Torts

Key materials

1. Torts syllabus
2. Case briefs
3. Practice exams
4. 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).
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. 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.
2. 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.
3. What were the major themes from today's class?

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 1981-2019
   4. Centers for Disease Control and Prevention, Provisional COVID-19 death counts by sex, age, and state
2. Roadway casualties
   1. Roadway crash deaths in the USA
   2. Billions of vehicle-miles traveled (VMT) in the USA
   3. Deaths per 100 million VMT in the USA
   4. US population
   5. Roadway deaths per 100,000 persons in the USA
   6. Roadway deaths in four countries
   7. Deaths compared to injuries and persons involved
   8. David Wallace-Wells, Why Is America Such a Deadly Place?, New York Times (2023)
   9. Eric Jaffe, Car emissions vs. car crashes: Which one's deadlier?, Bloomberg (2014)
   10. US NHTSA, Economic and societal impact of motor vehicle crashes (2010): Read through page 21 (PDF page 26)
3. CCC: A blank slate
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.

Procedural basics

Before class

1. ALDF, The legal process in the United States: A civil case
2. Lesson on procedure
3. Instructions for briefing your cases
4. Baltimore & O.R. Co. v. Goodman, 275 U.S. 66 (1927)
   1. Find, read, and brief Baltimore & O.R. Co. v. Goodman, 275 U.S. 66 (1927).
   2. As part of your brief, you should (1) draw a detailed map of the crash location and (2) ensure that you will be able to share this map in class.
5. Testing your briefing

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 an outline for it. You might consider collaborating with your teammates.
2. Reread the instructions for case briefs.
3. Retesting your briefing

Culpability

Before class

1. Definitions: Use Black's Law Dictionary to look up "Tort."
2. Find, read, and brief Pleasant v. Johnson, 312 N.C. 710 (1985)
   1. Note: Unless I state otherwise, the instructions to "find, read, and brief" apply to every case assigned this semester.
3. Jones v. Willamette Indus., Inc., 120 N.C. App. 591 (1995)
4. Levels of culpability (in tort law)

After class

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

Elements

Before class

1. LSAC Guide to Logical Reasoning Questions (or via Blackboard)
2. LSAC Logical Reasoning Sample Questions
3. David Leonhardt and You, A quick puzzle to test your problem solving, N.Y. Times (2015) (again)
4. 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

Facts

Before class

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

After class

1. Model complaint
2. CCC: Complaint search

Case law

Before class

1. Gadson v. ECO Services (packet) (again)
   1. This includes carefully reviewing and revising your case briefs.

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 them, but at this point you need not do so.
2. Gadson case briefs
   1. As always, you should carefully review your case briefs, any other preparatory notes, and your (brief) class notes.
   2. In addition, compare your case briefs of the two appellate opinions in Gadson to the model case brief.

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)

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?

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

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?

Vicarious liability

Before class

1. Snee v. Trice, 2 S.C.L. 345 (S.C. Const. App. 1802)
   1. What does the court mean by "other salutary checks"?
2. Puryear v. Thompson, 24 Tenn. 397 (1844)
   1. Is this "good law"?
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?
5. Automated driving case study

After class

1. Vicarious liability exercises

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. Criss-a-Less v. ASDN Houston

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

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. Reading Thomas v. Mallet
3. 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."
4. 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.
5. 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)
2. Good luck on your November LRAW memos!

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.
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. 1991), on reh'g (May 28, 1992)
7. Juisti v. Hyatt Hotel Corp. of Maryland, 94 F.3d 169 (4th Cir. 1996)

After class

1. 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. In a group of your choosing:
   1. Write a hypo focused on scope of liability.
   2. Carefully outline a model answer for your hypo.
   3. Save the hypo and outline as separate PDF documents. Make sure your names and email addresses are on both documents.
   4. Print and bring both documents to class (one copy per person).
2. Note that:
   1. As long as you work with at least one other student in this class, you may form your own group. (You are welcome to continue working with your CCC team.)
   2. In general, a good hypo allows you to make arguments (based in law, fact, policy, procedure, or practice) for both the plaintiff(s) and the defendant(s).
   3. A student should be able to read, analyze, and answer your hypo in about 30 minutes.

After 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.
5. Email the answer you wrote in class to all the authors of that hypo.
6. In reply, email your own model answer plus any helpful feedback.

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. 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.

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 (2018)
   1. Browse this 50-state survey.

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 Monday, November 15th, 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.
4. I am happy to answer your questions, including during our regularly scheduled class time. Reach out to make arrangements.

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. Reread the syllabus.
2. Reread Case briefs.
3. Panopto lecture on "Exam Strategies"
4. Take the new practice exam as a timed four-hour exam.
   1. Beginning November 10th, the practice exam questions will be available for download on Blackboard or pickup from Ms. Alyne Hallman (room 209A).
   2. After your Examplify installation session (also on November 10th), the Examplify answer file will be available for download on Examplify as F21_Torts Practice Exam_S01_(Walker Smith).
   3. I suggest you take this practice exam in Examplify to get comfortable using the software.
   4. I also suggest you paste your practice exam answers into a separate document (e.g., Word or Google Docs) 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 13th from 2:00pm. However, if you want a hard copy of the practice exam, you should pick it up during business hours.
5. Prepare any questions on the material (including the practice exam) for class on Monday, November 15th.

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. 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 would 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.
2. Bring your questions about torts (the subject) and Torts (the course).

After class

1. Onward!