The Torts Process

by Henderson, James A.; Pearson, Richard N.; Siliciano, John A.

• ISBN13: 9780735527096
• ISBN10: 0735527091
• Edition: 6th
• Format: Hardcover
• Copyright: 2003-02-01
• Publisher: Wolters Kluwer

Summary

While updating this popular casebook for its Sixth Edition, The authors maintained the qualities that have made it so successful. Still highlighting the system by which torts are adjudicated, The Torts Process remains carefully balanced in outlook and exceptionally student-friendly in presentation. the features praised by long-time users are all retained: The effective problems approach that challenges student understanding through the use of both theoretical and real-life situtions superior explanation of the overarching structure and organization of tort law, conveyed by a clear, balanced presentation a lively mix of problems, cases, excerpts, notes, and questions, To hold student interest Thoroughly revised to reflect developments in the law, The Torts Process, Sixth Edition, now offers: expanded coverage of products liability, designed especailly for first-year classes by James A. Henderson, who is one of the reporters For The Restatement of the Law, Third, Torts: Products Laibility revised 'Law and Behavior' continuing notes to include the latest in behavioral science and law research treatment of the American Law Institute's May 2002 Restatement of the Law Third, Torts: Apportionment of Liability current coverage of defamation and privacy recent U.S. Supreme Court cases, including Daubert

Table of Contents

Table of Continuing Notes	xxiii
Table of Problems	xxv
Preface	xxvii
Acknowledgments	xxix
Introduction to the Torts Process: Liability for Harmful and Offensive Battery	1	(100)
Some General Observations	1	(2)
The Lawyer as Part of the Legal Profession	1	(1)
A Bird's-Eye View of the Law of Torts	2	(1)
A Preliminary Look at the Adjudicatory Process	3	(7)
The Investigation	3	(2)
The Pleadings	5	(1)
The Trial	6	(2)
The Appeal	8	(1)
Mechanisms for Resolving Disputes: Adjudication	9	(1)
The Substantive Law Governing Liability for Battery	10	(91)
The Prima Facie Case	12	(1)
Intent	12	(1)
What Consequences Must the Defendant Intend?	13	(1)
Vosburg v. Putney	13	(3)
The Law-Fact Distinction: In General	16	(2)
Note: Tort Liability of Minors and Their Parents	18	(1)
Which Mental States Constitute Intent?	19	(1)
Garratt v. Dailey	19	(6)
The Law-Fact Distinction: Trials Without Juries	25	(1)
Problem 1	25	(1)
Mechanisms for Resolving Disputes: Judges vs. Juries as Triers of Fact	26	(2)
Contact	28	(1)
What Constitutes Contact?	28	(1)
Which Intended Contacts Are Wrongful?	29	(1)
Fisher v. Carrousel Motor Hotel	30	(2)
Leichtman v. WLW Jacor Communications, Inc.	32	(2)
Note: Returning (Briefly) to the Element of Intent	34	(3)
Law and Policy: Preliminary Considerations	37	(1)
Privileges	38	(1)
Consent	38	(1)
O'Brien v. Cunard Steamship Co.	38	(2)
The Law-Fact Distinction: Sufficiency of the Evidence, Directed Verdicts, and Judgments Non Obstante Veredicto	40	(1)
Problem 2	41	(2)
Barton v. Bee Line, Inc.	43	(1)
The Lawyer's Professional Responsibility: Keeping Confidences	44	(2)
Note: Minors as Parties to Litigation	46	(1)
Note: The Effect of Criminal Statutes on Consent	47	(2)
Bang v. Charles T. Miller Hospital	49	(2)
Kennedy v. Parrott	51	(3)
The Relationship Between Tort and Contract: Medical Malpractice	54	(4)
Hackbart v. Cincinnati Bengals, Inc.	58	(3)
Note: Consent Procured By Fraud or Duress	61	(4)
Self-Defense	65	(1)
