Torts 2020

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Key materials

  1. Torts syllabus
  2. Case briefs
  3. Practice exams
  4. Torts notes (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 eight of the assignment) may take a couple hours.
  2. Read the syllabus. Carefully. And then either print it or save it locally so that you can still access it offline.
  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. Tell me about yourself. (Link TBA)
  6. Read this practice exam (including the supplement).
  7. Take this reading comprehension quiz.
  8. Complete David Leonhardt and You, A quick puzzle to test your problem solving, N.Y. Times (2015).

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. Eric Jaffe, Car emissions vs. car crashes: Which one's deadlier?, Bloomberg (2014)
    9. 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
  5. Checking in (Link TBA)

After class

  1. Post-class check-in

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 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
  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)
    1. This is short.
    2. Unless otherwise stated, the comment to each assigned Restatement section is optional (but may be helpful).
  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. At this point you may skim or read them, but 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 brief of the South Carolina Supreme Court's opinion 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)

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

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: 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 other words, 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. Red states to get blueprint on limiting business virus liability, Bloomberg Law (2020)
  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. 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. Survey on course activities (link TBA)
  2. Restatement (Third) of Torts: Phys. & Emot. Harm § 17 (2012)
  3. 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.
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