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|1||Show/Hide More||I. Assault and Battery: Reconciling Harm with Culpability|
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||Show/Hide More||I.A. Righting (or Punishing) the Wrong|
|1.2||Show/Hide More||I.B. Intentional, Negligent, or Something in Between?|
|1.3||Show/Hide More||I.C. The Restatement Approach to Assault and Battery|
|4||Show/Hide More||II. Assault and Battery: Intent and Autonomy|
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?
|4.1||Show/Hide More||II.A. Latent Sensitivities and Reservations|
|4.2||Show/Hide More||II.B. The Spectrum Between Subjective and Objective|
|4.3||Show/Hide More||II.C. Beyond Physical Contact Or The Threat Thereof|
|4.4||Show/Hide More||University of Geneva Internet Law, June 2015 -- "Practising Cyberlaw: Litigating Internet Disputes" (Problem #2)|
|6||Show/Hide More||III. False Imprisonment: Taking Charge of Others|
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?
|6.1||Show/Hide More||III.A. The Clash of Wills|
|6.2||Show/Hide More||III.B. Defining 'Confinement'|
|6.3||Show/Hide More||III.C. "Good" Imprisonments - Exceptions to False Imprisonment Liability|
|7||Show/Hide More||IV. Defenses: Overriding the Choices of Others|
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?
|7.2||Show/Hide More||IV.B. Preservation of Bodily Integrity|
|7.3||Show/Hide More||IV.C. Preservation of Property|
|7.4||Show/Hide More||IV.D. Beyond the Common Law - Statutory Exceptions and Constitutional Protections|
|9||Show/Hide More||V. Trespass to Chattels: The Limits of Self-Help|
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.
|12||Show/Hide More||VI. Negligence: The Standard of Reasonable Care|
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?
|12.1||Show/Hide More||VI.A. The Murky Line Between Intentional Torts and Negligence|
|12.1.2||Show/Hide More||Class Ten-- January 17th, 2018: Social Security & Entitlement Reform|
|12.2||Show/Hide More||VI.B. Understanding the Standard|
|12.3||Show/Hide More||VI.C. Judge or Jury: Who Should Decide?|
|12.4||Show/Hide More||VI.D. The Restatement Approach to Reasonable Care|
|13||Show/Hide More||VII. Negligence: Adjusting the Standard?|
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?
|13.1||Show/Hide More||VII.A. Challenges in Conveying the Standard|
|13.2||Show/Hide More||VII.B. The Effect of Defendant's Infirmities and Limitations on the Standard|
|15||Show/Hide More||VIII. Vicarious Liability|
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.
|15.1||Show/Hide More||VIII.A. Fundamentals of Vicarious Liability|
|15.2||Show/Hide More||VIII.B. Possible Exceptions to Vicarious Liability|
|15.3||Show/Hide More||University of Geneva Internet Law, June 2015 -- "Practising Cyberlaw: Litigating Internet Disputes" (Problem #2)|
|15.4||Show/Hide More||University of Geneva Internet Law, June 2015 -- "Practising Cyberlaw: Litigating Internet Disputes" (Problem #2)|
|18||Show/Hide More||IX. Res Ipsa Loquitur|
|18.1||Show/Hide More||IX.A. "The Thing Speaks for Itself" - The Basic Rule of Res Ipsa Loquitur|
|18.2||Show/Hide More||IX.B. Questions about Control - "The Exclusive Control" Requirement|
|18.3||Show/Hide More||IX.C. The Problem of Multiple Defendants|
|20||Show/Hide More||X. Negligence Per Se|
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.
|20.1||Show/Hide More||X.A. The Basic Doctrine|
|20.2||Show/Hide More||X.B. The Objective of the Statute|
|20.2.1||Show/Hide More||Platz v. City of Cohoes--"The Sunday Carriage Accident"|
|20.2.2||Show/Hide More||Brown v. Shyne--“The Unlicensed, Paralyzing Chiropractor”|
|20.2.3||Show/Hide More||Rushink v. Gerstheimer--"The Key in the Ignition Case"|
|20.2.4||Show/Hide More||Robinson v. District of Columbia--"The Jaywalking Custom Case"|
|20.2.5||Show/Hide More||Tedla v. Ellman--"Walking on the Other Side of the Highway"|
|22||Show/Hide More||XI. Duty: Action vs. Inaction; Special Relationships|
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.
|22.1||Show/Hide More||XI.A. Action Versus Inaction|
|22.2||Show/Hide More||XI.B. Special Relationships and Other Exceptions|
|22.2.1||Show/Hide More||Harper v. Herman--"The Boat Owner Who Failed to Warn"|
|22.2.2||Show/Hide More||Farwell v. Keaton--"The Fatal Pickup Attempt"|
|22.2.3||Show/Hide More||Randi W. v. Muroc Joint Unified School District--"The Alleged Sexual Predator's Recommenders"|
|24||Show/Hide More||XII. Duty to Control Others|
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”.
|24.1||Show/Hide More||XII.A. Special Relationships|
|24.1.1||Show/Hide More||Broadbent v. Broadbent--"The Elimination of Parental Immunity Case"|
|24.1.2||Show/Hide More||Tarasoff v. Regents of University of California--"The Psychiatrist's Failure to Warn the Murder Victim"|
|24.1.3||Show/Hide More||Hawkins v. Pizarro--"The Failure to Correctly Report Hepatitis C Test Results"|
|24.1.4||Show/Hide More||Einhorn v. Seeley--"The Locksmith's Failure to Property Install a Lock"|
|24.1.5||Show/Hide More||Boyd v. Racine Currency Exchange--"The Non-Compliant Bank Teller and the Murdered Hostage"|
|24.2||Show/Hide More||XII.B. Controlling the Intoxicated|