Zittrain Torts Casebook | Jonathan Zittrain | June 24, 2011

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Zittrain Torts Casebook

by Jonathan Zittrain Show/Hide
  1. 1 Show/Hide More I. Assault and Battery: Reconciling Harm with Culpability
    Original Creator: Jonathan Zittrain

    What’s a tort? It’s a wrong that a court is prepared to recognize, usually in the form of ordering the transfer of money (“damages”) from the wrongdoer to the wronged. The court is usually alerted to wrong by the filing of a lawsuit: anyone can walk through the courthouse doors and, subject to the limits explored in civil procedure, call someone else (or, if a company, something) to account.

    The first section of our course deals with that group of torts known as intentional. We’ll review the spectrum of intent that marks the sometimes-fuzzy boundaries among wrongs that are done intentionally, those done merely “negligently,” and others in between, and also have a chance to think about what kinds of damages should be on the table once a wrong is established. What happens when an act that’s only a little bit wrongful, even while intentional, results in unexpectedly large harm?

    We’ll also discuss the sources that courts turn to in order to answer such questions. Rarely, in tort cases, are those sources the ones laypeople expect: statutes passed by legislatures. Without statutes to guide them, what are courts left with?

      1. 1.1.1 Show/Hide More Vosburg v. Putney--"The Schoolboy Kicker"
        Original Creator: Jonathan Zittrain
        Should defendants be liable for unforeseeable injuries?
      2. 1.1.2 Show/Hide More Alcorn v. Mitchell--"The Angry Spitter"
        Original Creator: Jonathan Zittrain
        [Refer to this case's description in playlist I.B. for more facts.]
      1. 1.2.1 Show/Hide More Picard v. Barry Pontiac-Buick, Inc.--"The Camera Toucher"
        Original Creator: Jonathan Zittrain
        [Refer to this case's description in playlist I.A. for more facts.]
      2. 1.2.2 Show/Hide More Garratt v. Dailey--"The Chair-Pulling Five Year Old"
        Original Creator: jcochran Current Version: Jonathan Zittrain
        [Refer to this case’s description in playlist I.A. for more facts.]
  2. 2 Show/Hide More IV. Defenses: Overriding the Choices of Others
    Original Creator: Jonathan Zittrain

    Nearly any defined pattern of wrongdoing is likely to admit exceptions. That’s in part what can make it so difficult to simply stipulate by legal text ahead of time what behavior is allowed and what is not. But we can try. Efforts to taxonomize carve-outs from legal rules or standards can be worked into the prima facie – “at first glance” – case for a wrong. For example, we might start by defining a battery as an “…unconsented touching… .” Exceptions can also be enshrined as affirmative defenses: all the requirements of a prima facie case might be met, but a defense may then be invoked against it. In this configuration, a battery could be a mere “touching,” but a case for damages would be derailed if the defendant can show consent by the plaintiff. Is there any meaningful difference between defining a tort in a way that captures exceptions in the definition itself, compared to a simpler definition accompanied by a set of defenses?

    Here we look at some of the most common defenses to a range of intentional torts, and their limits. When, for example, should consent of the victim not be enough to eliminate liability for a wrongdoer? What happens when someone hurts someone else in an act of self-defense, but has made a mistake about the intentions of the person acted against? At what point should one’s personal or property rights yield to an emergency in which someone else’s life or property is at stake? This last question also offers us an opportunity to think in a more nuanced way about “plaintiffs” and “defendants” – in many situations the parties are interacting with one another, and each is prepared to claim wrong by the other. A court, then, might find each party as both plaintiff and defendant against the other, and one could imagine a range of actions that ought to be demanded or incented in order to reach a just outcome. Part of the nuance here is to recognize that the law can indeed alternatively “demand” and “incent”: the first, even in civil tort, could be backed up by a threat of jail time or crippling fines; the second, imposed as a carefully calibrated “cost of doing business.” By charging the “right” amount of damages for a harm, is it sensible to then speak of achieving the proper – “efficient,” even – level or amount of such harm in society?

