sigature page

RUTGERS LAW SCHOOL

Torts Assignments -- Fall Semester, 2011

Professor Howard Latin

Page references are to Richard Epstein, Cases and Materials on Torts, 9th Edition.

(T) = top of the page, (M) = middle of the page, (B) = bottom of the page

I am leaving last year's assignments on this web page to serve as a general syllabus describing most topics we are
likely to cover this semester. I vary the materials each year to some degree to reflect recent judicial cases, current
events, and student interests, but there are many core Torts issues that must be addressed every year. The 2010
assignments are below the rows of asterisks, and the current 2011 assignments will be posted each week immediately
below this comment.

I have added a short general essay on how entering law students can learn to read judicial opinions, which was written
by Orin S. Kerr, a helpful American law professor. This essay is intended to lay out the most basic basics of legal study
and probably would not be useful for anyone with any kind of significant legal background, but perhaps it can fill in some
blanks for new students. I suggest you download it and read the first few pages to see if it is worthwhile for you. It is not
a mandatory assignment. You can download the essay here:

Tuesday, August 23, 2011: Introduction to Negligence Liability Theory

Pp. 154-158(T), 154-158(T), 154-158(T), 154-158(T), 154-158(T), 154-158(T).

The Repetition Is Entirely Deliberate -- You Should Always Reread the Assigned Cases Carefully.

Pp. 163(B)-166, 163(B)-166, 163(B)-166. Do these cases reflect different principles or essentially
the same legal treatment?

Pp. 151(M)-153(M) Short excerpt from Justice Holmes book on "fault" and liability.

Thursday, August 25, 2011: Introduction to Strict Liability Theory

Pp. 112-114(T), 115(M)-118(M). Very short summary of the Historical Forms of Action.

Pp. 127(B)-135(T), 127(B)-135(T), 127(B)-135(T). What are the specific legal grounds on which
each of the five Judges based his decision in this famous case? These are called the "holding" of the
judicial opinion, but the judges did not agree on what the holding should be, or why. Cases in which
judges disagree are more likely to appear in legal casebooks than cases in which there is unanimity
in the applicable judicial opinions. So expect and identify judicial disagreements and resulting mistakes.

Tuesday, August 30th, and Thursday, September 1st: Intentional Torts

Pp. 35-37(T), 4-10(M), 79(M)-85(T), 93(M)-94, 96-97(T)--Elements of the Prima Facie cases

Pp. 10(B)-12, 22(M)-24(T), 25(M)-25(B) Trespass & Conversion--Are they Intentional or Strict Liability Torts?

Pp. 35-37(T), 40(M)-41(M), 43(M)-46(T), 54(M)-58(M), 64(M)(M'Ilovy)-67(M), 68(M)-70 Defenses

What INTENT must be intended for the law to impose intentional tort liability? In other words, what must the
defendant intend before the application of this liability theory would be appropriate? Consider the assigned
cases as a set or group and compare them to test your understanding of what must be intended in an Intentional
Tort case.

There are a couple of interesting cases in the Trespass to Chattels & Conversion discussions on IT systems (Intel 14-22)
and biological tissue samples (Moore 26-33) that are far too complicated to address this early in the semester and that we
do not have time to discuss in class. They are optional reading.

Tuesday, September 6th, and Thursday, September 8th: Intentional Torts Versus Negligence

Pp. 68(M)-70, 68(M)-70, 71-74, 71-74, 71-74, 71-74. Do you believe the Vincent case was correctly decided, and why
or why not? Please make up a WRITTEN list of specific arguments supporting your view on how the case should have been
decided. Be sure you turn these arguments around and see if they apply equally to the other party's circumstances. Our analysis
of the Vincent judgment involves a comparison of a potential intentional tort analysis, negligence analysis, and strict liability
analysis. Which of these legal approaches was adopted by the majority opinion in the Vincent case? In addition to the
substantive comparison of Tort liability theories, we will emphasize the pedagogical issues of how to frame effective legal
arguments, how to turn arguments around to see if they really hold water, and how to balance multiple arguments that may cut
for or against a particular position. Vincent is a great case for teaching legal skills every student should acquire and practice.

Pp. 75(M)-77(B) on public necessity and compensation.

Tuesday, September 13th, and Thursday, September 15th: Intentional Torts Versus Negligence

The Vincent discussion will be continued for one more class. Read the academic materials distributed on Vincent and evaluate
the validity and persuasiveness of these arguments. Also, review your own specific or general arguments and be prepared to
justify whatever legal judgment you think would be appropriate in this case. In short, we will be comparing the legal arguments
on Vincent presented in the scholarly literature with each other and with your preferred arguments. Remember that the purpose
of this exercise is not primarily to reach the "right" answer, if there is one, but to improve your skills as an adversarial lawyer.

Pp. 194(B)-196(M). Compare Vincent to the Blythe decision. What makes the unprecedented storm in one case different
from the unprecedented freeze in the other case? Should we extend intentional torts to risks that on an actuarial basis entail a
statistical certainty of deaths? For example, the particulate matter (ash, soot, dust) discharged by coal-burning power plants
causes thousands of premature deaths each year among people with respiratory problems. And auto manufacturers make many
trade-offs between safety and price for every vehicle design feature, with the knowledge that on a statistical basis these trade-offs
will invariably lead to some potentially avoidable deaths.