Note: Rules vs. Standards as Means of Guiding and Judging Behavior	66	(1)
Problem 3	67	(3)
Courvoisier v. Raymond	70	(3)
The Lawyer's Professional Responsibility: Playing to the Prejudices of the Jury	73	(2)
The Law-Fact Distinction: Evaluation of Conduct	75	(1)
Problem 4	76	(1)
Law and Policy: Why All This Reliance on Reasonableness?	77	(1)
Defense of Others	78	(1)
Defense of Property	79	(1)
Katko v. Briney	80	(6)
Law and Policy: Why Should We Care About Sneak Thieves?	86	(2)
Necessity	88	(1)
Ploof v. Putnam	88	(2)
Vincent v. Lake Erie Transportation Co.	90	(3)
Problem 5	93	(1)
Miscellaneous Privileges	93	(2)
Law and Behavior: Does the One Affect the Other?	95	(3)
Law and Policy: Taking Stock	98	(3)
Actual Causation	101	(46)
Did the Defendant Cause the Plaintiff's Harm?	102	(14)
Hoyt v. Jeffers	103	(2)
Smith v. Rapid Transit Inc.	105	(2)
The Law-Fact Distinction: Sufficiency of the Evidence and Circumstantial Proof of Causation	107	(5)
Problem 6	112	(2)
The Lawyer's Professional Responsibility: The Partisan Expert Witness, Frivolous Lawsuits, and Perjury	114	(2)
When One of Several Defendants Did It, But We Can't Tell Which One: Alternative Liability	116	(15)
Summers v. Tice	116	(1)
Ybarra v. Spangard	117	(5)
Problem 7	122	(5)
Note: Joint and Several Liability	127	(2)
The Lawyer's Professional Responsibility: Interviewing Witnesses	129	(1)
Problem 8	130	(1)
When Two or More Causal Agents Would, Independent of Each Other, Have Caused Plaintiff's Harm: Concurrent and Successive Causation	131	(4)
Dillon v. Twin State Gas & Electric Co.	131	(1)
Kingston v. Chicago & N.W. Ry.	132	(2)
Problem 9	134	(1)
Relationship Between Actual Causation and Vicarious Liability	135	(12)
Masters, Servants, and Independent Contractors---Respondeat Superior	136	(1)
General Principles	136	(1)
Distinguishing Servants from Independent Contractors	136	(2)
Relationship Between the Servant's Conduct and the Scope of Employment	138	(2)
Exceptions to the General Rule of Nonliability of Independent Contractors	140	(1)
The Master's Right of Indemnity Against the Servant	141	(1)
Law and Policy: Why Should Masters Be Liable for the Employment-Related Torts of Their Servants?	141	(2)
Problem 10	143	(1)
Other Forms of Vicarious Liability	144	(1)
Joint Enterprise	144	(1)
The Family Purpose Doctrine	145	(2)
Negligence	147	(232)
The Origins and Early Development of the Negligence Concept	147	(8)
Brown v. Kendall	148	(4)
Law and Behavior: Influences upon Judicial Decisions	152	(3)
The General Standard	155	(20)
United States v. Carroll Towing Co.	158	(3)
Problem 11	161	(1)
The Law-Fact Distinction: The Negligence Issue	161	(2)
Washington v. Louisiana Power and Light Co.	163	(3)
Weirum v. RKO General, Inc.	166	(3)
Note: The Duty Issue in Negligence Law	169	(2)
Law and Policy: The Values Reflected in the Negligence Concept	171	(4)
Special Rules Governing the Proof of Negligence	175	(42)
Violation of Criminal Statutes	176	(1)
Martin v. Herzog	176	(1)
Tedla v. Ellman	177	(4)
Brown v. Shyne	181	(4)
The Law-Fact Distinction: The Effect of Safety Statute Violations upon the Division of Functions Between Judge and Jury	185	(1)
Problem 12	186	(1)
Custom	187	(1)
Trimarco v. Klein	187	(2)
The T. J. Hooper	189	(2)
Problem 13	191	(1)
Mechanisms for Resolving Disputes: Special Verdicts, General Verdicts, and Instructions to the Jury	192	(2)
Law and Behavior: Influences upon Jury Decisions	194	(4)
Helling v. Carey	198	(3)
The Relationship Between Tort and Contract: Breach of Promise to Cure as a Basis of Medical Malpractice Liability	201	(2)