      1. 2.1.1 Show/Hide More Hart v. Geysel--"The Fatal Prize Fight"
        Original Creator: Jonathan Zittrain
        Should a tort be recognized when both parties agreed to engage in harmful contact?
      2. 2.1.2 Show/Hide More Hackbart v. Cincinnati Bengals--"The No-Foul-But-Severe-Harm Case"
        Original Creator: Jonathan Zittrain
        Does the nature of a rough-and-tumble activity like professional football excuse potential tort liability arising from the game?
      1. 2.2.1 Show/Hide More Courvoisier v. Raymond--"The Mistaken Self-Defender"
        Original Creator: Jonathan Zittrain
        Should the common law excuse harmful contact made in self-defense? If so, how do we decide which harmful acts fall within the scope of self-defense?
      1. 2.3.1 Show/Hide More Ploof v. Putnam--"The Private Island in the Storm"
        Original Creator: Jonathan Zittrain
        In order to accommodate plaintiff's need to protect his/her own life or property, should society privilege him/her with the right to interfere with another's property?
      2. 2.3.2 Show/Hide More Vincent v. Lake Erie Transp. Co.--"The Boat That Slammed Against the Dock"
        Original Creator: Jonathan Zittrain
        Should defendants be privileged in protecting their own property at the expense of another’s property? If so, does the court “demand” anything from the plaintiff in exchange for the privilege?
      1. 2.4.1 Show/Hide More Barbara A. v. John G.--"The Lying, Impregnating Attorney"
        Original Creator: Jonathan Zittrain
        How should the court evaluate defenses that come from different sources of law?
  3. 3 Show/Hide More II. Assault and Battery: Intent and Autonomy
    Original Creator: Jonathan Zittrain

    In the absence of statutes that clearly delineate acceptable from unacceptable behavior – that’s the realm of criminal law, and still plenty complicated – tort law often requires a court to draw boundaries on the fly as individual cases come up. Here we look at a cluster of problems arising generally from situations in which society might say the wrongness of an act may be minimal or entirely lacking – yet a victim steps forward to earnestly claim that his or her wishes about bodily integrity have been disrespected.

    The rough and tumble of daily life – “the implied license of the playground” – allows some license for those who offend with physical contact, including against the especially sensitive. When does that license end, particularly if a plaintiff’s special sensitivities are known to a defendant? Are there any larger principles at work to help us resolve conflicts in this zone, or that at least capture the instincts that might find themselves in opposition?

        1. 3.1.1.1 Show/Hide More Wishnatsky v. Huey-- “The Overly-Sensitive Intruder”
          Original Creator: Jonathan Zittrain
          Should findings of offensive-contact-battery be based on a plaintiff’s level of sensitivity, or a more general standard?
      1. 3.1.2 Show/Hide More O'Brien v. Cunard--"The Silent Vaccine Objector"
        Original Creator: Jonathan Zittrain
        Should we expect actors to respect the inner wishes of others, even when those desires contradict—or at least fail to be reflected in—external behavior?
      1. 3.2.1 Show/Hide More Leichtman v. WLW Jacor Communications, Inc. -- "The Smoke in the Face Case"
        Original Creator: jcochran Current Version: Jonathan Zittrain
        Should a smoker's license to freely blow his smoke be limited by the sensitivity of non-smokers?
      2. 3.2.2 Show/Hide More Werth v. Taylor -- "The Blood-Transfusion-Refusing Jehovah's Witness"
        Original Creator: jcochran Current Version: Jonathan Zittrain
        Should health care professionals be allowed to administer life-saving, emergency treatment when there is a possibility that the patient would have refused?
      1. 3.3.1 Show/Hide More Womack v. Eldridge--"The Distressing Accusation of Molestation"
        Original Creator: Jonathan Zittrain
        Should we hold people accountable for causing severe distress in others, even if no physical contact—or the threat thereof—was involved?
  4. 4 Show/Hide More III. False Imprisonment: Taking Charge of Others
    Original Creator: Jonathan Zittrain

    Assault and battery are broad torts: they can be used to cover many different situations, perhaps including ones in which barriers or the threat of force are used to force someone to go where he or she doesn’t want to go, or to keep a person in one place without assent. Yet tort law has evolved a more specific tort to cover that particular set of situations: false imprisonment.

