Torts Syllabus (2.0)

Professor Thomas D. Russell

HouseofRussell.com

(Fall 2008)

The books for the class are available at the bookstore.  The Casebook is Robertson, Powers, Andersen, and Wellborn, Cases and Materials on Torts, 3d ed. (Thomson West, 2004).  The required supplemental book is Diamond, Levine, and Madden, Understanding Torts, 3d ed., (LexisNexis, 2007).

Please note that this syllabus will change from time to time during the course of the year.  There is a version number to the right of the word "Syllabus" above as well as a date and time stamp in the bottom left corner.  If you rely on a printed version of this syllabus, then be sure to check for updates from time to time.

During the semester, we will complete approximately three assignments each week. 

Unit 1 Damages

1.1  I'm Lovin' It!

Part 1.  No later than 9:00 a.m. on Friday, August 15, visit the Torts home page and figure out how to subscribe to the class email list.  Use an address that you check often.  You may subscribe with more than one address.  The easiest way to find the Torts home page is to go to TortsProfessor.com.  If you have trouble remembering that, you can start at HouseofRussell.com.

Part 2.  As soon as possible, find the forum on the Torts home page.  Look for the topic called "Please Introduce Yourself."  Read it and respond.  Spend some time reading what your classmates have posted.  Ask them questions.  Complete this part of the assignment by 10 p.m. on Sunday, August 17.

Part 3.  On Friday, August 15, you will receive an additional assignment via the torts12-russell email list.  You will send your completed assignment to the list by 10 p.m. on Sunday, August 17.  Note, that this means that you need to have subscribed to the list in order to receive and complete the assignment.  Please do not humiliate yourself for the first class by failing to do this.  Note, too, that Professor Russell will be out of town through Sunday, August 17, so you will have to be resourceful in figuring out how to sign up for the email list and navigate your way around the course pages.  [Update:  See http://www.houseofrussell.com/torts/coffee.htm for this part of the assignment, which you must complete by Sunday at 10 p.m.  The list of things to do includes something to read, and then you must post a reply to the torts12-russell list.  Finally, there is a poll on the Tortsboard that you must answer after you post your reply to the list.]

Part 4.  For the first class, read:  Casebook, iii-iv, 1-7.

1.2  Show Me the Money!  [Please note that the rest of this syllabus will certainly change for this semester.]

Casebook, 325-37.  Rodriguez v. McDonnell Douglas Corp.

Understanding Torts, §§ 14.01-03.

Come to class prepared to discuss the material, particularly the principal case. 

Here are some suggestions for your reading: 

A.    Identify the purpose of damages in torts cases. 

B.    What difficulties do the cases suggest about achieving the goals of tort damages? 

C.    What is a sprinkler fitter?

D.   What are the "rules of law" that the California Court of Appeal articulates in Rodriguez?  What is the most important, overarching rule?

E.    What's all this stuff about present value?

F.     Be prepared to hazard a guess as to why we are starting with damages when you don't even
know what a tort is.

1.3  Pain and Suffering--for Whiners Only?  (and the collateral source rule)

Casebook, 337-50.  McDougald v. Garber

Understanding Torts, §§ 14.03[E], 14.06

Here are some suggestions for your reading: 

A.    Define general damages.

B.    Be prepared to explain why subjective losses merit compensation.

C.    Understand per diem arguments.  Who is in favor of making such arguments and why?

D.   Define hedonic loss.

E.    Distinguish hedonic loss from pain and suffering.

F.     In what circumstances might there be hedonic loss but not pain and suffering?

G.   Does the award of damages for hedonic loss make any sense at all?

H.   Define the collateral source rule. Be sure that you understand what the collateral source rule is. Think of how it might be relevant in either the McDonald's case.

1.4  Wrongful Death, Loss of Consortium, and Survival

Casebook, 350-60.  Aspinall v. McDonnell Douglas Corp., McDavid v. US

Understanding Torts, § 10.03.

This material deals with wrongful death and survival actions. Make sure that you are able to distinguish between a wrongful death case and a survival action. Think about how the following situations differ. First, what happens if someone is instantly killed through the negligence of another person? Second, what happens if someone is injured and then suffers and later dies to the negligence of another person? Third, what happens when someone experienced is a period of terror just before their instant death?

1.5  Damages Grab Bag, Including Punitive Damages.

Casebook, 360-74.  State Farm v. Campbell.

Understanding Torts, §§ 14.04-05.

A.    Define punitive damages and understand the goal that punitive damages are supposed to serve.

B.    How often are punitive damages awarded?

C.    What are the criteria for awarding punitive damages?

D.   What is the difficulty with multiple punitive damage awards?

Unit 2.  Insurance

Print the following handout.  http://houseofrussell.com/torts/insurance.pdf

Now that we are all experts on damages, it is time for us to look more closely at insurance.  Iinsurance concerns are present in almost every torts case that you will read this year. However, you will notice that the insurance issues are rarely mentioned in the opinions that we consider. This is much like having an elephant in the room and not commenting on it.

