking ahead: At this point, you should understand the categories of harms for which tort law recognizes a remedy. After exploring affirmative defenses, we will look more closely at how damages are calculated and apportioned.

Negligence: Affirmative defenses

Contributory negligence, comparative fault, and assumption of risk

Before class

1. Mowrey v. Cent. City R. Co., 51 N.Y. 666 (1873) (again)
2. Langley v. Boyter, 284 S.C. 162 (Ct. App. 1984)
3. Langley v. Boyter, 286 S.C. 85 (1985)
4. Nelson v. Concrete Supply Co., 303 S.C. 243 (1991)
   1. Is this opinion just dicta?
5. Davenport v. Cotton Hope Plantation Horizontal Prop. Regime, 333 S.C. 71 (1998)

After class

1. Understanding Torts §§ 15.01-15.03

Statutes of limitation and repose

Before class

1. Wassell v. Adams, 865 F.2d 849 (7th Cir. 1989)
2. Complete this poll at least one hour before class begins.
3. Shlien v. Bd. of Regents, Univ. of Nebraska, 263 Neb. 465 (2002)

After class

1. Read and reflect on your classmates' comments.
2. Understanding Torts §§ 15.04-05
3. Optional: Restatement (Third) of Torts: Apportionment of Liability (especially §§ 1-9)

Immunities

Before class

1. In re World Trade Ctr. Bombing Litig., 17 N.Y.3d 428 (2011)
   1. How does this opinion compare to the intermediate appellate court opinion that you read previously?
2. Center for Justice and Democracy, FAQ: The Feres doctrine
3. 10 USC § 2733a (Medical malpractice claims by members of the uniformed services)
   1. Do you prefer reading cases or code?
4. SC Liability Safe Harbor Act (as proposed)
5. Paul Stern, Hold police accountable by changing public tort law, not just qualified immunity, Lawfare (2020)

After class

1. South Carolina COVID-19 Liability Immunity Act (as enacted)
2. Understanding Torts § 15.05

The doctrinal messiness of rescue

Before class

1. Recall our materials on the duty to act affirmatively.
2. Wagner v. Int'l Ry. Co., 232 N.Y. 176 (1921)
3. Kimble v. Carey, 279 Va. 652 (2010)
4. Levandoski v. Cone, 267 Conn. 651 (2004)
5. Neighbarger v. Irwin Industries, Inc., 8 Cal.4th 532 (Cal. 1994)

After class

1. Tort theory: How does rescue relate to each of the elements of and affirmative defenses to a negligence claim?
2. Restatement (Third) of Torts: Phys. & Emot. Harm § 32
   1. Read the comment.

Negligence: Awards

Making the plaintiff whole

Before class

1. Strawder v. Zapata Haynie Corp., 649 So. 2d 554 (La. Ct. App. 1994)
2. The Saginaw, 139 F. 906 (S.D.N.Y. 1905)

After class

1. There is no formal after-class assignment.

Invidious discrimination

Before class

1. Ken Belson, Black former N.F.L. players say racial bias skews concussion payouts, N.Y. Times (2020)
2. G.M.M. ex rel. Hernandez-Adams v. Kimpson, 116 F. Supp. 3d 126 (E.D.N.Y. 2015)
3. Jesse Schwab, The problem with defining tort damages in terms of race and gender, Harvard Civil Rights - Civil Liberties Law Review (2019)

After class

1. Kim Soffen, In one corner of the law, minorities and women are often valued less, Washington Post (2016)

Initial apportionment

Before class

1. Math is Fun, Introduction to percents
2. Math is Fun, Percentage points
3. Campione v. Soden, 150 N.J. 163 (1997)
4. Flowers v. Sw. Airlines Co., No. 1:05CV1399 JDTWTL, 2007 WL 118874 (S.D. Ind. Jan. 10, 2007)
5. Machin v. Carus Corp., 419 S.C. 527 (2017)
6. S.C. Code Ann. § 15-38-15

After class

1. Understanding Torts § 13.03
2. You may also wish to review Understanding Torts §§ 13.01-02.

Contribution, indemnification, and settlement

Before class

1. South Carolina Contribution Among Tortfeasors Act
   1. The South Carolina Contribution Among Tortfeasors Act is codified as chapter 38 of Title 15 of the South Carolina Statutes (S.C. Code Ann. § 15-38-10 through S.C. Code Ann. § 15-38-70).

After class

1. Matthiesen, Wickert & Lehrer, Joint and several liability and contribution laws in all 50 states (2023)
   1. Browse this 50-state survey. You should aim for both breadth of knowledge (by recognizing the variety of rules) and depth of knowledge (by closely considering a few key jurisdictions).
2. Lars C. Johnson, To settle or not settle with a joint tortfeasor?, Daily Journal (2018)
   1. Which jurisdiction does this article focus on?
   2. What are alternative rules -- and how might they affect this analysis?

Seatbelts

Before class

1. Note: I encourage you to read these materials only *after* we finish our prior class (though you may read them earlier if your schedule requires).
2. Wise v. Broadway, 315 S.C. 273 (1993)
3. Keaton v. Pearson, 292 S.C. 579 (1987)
4. S.C. Code Ann. §§ 56-5-1810, 6520, 6530, 6540
5. Bring this blank worksheet to class: docx, pdf.

