School of Law
Torts II (Peters) - Winter 2001
OLD: Henderson and Pearson, THE TORTS PROCESS (5th ed. 1999)
Riskin & Westbrook, Dispute Resolution and Lawyers (abrg'd 2d ed. 1998)
NEW: SUPPLEMENTAL MATERIALS (available at Quick Copy)
[NEW] ATTENDANCE POLICY: Students who miss eight
classes will lose three grade points for each of the next three classes
missed and will be dismissed from the course after missing twelve classes.
Both "excused" and "unexcused" absences count toward these totals.
GRADES: Grades will be based upon the final examination. I reserve
discretion to award a point or two to reflect extraordinary contributions
to class discussion. The final exam will be closed-book.
DISABILITIES: If you have a disability and need accommodations,
please notify Associate Dean Kenneth Dean or your instructor as soon as
possible. You may also contact the Access Office, A048 Brady Commons, 882-4696.
SNOW POLICY: This class is canceled whenever the Columbia public
schools are closed on account of inclement weather (not if they are closed
simply because of the cold temperature)..
OPTIONAL REFERENCE SOURCES: For further background on the law
of torts, your best resources are the DOBBS and PROSSER AND KEETON (5th
ed.) hornbooks. You might also look at Morris, MORRIS ON TORTS (2d ed.
1980) or Fleming, AN INTRODUCTION TO THE LAW OF TORTS (2d ed.). These books
are on reserve in the law library. There is also a "nutshell" on torts
by Kionka. For more detailed research, try the RESTATEMENT SECOND OF TORTS
and the multi-volume treatise by HARPER, JAMES AND GRAY.
Class 1: VICARIOUS LIABILITY REDUX
155-56: Exceptions to the General Rule of Nonliability of Independent
Classes 2 & 3: ETHICS IN NEGOTIATION
Reading: Riskin & Westbrook, 122-24, 127-37, and (optional)
139-41 (the last 3 pages summarize the facts of the case and may help you
to understand the video).
This topic will take two class sessions. In the first class, you will
watch a videotaped negotiation. In the second, we will discuss the tape
and the readings. Here are the readings:
Tips: We will explore the lawyer's obligation of honest in negotiations.
What, if any, "fibs" are permitted when negotiating? Should any be permitted?
As you watch the videotape that we play in class, ask yourself if the
lawyers have spoken truthfully about their case and their settlement authority.
As you read the excerpt from the White, keep in mind that he was responding
in 1980 to draft language for proposed rules governing legal ethics
and venturing his opinion about what those rules should be. The actual
language eventually adopted by the ABA and Missouri is included on page
123. How would it apply to the negotiations on the videotape?
Class 1. 309-20, 299-301 (Lyons)
Class 2: 320-29 & SUPP. 1-3.
Class 3: 329-33 (Prob. 19)
Class 4: 337-44
Class 1: 615-29
Class 2: 629-34, 640-50
Class 3: 650-64, 687-88
Class 4: 689-700 and SUPP. 4-6
CONTRIBUTORY and COMPARATIVE FAULT
Class 1: 409-17 and SUPP. 7-8 (contributory fault and assumption
Read Meistrich carefully. Why does this court reject secondary
assumption of the risk? It keeps primary assumption of the risk. What is
that? (Clue: its not an affirmative defense at all!) Would primary assumption
help the defendant in Prob. 23?
The Restatement and about half of the states do recognize the
affirmative defense of implied assumption of the risk (also called secondary
assumption of the risk). The elements are summarized at 414-15. Would they
be present in Prob. 23?
Class 2: 417-25 (comparative fault)
(1) how would this work with one plaintiff and one defendant? Imagine
some allocations of fault with one plaintiff and one defendant. How much
would the plaintiff recover? Now imagine that the defendant makes a counter-claim
(as commonly occurs in auto accidents). What then?
(2) now imagine one plaintiff and two defendants.
Class 3: Reread 417-25 and think about multiple defendant
issues such as joint and several liability, settlement and contribution.