    What, if anything, does false imprisonment accomplish as a category that assault and battery cannot? What plausible situations could arise that would test a colloquial notion of what counts as false imprisonment, and how can we best sort those out? Are there “good” imprisonments that can come up in everyday life that should be excused from the tort’s reach?

      1. 4.1.1 Show/Hide More Lopez v. Winchell's Donut House--"The Accused Employee Who Freely Left"
        Original Creator: Jonathan Zittrain
        Should a defendant be liable for false imprisonment when it did not apply force, use the threat of force, nor assert its authority to confine the plaintiff?
      2. 4.1.2 Show/Hide More Parvi v. City of Kingston--"The Dropped Off Drunk"
        Original Creator: lilac1612 Current Version: Jonathan Zittrain
        Can an otherwise-consented-to action become false imprisonment if the plaintiff no longer wants it?
      1. 4.2.1 Show/Hide More Peterson v. Sorlien -- "The Unsuccessfully Deprogrammed Daughter"
        Original Creator: lilac1612 Current Version: Jonathan Zittrain
        Should we regard individuals as “falsely imprisoned” when they are provided with many opportunities to escape?
      1. 4.3.1 Show/Hide More Eilers v. Coy--"The Falsely Consenting Cultist"
        Original Creator: lilac1612 Current Version: Jonathan Zittrain
        Should we recognize false imprisonment in situations where the confinement is arguably for the plaintiff’s own good? Should consent excuse the defendant’s liability for false imprisonment, even if it is feigned?
      2. 4.3.2 Show/Hide More Bright v. Ailshie--"The Mistaken Bounty Hunter"
        Original Creator: Jonathan Zittrain
        Should defendants be excused from false imprisonment liability when they mistakenly exercise otherwise-legal restraint on the wrong individual?
  5. 5 Show/Hide More V. Trespass to Chattels: The Limits of Self-Help
    Original Creator: Jonathan Zittrain

    Lawsuits are expensive and unwieldy. They take a lot of time – years, even. They are emotionally draining, sometimes devastating – even for winners. And a court and its enforcement mechanisms may not be available in an exigently-unfolding situation. In light of this, the law might contemplate that private actors faced with perceived wrongdoing might be given license to take matters into their own hands. Recognizing the defense of self-defense in battery is one way that the law understands that it can be better, or at least acceptable, for people to help themselves. What about less dire situations than defense of life or bodily integrity? Is it OK to chase after someone who has stolen something? To set a trap on one’s own property to deter or incapacitate wrongdoers, especially if the trap is only sprung against people who are manifestly in a place where they have no permission to be? How much should barriers to effective legal enforcement grant license to individual action, even vigilantism?

    This section’s cases look at these questions through some classic formulations – a spring-gun, for example – and through some more recent ones: the problems arising from spam. In the latter case, we look both at how this new and vexing phenomenon might be worked into the canon of tort, in particular, trespass to chattel, and also how the law should view acts of self-help taken against spammers.

    1. 5.1 Show/Hide More Glidden v. Szybiak--"The Dog Ear Puller"
      Original Creator: Jonathan Zittrain
      To what extent should the law protect an owner from minimal interference with his or her property?
    2. 5.2 Show/Hide More Katko v. Briney--"The Spring-Gun Case"
      Original Creator: Jonathan Zittrain
      Should an individual be allowed to use force to protect his or her real property? Should it matter if the property is uninhabited?
    3. 5.3 Show/Hide More CompuServe v. CyberPromotions--"The Damaging Spam Case"
      Original Creator: jcochran Current Version: Jonathan Zittrain
      Should tort law recognize spamming as trespass against an individual's property? If so, should there be some limits on who may sue spam senders?
    4. 5.4 Show/Hide More V. Intel Corp. v. Hamidi (Court of Appeal)--"The Critical Emails Case"
      Original Creator: Jonathan Zittrain
      Should tort law protect against a company's loss of productivity due to unsolicited emails?
  6. 6 Show/Hide More VI. Negligence: The Standard of Reasonable Care
    Original Creator: Jonathan Zittrain