Res Ipsa Loquitur	203	(2)
Boyer v. Iowa High School Athletic Ass'n	205	(3)
Shutt v. Kaufman's, Inc.	208	(3)
City of Louisville v. Humphrey	211	(2)
Problem 14	213	(1)
Escola v. Coca Cola Bottling Co.	214	(3)
Modification of the General Standard Arising Out of Special Relationships Between the Parties	217	(14)
Responsibility of Possessors of Land for the Safety of Trespassers, Licensees, and Invitees	217	(1)
Invitees and Licensees	218	(1)
Trespassers	219	(3)
Problem 15	222	(1)
Problem 16	223	(1)
Rowland v. Christian	223	(6)
Responsibility of Common Carriers for the Safety of Their Passengers	229	(1)
Responsibility of Operators of Motor Vehicles for the Safety of Their Passengers	230	(1)
Limitations on Liability	231	(148)
The Absence of a General Duty to Rescue	231	(1)
Erie R. Co. v. Stewart	231	(2)
Tubbs v. Argus	233	(3)
Problem 17	236	(1)
Model Rules of Professional Conduct	237	(3)
The Lawyer's Professional Responsibility: The Relevance of Moral Considerations	240	(1)
Tarasoff v. Regents of University of California	241	(9)
Problem 18	250	(1)
Law and Policy: A Legal Duty to Rescue?	251	(3)
Law and Behavior: The Effect of Legal Rules upon Individual Conduct	254	(3)
Proximate Cause	257	(1)
Liability Linked Logically to Defendant's Negligence and Limited to Foreseeable Consequences	258	(1)
But For the Wrongful Quality of Defendant's Conduct, Would the Plaintiff Have Suffered the Same Harm?	259	(1)
Ford v. Trident Fisheries Co.	259	(1)
Lyons v. Midnight Sun Transportation Services, Inc.	260	(1)
Cahoon v. Cummings	261	(3)
Was Any Harm to the Plaintiff Foreseeable When the Defendant Acted?	264	(1)
Palsgraf v. Long Island R.R.	264	(6)
Solomon v. Shuell	270	(3)
Were the Nature and Circumstances of the Plaintiff's Harm Foreseeable?	273	(1)
Marshall v. Nugent	273	(4)
Watson v. Kentucky & Ind. Bridge & Ry.	277	(3)
Problem 19	280	(4)
Gorris v. Scott	284	(2)
Problem 20	286	(1)
Other Approaches to the Proximate Cause Issue	287	(6)
Special Instances of Nonliability for Foreseeable Consequences	293	(1)
Mental and Emotional Upset	293	(1)
The Impact and Zone of Danger Rules	294	(1)
Waube v. Warrington	294	(3)
Note: The Impact and Zone of Danger Rules in the Age of Toxics	297	(1)
Bystanders	298	(1)
Dillon v. Legg	298	(3)
Thing v. La Chusa	301	(8)
Problem 21	309	(1)
Direct Victims	309	(1)
Burgess v. Superior Court	309	(5)
Injury to Personal Relationships	314	(1)
Feliciano v. Rosemar Silver Co.	314	(1)
Borer v. American Airlines, Inc.	315	(7)
Prenatal Harm	322	(1)
Actions by Parents for Their Own Harm	322	(1)
Werling v. Sandy	322	(5)
Fassoulas v. Ramey	327	(4)
Actions on Behalf of Children for Their Own Harm	331	(1)
Turpin v. Sortini	332	(6)
Purely Consequential Economic Loss	338	(1)
Barber Lines A/S v. M/V Donau Maru	338	(5)
J'Aire Corp. v. Gregory	343	(3)
People Express Airlines, Inc. v. Consolidated Rail Corp.	346	(6)
Problem 22	352	(1)
Contributory Fault	353	(1)
Contributory Negligence	353	(1)
Butterfield v. Forrester	353	(1)
Davies v. Mann	354	(2)
Assumption of the Risk	356	(1)
Meistrich v. Casino Arena Attractions, Inc.	356	(2)
Problem 23	358	(1)
The Relationship Between Tort and Contract: Exculpatory Clauses and Disclaimers in Contracts	359	(1)
Comparative Negligence	360	(4)
Problem 24	364	(2)
Uniform Comparative Fault Act	366	(2)
Problem 25	368	(1)
Knight v. Jewett	368	(3)
Immunities	371	(1)
Governmental Immunity	371	(1)
Charitable Immunity	372	(1)
Intrafamily Immunities	373	(6)
Trespass to Land and Nuisance	379	(34)
Trespass	379	(2)
Nuisance	381	(5)
Judicial Applications of the Substantive Law	386	(27)