Pp. 196(M)-205(M), 206(M)-208, 215(M)-220. Read the Andrews case at pp. 217-220 for the "high duty of care" imposed
on common carriers, warehouse owners, and others who hold themselves out as experts and encourage consumers to rely on them.
These cases and comments deal with the basic philosophy of negligence. We will move through them very rapidly, taking no more
than a couple of minutes for each, except for the Carroll Towing case. This will be a useful opportunity for students to ask themselves
WHY these cases were included in their casebook and were assigned at this point in the semester. Students are often confused
because "negligence" is both a generic liability theory with two characteristic prima facie elements, and also a specific Tort involving
unreasonable care. Medical and legal malpractice, for example, are Torts based on the negligence liability theory, as are auto accidents
and cases involving unintentional physical harm except in the limited context of strict liability treatments.

Pp. 171(B)-174, 178(M)-179(B), 180(B)-184(M), 50(M)-53(T), 185(B)-188(M), 190(M)-192(B). This is a discussion of
the "reasonably prudent person" concept in negligence law. The aim is to examine how we determine what kinds of behavior meet
the "reasonable care" standard and what kinds of exceptions should, or should not, be made as a result of atypical physical, mental,
or behavioral traits.

Tuesday, September 20th, and Thursday, September 22d: Expert Testimony & Legal Custom

Download the Quintal and Lucy Webb cases. If the Quintal decision had been a law school exam question, Justice Peters'
opinion would have received a C+ grade at best, while Justice Traynor's concurring opinion would have received an A or A-.
Why is Justice Traynor's legal analysis clearly superior to the Peters plurality opinion analysis? Answering this question should
provide valuable insight into effective exam-taking technique. What is the role of the judge in requiring or restricting expert
testimony on appropriate issues?

Read Pp. 221-227(Top) for an introduction to the treatment of Legal Custom.

Tuesday, September 27th, and Thursday, September 29th: Custom and Medical Malpractice

We will devote a few minutes to finishing our discussion of the Lucy Webb case and imposing an organization's own chosen
behaviors as its standard of reasonable care. Then we will move on to legal custom, described on pp. 221-227. And then
we will begin our discussion of medical malpractice with the Pike case.

Read the Pike1898 opinion and read pp. 230(B)-236(M), 242(B)-243(M), 240(B)-242(B) (Locality Rule), 244(M)-254(M)
(Medical Disclosure & Informed Consent) in the Epstein casebook.

Tuesday, October 4th: Health Care Policies and Medical Malpractice

We will devote this class to a discussion of American health care policy and the role played by medical malpractice in the larger policy
context. I have put together a short file of recent articles and a Health Care Reform Overview zip file containing a number of essays,
mostly from the New England Journal of Medicine, describing competing visions and proposals on recent national health care debates.
Also download and read the Leonhardt article (assessment & critique of health care positions), as previously assigned. As a sidenote,
the AAFP is the American Association of Family Physicians--the AAFP presented the first essay in these materials.

The file Medical Policy Disputes contains a group of longer articles on health care system problems and malpractice effects
distributed to interested students in the 2008 class. Click on the medical folder for a list of these numbered files, which deliberately
reflect a wide range of views about medical system problems and possible solutions. I think the short piece by Dr. Liang is probably
the most balanced, but I doubt his middle-of-the-road recommendations could be adopted in practice. The essay by Dr. Nehmer,
an evening student at Rutgers Law School a few years ago, was written as an independent study paper. This material is optional
and sadly inconclusive because people, including experts, tend to see what they want to see or expect to see and believe whatever
is consistent with their pre-existing beliefs. It has proven very difficult to change peoples' beliefs about the American medical system
and the effects of malpractice litigation, as the past several years of legislative debates have amply demonstrated.

Let me make clear that this large collection of materials is optional and inconclusive, despite the efforts reflected in each essay. Students
who are seriously interested in health care reform and medical malpractice should read most of these materials after their exams are
over. The first set of materials is from 2010 and 2011, the second set of materials is from 2009 and 2010, and the last set of materials
is from 2008 and 2009. However, all of these discussions are still relevant to the major medical reform issues.

Thursday, October 6th: Negligence Per Se and Cause-in-Fact

Negligence Per Se: Pp. 265-267(M), 270(B)-273(T), 277-280(B). We are going to move very quickly through these materials,
although there are some interesting boundary-line drawing issues, such as in the Tedla case.

Cause-In-Fact Introduction: Pp. 451(B)-454(M), 477(B)-480. A showing of Cause-In-Fact is a requirement for every Torts
case under every liability theory. A defendant may be found legally culpable (negligent, intentional, or subject to strict liability), but
this actor will not be found liable unless the culpable actions were a Substantial Contributing Cause of plaintiff's injuries. The term
"substantial contributing cause" means that the defendant's actions must have played a major role in bringing about the injury, but it
does not have to be the only cause or even the greatest cause of the plaintiff's damages.

In evaluating cause-in-fact issues, ask the following rule-of-thumb questions. The difference between the answers to these questions
is the amount of harm that was "caused" by the defendant's wrongful behavior.

What did the plaintiff have after the defendant's culpable actions?

What would the plaintiff have had if the defendant had not behaved in a culpable manner?

