Torts. CURRENT AS OF September 29, Meeting Times: Tuesdays, Thursdays, 10 a.m. 11:50 a.m. Exam: Monday, December 11, noon 3 p.m.

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1 Torts CURRENT AS OF September 29, 2017 Meeting Times: Tuesdays, Thursdays, 10 a.m. 11:50 a.m. Exam: Monday, December 11, noon 3 p.m. Office hours and whereabouts My phone number is (703) My address is eclaeys@gmu.edu. The course also has a TWEN site, and I am reachable on the discussion board of that site. This semester, I will hold office hours Tuesdays, 1-2 p.m. These are walk-by hours, meaning that I do not have any other appointments during them and you are free to come in to my office without appointment. However, I am happy to schedule appointments if you have a conflict during office hours or if you prefer for other reasons. Cancellations and make-up classes At this time, I anticipate cancelling only one class, Thursday, October 12. I am scheduling the make-up class for Wednesday, October 11, from 1 to 2:50 p.m. (I do not yet have a room reserved for this class; I will let you know as soon as I reserve a room.) If I need to cancel other classes, I will notify you all at the beginning of class and update the syllabus and schedule accordingly. If I need to cancel class suddenly due to illness or some emergency, I will have my secretary post notices in the atrium and on the door of our classroom, and I will send an to the class. Class reading will vary anywhere from 5 pages per hour (10 pages per 2-hour class block) to 25 pages per hour (50 pages per class block). When I assign readings at the low end of this range, you should assume I ll parse the assigned readings very closely in class discussion and question students actively; when I assign readings at the high end of this range, you should assume I ll discuss the materials generally and lecture. When you start reading materials from the course supplement, you ll find that they are not edited anywhere near as heavily as legal source materials in the casebook. As a general matter, you are responsible for figuring out which passages in those source materials are directly relevant to class discussions and which are not. To help you read ahead, at the end of this Syllabus I forecast the reading I anticipate covering for the entirety of the course. However, this forecast is not a promise but a projection. I reserve the right to change the projected reading schedule depending on how fast or slow we are going. If you read more than a class ahead, you assume the risk of reading material I decide to leave on the cutting room floor. 1

2 expectations I expect you to be prepared for class. For further expectations regarding class reading, see the reading schedule at the bottom of this Syllabus. I expect you to attend class on a regular basis, and the ABA makes it a general condition of accreditation that students not miss more than 20% of the sessions in any class. I keep attendance by having you sign in each day. If you miss more than 11 class hours (the equivalent of 5 full classes and an additional 1-hour session), I will not seat you for the examination and I will give you a forced withdraw grade for the course. With two exceptions, this is a strict liability policy: I do not waive this requirement because you are sick, have a job interview, personal emergency, &c. Except as specified below, you do not need to let me know in advance that you will be absent (and I prefer not to be notified), but by the same token I will not excuse absences in general. Exception 1: I do not enforce the attendance policy when I need to reschedule class because I am canceling class due to non-gmu commitments. So, for example, my class attendance policy doesn t cover the make-up class scheduled for Wed. Oct. 11. Exception 2: I also do not enforce the attendance policy if the GMU Provost s office designates the day a day of observance for a religion and you certify to me that you are a member of that religion. The GMU Provost s Guidelines require students to provide faculty with notice of the dates of major religious holidays on which they will be absent, during the first 2 weeks of the semester. Otherwise, I expect you to self-regulate interviews, personal emergencies, illnesses, and other occurrences that may cause you not to attend class, so that you do not miss more than 5.5 classes or 11 class hours worth of time. I expect you to prepare for class. I call on students during class, to discuss material that a lawyer should have been able to digest from the reading without much assistance. If I call on you and you are unprepared, that counts as an absence for 1 hour (i.e., ½ of one of your 4 class absences, or 1/8 of the total time you may be absent without going over the limit). If you are unprepared and wish to avoid getting called on, please notify me before the beginning of class and I will mark you for a 30-minute absence (i.e., 1/4 of one of your 4 class absences, or 1/16 of the total time you may be absent without going over the limit). During class, I expect you to be generally respectful to me and your classmates. Imagine the standards of comportment you would use if you were a lawyer, sitting in front of a judge, watching as the judge engages another lawyer in the proceeding. Please treat me and any of your colleagues with whom I am conversing with the same professional courtesy. 2

