Torts

Key Materials

1. Syllabus
2. Case briefs
3. Practice exams

Introduction

Welcome

Before

1. Read the syllabus.
2. Do something healthy.
3. Tell me about yourself. (Seriously.)
4. Read this practice exam.
5. Take this quiz on this reading.
6. Complete this puzzle.

After

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. 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.
2. Complete this reflection.

Goals

Before

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
5. Motor vehicle crash deaths in the USA
6. Deaths compared to injuries and persons involved
7. Vehicle emissions
8. Economic and Societal Impact of Motor Vehicle Crashes (2010): Read through page 21 (PDF page 26)
9. A blank slate
10. Reading and math skills
11. Checking in

After

1. Post-class check-in

Procedure

Before

1. The Legal Process in the United States: A Civil Case
2. Burdens of proof: In Black's Law Dictionary, look up:
   1. Burden of proof
   2. Burden of pleading
   3. Burden of production
   4. Burden of persuasion
3. Standards of proof
4. Preponderance of the evidence
5. Juries
6. More on juries
7. Civil versus criminal
8. "Civil"
9. Evidence
10. Venn diagrams
11. Facts versus law
12. Other standards
13. Briefing cases
14. Baltimore & O.R. Co. v. Goodman, 275 U.S. 66 (1927)
15. Testing your briefing

After

1. Mini-outline
2. Briefing cases
3. Discussion forum
4. Retesting your briefing

Culpability

Before

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

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

Elements

Before

1. LSAC Guide to Logical Reasoning Questions
2. LSAC Logical Reasoning Sample Questions
3. Problem-solving test (again)
4. CCC: Necessary conditions

After

1. Restatement (Third) of Torts: Phys. & Emot. Harm § 6 (2010)
   1. This is short. You may, but need not, read the comment.
2. Elements of negligence

Facts

Before

1. Gadson v. ECO Services (packet)
2. Complaint

After

1. Model complaint
2. CCC: Complaints

Case Law

Before

1. Reread Gadson

After

1. Restatement of the Law - Torts
2. Gadson case briefs

Holdings

Before

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, 801 (1939)

After

1. Holdings: Create a chart showing how Nettles v. Your Ice Co. led to Gadson v. ECO Services. Was this path inevitable?
2. Gadson model case brief

Materiality

Before

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

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

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
5. Automated driving case study

After

1. Instructions
2. Restatement (Third) of Torts: Phys. & Emot. Harm § 57 (2010)
   1. Again, you need read only the rule itself
   2. What are the exceptions? (In law, definitions and cross-references are essential reading.)
3. Labour law
4. Law school fundraising
5. "Discuss"
6. Your assignment
7. Restatement (Third) of Agency §§ 2.04 & 7.07
   1. So far you have read sections from the most recent version of the restatement for the law of torts. There are also a series of restatements for the law of agency.
   2. Read both the rule and the comment for Restatement (Third) of Agency § 2.04 and at least the rule for Restatement (Third) of Agency § 7.07. (You might also find comment b helpful.)
8. Introduction summary: This completes the final class of our Torts introduction. Before we turn to negligence, I encourage you to organize and reflect on our material to date. As always, Blackboard's resources are available to you.

Negligence: Duty

Generally

Before

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

1. Making sense of duty

Affirmative Acts That Cause Physical Harm

Before

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. This is short. You may, but need not, read the comment.

After

1. Looking ahead
2. CCC team reports

Duty to Act Affirmatively

Before

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

1. Law school hypo answer and assessment
2. Restatement (Third) of Torts: Phys. & Emot. Harm § 37 (2010)
   1. What are the specific "affirmative duties provided in §§ 38-44?"