Pp. 454(M)-459(M), 470(M)-475(M), 485(B)-496(T). These cases deal with shifting or easing the plaintiff's burden of proof. The
element of proving cause-in-fact is a difficult one in many cases, and some courts have chosen to modify the traditional burden of proof
to some extent based on a cluster of legal policy considerations including fairness, deterrence, and loss-spreading. Please compile a
list of the various factors in each cause-in-fact case that the courts emphasized to justify their decisions to shift or reduce the plaintiff's
burden of proof.

Tuesday, October 11th, and Thursday, October 13th: Cause-in-Fact and Scientific Evidence

On Tuesday we will finish the cases cited in the last paragraph of the previous assignment. If there is any time left on Tuesday, we
will begin our discussion of the admissibility of scientific and expert testimony and specifically will address the Daubert opinion.

This material on scientific evidence is an introduction to one of the most important issues to emerge in civil litigation areas during the
past quarter-century. The handout includes three federal cases on the admissibility of scientific evidence and two New Jersey cases
on the same issue. We will pay especially close attention to the conflicting judicial treatments in the Joiner and Rubanick decisions,
which both deal with PCB toxic causation problems but in very different ways. There is also a short essay that discusses the federal
treatment of scientific and technical evidence, as imposed by the Daubert decision and its progeny. We will try to finish these four
or five cases on Thursday, but they may require an hour on the following Tuesday--though, hopefully not. This is very important
material that needs to be studied extremely carefully.

Tuesday, October 18th: Res Ipsa Loquitur

We will finish our discussion of the admissibility of scientific evidence, and then will examine the doctrine of Res Ipsa Loquitur.
Pp. 299(M)-303(B), 307(T)-311(T), 313(M)-313(B), 316(M)-320. Res Ipsa Loquitur (the thing speaks for itself) is a doctrine
that allows the plaintiff to overcome uncertainty about (a) tortious behavior, usually negligence and (b) cause-in-fact, by showing
that accidents of this particular kind do not ordinarily happen unless actors in the position of the defendant have been negligent. In
this treatment, the plaintiff must describe how a class, category, or type of accident ordinarily occurs and then the court will presume
that the specific injury at issue in this lawsuit occurred in the same way. This is not a difficult logical inference to make: If this type of
case is usually the result of negligence by this type of defendant, then we will assume that this specific injury was caused by negligence
on the defendant's part. As usual, the assigned pages first begin with the core elements of the doctrine, and then subsequently present
cases in which the standard doctrinal rules are expanded to make the plaintiff's burden of proof easier based on policy considerations.

If the evidence presented is about how a particular accident occurred, that is a garden-variety negligence case and has nothing to do
with Res Ipsa Loquitur. If the evidence is about how a class, category, or type of accident ordinarily occurs, and if the evidence shows
that the injury ordinarily does not occur without negligence on the part of the actors in the defendant's position, then negligence can be
inferred under the RIL doctrine. The defendant can rebut this inference by showing that (1) he was not negligent in the specific case, or
(2) that this type of accident does not ordinarily result from negligence on the part of actors in his situation.

A plaintiff can submit evidence about negligence and causation in a specific case (a garden variety negligence case) and the plaintiff can
also submit evidence on how this type of injury ordinarily occurs. This means the plaintiff can use alternative normal negligence and Res
Ipsa Loquitur approaches in the hope to prevail on one or the other prima facie case.

Thursday, October 20th: Proximate Cause

The core issue in cause-in-fact is whether some events or actions leading up to the plaintiff's injury played a major role in
bringing about that injury--the legal test is whether an action by the defendant was a substantial contributing cause of the
plaintiff's injury. This language is used because there could be more than one defendant and more than one culpable action
that played a substantial part in causing the injury.

In contrast, the core issue in Proximate Cause is whether the culpable defendant should be held legally responsible for the
plaintiff's injury among all the consequences that might follow from the defendant's culpable act. This doctrine does not address
how an injury is caused (in fact), but whether the defendant should be held legally responsible for that injury. There are two
incompatible proximate cause tests that have been adopted by different states (each state can have only one PC doctrine), and
you must learn to deal with the resulting ambiguity as many thousands of other law students have also had to do.

Pp. 497-499, 502 (M)-503 (B), 515 (T)-519 (M). Under which proximate causation treatment was the Ryan case
decided?

The Palsgraf decision is the most famous decision in American Tort Law: Read the majority and dissenting opinions very carefully
several times and compare those analyses against the Polemis decision and the others in this line of cases. Judge Cardozo's opinion
in Palsgraf is also the most famous treatment of "duty" in American Law. Pp. 519(M)-528(M), 536(M)-540(M), 543(M)-544(M).

We will discuss the Ryan case on Tuesday if we complete the previously assigned material, and we will devote the greatest attention
on Thursday to the Polemis decision and the majority and dissenting opinions in Palsgraf.

Tuesday, October 25th, and Thursday, October 27th: Proximate Cause

The central issue in Proximate Cause is whether a culpable defendant should be held legally responsible for the plaintiff's injury
among all the consequences that might follow from the defendant's culpable act. This doctrine does not address how an injury is
caused (in fact), but whether the defendant should be held legally responsible for that injury. There are two incompatible proximate
cause tests that have been adopted by different states (each state can have only one PC doctrine), and you must learn to deal with
the resulting ambiguity as many thousands of other law students have also had to do.

Pp. 497-499, 502 (M)-503 (B), 515 (T)-519 (M). Under which proximate causation treatment was the Ryan case decided?