    We now shift gears away from intentional wrongdoing and its defenses and toward what many consider to be the heart of tort law, both in volume of cases (and damages) and in conceptual challenge: negligence. Under what circumstances should someone’s actions be deemed careless enough to warrant damages, while falling short of the level of riskiness (or even certainty of harm) associated with intentional tort? At the core of negligence is a deceptively simple-sounding standard: act reasonably.

    Negligence law naturally draws in a group of defendants rarely seen in intentional tort: corporations. Can a standard of reasonableness be as intuitively grasped by a jury for judgment of a firm’s behavior as for a person’s actions? How much of the application of that standard should be left to a jury, and how much to a judge, who can decide whether a fact pattern – even one most sympathetic to a plaintiff – merits a jury’s look at all?

    The cases in these sections look at how the law conceives of a negligence standard by examining cases in which judges had to decide whether a jury should hear the case – or, if they heard it, whether they applied the standard correctly. Included is a case famed among legal scholars but typically unknown to senior practitioners: U.S. v. Carroll Towing. Carroll Towing introduces a formula by which one judge thought negligence might be further fleshed out – “unreasonable” behavior unpacked. How helpful is Judge Hand’s formula of b<pl? When, if ever, should a jury be exposed to it? Are there elements of unreasonable behavior not always captured by those three variables?

      1. 6.1.1 Show/Hide More Topps v. Ferraro-- "The Punch at the Party"
        Original Creator: Jonathan Zittrain
        How should courts weigh wrongful acts in determining intent?
      1. 6.2.1 Show/Hide More Chicago, B. & Q. R. Co. v. Krayenbuhl--"The Foot-Severing Turntable"
        Original Creator: Jonathan Zittrain
        When ruling on negligence, should courts consider factors unrelated to the potential harm of an activity (such as the activity’s usefulness to society)?
      2. 6.2.2 Show/Hide More Greene v. Sibley--"The Kneeling Mechanic"
        Original Creator: Jonathan Zittrain
        Should we consider actors to be negligent if they fail to take precautions that require little effort, and would have mitigated the risk of harm?
      3. 6.2.3 Show/Hide More United States v. Carroll Towing Co., Inc.--"The Learned Hand Formula Case"
        Original Creator: Jonathan Zittrain
        Should we attempt to reduce the standard of reasonable care into forms that seem more empirical—like an algebraic formula?
      4. 6.2.4 Show/Hide More Adams v. Bullock--"The Trolley Wire Under the Bridge"
        Original Creator: Jonathan Zittrain
        Should reasonable care protect against all conceivable harm, no matter how unlikely?
      1. 6.3.1 Show/Hide More Pokora v. Wabash Railway Co.--"The Driver Who Failed to Step Out and Look Around"
        Original Creator: Jonathan Zittrain
        Should judges impose strict rules defining reasonable conduct in dangerous or unusual situations or should they defer to the jury?
      2. 6.3.2 Show/Hide More Andrews v. United Airlines, Inc.--"The Baggage May Have Shifted During Flight Case"
        Original Creator: Jonathan Zittrain
        When should judges determine reasonable care at summary judgment and when should they defer to juries?
      3. 6.3.3 Show/Hide More Akins v. Glen Falls--"The Blinding Foul Ball"
        Original Creator: Jonathan Zittrain
        What level of guidance may a judge give the jury with respect to reasonable care?
  7. 7 Show/Hide More VII. Negligence: Adjusting the Standard?
    Original Creator: Jonathan Zittrain

    Although “reasonable care” may sound like a simple, straightforward standard, its simplicity is also its problem: there may be situations in which we wish there were more guidance to settle upon a judgment of negligence, even with the facts clearly presented. Suppose a six-year-old playing a game of tag in the local park knocks over a responsibly-behaving passerby. Does reasonable care naturally scale to meet a six-year-old's capacities? Should it?

