Torts CCC

A blank slate

This is the first exercise for your "Circuit Court Circuit" (CCC).

Imagine that we are in the early 1900s as "horseless carriages" are starting to rapidly replace horses and bicycles on American streets. Your state legislature asks your team of lawyers to recommend a set of rules, policies, processes, systems, and incentives that will (1) encourage motor vehicle safety and (2) help people who are harmed by motor vehicles (including the families of those who are killed).

Although plenty of law in the early 1900s was in fact relevant, for our purposes you should assume that there is no relevant law. You have a blank slate!

Using your group wiki, your team should develop and document a cohesive set of recommendations to achieve both of these goals. For example, how will you ensure or encourage safer vehicles, roads, and users? Who will cover the costs incurred by and for people who are nonetheless injured? In each case, what roles will courts, governmental regulators, and others play?

For this assignment, each of you should expect to spend about 30 minutes contributing your own ideas and another 30 minutes working with your team members (either synchronously or asynchronously) to refine these ideas into a set of key proposals that any one of you can clearly summarize in 1 minute.

Necessary conditions

Work with your Circuit Court Circuit teammates to:

1. Propose and explain a complete set of elements (i.e., necessary conditions) for the tort of negligence.
2. Ensure that each element is singular (i.e., it should comprise a single condition only). Conjunctions (e.g., and, or, that, which, with, without) might be a hint that your element is not singular.
3. Adjust your elements so that your proposed tort is neither overinclusive (by creating liability where it should not) nor underinclusive (by not creating liability where it should).
4. Describe at least three hypothetical situations that satisfy your proposed elements and at least three hypothetical situations that do not.
5. Document all your work on your team's Blackboard wiki.

For this exercise, I am much more interested in your collective creative thinking and logical reasoning than in your past work experience or outside research. In other words, focus on figuring out what the elements of negligence could and should be rather than on trying to remember or learn what they actually are.

Complaint search

In your CCC team:

1. Learn something unique about the region of South Carolina covered by your circuit.
2. Find an actual complaint from a tort case in your circuit.
3. Read, discuss, and critique the complaint.
4. Summarize your team's work (including a link to the complaint) in a brief post on the Discussion page (below).

Your CCC team should work together synchronously, preferably by video, to complete these steps. You can use Blackboard (Teams --> SC Circuit Court --> Group Tools --> Collaborate), Microsoft Teams, or another service of your choice.

You can start your records search at the the SC courts website. For research assistance (in this assignment and throughout law school), you can contact our outstanding librarians: Ask-A-Librarian is available during the typical working hours. For this particular assignment, coordinate first within your team so that you either collectively contact a librarian or designate one person to contact a librarian on behalf of your team.

Rowland arguments

Assume that the California Supreme Court has not yet issued its opinion in Rowland.

The court first asks for argument on whether, under the traditional status trichotomy, the trial court's grant of summary judgment should be upheld or reversed.

• Circuits 1-4: Prepare your argument for the defendant.
• Circuits 5-8: Prepare your argument for the plaintiff.

The court next asks for argument on whether it should replace the traditional status trichotomy with a general duty of reasonable care for premises cases.

• Circuits 9-12: Prepare your argument for the defendant.
• Circuits 13-16: Prepare your argument for the plaintiff.

Emissions arguments

After suffering severe injuries in a wildfire in the western United States, Arne and Ante Brand brought suit against Chevron, ExxonMobil, Saudi Aramco, BP, Gazprom, Royal Dutch/Shell, National Iranian Oil Company, Pemex, ConocoPhillips, and Petroleos de Venezuela (collectively "the defendants" or "the carbon majors"), alleging that, inter alia, the defendants' unreasonable production and promotion of fossil fuels caused the plaintiffs' injuries by increasing both the likelihood and the severity of the wildfire.

In filings, the defendants admitted that anthropogenic activities, including combustion of fossil fuels, are the primary driver of climate change but denied that their conduct with respect to the production and promotion of those fossil fuels was unreasonable. Furthermore, first in motions to dismiss and then in motions for summary judgment, they argued that, even if breach were assumed, the plaintiffs could not meet the burden of causally linking that breach to specific injuries.

The trial court denied defendants' substantive motions and, following a lengthy trial, returned a bench verdict for the plaintiffs on their claims of negligence. The court explicitly found that (a) by 1977 the defendants or their predecessors knew or should have known about the risks of climate change, (b) in light of that actual or constructive knowledge, the defendants breached their duty by (i) increasing their production of fossil fuels and (ii) promoting the continued use of fossil fuels, (c) those breaches were a factual cause of the plaintiffs' injuries, and (d) those injuries were within the scope of liability for those breaches. (The judge entered separate verdicts on the plaintiffs' claims of fraud, public nuisance, private nuisance, and trespass to land.)

The defendants appealed, the intermediate appellate court reversed the negligence judgment solely on the element of factual cause, and the plaintiffs appealed to the state supreme court. The state supreme court has now directed oral argument on the following question:

In a claim alleging that greenhouse gas emissions attributable to the defendants' negligence increased the likelihood or severity of a natural disaster in which the plaintiffs were injured, what must the plaintiffs show in order to causally link that negligence to their injuries?

The court has also requested that the parties explain (1) why the issues of factual cause in this case are different from those that gave rise to market share liability, (2) whether an approach analogous to market share liability might nonetheless be appropriate, and (3) whether the doctrine of loss of a chance of survival might also be instructive.

In its instructions, the supreme court has emphasized that (1) factual cause is the only element at issue in this hearing and (2) both the existence and the anthropogenic nature of climate change is undisputed by the parties.

In anticipation of these oral arguments, your Circuit Court Circuit should prepare (1) the specific arguments that you would make as counsel for the plaintiffs, (2) the specific arguments that you would make as counsel for the defendants, and (3) the specific questions that you would ask as a justice on the supreme court. You should consider issues of law, fact, policy, and practicality. You may, but you need not, conduct additional research; the state supreme court is open to persuasive precedent from any jurisdiction.