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Schwartz Cases Mat Torts E10: Cases and Materials (University Casebook Series)

Torts: Cases and Materials, 10th Edition (Prosser, Wade and Schwartz) (University Casebook) - Victor E. Schwartz, Kathryn E. Kelly, David F. Partlett, David F. Parltett First, I’d like to wow you with my awesome Torts joke:

Q: What do you call O.J. Simpson stuck in a cooler full of chocolate treats?
A: A tortfeasor in a torte freezer.

Tort claims are any claims you make in civil court that are not contract claims. Someone who commits a tort is a tortfeasor. Most of you probably know about torts already because of suggestion that tort reform will solve all of the health care problems of the United States. If you don’t really know what people mean by “tort reform,” here’s a quick lesson: tort reform puts limits on the amount people can recover in court for injuries or death. For example, in Oregon, there is a $500,000 cap on damages people can receive for pain and suffering related to a wrongful death claim. That sounds like a lot, but actually it’s usually not.

Here are my two cents on the issue. Tort reform makes it so that the most severely injured people are the least proportionately compensated for harm. It’s been shown, in states that have enacted tort reform, not to change insurance costs for doctors or reduce medical expenses. All it does is ensure that most permanently or severely harmed plaintiffs, usually plaintiffs who are disabled for life or have some kind of permanent disfigurement, can’t recover amounts that juries think are just. It’s made out to be that people making tort claims abuse the system and make off like bandits because of generous juries. As far as I’m concerned, that is absolutely not the case. The idea that tort reform will solve everything is a complete fraud by big corporations so that they won’t be held responsible for damage caused by irresponsible design or manufacture of products.

Anyway, now for your brief and unreliable review of the topic. Torts is all fun on the outside and all boring on the inside. The stories of the cases we read are incredible, whether hilarious or tragic, but the law itself is a snooze fest. There are three basic types of torts: intentional, negligent, and strict liability. Intentional torts happen when the actor desires the harm to occur or is substantially certain it will occur. Negligence happens when a person has a duty to another person and breaches the duty, causing harm. Strict liability happens when the tortfeasor is responsible for the harm that happens whether or not they actually did anything wrong. When considering torts, nothing is a clean “win” or “lose” argument, but just arguments that people make in front of judges and juries. Most of the standards for deciding if something was okay or not is based on the vague idea of the “reasonable person,” who is supposed to just be anyone you’d meet on the street. I think the reasonable person is supposed to be based on anyone who lives in the Brady Bunch house. What would the Bradys do?


The intentional torts are battery, assault, false imprisonment, trespass to land, trespass to chattels (stuff), conversion, and intentional infliction of emotional distress. Some basics (think Home Alone):

Battery is harmful or offensive contact. This can be contact with your person or anything intimately connected with your person. For example, when my Legal Research & Writing professor reached over and shut my laptop in the middle of class, it was battery even though she didn’t touch me because my laptop is intimately connected with my person (IMO). Medical battery happens when a doctor performs a procedure to which a patient hasn’t consented.

Assault is apprehension of imminent harmful or offensive contact. Basically, it’s what happens right before the offensive contact. Like when my professor reached over to shut my computer and I was forced to think “Holy shit, did I save everything?!” That was assault (IMO).

False Imprisonment is confining someone within boundaries set by the actor, which results in confinement that the other person is conscious of or harmed by. There is this one case where this woman and her husband were part of a cult in Israel, and the woman wanted to leave the cult and move to the U.S. So, the cult leader offered to take her and her family in his boat to the U.S. (this was way back when. Maybe the ‘20’s?) So, they all get over to the East Coast and then the cult leader and the husband won’t let the woman leave the boat. So, it ended up that they were falsely imprisoning her, even though she wasn’t technically locked away. The boat was the key to get to shore, and they wouldn’t let her have it.