    How to judge a six-year-old opens the door to a broader question that as the ring of applied philosophy to it: to what extent should society forgive, and reflect in its standards, the infirmities and limitations of a defendant? How much should expectations be raised for those with extra abilities?

      1. 7.1.1 Show/Hide More Vaughan v. Menlove--"The Unreasonable Hay Stacker"
        Original Creator: Jonathan Zittrain
        How does the reasonable person standard account for variations in human intelligence?
      2. 7.1.2 Show/Hide More Wood v. Groh--"The Gun from the Cabinet"
        Original Creator: Jonathan Zittrain
        Does the reasonable person standard require increased care for dangerous instrumentalties?
      3. 7.1.3 Show/Hide More Goss v. Allen--"The Nearly-Adult Skier"
        Original Creator: Jonathan Zittrain
        What activities inherently require an adult standard of care?
      4. 7.1.4 Show/Hide More VII. Ellis v. D'Angelo -- "The 4-Year-Old Bone Breaker"
        Original Creator: Jonathan Zittrain
        Does a defendant's age alone justify adjusting his or her standard of care?
      1. 7.2.1 Show/Hide More McCarty v. Pheasant Run--"The Chained, But Unlocked, Sliding Door"
        Original Creator: Jonathan Zittrain
        Does a plaintiff's lack of care elevate the care expected of the defendant?
      2. 7.2.2 Show/Hide More Roberts v. Ramsbottom--"The Driver Who Had a Stroke"
        Original Creator: Jonathan Zittrain
        Should a medical episode absolve actors of their duty of care?
      3. 7.2.3 Show/Hide More Bashi v. Wodarz--"The Driver Who Wigged Out"
        Original Creator: Jonathan Zittrain
        Does mental illness count as a “sudden affliction” as defined in Roberts?
      4. 7.2.4 Show/Hide More Miller v. Reilly--"The Defective Brakes Case"
        Original Creator: Jonathan Zittrain
        Should an actor's standard of care be relaxed by exigent circumstances—such as her car's brakes failing while the actor is driving downhill?
  8. 8 Show/Hide More VIII. Vicarious Liability
    Original Creator: bfidler.jd13 Current Version: Jonathan Zittrain

    Sometimes third parties can be called to account for others’ actions, as if they were the direct wrongdoers. For example, a court might hold a company responsible for the negligence of its employees — an employee’s wrong becomes the company’s wrong. This extension of liability can be important to a plaintiff who might otherwise be unable to collect damages from the shallower pockets of the original wrongdoer.

    This concept is often referred to as “vicarious liability”. A common form of vicarious liability is that of an employer for their employee— “respondeat superior”. Under the doctrine of respondeat superior, an employer is liable for any actions that fall within an employee’s scope of employment. In other words, McDonald’s might pay for an employee who carelessly spills hot coffee on a customer, but not when he or she goes home and spills hot coffee on a family member.

    However, in many situations it is not so clear cut if the employee’s torts occur within his or her employment. Should a company pay for an employee’s car accident that occurs during a lunch break, away from work? Should a club owner pay for the injuries its bartender inflicts upon a customer who refuses to pay?

    To answer these questions we consider cases that illustrate both the fundamentals of and exceptions to vicarious liability.