3 Recording classes I reserve all property rights in my class lectures, presentations, and discussions. As a general rule, I prefer that classes not be recorded. However, I will grant permission in specific cases when a student can demonstrate a special need. If you need to miss class to observe a major religious holiday (and give me advance notice in the first two weeks as specified above), I will make arrangements to have the class recorded for your use later. I will also consider other requests on an as-needed basis. If you think you have such a need, please ask and we can discuss. If you prefer to ask anonymously, please contact Annamaria Nields, Associate Dean of Students, and she will be happy to ask me on your behalf. Grading The grade for this class will be based solely on a 3 hour examination. The examination will be closed-book. Course coverage In this course, I hope to cover: the basic rights-based or intentional torts to person and property (battery, conversion, and trespass to land and chattels); the basic intentional torts to dignitary interests (assault, false imprisonment); negligence; traditional strict liability; a survey of products liability; and a survey of the causes of action for defamation, misrepresentation, unfair competition, and infliction of emotional distress. This course will require two materials. The first is a book that should already be available in the bookstore. Richard A. Epstein & Catherine M. Sharkey, Cases and Materials on Torts, 11th ed. (New York: Wolters Kluwer, 2016). ISBN The second is a course supplement. The cases in the supplement will be available on the course TWEN site. Hard copies of the supplement are available for pickup in a box outside the faculty offices on the 4th floor, on the side of the building facing Founders Hall. This area is marked on school maps as Room 407. If you come out of the elevators on the 4th floor, turn left, then turn right, cross the catwalk, and go into the area in front of the faculty offices. The box of supplements will be on a bookshelf on your right side. 3

4 Course reading When ranges of pages are listed below, the pages are assignments from Epstein & Sharkey (11th ed., 2016). References to Supplement are to the course supplement. The supplement doesn t have internal pagination in part because there are so few materials in it, and in part because all of the materials are posted on the course TWEN site. For any case excerpted at any length longer than a page, I expect you to understand the facts, the lawsuit, the judgment appealed from, the judgment rendered in the case, and the theories of the case adopted in the majority and any separate opinions. When I or the casebook presents a squib case that is, a case summarized in a paragraph or a few sentences in a note after a lead case I expect you to know the facts, the holding, the rationale, and the contribution to the general line of doctrine covered in class. When the casebook or excerpted cases refer to Restatement provisions or statutes, I expect you to read them closely enough to answer questions about them. Please note that the readings below are forecasts (that is, for every class after our first class on August 18). I reserve the right to add to, subtract from, restructure or otherwise modify reading depending on how class proceeds. If I change the reading, I ll update the reading schedule available here and on the course TWEN schedule. Class 1 Th 8/17 Ch. 1. Intentional torts: Battery 3-11 end n.5. Vosburg, Garratt, Talmage, White 2 Tu 8/22 Ch. 1, 7. Intentional torts: Property torts Trespass to land end n. 2. Dougherty and cases noted afterward. Supp Florida Pub. Co. v. Fletcher, 340 So.2d 914 (Fla. 1976). Conversion Poggi, Maye. Trespass to chattels Rest. (2d) Torts 218, Blondell, Intel v. Hamidi. 4

5 3 Th 8/24 Ch. 1. Intentional torts Finish up the property torts Recap reading from Tu 8/22, pp Consensual defenses Mohr, Hudson. (And don t read Canterbury, crossreferenced at p. 22.) Insanity McGuire. 4 Tu 8/29 Ch. 1. Intentional torts Defenses for defending one s rights, and necessity Self-defense Courvoisier. Defense of property Bird, Katko, M Ilvoy. Necessity Ploof, Vincent. 5 Th 8/31 Chs. 1. Intentional torts Assault, offensive battery, and false imprisonment I de S., Tuberville, Alcorn, Coblyn. Materials from Mueller v. Swift Complaint, pp. 1-6, Answer &c. Read the counterclaim, pp. 9-14, Jury verdict. All of these documents are available as pdfs on the TWEN page, in the Supplemental s section. Please me and Yen Kha (ykha@gmu.edu) if you have trouble accessing them. 5