Class 4: 425-28 (how should assumption of the risk be
treated under comp. fault?)
POSSESSORS OF LAND
Class 1: 252-54, Problem 15, 257-58
a. The Status of the visitor. What is the difference between
an "invitee" and a "licensee"? Can you think of examples of each?
What status in Problem 15 if we assume that Allen Toth had permission from Barry Livingston to swim? If we assume that he and his family were there as dinner guests? That his dad was trying to close a business deal with the owner?
How do duties toward invitees differ from those toward licensees? (compare
RS §§ 342 and 343). Why treat them differently? Why are they
both owed more care than trespassers?
b. Duties owed to licensees. How would you analyze Prob. 15 if
Allan is classified as a licensee?
c. Duties owed to invitees. What if duty if Barry were an invitee?
Class 2: 254-57, Prob. 15 at 257
d. Duties owed to trespassers. Under what circumstances must
a possessor use care to protect a trespasser from accidental harm? How
much care must the possessor use? Are those circumstances present on the
facts of Prob. 16? What if the dock owner had never chased the previous
intruders away? What if Livingston had posted a warning that a ten year
old could understand?
Class 3: Rowland v. Christian, 259-66-abandoning the
What exactly is Henderson's complaint? Is he correct? For an argument
that his fears were overstated, see Hawkins, Premises Liability After
Repudiation of the Status Categories: Allocation of Judge and Jury Functions,
1981 Utah L. Rev. 1. (Parenthetically, does Henderson's point remind
you of the difference between Holmes and Cardozo, summarized in the casebook
DUTIES TO RESCUE
Class 1: 266-70; SUPP. at 9-10.
a. Introduction. So far, we have looked at negligent actions,
rather than negligent omissions. The distinction is important because American
law has no general obligation to "rescue" others from harm. Not
surprisingly, however, there are many specific circumstances in which the
law does require the exercise of reasonable care for the protection of
others. Before we get to those doctrines, we need to be sure that we can
distinguish an act from an omission.
b. Identifying the "rescue" cases. Ask yourself how to distinguish a failure to rescue from other kinds of negligence that you have already seen. Is it a failure to rescue when a person watches an infant crawl onto railroad tracks and does not help? How about a driver's failure to repair the ailing brakes on her car? The failure to insulate utility lines? For the police to ignore a call on a "911" line? What common feature tells the two categories apart?
b. Why are "rescues" treated differently? Why do many European
countries impose a broad duty to rescue, at least in easy cases? Why don't
we? (Think about these questions as you read the assignments in the chapter.
We will discuss them at the end of the rescue materials.)
c. Undertaking and reliance. In Erie, what if the plaintiff
had been unaware of the custom? Once a community becomes aware of a custom
like this one, does the railroad have the duty to continue posting a watchman
at this crossing forever?
In circumstances where a duty of affirmative action exists, what is
the nature of the duty? For example, in Lacey, what if the Coast
Guard's action did cause others to "rest their oars", but the Coast Guard
stopped its efforts because the seas became too choppy to continue safely?
Class 2: More Exceptions to the General Rule: 270-73 (skip Prob.
17, 273-79); SUPP. 11-20
d. Putting the Plaintiff in Peril (Tubbs v. Argus).
e. Special Relationships (Restatement Second to Torts §
What makes some relationships special? Exactly how onerous is the obligation
f. Special relationships: Protecting Against Crime by Strangers
Madden v. C & K Barbecue Carryout, Inc. (SUPP.)
Class 3: Still More Duties to Rescue--279-90, SUPP. 21-25.
g. Special Relationships between Defendant and Perpetrator
Restatement Second of Torts §§ 315-19 (SUPP.)
Tarasoff v. Regents of University of California, 279-90
h. Government agencies (Florence v. Goldberg, SUPP.)
What special political issue arises when a court imposes a duty to rescue
Class 4: 290-97--Reconsidering the Absence of a General Duty to Rescue
Why do many European countries impose a broad duty to rescue, at least
in easy cases? Why don't we? Do we need one? Are we headed in that direction
now? Are the gaps in our existing obligations defensible?