Trespass to Land is interference with a person’s right to exclusive possession of land. Owners of land don’t have a duty to trespassers. You can’t just shoot someone who comes on your land (except when you can because we’re Merkuns), but if you have quicksand on your land, you don’t have to tell a trespasser about it.

Trespass to Chattel is interference with a person’s right to exclusive possession of their stuff. But it’s only temporary or minor interference, like if you steal someone’s car but then bring it back. Conversion is major interference with possession of stuff. That’s, like, if you blow up someone’s car, or something.

Intentional Infliction of Emotional Distress is when someone does something intentional and outrageous that causes severe emotional distress to another. Usually, there has to be some kind of physical side effect of the emotional distress. The best example of IIED I can think of is studying torts.

A tortfeasor who commits an intentional tort is responsible for all of the harm that comes as a result of the tort. Like, if I trip you, and you fall down the stairs and stumble into a plate of glass that falls out of the window and onto a pedestrian on the sidewalk, who then gets knocked over and falls on a puppy, I’m responsible for the harm to the puppy even thought I didn’t mean to hurt the puppy, I only meant to hurt you. That’s only true with intentional torts.

Also, there’s always an "eggshell-skull plaintiff" rule, where if the plaintiff is unusually sensitive to whatever tort happens to them, that’s no excuse to the tortfeasor. You’re stuck with whatever plaintiff you got.


The elements of negligence are duty, breach, causation, and damages.

Duty. The main lesson of duty is that you can smoke a cigarette and watch someone drown. This isn’t, like, the kind of thing that everyone needs to know, and I don’t recommend doing it, but you wouldn’t be liable in criminal or civil court for doing that unless you pushed the drowner in the water. People usually have a duty where it is made by a statute (like, you have to be careful when you drive) or where they created harm (like, Macaulay Culkin would be liable to his mom in Home Alone for all of his booby traps if she came home and got hit in the face with an iron). So, we have duties to our families or employees or other people like that, but we don’t have a duty to everyone for everything.

Breach. That’s pretty obvious, if you don’t fulfill your duty, you breached it. But also, Res Ipsa Loquitur sometimes. Usually, the judge acts as a sort of gatekeeper and not every case in civil court goes to a jury because the judge will say, "as a matter of law, this is okay" or "not okay," and it doesn’t have to go to a jury. With res ipsa loquitur ("the thing speaks for itself"), something happened, and no one really knows why it happened, but it was probably the defendant’s fault. A case can get past the judge and to the jury because it is a situation where the type of harm doesn’t ordinarily occur without negligence and it’s most likely the negligence of the defendant. It doesn’t mean the person is automatically guilty, it just slides the case by the judge. In the olden days, this would happen when stuff would go flying out of high-rise windows. Now, windows don’t usually open far enough for people to throw over-stuffed chairs out of hotel rooms, but it used to happen. There are a couple of medical cases where the court used res ipsa because a doctor left something in a person’s body after surgery. They’re the kind of cases where they’re a little funny / a little horrifying. Reading torts is all about schadenfreude.

Causation. This is the most complicated thing in all of torts in my opinion, and it brings up the thing I hate about torts – there are tons of different rules that different states use for everything. Basically, whatever duty you breached has to actually have caused the harm that befell whoever got hurt. Like, if I’m breaking the speed limit in Oregon, and Ceridwen gets a paper cut in Minnesota, I’m not liable for her paper cut, even though I’m being negligent. That sounds obvious because I’m giving a ridiculous example, but there are some really close cases with this. The breach of duty also has to be a substantial cause of the harm. Like, Elizabeth might have mailed Ceridwen the horrible book that Ceridwen got a paper cut from (thereby breaching the goodreader duty to only mail good books), but Elizabeth’s mailing the book probably isn’t a substantial cause of the paper cut.