Pp. 519(M)-528(M), 536(M)-540(M), 543(M)-544(M). The Palsgraf decision is the most famous decision in American Tort
Law: Read the majority and dissenting opinions carefully several times and compare those analyses against the Polemis decision
and the others in this line of cases. Judge Cardozo's opinion in Palsgraf is also the most famous treatment of "duty" in American
Law. Can you harmonize the two Wagonmound decisions?

Pp. 500(B)-502(M), 505(M)-506(M), 507-509(T), 512(B)-514(M), 532(T)-536(T). Superceding or Intervening Cause (I think
these are synonyms) occur when the actions of another person come after the actions of the culpable defendant. The core question
is whether these 3d party actions should "break the chain of proximate causation" resulting from the defendant's behavior. We will be
going through these superceding cause cases rapidly because all jurisdictions employ the same basic test to determine whether a
subsequent act should, or should not, be be treated as a superceding or intervening cause.

Tuesday, November 1st: Comparative Apportionment

Pp. 328(B)-329(B), 333(B)-337, 360(M)-362(B), 365(B)-372(B), 384(M)-390(M), 405-407(T), 409(B)-416(M). This material
rather superficially deals with the doctrines of Contributory Negligence, Assumption of Risk, Comparative Negligence, and Equitable
Indemnification (apportionment) among joint tortfeasors. We have already seen many contributory negligence cases and will devote
only a few minutes to the ones in this assignment. Assumption of Risk is a confusing doctrine because the courts have used the phrase
in three different ways: (1) the defendant owes no duty of care to the plaintiff in the specific accident context, as in the flopper case;
(2) the defendant does owe a duty of care to the plaintiff but the plaintiff recognized the risk created by the defendant and voluntarily
exposed himself/herself to that risk (Lamson); or (3) the risk was allocated to one of the parties by a contractual agreement, as argued
unsuccessfully in the Polemis and Carroll Towing cases. The Meistrich case is the leading decision that held type (2) assumption of
risk should be folded into the contributory negligence doctrine by requiring that plaintiff's exposure to the risk be not only "knowing"
and "voluntary" but also "unreasonable."

Comparative Negligence (between plaintiff and defendants) and Equitable Indemnification (between defendants but not plaintiff)
involve apportionment of damages between the parties based on "fault" or the "degree of causation" when both the defendant(s)
and plaintiff have engaged in culpable behavior. These apportionment doctrines have replaced the previous contributory negligence
bar to plaintiff's recovery in all but a few states. A "pure" comparative negligence doctrine, such as in the Li case, involves a full range
of apportionment in which the plaintiff could recover 10 percent of his/her damages even after being found responsible for 90 percent
of the culpable harm. In many states, especially those that adopted comparative negligence by statute, the plaintiff can only recover
damages if the defendants are at least equally as responsible for the harm--the 50 percent floor. New Jersey has adopted this treatment
by statute.

Equitable Indemnification or some other form of apportionment among culpable defendants has been adopted in most jurisdictions
that have adopted Comparative Negligence--if it is feasible to apportion in one context, why not the other? This is a lot of material
for one day, but these doctrines have become the dominant treatments in most states. We will try to get through the apportionment
cases and treatments in one day so we can have more time to devote to other issues, especially Strict Products Liability.

Thursday, November 3d: Introduction to Strict Products Liability

This material on vicarious liability is assigned but we will not have time to go over it in class: Pp. 429-432(M), 435(M)-435(B),
438(M)-439(M).

The materials assigned in this paragraph may be read anytime during the semester, but will not be discussed in class. These
cases include some areas of strict liability that offer only a little insight into the evolution of strict products liability law.
[Landlord/Tenant Relationships: 624-630(M); Psychiatric Relationships: 634(B)-642(B); Historical Strict Liability: 645-649(M),
656(M)-663(M), 667(M)-673; Private Nuisance 675(B)-679, 700-704(B); Public Nuisance 712(M)-714(B), 717(B)-722.]

Early Cases: Pp. 728(M)-735, 739(M)-744(M). The first case describes the dominant historical doctrine of privity, and the next
two landmark decisions show the early development of products liability law. Please make up a written list of the policy arguments
used by Justice Traynor in his famous concurring opinion in Escola, and compare his arguments against Judge Cardozo's reasoning
in the even more famous MacPherson case. Note that Justice Traynor wrote the Greenman opinion almost 20 years after his
Escola concurring opinion. Consider the legal evolution from product warranties: Pp. 737-739(M), 745-746 to the first strict
products liability decision, Greenman, at Pp. 747(M)-748(M).

Tuesday, November 8th: Restatements of Torts, and Manufacturing or Construction Defects

Pp. 748(B)-754(B): The Restatement Second of Torts Section 402A (1966) and the Third Restatement (1998). Section 402A
was the most influential source in the development of strict products liability. Even courts that rejected provisions from this ALI
document felt the need to discuss them and explain why the Section 402A treatments were deemed unsuitable. Please read these
provisions and the related comments carefully, and contrast the doctrines and underlying ideologies of the Second and Third
Restatements.

Then we will discuss the doctrine of manufacturing or construction defects (synonyms), the strictest type of "strict products liability."
Read Pp. 772(B)-776 and the handout materials for this subject.