Specifically, we will focus upon liability insurance. We have already talked about some of the ways that insurance affects tort law and tort litigation.  This chapter will allow us to dig into more of the specific detail.

2.1.  Liability Insurance.

Christie, Meeks, Pryor, and Sander, Cases and Materials on the Law of Torts (1997) (handout), 871-883.

The first insurance assignment deals with the duty to defend and also the duty to indemnify. Be sure to understand and be able to distinguish these duties.  The notes that follow define some of the basic concepts that we need in order to understand insurance. Notice, as you read the notes that follow the case, that the authors of this casebook emphasize different or additional goals of tort law. You should keep track of these goals. Make a list.  You'll also find and that the notes cover some material that we have already discussed, including, for example, the exclusion of intentional injuries from insurance coverage.

As you read this material, I want you to think about the ways that you, as lawyers, will shape arguments in order to pursue the goal of gaining an award of damages that your client can collect.  You should think about whether you find this distasteful.

2.2.  The Insurer's Duty to Settle.

Christie, Meeks, Pryor, and Sander, Cases and Materials on the Law of Torts (1997) (handout), 883-892.

The second insurance assignment deals with the duty to settle. Here, we face the issue of what happens when an insurance company rejects a settlement offer within the policy limits, and then the injured person wins a lawsuit against the insured defendant for more than the policy limits, thereby reaching the defendant's personal wealth. For example, if I offer to settle a case for a client for $80,000 with a policy limit of $100,000, what if the insurance company rejects that settlement offer, and then I sue and win $200,000.  Does the defendant have a legitimate beef with the insurance company?

Following this case you will find extensive case notes that elaborate on some basic and not-so-basic concepts. Among these notes you will find another discussion of the strategic opportunities that arise for litigants in a context that involves insurance and torts.

2.3.  Insurance Makes the World Go Around.

Christie, Meeks, Pryor, and Sander, Cases and Materials on the Law of Torts (1997) (handout), 892-903.

In this assignment, you will find a selection from a Texas Law Review article by Kent Syverud, who is now the Dean at Vanderbilt Law School. You should skim this article.

After the TLR article, you will find a discussion of subrogation. Become an expert on subrogation.  However, if you have any questions or are confused, be sure to ask in class.

Finally, this chapter has a selection from Ross, Settled Out Of Court (1980). This is a very nice little book, which offers another look at the Law in Action. This will give you a better idea of just how the settlement process works. Try to think of the legal system in terms of the interaction of a great variety of individuals and also institutions, with the institutions having their own cultures and practices. The story is never the simple one of an individual plaintiff injured by an individual tortfeasor, with both of them represented by individual lawyers. Instead, the issues that we deal with are more like operas or perhaps soap operas.

Unit 3 Negligence

3.1  Coffee and Tug-Boat Radios:  Be Reasonable!

Casebook, 73-86.  Grace v. City of Los Angeles, TJ Hooper

Understanding Torts, §§ 3.01-03, 4.01-04.

Here are pattern jury instructions for Colorado that are akin to the Texas instruction on p. 82 of the casebook.

Colorado Jury Instructions, 4th - Civil Current through the August 1, 2007 Committee Revision, Database Updated December 2007

Colorado Supreme Court Committee On Civil Jury Instructions

Chapter 9. Negligence—General Concepts A. Negligence and Duty of Care

9:6 Negligence—Defined (Including Assumption of the Risk and Comparative Negligence Cases)

Negligence means a failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect (oneself or) others from (bodily injury) (death) (property damage) (insert any other appropriate description, e.g., “financial loss”). (Negligence may also mean assumption of risk. A person assumes the risk of injury or damage if the person voluntarily or unreasonably exposes him or herself to such injury or damage with knowledge or appreciation of the danger and risk involved.)

9:8 Reasonable Care—Defined

Reasonable care is that degree of care which a reasonably careful person would use under the same or similar circumstances.

3.2  The Man who Mows the Lawn in his Shirtsleeves.

Casebook, 86-96.  Vaughan v. Menlove, Roberts v. State of Louisiana, Strait v. Crary,

Understanding Torts, §§ 3.04-06.

3.3  The Relevance of Law-Breaking

Casebook, 96-107.  Martin v. Herzog, Tedla v. Ellman, Gorris v. Scott, Potts v. Fidelity Fruit.

Understanding Torts, §§ 6.01-07.

3.4  When Facts Speak, What do They Say?

Casebook, 111-15.  Colmenares Vivas v. Sun Alliance

Understanding Torts, §§ 5.01-04.

Unit 4 Medical Malpractice

4.1  Do Professionals Have to be Reasonable? 

Casebook, 512-19.  Melville v. Southward

Understanding Torts, §§ 7.01-02.

4.2  Consent and Battery

Casebook, 519-24.  Harnish v. Children’s Hospital

Understanding Torts, §§ 7.03-04.