6 6 T 9/5 Chs. 14, 13. Torts against economic interests, and misrepresentation. Intentional inducement to breach of contract. Supp Imperial Ice Co. v. Rossier, 112 P.2d 631 (Cal. 1941) nn Intentional interference with prospective economic advantage n.2. Discussion of Keeble v. Hickeringill, Evenson, and Reeves. Supp Della Penna v. Toyota Motor Sales, U.S.A., Inc., 902 P.2d 740 (Cal. 1995). Misrepresentation Supp Neurosurgery and Spine Surgery, S.C. v. Goldman, 790 N.E.2d 925 (Ill. App. 2003) Overview of fraud, Rest. (Third) Torts: Liab. for Econ. Harm Vulcan Metals Co. & n.1 6

7 7 Th 9/7 Ch. 11, 1. Defamation, and emotional distress Defamation Supp Rest. (Second) Torts 558, 568 Supp Grant v. Reader s Digest Association, 151 F.2d 733 (2d Cir. 1946). Supp Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988) nn end n n.2. Note on scienter necessary for defamation. Emotional distress end n.2. Wilkinson, and noted cases. Supp University of Richmond Policy on Preventing and Responding to Discrimination Against Students Supp Hofbauer, Dolson, & Brown, Faculty Guide to Recognizing and Managing Difficult Classroom Dialogues Supp Kingkade, Universities are Trying to Teach Faculty How to Spot Microaggressions 8 Tu 9/12 Ch. 2. Strict liability and negligence (part 1) Please note: In this class and the next one, I ll be assigning more reading per class than usual, and I ll be lecturing (i.e., not cold-calling on students). Pay closest attention to the sections of chapter 2 (1) giving historical background, (2) describing the characters of negligence and strict liability as design models for accident torts, and (3) excerpting the main cases. Don t worry as much as usual about the case notes Thorns case, Weaver, Scott, Brown v. Kendall, Rylands v. Fletcher. 7

8 9 Th 9/14 Ch. 2. Strict liability and negligence (part 2) Brown v. Collins, Vaughn, Stone, Hammontree. 10 Tu 9/19 Ch. 7. Strict liability: animals and employees Animal liability Gehrts. Vicarious liability Bushey, Petrovich. 11 Th 9/21 Ch. 7. Strict liability: Ultrahazardous activities, and start nuisance Ultrahazardous activities Spano. Nuisance Supp Adams v. Cleveland-Cliff Mining. Supp Pestey v. Cushman nn Definitions of nuisance in California and in the Restatement (Second) of Torts n.3. Bramwell s opinion in Bamford v. Turnley 12 Tu 9/26 Ch. 7. Strict liability: finish nuisance Supp Gilbert v. Showerman n. 3. Discussion of the locality rule end n.3. Fontainebleau (and sight blockages, and spite) Rogers (and extrasensitive plaintiffs) Ensign (and coming to the nuisance) 8

9 13 Th 9/28 Ch. 3. Negligence, and breach of duty. Overview, age, expertise, insanity, emergencies, drunkenness Vaughn, Roberts, Daniels, Breunig, Fletcher, Peterson. 14 Tu 10/3 Ch. 3. Negligence, and breach of duty. Risk calculus Blyth, Osborne, Eckert (see pp ) Cooley, Carroll Towing, discussion of economic analysis of negligence, and excerpt from Ross, Settled Out of Court. 15 Th 10/5 Ch. 3. Negligence, and breach of duty. Custom, and breaches of statutes and regulations Custom Titus, Mayhew, T.J. Hooper. Breaches of statutes and regulations end n. 2. Anonymous Case, Thayer excerpt, Osborne, Martin, Tedla (excerpted after Martin). Tu 10/10 NO CLASS. (Scalia Law School deems this day a legislative Monday.) 16 W 10/11 ANTICIPATORY MAKE-UP CLASS. (For class cancellation Th. 10/12.) Ch. 3. Negligence, and breach of duty. Res ipsa loquitur , Byrne, Ybarra. Ch. 4. Plaintiff s conduct Start contributory negligence 9