Thursday, November 10th: Introduction to "Strict" Design Defect Products Liability

Thursday, we will begin our discussion of more complicated design defect treatments. The materials may be downloaded from
this file. The Cepeda and Barker opinions provide the broadest overviews of these core issues:

Intended or Foreseeable Uses: Volkswagon, Cepeda, Barker
Consumer Expectations Test (CET): Linegar, Potter, Barker, Restatement 2d Comments g, h & i
Risk-Utility Balancing (RUB) Test: Cepeda, Barker, Potter
Imputation of Product Risks: Cepeda, Barker, Restatement 3d definition of design defects in Epstein on p.754.
Reasonable Alternative Design (RAD) and State of the Art Defense: O'Brien, Potter, Restatement 3d

These difficult and controversial issues have induced state courts to adopt at least 5 diverse treatments of design defect cases, with
overlapping features in some contexts and markedly different treatments in others. I suggest that you read these cases, especially
Barker and Cepeda, several times. All of the listed cases except Cepeda are included in the design defect materials presented
in the Epstein Casebook in highly-edited form between pp.777(B) & 806(B). I do not find the editing effective, and many other
fragments of cases are included in this Section that I believe confuse rather than clarify the issues. I strongly urge you to read the
assigned cases and materials identified in the text above; if you absolutely cannot find the time to do that for this week, then you
can look at the edited versions in Epstein's book. But they are really not clear enough for you to understand the central design
defect doctrines in most instances.

Tuesday, November 15th: State of the Art and 1987 NJ Products Liability Reform Statute

After a review of the design defect treatments we have covered, we will discuss the O'Brien case and its rejection of the "state of
the art" defense. Then we will discuss the 1987 New Jersey PL statute that was adopted mainly to overrule O'Brien and several
other New Jersey Supreme Court doctrines. Make up a list of changes in design defect treatments made by the NJ statute, for
better or worse. We will also discuss the two post-statute cases in the same handout.

We may not have much time in class to discuss my article criticizing the designs of SUVs, but this article is assigned because it offers
a useful summary of many design defect doctrines as well as showing how a design defect case could be presented against the SUV
manufacturers.

Thursday, November 17th: Warning Defect Doctrines

The difficult issues raised by products liability for warning defects involve many cases where the manufacturer does know, or should
know, the possible deficiencies of the product and yet fails to provide legally adequate warnings, instructions, or directions. These
warning materials can be downloaded here: warning cases and issues. The relevant material for this class is the handout content up
to the first few pages of the Beshada case, which summarizes NJ warning defect law when the product risks are known.

Tuesday, November 22d: Warning Defects When Product Risks are Unknown

The other, completely different, warning defect context arises when the producer claims it did not know, and could not have known,
of the risk that arguably caused the plaintiff's injury. Therefore it could not have given a better warning. This is the major issue in the
Beshada and Feldman cases from the handout. In addition to the materials to be downloaded, read the Restatement of Torts Second,
comment j, and the short Restatement Third provision on warnings, which are both in the Epstein casebook. ,

Tuesday, November 29th: Warning Defects in the 1987 Statute, and Comparative Apportionment

Read the section in the 1987 NJ Products Liability Reform Act that deals with product warnings. The last two cases from the handout
on warnings will be discussed after the 1987 Statute warning defect provision.

The last hour (or less) of this class will focus on the application of comparative negligence to strict product liability claims. The short
download for this discussion is available here. Please remember that the past few weeks have presented an overview of many of the
most important products liability doctrines and problems, but not anything like an exhaustive discussion.

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*********************The following assignments are from the previous year**************************
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Tuesday, August 24, 2010: Introduction to Negligence Liability Theory

Pp. 154-158(T), 154-158(T), 154-158(T), 154-158(T), 154-158(T), 154-158(T).

Pp. 163(B)-166, 163(B)-166, 163(B)-166. Do these cases reflect different principles
or essentially the same legal treatment?

Pp. 151(M)-153(M) Short excerpt from Justice Holmes book on "fault" and liability.

The Repetition Is Entirely Intentional--You Should Always Reread the Assigned Cases Carefully.

Thursday, August 26, 2010: Introduction to Strict Liability Theory

Pp. 112-114(T), 115(M)-118(M). Summary of the Historical Forms of Action

Tuesday, August 31st, and Thursday, September 2d: Intentional Torts

Pp. 35-37(T), 4-10(M), 79(M)-85(T), 93(M)-94, 96-97(T)--Elements of the Prima Facie cases

Pp. 10(B)-12, 22(M)-24(T), 25(M)-25(B) Trespass & Conversion--Are they Intentional or Strict Liability Torts?

Pp. 35-37(T), 40(M)-41(M), 43(M)-46(T), 54(M)-58(M), 64(M)(M'Ilovy)-67(M), 68(M)-70 Defenses

What INTENT must be intended for the law to impose intentional tort liability? In other words, what must the
defendant intend before application of this liability theory would be appropriate? Consider the assigned cases
as a set or group and compare them to test your understanding of what must be intended in an Intentional Tort
case.

Tuesday, September 7th, and Thursday, September 9th: Intentional Torts Versus Negligence

Also read Pp. 75(M)-77(B) on public necessity and compensation.

Tuesday, September 14th, and Thursday, September 16th: Intentional Torts Versus Negligence

Vincent discussion continued. Read the academic materials on Vincent and evaluate the validity and persuasiveness of the
arguments in the handout. Also, review your own specific and general arguments and be prepared to justify whatever legal
judgment you think was appropriate in the case.

