My Fall Torts Class

I’m just finishing up the course pack for my Fall Torts class, and I thought I’d blog briefly about it, just for those who are interested in such things. The course pack will be a mix of cases and materials from Farnsworth & Grady’s Torts casebook (likely about 30% of the volume), Restatement sections and comments (likely about 32% of the volume), and my own cases and materials (likely about 38% of the volume). That’s a lot more Restatement material than is common, but I hope it will prove to be a good mix of the Restatement and cases; generally speaking, I have at least one Restatement section for each unit, with cases used to illustrate application of the Restatement principles, or alternatives to the Restatement principles.

Here is the current draft of the Road Map item in my course pack:

Part I. We’ll spend the first 4 weeks or so talking about several intentional torts: trespass, nuisance, defamation, intentional infliction of emotional distress, intentional interference with contract, intentional interference with business relations, alienation of affections, invasion of privacy, and the right of publicity. We’ll learn the elements of each tort: what needs to be shown for plaintiff to prevail. We’ll see how some understanding the elements often requires reading the cases to see what meaning the courts have given to the elements.

We’ll also discuss the policy arguments that lawyers could use to argue for a broader or narrower definition of the tort (or even for the abolition or nonrecognition of the tort). This will also give you some training in making policy argument more generally, even outside tort law. For each of the torts, the policy discussion will be organized around four classes of arguments:

(1) Arguments focused on the moral (or rights-based) reasons for concluding that the assertedly tortious behavior should indeed be seen as a legally actionable harm.

(2) Arguments based on the social costs that the assertedly tortious behavior imposes, directly and indirectly, on the prospective plaintiff and on others.

(3) Arguments focused on the moral (or rights-based) reasons for concluding that the prospective defendants should be free to engage in the assertedly tortious behavior.

(4) Arguments based on the social costs that allowing liability imposes, directly and indirectly, on the prospective defendant and on others. (Learning how to make arguments about such practical indirect costs of liability is an especially important skill for a lawyer.)

Part II. We’ll then spend the next 8 weeks or so talking about the tort of negligence: careless infliction of harm, which leads to liability because of defendant’s carelessness.

Part II.A. We’ll spend about 3 weeks laying out the basic elements of negligence:

1. Duty, which will start with the basic duty to use reasonable care when your conduct creates a risk of physical harm.
2. Breach of duty, which basically means careless or unreasonable behavior.
3. Cause-in-fact, which means (usually) that had defendant acted reasonably, the harm to plaintiff likely wouldn’t have happened.
4. Proximate cause (or harm within the scope of liability), which means that the connection between the defendant’s action and the harm has to be close enough, rather than highly attenuated.
5. Damages.

We’ll also talk about the defenses to the negligence tort — comparative and contributory negligence, express assumption of risk, and primary assumption of risk.

Part II.B & II.C. We’ll then spend about 3 weeks returning to these five elements at a deeper level. We’ll start (II.B) by talking about especially important forms of assertedly negligent conduct — negligent product design and negligent failure to warn. We’ll then talk more about duty (II.C), beyond the basic duty to use reasonable care when your conduct creates a risk of physical harm: We’ll discuss duties that arise in some situations to use reasonable care to prevent physical harm (even harm that you yourself didn’t cause). We’ll discuss duties that arise in some situations to use reasonable care when your conduct creates a risk of emotional or economic harm. And we’ll note that in some situations, you do not have a duty to take reasonable care when your conduct creates a risk of physical harm. (Why might that be?)

Part II.D. We’ll then spend about 2 weeks returning again to these five elements in a particular context: negligence claims that stem from third-party misconduct (e.g., lawsuits against landlords for negligently failing to protect tenants against criminals). This will help us cement our understanding of the elements of negligence, especially duty and proximate cause. But it will also expose us to a set of special policy questions that are raised when the law imposes a duty on prospective defendants to control the behavior of third parties.

Part III. Finally, we’ll spend about 2 weeks discussing strict liability — liability even when defendant caused harm while exercising all reasonable care. There are several important pockets of such liability: we’ll discuss it in the context of liability for the actions of one’s wild or dangerous animals, for certain dangerous things one does on one’s land, for one’s abnormally dangerous activities, for the actions of one’s employees acting within the scope of employment, and for manufacturing defects (as opposed to design defects) in the products that one manufacturers or distributes. The recurring policy question will be: why do we normally hold defendants liable only when they are negligent, but provide for strict liability in these particular contexts?

And here is the rough list of class sessions:

I. Intentional Torts
1: Trespass
2: Trespass — Private Necessity as a Defense
3 & 4: Nuisance
5: Defamation
6: Intentional Infliction of Emotional Distress
7 & 8: Interference with Contract/Business Relations
9: Alienation of Affections and Criminal Conversation
10: Invasion of Privacy — Disclosure of Embarrassing Facts
11: The Right of Publicity

II.A. Basic Negligence
12: Duty and Breach of Duty
13: Breach of Duty: Custom & Negligence Per Se
14 & 15: Breach of Duty: Res Ipsa Loquitur
16: Cause in Fact — But-For Causation
17: Cause in Fact — When Defendant Probably Didn’t Cause Injury
18: Proximate Cause (or Scope of Liability)
19: Damages
20: Contributory/Comparative Neglig.; Joint & Several Liability
21: Express Assumption of Risk
22: Primary Assumption of Risk

II.B. Applying Negligence Law
23 & 24: Unreasonable Product Design
25: Unreasonable Failure to Warn

II.C. Negligence and Duty Beyond § 7
26: Duty to Help
27: Duties Arising from Undertakings
28: Premises Liability of Occupiers of Property
29: Negligent Infliction of Economic Loss
30: Negligent Infliction of Emotional Distress

II.D. Negligence and Third-Party Misconduct
31: Otherwise Negligent Behavior Exacerbated by Third-Party Misconduct
32: Distraction
33 & 34: Crime by/on/with Employees/Tenants/Property
35: Duties to Aid
36: Duty to Avoid Provoking Criminals?

III. Strict Liability
37 & 38 & 39: Animals, Rylands v. Fletcher, and Abnormally Dangerous Activities
40: Respondeat Superior
41: Manufacturing Defects
42: Catch-Up Day