      1. 8.1.1 Show/Hide More Miller v. Reiman Wuerth Co.--"The Bank Errand Case"
        Original Creator: bfidler.jd13 Current Version: Jonathan Zittrain
        Can personal errands done during business hours fall under the scope of employment?
      2. 8.1.2 Show/Hide More Christensen v. Swenson--"The Lunch Break Case"
        Original Creator: bfidler.jd13 Current Version: Jonathan Zittrain
        Is an employee acting within the scope of her employment during her lunch break?
      1. 8.2.1 Show/Hide More Bussard v. Minimed, Inc.--"The Noxious Office Fumes Case"
        Original Creator: bfidler.jd13 Current Version: Jonathan Zittrain
        Are there cases where a commute does not fall under the goings-and-comings rule?
      2. 8.2.2 Show/Hide More Kuehn v. Inter-city Freight--"The Road Rage Case"
        Original Creator: Jonathan Zittrain
        How should courts distinguish between employee's personal outbursts and their work on behalf of the company?
      3. 8.2.3 Show/Hide More Sage Club v. Hunt--"The Violent Bartender"
        Original Creator: Jonathan Zittrain
        Can certain jobs or duties create a scope of employment that encompasses intentional torts?
      4. 8.2.4 Show/Hide More Roessler v. Novak--"The 'Independent' Radiology Department"
        Original Creator: bfidler.jd13 Current Version: Jonathan Zittrain
        Can an entity be vicariously liable for actions notwithstanding the actual employment status of the wrongful actor?
      5. 8.2.5 Show/Hide More Shuck v. Means--"The Secret, Teenage Rental Car Driver"
        Original Creator: bfidler.jd13 Current Version: Jonathan Zittrain
        When a car renter allows a third-party to operate the vehicle (in violation of the rental agreement), can the rental agency be liable for the wrongful acts of the third-party?
  9. 9 Show/Hide More IX. Res Ipsa Loquitur
    Original Creator: Jonathan Zittrain
    Civil procedure concerns itself with what levels of proof and persuasion must be elicited from a plaintiff before a jury can hear a claim – and rule favorably on it. What happens when there isn’t sufficient evidence for a plaintiff to meet that burden, in part perhaps because the defendant’s behavior – the negligence itself, even – has made it difficult to gather such evidence? Res ipsa evolved before modern discovery rules to allow cases to get to juries where negligence by the defendant might be readily inferred. The cases in this section show the development of the doctrine and explore its rationales and limits.
      1. 9.1.1 Show/Hide More Byrne v. Boadle--"The Falling Flour Barrel"
        Original Creator: Jonathan Zittrain
        Should courts be willing to presume negligence in situations where the plaintiff's injury implies negligence has occurred?
      1. 9.2.1 Show/Hide More Larson v. St. Francis Hotel--"The Falling Armchair"
        Original Creator: Jonathan Zittrain
        Should courts still apply the doctrine of res ipsa loquitur when a defendant does not have exclusive control over the object which harms the plaintiff?
      2. 9.2.2 Show/Hide More Connolly v. Nicollet Hotel--"The Chaotic Convention"
        Original Creator: Jonathan Zittrain
        Should courts be willing to apply res ipsa loquitur principles to defendants who acquiesce to conditions which made the wrongful injury likely?
      1. 9.3.1 Show/Hide More Ybarra v. Spangard--"The Unconscious, but Injured Patient"
        Original Creator: Jonathan Zittrain
        Are there situations where courts should apply res ipsa loquitur despite a plaintiff’s failure to satisfy the technical requirements of the doctrine?
      2. 9.3.2 Show/Hide More Fireman's Fund American Insurance Cos. v. Knobbe--"The One-of-Four Smokers Case"
        Original Creator: Jonathan Zittrain
        Should res ipsa loquitur be applied to a group of defendants when plaintiff has submitted no direct evidence that they had control over the dangerous instrumentality or were involved in the harm?
  10. 10 Show/Hide More X. Negligence Per Se
    Original Creator: Jonathan Zittrain

    This section explores yet another way in which – sometimes – the vague negligence standard of reasonableness can be supplemented: negligence per se. In those rare (and happy?) occasions in which a rule of behavior is laid down by the law – for the purpose of safety, and perhaps as part of the criminal canon – we see courts willing to adopt the law itself as the standard of care. When this is done, it does not merely provide a basis for inference as res ipsa does, but rather substitutes for the standard itself. If the conditions for NPS are met and the law can be shown to be broken, the defendant is liable (or, if contributory negligence is claimed as the candidate for NPS, the plaintiff’s case is lost).

    The cases here provide good examples of when the doctrine works – and when exceptions to its application are sought and granted.