Also, there’s the issue of Proximate Cause, which is a bitch. The main rule is that you’re only liable to a foreseeable plaintiff for a foreseeable type of harm. Like, if Ceridwen wanted to sue the bookstore that sold the horrible book to Elizabeth, the court might say that the bookstore had no reason to know that the book might get into Ceridwen’s hands. Or, if the paper cut caused Ceridwen to contract a heretofore unknown zombie virus, the bookstore could say that it knew a paper cut could come from selling a book, but it had no way of knowing that a zombie virus could come from selling a book. Proximate Cause, people.

Yo momma so fat, she's always a foreseeable plaintiff. (credits to Jason Tashea.)

Damages. You got your economic damages, like medical expenses and lost wages, and you got your noneconomic damages, like pain and suffering. This is where the tort reform thing comes in. I’m carefully avoiding talking about medical malpractice because I think it’s the most boring thing on the face of the planet, but this article by Frank Cornelius, which was published in the New York Times in 1994 is really interesting, I think. The uncomfortable thing about torts is that you’re trying to determine how much money will compensate someone for a debilitating illness or serious deformity or death of a loved one caused by someone’s negligence. I think that makes everyone uncomfortable because money can’t really replace what the person’s lost. But it’s better than leaving someone with a debilitating injury out on their own to try to cover all of their resulting medical expenses themselves, right? Or we could just provide health care for prices that aren’t outrageously causing all of us severe emotional distress. But, let’s not talk crazy, here.

Anyway, what I’m about to quote isn’t really about damages, but it’s from my favorite case that we read in this class, which was during the topic of damages. (It’s not from this book, so don’t get all excited and run over to amazon to buy the book after you’ve read this part). They made the movie Silkwood based on the story of Karen Silkwood, who worked at a lab that did stuff with nuclear materials, and who got contaminated with plutonium. Anyway, she didn’t die of the contamination, she died in a car accident on her way to rat the company out to the New York Times for bad labor practices, so people think it’s a conspiracy. This is from part of the case:

”Silkwood made statements that she had spilled her urine sample in the bathroom between 7:00 and 7:50 a.m. on November 7th, after her boyfriend left and before her roommate returned to the apartment from work. Silkwood stated that at the time she spilled the urine sample, a package of bologna was on top of the commode, where she had placed it in anticipation of preparing a sandwich to take to work. Following that spilling of the sample, Silkwood stated that she wiped off the bathroom floor with a tissue and placed the bologna back in the refrigerator.” Silkwood v. Kerr-McGee Corp., 667 F2d 908 (10th Cir. 1981).

I had to take a break from reading after the first time I read that. A package of bologna on top of the commode?! WTF? There is nothing more disgusting than bologna, contaminated with plutonium, sitting on top of the toilet next to a spilled urine sample. Don’t take that as a challenge to think of something more disgusting, just take my word for it. Okay, maybe Phillip Seymour Hoffman is more disgusting in some movies, but that’s it.

I don’t want to kill you with all of the boring things about damages, but I do want to speak for a moment about express and implied assumption of risk because, for whatever reason, I think it’s kind of interesting. The basic rule is that if you assumed the risk, you can’t recover for your injuries. This happens sometimes with lessons. Like, if you sign your kids up for riding lessons or swimming lessons, you probably sign some kind of waiver saying that you understand there are dangers associated with the lessons. In order for you to really waive liability, you have to assume risk for the actual type of harm that happens, though. Like if you assume the risk for dangers associated with swimming lessons, and you get trampled by a horse at the swimming lessons, you probably don’t have an assumption of risk problem.

Some activities are so inherently dangerous that people impliedly assume risk by participating in them. I think I like this because it reminds me of the movie Point Break. There’s no way Keanu Reeves could sue Patrick Swayze for the crazy surfing stunts they pull, but he could totally sue for the part where they hijack him to take him skydiving because he didn’t give his free consent to the dangers of that activity. That kind of thing is implied primary assumption of risk. There’s also implied secondary assumption of risk, where the activity itself might not normally be dangerous, but it was when the injured party participated in it, and the injured party knew it was dangerous. That happens if you voluntarily ride in a car with a drunk person. There can be reasonable or unreasonable implied secondary assumptions of risk, but it’s still assumption of risk. If it’s reasonable, it’s probably not a problem, but the jury decides. And even if you do assume some risk, it usually won’t bar your entire claim, it would just reduce damages because you’re also partly at fault.