Pp. 194(B)-196(M). Compare Vincent to the Blythe decision. What makes the unprecedented storm in one case different
from the unprecedented freeze in the other case? Should we extend intentional torts to risks that on an actuarial basis entail a
statistical certainty of deaths? For example, the particulate matter (ash, soot, dust) discharged by coal-burning power plants
causes thousands of premature deaths each year among people with respiratory problems. And auto manufacturers are willing
to make many trade-offs between safety and price for every vehicle design feature, with knowledge that on a statistical basis
these trade-offs will often lead to potentially avoidable deaths.

Pp. 196(M)-205(M), 206(M)-208, 215(M)-220. These cases and comments deal with the basic philosophy of negligence.
We will move through them very rapidly except for the Carroll Towing case. Students are often confused because "negligence"
is both a generic liability theory with two characteristic elements, and also a specific Tort involving unreasonable care. Medical
and legal malpractice, for example, are Torts based on the negligence liability theory, as are auto accidents and cases involving
unintentional physical harm except in the limited contexts of strict liability treatments.

Pp. 171(B)-174, 178(M)-179(B), 180(B)-184(M), 50(M)-53(T), 185(B)-188(M), 190(M)-192(B). This is a discussion of
the "reasonably prudent person." The aim is to examine how we determine what kinds of behavior meet the "reasonable care"
standard and what kinds of exceptions are made as a result of some atypical physical or mental traits.

Tuesday, September 21st, and Thursday, September 23d: The Need for Expert Testimony

Download the Quintal and Lucy Webb cases. Also read the Andrews case at pp. 217-220. If the Quintal decision had
been a law school exam question, Justice Peters' opinion would have received a C+ grade at best, while Justice Traynor's
concurring opinion would have received an A or A-. Why is Justice Traynor's legal analysis clearly superior to the Peters
plurality opinion analysis? Answering this question should provide valuable insight into effective exam-taking technique.
What is the role of the judge in requiring or restricting expert testimony on appropriate issues?

Read Pp. 221-227(Top) for an introduction to the treatment of Legal Custom.

Tuesday, September 28th, and Thursday, September 30th: Custom and Medical Malpractice

Read the Pike1898 opinion and read pp. 230(B)-236(M), 242(B)-243(M), 240(B)-242(B) (Locality Rule), 244(M)-254(M)
(Medical Disclosure & Informed Consent). Read Pp. 259 (B)-261(M) (Epstein's "Overall assessment" of medical malpractice
effects); also download and read Leonhardt (new assessment & critique).

I have put together a Health Care Reform Overview zip file containing a number of essays, mostly from the New England Journal
of Medicine, describing competing visions and proposals on the current national health care debate. We'll see how much time on
Thursday we can devote to these social policy issues. I also added 3 short pieces on the recent American Care Act and its costs.
This material is also from the New England Journal of Medicine and is only about 10 pages long. I would like students to read it
so we can discuss it on Thursday after the Canterbury case. You can read the remainder of the material in the "Overview" Zip
file at your leisure because it is optional and we probably won't have time to discuss it in class.

The folder www.ecovitality.org/medical/ contains a group of longer articles on health care system problems and malpractice effects
distributed to interested students in the 2008 class. Click on the medical folder for a list of these numbered files, which deliberately
reflect a wide range of views about medical system problems and possible solutions. I think the short piece by Dr. Liang is probably
the most balanced, but I doubt his middle-of-the-road recommendations can be adopted in practice. The essay by Dr. Nehmer, an
evening student at Rutgers Law School a few years ago, was written as an independent study paper. This material is optional and
sadly inconclusive because people, including experts, tend to see what they want to see or expect to see and to believe whatever
is consistent with their pre-existing beliefs. It has proven very difficult to change peoples' beliefs about the American medical system
and the effects of malpractice litigation, as the past several years of legislative debates amply demonstrate.

Tuesday, October 5th, and Thursday, October 7th: Negligence Per Se and Cause-in-Fact

Cause-In-Fact: Pp. 451(B)-454(M), 477(B)-480. A showing of Cause-In-Fact is a requirement for every Torts case under every
liability theory. A defendant may be found legally culpable (negligent, intentional, or subject to strict liability), but this actor will not be
found liable unless the culpable actions were a SUBSTANTIAL CONTRIBUTING CAUSE of plaintiff's injuries. The term "substantial
contributing cause" means that the defendant's actions must have played a major role in bringing about the injury, but it does not have to
be the only cause or even the greatest cause of the plaintiff's damages.

In evaluating cause-in-fact issues, ask the following rule-of-thumb questions. The difference between the answers to these questions is
the harm that was "caused" by the defendant's wrongful behavior.

    What did the plaintiff have after the defendant's culpable actions?

    What would the plaintiff have had if the defendant had not behaved in a culpable manner?

Pp. 454(M)-459(M), 470(M)-475(M), 485(B)-496(T). These cases deal with shifting or easing the plaintiff's burden of proof. The
element of proving cause-in-fact is a difficult one in many cases, and some courts have chosen to modify the traditional burden of proof
to some extent based on a cluster of legal policy considerations including fairness, deterrence, and loss-spreading. Please compile a
list of the various factors in each cause-in-fact case that the courts emphasized to justify their decisions to shift or reduce the plaintiff's
burden of proof.