      1. 10.1.1 Show/Hide More Martin v. Herzog--"The Buggy Without Lights"
        Original Creator: Jonathan Zittrain
        To what extent, if any, should courts allow the violation of a statute to inform their analysis of negligence?
      1. 10.2.1 Show/Hide More Platz v. City of Cohoes--"The Sunday Carriage Accident"
        Original Creator: Jonathan Zittrain
        Should courts consider the objective of the statute when negligence per se is invoked?
      2. 10.2.2 Show/Hide More Brown v. Shyne--“The Unlicensed, Paralyzing Chiropractor”
        Original Creator: Jonathan Zittrain
        If an unlicensed actor causes harm, should the fact that the actor lacked a license be evidence enough for negligence per se?
      3. 10.2.3 Show/Hide More Rushink v. Gerstheimer--"The Key in the Ignition Case"
        Original Creator: Jonathan Zittrain
        How should the court determine the class of individuals that the legislature aimed to protect through statute?
      4. 10.2.4 Show/Hide More Robinson v. District of Columbia--"The Jaywalking Custom Case"
        Original Creator: Jonathan Zittrain
        If a particular statute is flouted by the custom of the public, should courts still rely upon the statute for the purposes of NPS?
      5. 10.2.5 Show/Hide More Tedla v. Ellman--"Walking on the Other Side of the Highway"
        Original Creator: Jonathan Zittrain
        Should the doctrine of NPS apply when obeying the statute would go against the intention of the statute?
  11. 11 Show/Hide More XI. Duty: Action vs. Inaction; Special Relationships
    Original Creator: Jonathan Zittrain

    We now look at a conceptually distinct (at least most of the time) inquiry in a negligence case from that of reasonableness and the standard of care: did the defendant owe a duty to the plaintiff? This question can be asked independently of whether the defendant acted reasonably. Imagine it in this form: “Suppose all you say is true and I behaved unreasonably. You still don’t have a case.”

    Why wouldn’t the plaintiff have a case? Circularly, because the defendant is said not to bear a duty to the plaintiff. The circumstances in which this is true are numerous and often unrelated. For example, a lack of duty can be found in cases of immunity, such as when the “sovereign immunity” of government is found to preclude any claims from being lodged against it. Certain types of negligently inflicted harm, standing alone, have traditionally been thought to be unsuitable for resolution in tort: purely emotional harm, for example, or purely economic harm. (Now that you think about, consider how each of the cases in the preceding section involved at least some claimed physical harm as an anchor for the case.) Cases in which harm is mediated through another person are sometimes thought to fall within a no-duty rule for the upstream wrongdoer, e.g. should a bartender not face an inquiry for serving drinks to someone who ends up causing a car accident.

    We will examine each of these situations. But we start with yet another example of I-might-be-wrong-but-you-can’t-sue-me: cases in which the wrong arises from inaction rather than action. Is it possible to be held liable for just sitting around? Couch potatoes, take heart: you may not owe a duty to anyone as you unreasonably take in the Jersey Shore while pleas for help and assistance coalesce right next to you.

      1. 11.1.1 Show/Hide More Moch Co. v. Rensselaer Water Co.--"The Failure to Supply Water During a Fire"
        Original Creator: Jonathan Zittrain
        In questions of duty, should courts draw a distinction between inaction that has the consequence of harm, and positive action that creates harm?
      2. 11.1.2 Show/Hide More Union Pacific Railway v. Cappier--"The Railroad that Ran Over a Man and Let Him Bleed to Death"
        Original Creator: Jonathan Zittrain
        Should non-negligent owners and operators of an instrumentality have a duty to assist individuals who are harmed by the instrumentality?
      1. 11.2.1 Show/Hide More Harper v. Herman--"The Boat Owner Who Failed to Warn"
        Original Creator: Jonathan Zittrain
        Does being a social host create additional duties to guests? Should an individual’s superior knowledge of a dangerous condition require him or her to disclose that danger?
      2. 11.2.2 Show/Hide More Farwell v. Keaton--"The Fatal Pickup Attempt"
        Original Creator: Jonathan Zittrain
        Should we expect partners in a joint activity—in this case, chasing after girls—to have a duty to protect and aid each other? If someone provides aid, should courts impose a duty on the aiding party to provide a certain standard of care for the injured party?
      3. 11.2.3 Show/Hide More Randi W. v. Muroc Joint Unified School District--"The Alleged Sexual Predator's Recommenders"
        Original Creator: Jonathan Zittrain
        Should courts recognize a broader rule for creating a duty, capable of encompassing wrongful communications?
  12. 12 Show/Hide More XII. Duty to Control Others
    Original Creator: JenniferH Current Version: Jonathan Zittrain