After class

1. There is no formal after-class assignment.

Other torts

Instructions

1. Course philosophy: Depth and breadth
2. By Tuesday, November 19th, you must have completed all the classes under "Other torts," including the practice exam. This means reading the assigned materials, watching the recorded lectures, taking the full-length practice exam as a timed four-hour exam, and preparing questions on these materials (including the practice exam).
3. Because I have prerecorded these lectures, you have complete control over how to manage your Torts time. Note, however, that you can pick up the printed version of the practice exam only at certain times.
4. I will be delighted to meet with you during our regularly scheduled class times. This is an opportunity but not an obligation for you.

Intentional torts

1. Understanding Torts chapters 1-2 & 19-20
2. Panopto lecture on "Intentional Torts"

Trespass, nuisance, and abnormally dangerous activities

1. Understanding Torts chapters 16 & 18
2. Panopto lecture on "Trespass, Nuisance, and Abnormally Dangerous Activities"

Products liability

1. Understanding Torts chapter 17
   1. The seventh edition of Understanding Torts adds a page about the liability of e-commerce platforms such as Amazon that facilitate sales by third-party merchants.
2. Products liability theories
   1. This reading is from the introduction to my Products Liability course. "Silivanch" refers to Silivanch v. Celebrity Cruises, Inc., 171 F. Supp. 2d 241 (S.D.N.Y. 2001). You need not read it.
3. Panopto lecture on "Products Liability"

Privacy and reputational torts

1. Understanding Torts chapters 21-22
2. Panopto lecture on "Reputational and Privacy Torts"

Practice exam

1. Read the Practice Exam Instructions.
2. Reread the syllabus.
3. Reread Case briefs.
4. Panopto lecture on "Exam Strategies"
5. Take the new practice exam as a timed four-hour exam.
   1. Beginning November 11th, the practice exam questions will be available for pickup from Ms. Margaret Crewell during business hours in room 306A of the faculty suite and for download from this page. You cannot download the questions once you begin the practice exam.
   2. After your Examplify installation session, the Examplify answer file will be available for download on Examplify. Please look for the instructions from our Registrar.
   3. I suggest you take this practice exam in Examplify to get comfortable using the software.
   4. I also suggest you take photos of your answers on your screen so that these answers are available to you outside of Examplify. You will not be able to see your answers in Examplify once you finish the practice exam.
   5. In case it is helpful, room 103 is reserved for your use on Saturday, November 16th from 1:00pm. (Make sure you already have the practice exam materials.) You should collectively start the practice exam at 1:30pm.
6. Prepare any questions on the material (including the practice exam) for class on Tuesday, November 19th.

Conclusion

Insurance, bankruptcy, and inability to collect

Before class

1. William Rabb, South Carolina Bars, Eateries Closing Down for Lack of Affordable Liability Coverage (2023)
2. Trip Riesen, Commentary: Changing SC liquor liability laws will hurt victims of drunken drivers (2023)
3. Read your automotive insurance policy, including terms and coverage details.
   1. Hint: Your policy is long and looks like a contract. If you're reading something with fewer than 20 pages, you probably haven't found your actual policy.
   2. If you do not have an automotive insurance policy, read one issued to a friend or family member (or talk with me).
4. Stephen G. Gilles, The Judgment-Proof Society (2016)
   1. Read parts I, II, and VIII. You are of course welcome to read the article in its entirety.
5. Jessica Dye, Court removes GM bankruptcy shield on ignition switch claims, Insurance Journal (2016)
6. Adam Levitin, The Texas Two-Step: The New Fad in Fraudulent Transfers, Credit Slips (2021)
7. Putzier Konrad, The $70B loophole, or: How to turn your mansion into an offshore account, The Real Deal (2018)
8. Lauren Effron, Christina Ng, and Kaitlyn Folmer, Polo tycoon cannot adopt adult girlfriend, Florida court rules, ABC News (2013)

After class

1. There is no formal after-class assignment.

Alternatives

Before class

1. Select at least three of the following:
   1. New Zealand Accident Compensation Corporation
   2. September 11th Victim Compensation Fund
   3. National Vaccine Injury Compensation Program
   4. Gulf Coast Claims Facility
   5. Deepwater Horizon Court-Supervised Settlement Program
   6. Smallpox Compensation Program
   7. Radiation Exposure Compensation Program
   8. Countermeasures Injury Compensation Program
   9. Federal Employers' Liability Act
   10. Federal Black Lung Program
   11. South Carolina Workers' Compensation Act
   12. Michigan No-Fault Automotive Insurance
   13. South Carolina Uninsured and Underinsured Motorist Coverage
   14. Social Security and Supplemental Security Income Program
   15. Private Long-Term Disability Insurance
   16. National Health Service (England)
   17. GoFundMe.com
2. Research each of your selections using credible sources. Be able to succinctly explain:
   1. What is it?
   2. How does it work?
   3. What does it do well?
   4. What does it do poorly?
   5. How does it compare to tort law?
   6. What is its relationship to tort law?
   7. What impacts might it have on safety?
   8. How does it compare to your two other selections?
3. Spend about as much time on this assignment as you should on a typical Torts assignment.

After class

1. There is no formal after-class assignment.

Q&A and sendoff

Before class

1. Reread Gadson v. ECO Services. What's different?
2. Bring your questions about torts (the subject) and Torts (the course).

After class

1. Onward!