Peters v. Archambault	387	(3)
Adams v. Cleveland-Cliffs Iron Co.	390	(5)
Davis v. Georgia-Pacific Corp.	395	(2)
Waschak v. Moffat	397	(4)
Jost v. Dairyland Power Cooperative	401	(2)
Boomer v. Atlantic Cement Co.	403	(5)
Spur Industries, Inc. v. Del E. Webb Development Co.	408	(5)
Strict Liability	413	(24)
Maintaining Custody of Animals	413	(4)
Abnormally Dangerous Activities	417	(20)
Fletcher v. Rylands	417	(2)
Rylands v. Fletcher	419	(1)
Turner v. Big Lake Oil Co.	420	(3)
Siegler v. Kuhlman	423	(4)
Law and Policy: Why Strict Liability?	427	(4)
Foster v. Preston Mill Co.	431	(3)
Problem 26	434	(3)
Products Liability	437	(98)
Liability for Manufacturing Defects	437	(44)
The Plaintiff's Prima Facie Case: Doctrinal Theories of Liability	438	(1)
Negligence	438	(1)
MacPherson v. Buick Motor Co.	439	(2)
Breach of Warranty	441	(2)
Henningsen v. Bloomfield Motors, Inc.	443	(8)
Strict Liability in Tort	451	(1)
Vandermark v. Ford Motor Co.	451	(6)
The Relationship Between Tort and Contract: Products Liability and Recovery for Pure Economic Loss	457	(3)
Law and Policy: Policy Objectives Supporting Strict Liability in Tort for Defective Products	460	(1)
James A. Henderson, Jr., Coping with the Time Dimension in Products Liability	460	(6)
Problem 27	466	(1)
The Plaintiff's Prima Facie Case: Causation	467	(1)
Union Pump Co. v. Allbritton	468	(4)
Postscript on Causation and Daubert	472	(1)
Affirmative Defenses Based on Plaintiff's Conduct	473	(1)
Murray v. Fairbanks Morse	473	(8)
Liability for Failure to Instruct or Warn	481	(19)
Sheckells v. AGV Corp.	482	(6)
Problem 28	488	(1)
MacDonald v. Ortho Pharmaceutical Corp.	489	(6)
Anderson v. Owens-Corning Fiberglas Corp.	495	(5)
Liability for Defective Design	500	(32)
McCormack v. Hankscraft Co.	502	(6)
Troja v. Black & Decker Manufacturing Co.	508	(6)
Problem 29	514	(1)
Note: Design Defect and Daubert	515	(1)
Heaton v. Ford Motor Co.	516	(4)
Soule v. General Motors Corp.	520	(7)
Vautour v. Body Masters Sports Industries, Inc.	527	(5)
Problem 30	532	(1)
Statutory Reform of Products Liability	532	(3)
Reform in State Legislatures	532	(1)
Reform in the United States Congress	533	(2)
Damages	535	(74)
Compensatory Damages	535	(63)
Personal Injury	535	(1)
Medical Expenses	535	(1)
Williams v. Bright	536	(6)
Coyne v. Campbell	542	(5)
Problem 31	547	(1)
Lost Earnings and Impairment of Earning Capacity	547	(1)
The Basic Measure of Recovery	547	(1)
Holton v. Gibson	548	(4)
Mauro v. Raymark Industries, Inc.	552	(5)
Grayson v. Irvmar Realty Corp.	557	(5)
Adjustments in Reaching the Final Recovery Figure	562	(4)
Problem 32	566	(1)
Pain, Suffering, and Other Intangible Elements	566	(1)
Walters v. Hitchcock	566	(5)
McDougald v. Garber	571	(7)
Problem 33	578	(7)
Bailey, Back Injuries	585	(1)
Delaney v. Empire Insurance Co.	586	(2)
Mechanisms for Resolving Disputes: Settlement	588	(2)
Donald G. Gifford, A Context-Based Theory of Strategy Selection in Legal Negotiations	590	(4)
The Lawyer's Professional Responsibility: Problems of the Plaintiff's Lawyer in the Settlement Process	594	(3)
Wrongful Death	597	(1)
Damage to Personal Property	598	(1)
Punitive Damages	598	(11)
Owens-Illinois, Inc. v. Zenobia	598	(11)
The Role of Liability Insurance in the Torts Process	609	(18)
The Nature and Functions of Liability Insurance	609	(3)
Kenneth S. Abraham, Insurance Law and Regulation: Cases and Materials	610	(2)
The Insurance Company as the Real Party in Interest	612	(5)
Shingleton v. Bussey	612	(5)
Conflicts of Interest in the Defense and Settlement of Tort Claims	617	(10)
