9780735527096

The Torts Process

by ; ;
  • ISBN13:

    9780735527096

  • ISBN10:

    0735527091

  • Edition: 6th
  • Format: Hardcover
  • Copyright: 2003-02-01
  • Publisher: Aspen Pub

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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

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