10 Butterfield, Beems, Gyerman. 10

11 Th 10/12 NO CLASS. (I will be traveling on professional business.) 17 Tu 10/17 Ch. 4. Plaintiff s conduct. Contributory negligence (cont d) LeRoy Fibre & Kansas Pacific; Derheim. Be sure not to miss the passage from Social Cost p Last clear chance Fuller. Assumption of risk end n.1. Lamson, Murphy n. 6. Abandonment of rights, Marshall, and ADM Partnership end n. 1. Dalury, Chepkevich, and related cases. 18 Th 10/19 Ch. 4. Plaintiff s conduct Comparative fault Li, statutory versions of comparative fault. 311 n.2. On primary and secondary assumption of risk. 19 Tu 10/24 Ch. 5. Causation (and also multiple defendants) Cause in fact: basics Grimstad, Zuchowicz, Haft Lost chance Herskovitz. Proof of factual causation Joiner. 11

12 20 Th 10/26 Ch. 5. Causation (and also multiple defendants) Several liability, joint and several liability, and multiple causes Merryweather, Union Stock Yards Restatement (Second) Torts 431. Reread , summarizing Rest. (Third): Liability for Physical and Emotional Harm Kingston. Restatement (Third) Torts: Liability for Physical and Emotional Harm 27, Rest. (2d) Torts 433A. Supp Rest. (Third) Torts: Apportionment 10-12, 15-17, 26. Comparative partial equitable indemnity Rest. (Third) Torts: Apportionment In Supp. same as above Cal Civ. Proc. Code ; American Motorcycle Association. Expect the discussion of comparative partial equitable indemnity to carry over until the next class. 21 Tu 10/31 Ch. 5. Causation (and also multiple defendants) Comparative partial equitable indemnity AMA (cont d) Alternative liability Summers. Market share liability Sindell. 12

13 22 Th 11/2 Ch. 5. Causation (and also multiple defendants) Proximate cause Introduction Ryan, Berry, Brower, Wagner. 23 Tu 11/7 Ch. 5. Causation (and also multiple defendants) Proximate cause (cont d) Palsgraf, and contemporary law end n.2. Palsgraf Marshall, Virden, Hebert. 24 Th 11/9 Ch. 6. Affirmative duties The basic common law position , nn.3-4. Buch, Hurley, statutory modifications. Responsibility for prior conduct creating a risk of harm Montgomery. Gratuitous undertakings Erie Railroad, Moch Co. 25 Tu 11/14 Ch. 6. Affirmative duties Licensees, invitees, trespassers Addie, and attractive nuisances end n.3. Rowland and materials on the collapse of the licensees/invitees/trespassers distinction. Special relationships Weirum Tarasoff. 13

14 26 Th 11/16 Ch. 8. Products liability Hour 1. The origins of products liability Winterbottom, MacPherson, Escola. Hour 2. The basic tests for products liability Rest. (2d) Torts 402A; Rest. (3d) Torts: PL Proper defendants in products cases. Product defects: Manufacturing Speller. Note: Please read the materials for hour 2 as closely as you would for any other class, but feel free to read the materials assigned for hour 1 as you would for a lecture class. I will lecture during the first hour, probably with a powerpoint presentation, as I did in classes 8 and 9, when I presented the origins of strict liability and negligence. 27 Tu 11/21 Ch. 8. Products liability Product defects: Design defects Campo, VW, Barker, Rest. (3d) Torts: PL 2, Tu 11/28 Ch. 8. Products liability Product defects: Duty to warn MacDonald, Vassallo, Hood, Rest. (3d) Torts: PL