Crisci v. Security Insurance Co.	618	(5)
Problem 34	623	(1)
The Lawyer's Professional Responsibility: Conflicts of Interest in Liability Insurance Cases	624	(3)
Compensation Systems as Alternatives to the System of Tort Liability Based on Fault	627	(26)
Workers' Compensation	628	(6)
Anderson v. Save-A-Lot, Ltd.	630	(4)
Compensation for Victims of Automobile Accidents	634	(11)
McKenzie v. Auto Club Insurance Association	636	(9)
No-Fault: Beyond Work- and Automobile-Related Accident Losses	645	(8)
Dignitary Wrongs and Intentional Infliction of Mental Upset	653	(42)
Offensive Battery	653	(2)
Note: A Postscript on Intent	654	(1)
Assault	655	(2)
Read v. Coker	655	(1)
Beach v. Hancock	656	(1)
False Imprisonment	657	(8)
Whittaker v. Sanford	658	(2)
Rougeau v. Firestone Tire & Rubber Co.	660	(1)
Sindle v. New York City Transit Authority	661	(1)
Coblyn v. Kennedy's, Inc.	662	(3)
Intentional Infliction of Mental Upset	665	(30)
William L. Prosser, Insult and Outrage	665	(1)
Calvert Magruder, Mental and Emotional Disturbances in the Law of Torts	666	(2)
State Rubbish Collectors Association v. Siliznoff	668	(6)
Samms v. Eccles	674	(2)
Taylor v. Metzger	676	(6)
Logan v. Sears, Roebuck & Co.	682	(2)
Ford v. Revlon, Inc.	684	(6)
Jones v. Clinton	690	(5)
Defamation	695	(46)
The Traditional Law	695	(25)
What Constitutes Defamation	696	(1)
The General Standard	696	(4)
Interpretation of the Statement	700	(1)
Remedies	701	(1)
Damages	701	(1)
Special Damages	702	(1)
General Damages	702	(1)
Punitive Damages	703	(1)
Retraction	703	(1)
Injunctions	704	(1)
The Libel-Slander Distinction	704	(1)
Slander	705	(1)
Libel	706	(1)
Publication	707	(2)
The Basis of Liability	709	(2)
Defenses	711	(1)
Privilege	711	(5)
Truth	716	(1)
Judge, Jury, and Burden of Proof	717	(1)
Problem 35	718	(2)
The Constitutional Issues	720	(19)
Gertz v. Robert Welch, Inc.	725	(7)
Milkovich v. Lorain Journal Co.	732	(6)
Problem 36	738	(1)
Legislative Reform of the Law of Defamation	739	(2)
Invasion of Privacy	741	(44)
William L. Prosser, Privacy	741	(3)
Intrusion	744	(10)
Hamberger v. Eastman	744	(4)
Shulman v. Group W Productions, Inc.	748	(6)
Public Disclosure of Private Facts	754	(19)
Diaz v. Oakland Tribune, Inc.	754	(10)
The Florida Star v. B.J.F.	764	(9)
False Light	773	(5)
Godbehere v. Phoenix Newspapers, Inc.	773	(5)
Appropriation	778	(7)
Carson v. Here's Johnny Portable Toilets, Inc.	778	(7)
Commercial Torts: Misrepresentation and Interference with Business Relations	785	(60)
Misrepresentation	785	(38)
The Nature of the Defendant's Representation	787	(1)
Adams v. Gillig	787	(3)
Vulcan Metals Co. v. Simmons Manufacturing Co.	790	(4)
Swinton v. Whitinsville Savings Bank	794	(1)
Ingaharro v. Blanchette	795	(4)
Scienter, Negligence, and Strict Liability	799	(1)
Derry v. Peek	799	(3)
International Products Co. v. Erie R.R.	802	(3)
Johnson v. Healy	805	(5)
Reliance and Contributory Negligence	810	(1)
Pelkey v. Norton	810	(3)
Corva v. United Services Automobile Association	813	(2)
Liability to Third Persons	815	(1)
Ultramares Corp. v. Touche	815	(8)
Interference with Business Relations	823	(22)
Intentional Interference with Contractual Relations	823	(1)
Wilkinson v. Powe	823	(6)
Intentional Interference with Prospective Contracts	829	(1)
Tuttle v. Buck	829	(4)
Wal-Mart Stores, Inc. v. Sturges	833	(6)
Baker v. Dennis Brown Realty, Inc.	839	(2)
Note: Wrongful Discharge of Employees at Will	841	(4)
Appendix: Introduction to Economic Analysis of Tort Law	845	(8)
Table of Cases	853	(10)
Index	863