4.3  Real World Torts

Handout:  Galanter, Real World Torts (http://houseofrussell.com/torts/realworldtorts.pdf)

Unit 5  Cause In Fact

5.1  Texas Rowdies:  The Gold Standard

Casebook, 116-125.  East Texas Theatres v. Rutledge, Marek v. Southern Enterprises

Understanding Torts, §§ 11.01-02.

5.2  Polypharmacy and Quail Hunting

Casebook, 126-35, 140-43.  Basko v. Sterling Drug, Penfield Corp. v. Meadow Valley Electric [skip Bichler]

Understanding Torts, §§ 11.03-04.

5.3  What Might Have Been

Casebook, 143-150.  Grant v. American National Red Cross

“Belt and Suspenders”

5.4  Piner’s Very Bad Day

Casebook, 150-157.  Piner v. Superior Court, Follett v. Jones, Skip Lancaster v. Norfolk and Western Railway & Blatz v. Allina Health System.      

Unit 6  Proximate Cause

6.1  Law Professors Trying to Look Smart

Casebook, 169-83.  The Glendola, Wagon Mound I, Wagon Mound II

See:  "Honda Cog” and “Rube Goldberg” for proximate cause illustrations.

“Rat Flambé” Understanding Torts, §§ 12.01-02.

Proximate Cause:  A Story in Pictures

6.2  Cardozo v. Andrews Casebook, 183-193, 199-202.  Palsgraf, Skip Edwards v. Honeywell Understanding Torts, §§ 12.03, 12.04

Unit 7  Duty 

7.1  When Active, Be Careful

Casebook, 216-22, Bush v. Seco Electric

Understanding Torts, § 8.01.

7.2  Zazen:  Sitting Quietly, Doin' Nothin'

Casebook, 222-225.  Lacey v. US, Skip Schenk v. Mercury Marine Division & Galanti v. US.

Understanding Torts, §§ 8.02-05.

7.3  Fright and Shock

Casebook, 235-53.  Bosley v. Andrews, Niederman v. Brodsky, Armstrong v. Paoli Memorial Hospital

Understanding Torts, § 10.01-02.

7.4  Forrest Gump's Bidness

Casebook, 253-66.  Sinn v. Burd, State of LA v. Testbank, Skip Moransais v. Heathman

Understanding Torts, § 10.04.

7.5  The Old Land Rules

Casebook, 271-84.  Stitt v. Holland, Sprecher v. Adamson

“Entrants Upon Land” Chart

Understanding Torts, §§ 9.01-05.

7.6  Trespassing Children

Casebook, 284-91.  Thunderhawk v. Union Pacific RR, Skip Sargent v. Ross

Understanding Torts, § 9.02[A][2].

7.7  Protecting Against all the World

Casebook, 295-309.  Stagl v. Delta Airlines, McCarthy v. Olin, Skip Braun v. Soldier of Fortune

Understanding Torts, §§ 12.01-04.   

Unit 8  Vicarious Liability

8.1 What do you do with a Drunken Sailor?

Casebook 314-324.  Bushey v. United States, Pusey v. Bator

Understanding Torts § 13.02[C].

Unit 9  Defenses

9.1  Affirmative Defenses based on Plaintiff’s Conduct

Casebook 375-93.  Hoffman v. Jones, Wassell v. Adams (Read a review of the motel now at that location.)

Understanding Torts §§ 15.01-03.

9.2  Failure to Avoid Consequences and Avoid Damages

Casebook 393-403.  Dare v. Sobule, Hutchins v. Schwartz

9.3  Assumption of the Risk

Casebook 431-435 & 403-411.  [Note that we are reading pp. 431-435 in advance of 403-411.]  Holzer v. Dakota Speedway, Inc., Bennett v. Hidden Valley Golf and Ski, Skip Continental Auto Lease v. Campbell & White v.  Lunder

Understanding Torts § 15.04.

Unit 10  Statutes of Limitation

10.1 Time’s Up!

Casebook 418-28.  Jolly v. Eli Lilly, Feltmeier v. Feltmeier. 

Unit 11  The Immunity Community

11.1  Governmental Immunity

Casebook 469-478, 484-494.  Hicks v. State, Skip US v. Gaubert but read the notes on 484-486, then read US v. Johnson

Understanding Torts § 15.05.

Colorado Governmental Immunity Act.

11.2 Suing the Government, Your Spouse, and Your Mother

Casebook 494-511.  Riss v. City of New York, Feres Doctrine, Price v. Price (child care within a standard deviation of the mean), Broadbent v. Broadbent

Understanding Torts § 15.05.

Unit 12  Intentional Torts

12.1  Assault and Battery

Casebook 9-14.  Ghassemieh v. Schafer

Understanding Torts §§ 1.01-03.

12.2  False Imprisonment, Trespass to Chattel, and Emotional Distress

Understanding Torts §§ 1.04-05, § 18.01-02.

12.3  Defenses to Intentional Torts

Understanding Torts §§ 2.01-05.

Last edited:  February 22, 2009 01:15 PM