Tuesday, October 12th, and Thursday, October 14th: Scientific Evidence and Cause-In-Fact

This is an introduction to one of the most important issues to emerge in civil litigation areas during the last quarter-century.
The handout includes three federal cases on the admissibility of scientific evidence and two New Jersey cases on the same
issues. We will pay especially close attention to the conflicting judicial treatments in the Joiner and Rubanick decisions,
which both deal with PCB toxic causation problems but in very different ways. There is also a short essay that discusses
the new federal treatment of scientific and technical evidence, as imposed by the Daubert decision. We will discuss the three
federal cases on Tuesday and then compare their treatments to the New Jersey Supreme Court approach on Thursday.

Tuesday, October 19th: Res Ipsa Loquitur and Proximate Cause

Pp. 299(M)-303(B), 307(T)-311(T), 313(M)-313(B), 316(M)-320. Res Ipsa Loquitur (the thing speaks for itself) is
a doctrine that allows the plaintiff to overcome uncertainty about (a) negligence and (b) cause-in-fact by showing that
accidents of this kind do not ordinarily happen unless actors in the position of the defendant are negligent. I plan to go
over this material in an hour or less because the central idea--describing how a class or type of accidents ordinarily
occurs and then presuming that the specific injury at issue in a lawsuit occurred in the same way--is not at all difficult.
As usual, the assigned pages first begin with the core elements of the doctrine, and then subsequently present cases in
which the standard doctrinal rules are expanded based on various policy considerations.

If the evidence presented is about how a particular accident occurred, that is a garden-variety negligence case and has
nothing to do with Res Ipsa Loquitur. If the evidence is about how a class or type of accident ordinarily occurs, and if
the evidence shows that the injury ordinarily does not occur without negligence on the part of actors in the defendant's
position, then negligence can be inferred under the RIL doctrine. The defendant can rebut this inference by showing that
(1) he was not negligent in the specific case or (2) that this type of accident does not ordinarily result from negligence on
the part of actors in his situation.

In contrast, the core issue in Proximate Cause is whether the culpable defendant should be held legally responsible for the
plaintiff's injury among all the consequences that might follow from the defendant's culpable act. This doctrine does not
address how an injury is caused (in fact), but whether the defendant should be held legally responsible for that injury.
There are two incompatible proximate cause tests that have been adopted by different states (each state can have only
one PC doctrine), and you must learn to deal with the resulting ambiguity as many thousands of law students have had
to do.

Pp. 497-499, 502 (M)-503 (B), 515 (T)-519 (M). Under which proximate causation treatment was the Ryan case
decided?

Thursday, October 21st: Proximate Cause and Superceding/Intervening Cause

Pp. 519(M)-528(M), 536(M)-540(M), 543(M)-544(M) Palsgraf is the most famous decision in American Tort Law:
Read the majority and dissenting opinions very carefully several times and compare those analyses against the Polemis
decision and the others in this line of cases. Judge Cardozo's opinion in Palsgraf is also the most famous discussion of
"duty" in American Tort Law. Can you harmonize the two Wagonmound decisions?

Pp. 500(B)-502(M), 505(M)-506(M), 507-509(T), 512(B)-514(M), 532(T)-536(T). Superceding or intervening cause
(synonyms) is a sub-doctrine under proximate cause, and the core question is whether an action by the plaintiff or by 3d
parties AFTER the defendant's culpable act should "break the chain of proximate causation" and relieve the defendant of
liability for the plaintiff's injury. We will be going through these superceding cause cases rapidly because all jurisdictions
employ the same test to determine whether a subsequent act should be treated as a superceding or intervening cause.

Tuesday, October 26th, and Thursday, October 28th: Comparative Apportionment

We will spend the first class hour discussing the Superceding/Intervening Cause cases identified in last week's assignment.

Pp. 328(B)-329(B), 333(B)-337, 360(M)-362(B), 365(B)-372(B), 384(M)-390(M), 405-407(T), 409(B)-416(M). This
material rather superficially deals with doctrines of Contributory Negligence, Assumption of Risk, Comparative Negligence, and
Equitable Indemnification (apportionment) among joint tortfeasors. We have already seen many contributory negligence cases
and will devote only a few minutes to the ones in this assignment. Assumption of Risk is a confusing doctrine because the courts
have used the phrase in three different ways: (1) the defendant owes no duty of care to the plaintiff in the specific accident context,
as in the flopper case; (2) the defendant does owe some duty of care to the plaintiff but the plaintiff recognized the risk created by
the defendant and voluntarily exposed himself/herself to that risk (Lamson); or (3) the risk was allocated to one of the parties by
a contractual agreement, as argued unsuccessfully in the Polemis and Carroll Towing cases. The Meistrich case is the leading
decision that held type (2) assumption of risk should be folded into the contributory negligence doctrine by requiring that plaintiff's
exposure to the risk be not only "knowing" and "voluntary" but also "unreasonable."

Comparative Negligence and Equitable Indemnification involve apportionment of damages between the parties based on "fault" or
the "degree of causation" when the defendant(s) and plaintiff have engaged in culpable behavior. These apportionment doctrines
have replaced the previous contributory negligence bar to plaintiff's recovery in all but a few states. A "pure" comparative doctrine,
such as in the Li case, involves a full range of apportionment in which the plaintiff could recover 10 percent of his/her damages
even after being found responsible for 90 percent of the culpable harm. In many states, especially those that adopted comparative
negligence by statute, the plaintiff can only recover damages if the defendants were at least equally as responsible for the harm--
the 50 percent floor--or were more responsible than the plaintiff--the 51 percent floor. The 50 percent rule is common, including
in New Jersey, while the 51 percent rule is very rare.