So, negligence isn’t like intentional torts in that, with negligence, you’re only liable for things that are foreseeable. Like in the hurting the puppy hypo, if I accidentally left a banana peel on the floor and then you tripped on it and (blah, blah, blah) the puppy gets hurt, I wouldn’t be responsible for the harm to the puppy. That brings me to the important point that the banana peel gag is for serious, folks. There are four or five cases in this book of banana peel slip-and-falls. It’s really wonderful.


Strict liability happens when you didn’t really do anything, but you still get blamed for the harm. The three categories I’m going to talk about with strict liability are Respondeat Superior, Abnormally Dangerous Activities, and Products Liability.

Respondeat Superior. I think this topic is almost as boring as med mal, so I’ll just say really quickly that if an employee is working within the scope of employment and commits a tort, the person the employee works for can be liable for the tort. Unfortunately, the example of this is the Kill Bill example. You know, the nurse rapes the patient. Bleck and shiver. Apparently, this happens more than I’d like to think because we read a couple of these cases (again, not in this book). States deal with this differently. Some say that because there’s no way the hospital wanted the nurse to rape the patient, the nurse wasn’t acting "in the scope of employment." Others say that in the interest of justice, liability is on the hospital, rather than the innocent plaintiff.

Abnormally Dangerous Activities. This is when you have something on your property or do some kind of work with your property that is so dangerous and uncommon that you have to be responsible for any harm that comes from it. People who keep wild animals on their property are strictly liable for any harm from the animals, for example. Liability under Abnormally Dangerous Activity would probably shut down the coal mines in West Virginia if the courts there had any interest in upholding the law. The coal companies are strictly liable for all of the damage the mountain-top blasting has done and all of the illnesses from contaminated water. People bring claims for abnormally dangerous activities under trespass (which I talked about above) or nuisance (interference with enjoyment of land). The problem is that one of its factors is whether an activity is beneficial to the local community, so probably a lot of corporate malfeasance slides by under the label of "beneficial to the local community." Ick. Also, if something is common usage, it doesn’t count as abnormally dangerous (like, driving a car has a high risk of a lot of harm, but it’s common, so it doesn’t count). I don’t think coal mining would slide under common usage, though.

Yo momma so ugly, going to your house is an abnormally dangerous activity.

Products Liability. When a product has a manufacturing defect, or is designed in an unreasonably dangerous way, or doesn’t have sufficient warning, the manufacturer and the retailer are strictly liable for any harm it causes to people or property. This used to be a problem because you had to sue for products as a contract claim, so you had to actually have a contract with someone to sue over a product. That changed as products became more common because it was a stupid rule. If you want to sue over a product itself breaking, though, that’s still a contract claim. Strict liability for products is just for physical harm, but everyone and their dogs are liable for it. It’s why there are so many warnings on things. There are some things, though, like prescription drugs, that are "so valuable to society" that manufacturers are not held strictly liable for things that go wrong with them.

Anyway, longest review ever, but those are the basics of what I’ve "learned" this year. As to the book itself, torts is by far the most readable law topic because of all the bologna and banana peels, but I don’t have an excellent sense of this book because my professor relied a lot on her own supplemental readings, which were the most disorganized and difficult to read supplements I’ve ever seen. Really distressing. Sometimes, they’d be copies of copies in 6 pt font with the margins cut off. We’re all getting together for a class-action IIED lawsuit over them, I think. Don’t mess with the law students. To us, everything is a tort. So, my final in this class is Monday. Then I’m done with torts for a while at least, thankfully. Wish me luck. And tell me if I’m wrong about stuff, because, like I say, the final’s Monday.