Consider the example of the stranger who sees a baby on the railroad
tracks as a train approaches. Would a tort obligation to rescue be just?
Would it maximize social welfare? Would it affect behavior?
Could you argue that our existing obligations are both too narrow in
some contexts (like the baby on the tracks) and too broad in others (like
the psychologist in Tarasoff?)? Is reform needed?
ON YOUR OWN: Review of Possessor and Rescue Duties : Winter 1991
Exam- Supp. 26-27.
PURE EMOTIONAL DISTRESS AND OTHER INSTANCES OF NONLIABILITY FOR FORESEEABLE
Class 1: Negligent Infliction of Emotional Distress
344 (note) & SUPP. 28-37 (Bass v. Nooney)
Why do courts struggle so mightily with cases for "pure" emotional distress?
Why did courts formerly insist on some "impact"? Why do some jurisdictions
continue to require physical manifestations of the emotional distress?
What are the traditional explanations?
An article by Chamallas and Kerber argues that the limits on claims
for emotional distress reflect gender bias. Their article draws on the
early English common law governing recovery for nonpecuniary losses. At
early common law, husbands could recover "loss of consortium" damages when
their wives were injured badly, but wives had no equivalent cause of action.
The wives' loss was characterized as merely emotional since they had no
right to the services of their husbands.. Likewise, husbands could sue
their wives' lovers for "criminal conversation," but wives had no equivalent
action. The authors suggest that this unequal treatment was rationalized
by classifying the females' loss as purely emotional (rather than a loss
of services or sexual relations) and then rejecting that kind of loss as
too trivial. Against that backdrop, courts could easily dismiss other claims
for emotional distress even if brought by men. In effect, emotional distress
claims as a genre had been feminized and, thus, devalued. Consequently,
these claims were (and still are) more highly restricted than actions for
(manly) physical injury. What are the strengths and weaknesses of this
Class 2: more NIED - 344-60 (bystander cases)
When you look at Prob. 21, consider how it would be decided under Waube,
Dillon and Thing. Would the outcome change if Mrs. Carrington
had been at the window? Standing next to the child? Bitten by the dog?
Class 3: still more NIED - 360-64; SUPP. 38-39
(fine-tuning the line between "direct" victims and "bystanders")
Class 4: Injury to Personal Relationships (Loss of Consortium) -
Class 5: Prenatal Negligence - 374-85
a. prenatal and preconception harm (Note, 384-85)
b. wrongful death of a fetus: Werling v. Sandy
Under Werling, could the cause of action succeed if the injury
occurred previability, but the miscarriage occurred after viability? Why
pick viability as the crucial time? What is viability?
c. wrongful birth of a child: Fassoulas v. Ramey
Why do some jurisdictions allow recovery if the negligence occurred
before conception (like negligent sterilization) but bar recovery if it
occurred thereafter (like negligent amniocentesis)?
Class 6: (more on prenatal harm) 384-92
d. actions on behalf of children for wrongful life: Turpin v. Sortini
Key question: How are the wrongful life cases different from
the suits about prenatal or preconception harm discussed in the Note?
Class 7: Purely Consequential Economic Loss: 392-409
Use Problem 22 to review the various approaches used by the cases. What
is the test used in each case? Which would plaintiffs prefer?
Class 1: 481-97
Class 2: 497-506 and SUPP. at 40-42 (Posner)
(1) Be sure to think about Prob. 26 (p. 505)
(2) Why strict liability for very dangerous activities??
Class 1: 529-33 (why strict product liability?)
Do the rationales for strict liability for dangerous activities explain
product liability too? If not, what is the rationale here?
Class 2: 522-29 (manufacturing defects), 533-37, 544-45 (note on affirmative
defenses), and SUPP. at 43 (problem).
Class 3: 584-98 (liability for defective design)
(Query: Is this really strict liability?
Class 4: 553-60 and SUPP. 44-47 (liability for failure to instruct and warn)
(And is this really strict liability?)
[END OF SYLLABUS #1]