Pure Emotional Harm

Before

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

After

1. Restatement (Third) of Torts: Phys. & Emot. Harm §§ 45-48 (2010)
2. Understanding Torts § 10.01

Pure Economic Harm

Before

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

1. Understanding Torts § 10.04

Statutory Duties

Before

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

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

Premises Liability

Before

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

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

Summary

Before

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

After

1. Model answer
2. Peer assessment

Negligence: Breach

Reasonable Care

Before

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

1. Previous cases

The Reasonable Person

Before

1. New York City's Death Avenue
2. More photos of Death Avenue
3. The reasonable person
4. Creasy v. Rusk, 730 N.E.2d 659 (Ind. 2000)
   1. You need not read the "concurrence in part."
5. Mowrey v. Cent. City R. Co., 51 N.Y. 666 (1873)
6. Bjorndal v. Weitman, 344 Or. 470 (2008)
7. Weitz v. Baurkot, 267 Pa. Super. 471 (1979)
8. The OODA loop

After

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

B vs. PL

Before

1. How much is your life worth? Come up with (1) a methodology and (2) an answer.
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. The Death of Cynthia Nicole Wiggins
6. 20 years later
7. The Kirki disaster
8. "The Front Fell Off" (spoof)

After

1. Understanding Torts §§ 4.01-4.02

Statutory Standards

Before

1. Sibert-Dean v. Washington Metro. Area Transit Auth., 721 F.3d 699 (D.C. Cir. 2013)
2. Covid and ALEC
3. Bissinger v. New Country Buffet, No. M2011-02183-COA-R9CV, 2014 WL 2568413 (Tenn. Ct. App. June 6, 2014)

After

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

Custom

Before

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. Bridge

After

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

Professional Standards

Before

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

1. Understanding Torts §§ 7.01-7.04
2. Efficacy of a Physician's Words of Empathy: An Overview of State Apology Laws
3. Legal Pitfalls of Medical Apology Laws
4. Learning how to say "I'm sorry"

Proving Breach

Before

1. McKeough v. Rogak, 288 A.D.2d 196 (2001)
2. Kambat v. St. Francis Hosp., 89 N.Y.2d 489 (1997)
3. Settlement Between the City of Baltimore and the Family of Freddie Gray

After

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

Summary

Before

1. Review your practice exam
2. CCC: Discussion
3. Hazing hypo

After

1. Hazing hypo assessments

Negligence: Factual Cause

The Tests

Before

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. The but-for test
3. Clark v. Leisure Vehicles, 88 Wis. 2d 766 (Ct. App. 1979)
4. Factual cause
5. "Negligence"
6. More language
7. Brown ex rel. Brown v. Park Nicollet Clinic HealthSystem Minnesota, No. C0-00-1525, 2001 WL 506722 (Minn. Ct. App. May 15, 2001)
8. Maday v. Yellow Taxi Co. of Minneapolis, 311 N.W.2d 849 (Minn. 1981)
9. More factual cause

After

1. Restatement (Third) of Torts §§ 26-27
2. Understanding Torts §§ 11.01-03
3. Cause-in-fact 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

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. 2008 Wisconsin Supreme Court Election
5. Wisconsin Statutes Section 895.046 (Remedies against manufacturers, distributors, sellers, and promoters of products)

After

1. Understanding Torts § 11.04[A]-[B]
2. Restatement (Third) of Torts § 28

Uncertainty (Part Two)

Before

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

After

1. Understanding Torts § 11.04[C]

Uncertainty (Part Three)

Before

1. Butler v. Union Carbide Corp., 310 Ga. App. 21 (2011)
2. Good luck on your LRAW memos!

After

1. Understanding Torts § 11.04[D]-[E]
2. So Awkward! What to Do When a Justice Butchers a Pronunciation From the Bench?

=== Summary Before

1. Historical Greenhouse Gas Emissions
2. Scientists Can Now Blame Individual Natural Disasters on Climate Change
3. CCC: Preparation for in-class exercise

After

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

1. Palsgraf v. Long Island R. Co., 248 N.Y. 339 (1928)
2. Sunday, August 24, 1924
3. The rest of the story
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)
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