    At common law, a person does not generally have an affirmative duty to control the conduct of another. An exception to this rule exists when a special relationship between parties is sufficient to establish a duty of care. Such a duty can be symmetrical (husband-wife) or asymmetrical (adult-minor, doctor-patient), and the nature of the relationship determines the nature of the duty owed. The special relationship can be with either the person whose conduct needs to be controlled (where the plaintiff would be an injured party not in a special relationship with the defendant) or a foreseeable victim (and future plaintiff) of that conduct.

    “Tarasoff” lays out the doctrine and arguments for and against the rule. “Broadbent” focuses on whether parents have a duty to protect their children from hurting themselves. “Hawkins” shows the bounds of a doctor’s duty to her patient, including the recurring theme of foreseeability of harm to a known plaintiff. “Cuppy” illustrates the special relationship analysis for finding a duty to control. The contrasting approaches in “Charles” and “Kelly” show the majority and minority (New Jersey) rules for social host liability. “Einhorn” discusses the landlord-tenant relationship and the limits of the duty within it. The extent to which the owner-invitee relationship requires protecting invitees from third party criminal acts is explored in “Boyd”.

      1. 12.1.1 Show/Hide More Broadbent v. Broadbent--"The Elimination of Parental Immunity Case"
        Original Creator: Jonathan Zittrain
        Should children be allowed to sue if their parents’ failure to supervise them led to harm?
      2. 12.1.2 Show/Hide More Tarasoff v. Regents of University of California--"The Psychiatrist's Failure to Warn the Murder Victim"
        Original Creator: Jonathan Zittrain
        Do therapists have a duty to control their patients? If so, how far does this duty extend, and how may it be discharged?
      3. 12.1.3 Show/Hide More Hawkins v. Pizarro--"The Failure to Correctly Report Hepatitis C Test Results"
        Original Creator: JenniferH Current Version: Jonathan Zittrain
        Should doctors be liable to a third party if their failure to warn a patient about their disease leads to harm?
      4. 12.1.4 Show/Hide More Einhorn v. Seeley--"The Locksmith's Failure to Property Install a Lock"
        Original Creator: JenniferH Current Version: Jonathan Zittrain
        Should third parties employed to complete a service be liable for crimes committed due to their negligence?
      5. 12.1.5 Show/Hide More Boyd v. Racine Currency Exchange--"The Non-Compliant Bank Teller and the Murdered Hostage"
        Original Creator: JenniferH Current Version: Jonathan Zittrain
        Does an owner’s duty to prevent harm against invitees require them to comply with criminal threats?
      1. 12.2.1 Show/Hide More Charles v. Seigfried--"The Majority Rule for Social Host Liability"
        Original Creator: JenniferH Current Version: Jonathan Zittrain
        Does the host who serves alcohol have a duty to prevent the intoxicated from driving?
      2. 12.2.2 Show/Hide More Kelly v. Gwinnell--"The New Jersey (Minority) Rule for Social Host Liability"
        Original Creator: JenniferH Current Version: Jonathan Zittrain
        How does this court interpret the duty of social hosts to prevent the intoxicated from driving?
  13. 13 Show/Hide More XIII. Duty: Governmental Liability
    Original Creator: Jonathan Zittrain

    Government entities perform unique functions for, and perhaps accrue responsibilities to, their citiz