+++I have added this material on vicarious liability for Thursday's class: Pp. 429-432(M), 435(M)-435(B), 438(M)-439(M).

Tuesday, November 2d, and Thursday, November 4th: Introduction to Strict Products Liability

Pp. 728(M)-735, 739(M)-744(M). The first case describes the dominant historical doctrine of privity, and the next two landmark
decisions show the early development of products liability law. Consider the legal evolution from warranties: Pp. 737-739(M),
745-746 to the first strict products liability decision at Pp. 747(M)-748(M). Please make up a written list of the policy arguments
used by Justice Traynor in his famous concurring opinion in Escola, and compare his arguments against Judge Cardozo's reasoning
in the equally famous MacPherson case. Note that Justice Traynor wrote the Greenman opinion almost 20 years after his Escola
concurring opinion.

Pp. 748(B)-754(B): The Restatement 2d of Torts Section 402A (1966) and the Third Restatement (1998). Section 402A was the
most influential source in the development of strict products liability. Even courts that rejected provisions from this ALI document felt
the need to discuss them and explain why the Section 402A treatments were deemed unsuitable. Please read these provisions and the
related comments very carefully, and contrast the doctrines and underlying ideologies of the Second and Third Restatements. We will
probably devote a full class to this comparison.

Tuesday, November 9th, and Thursday, November 11th: Construction/Manufacturing and Design Defects

On Tuesday, we will concentrate on manufacturing or construction defects, the strictest type of "strict products liability." Read Pp.
772(B)-776 and the handout materials for this subject.

On Thursday, we will begin our discussion of more complicated design defect treatments. The materials may be downloaded from
this file. The Barker and Cepeda opinions provide the broadest overviews of these core issues:

Intended or Foreseeable Uses: Volkswagon, Cepeda, Barker
Consumer Expectations Test: Linegar, Potter, Barker, Restatement 2d Comments g, h & i
Risk-Utility Balancing Test: Cepeda, Barker, Potter
Imputation of Product Risks: Cepeda, Barker, Restatement 3d definition of design defects in Epstein pp.754.
Reasonable Alternative Design (RAD) and State of the Art Defense: O'Brien, Potter, Restatement 3d

These difficult and controversial issues have induced state courts to adopt at least 5 diverse treatments of design defect cases, with
overlapping features in some contexts and markedly different treatments in others. I suggest that you read these cases, especially
Barker and Cepeda, several times. All of the listed cases except Cepeda are included in the design defect materials presented
in the Epstein Casebook in highly-edited form between pp.777(B) & 806(B). I do not find the editing effective, and many other
fragments of cases are included in this Section that I believe confuse rather than clarify the issues. I strongly urge you to read the
assigned cases and materials identified in the text above; if you absolutely cannot find the time to do that for this week, then you
can look at the edited versions in Epstein's book. But they are really not clear enough for you to understand the central design
defect doctrines in most instances.

Tuesday, November 16th, and Thursday, November 18th: State of the Art and 1987 NJ Products
Liability Statute

After a short review of the design defect treatments we have covered, we will discuss the O'Brien case and its rejection of the
"state of the art" defense. Then we will discuss the 1987 New Jersey PL statute that was adopted mainly to overrule O'Brien
and several other New Jersey Supreme Court doctrines. Make up a list of changes in design defect treatments made by the
NJ statute, for better or worse. We will also discuss the two post-statute cases in the same handout.

Tuesday, November 23d, and Tuesday, November 30th: Warning Defects and Comparative Negligence

The other, completely different, warnings defect context arises when the producer claims it did not know, and could not have known,
of the risk that arguably caused the plaintiff's injury. Therefore it could not have given a better warning. In addition to the materials to
be downloaded, read the Restatement of Torts 2d, comment j, and the short Restatement 3d provision on warnings, which are both in
the Epstein casebook, and also read the provision in the 1987 NJ PL Act that deals with product warnings.

The last hour (or less) of the November 30th class will focus on the extension of comparative negligence to strict product liability claims.
The short download for this discussion is available here. Please remember that the past few weeks have presented an overview of many
of the most important products liability doctrines and problems, but not an exhaustive discussion. It is good to see students following
along the class discussion on these complicated issues because it shows how much their legal analysis capacities have developed in the
past four months. If there are things you still "don't get," your options are to blame the instructor and/or to attend the review session.

Student evaluation forms for this Torts Section are available on the law school's Blackboard web site. I cannot see the student responses
until after I have submitted grades for the whole class, but I'm always interested in student reactions.

***** Here is the URL for the How-to-Take-Exams Lecture. I believe the video can be watched online of downloaded
from the library address:

http://lawevents.rutgers.edu/ereserve/videofeeds/HowardLatinFall09/

We will have a review session on Monday, December 7th, at the usual time and place. The value of this review session depends wholly
on students reviewing their notes and outlines to determine what aspects of what subjects they would like to have explained further. If
students do not come up with a list of questions they want to have answered, the review session will be a short one. I cannot teach the
entire semester again in two hours, so students must be selective and sensible in choosing what topics or issues they would like to have
discussed during this limited time-period.