1. There is no formal after-class assignment today.

Foreseeability

Before

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

1. Understanding Torts chapter 12
2. Restatement (Third) of Torts chapter 6 (§§ 29-36)

Summary

Before

1. CCC: Exercise on scope of liability

After

1. Hypo evaluation
2. Legal Policy Arguments (Post 1 of 2) — Tying Abstract Arguments to Concrete Ones
3. Legal Policy Arguments (Post 2 of 2) — Morality, Efficiency, and Questions to Ask Yourself
4. Logical Fallacies

Negligence: Damages

Types of Damages

Before

1. Duty and damages
2. Marsch v. Am. Elec. Power Co., 207 W. Va. 174 (1999)
3. Spires v. Oxford Mining Co., 2018-Ohio-2769
4. Spires v. Oxford Mining Co., 2018-Ohio-2769

After

1. Slides from today's class
2. Understanding Torts chapter 14
3. Looking ahead

Negligence: Affirmative Defenses

Contributory Negligence, Comparative Fault, and Assumption of Risk

Before

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

1. Slides from today's class
2. Understanding Torts §§ 15.01-15.03

Statutes of Limitation and Repose

Before

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

1. Read and reflect on your classmates' comments
2. Understanding Torts §§ 15.04-05
3. Restatement (Third) of Torts: Apportionment of Liability
   1. You are welcome but not required to read this restatement, particularly §§ 1-9.

Immunities

Before

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. 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 (proposed)
5. Paul Stern, Hold Police Accountable by Changing Public Tort Law, Not Just Qualified Immunity

After

1. Understanding Torts § 15.05

The Doctrinal Messiness of Rescue

Before

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

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

Negligence: Awards

Making the Plaintiff Whole

Before

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

1. There is no formal after-class assignment.

Discrimination

Before

1. Ken Belson, Black Former N.F.L. Players Say Racial Bias Skews Concussion Payouts
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

After

1. Kim Soffen, In one corner of the law, minorities and women are often valued less

Initial Apportionment

Before

1. Introduction to percents
2. 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

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

Contribution, Indemnification, and Settlement

Before

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

1. Briefly browse this 50-state survey

Seatbelt Exercise

Before

1. If your schedule allows, I encourage you to read these materials only *after* we finish our prior class.
2. Wise v. Broadway, 315 S.C. 273 (1993)
3. Keaton v. Pearson, 292 S.C. 579 (1987)
4. S.C. Code Ann. §§ 56-5-6520, 6530, 6540

After

1. There is no formal after-class assignment.

Other Torts

Intentional Torts

1. Course philosophy: depth and breadth
2. Note the classes in this section
3. Understanding Torts chapters 1-2 & 19-20
4. Lecture on "Intentional Torts"

Trespass, Nuisance, and Abnormally Dangerous Activities

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

Products Liability

1. Understanding Torts chapter 17
2. Lecture on "Products Liability"

Privacy and Reputational Torts

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

Conclusion

Practice Exam

1. Reread the syllabus.
2. Reread Briefing cases.
3. Panopto lecture on "Exam Strategies"
4. Practice exam

Insurance, Bankruptcy, and Inability to Collect

Before

1. 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).
2. 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.
3. Jessica Dye, Court Removes GM Bankruptcy Shield on Ignition Switch Claims, Insurance Journal (2016)
4. Putzier Konrad, The $70B loophole, or: How to turn your mansion into an offshore account, The Real Deal (2018)
5. Lauren Effron, Christina Ng, and Kaitlyn Folmer, Polo Tycoon Cannot Adopt Adult Girlfriend, Florida Court Rules, ABC News (2013)

After

1. There is no formal after-class assignment.

Alternatives

Before

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 the other two?
3. Spend about as much time on this assignment as you would on a typical Torts assignment.

After

1. There is no formal after-class assignment.

Q&A and Sendoff

Before

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

After

1. Onward!