Torts Syllabus

[Law 420 Section 001]

Professor Mark C. Rahdert
Fall 2016

Office: K 825; Phone 215-204-8966: E-mail mark.rahdert@temple.edu

Office Hours: Mondays 3:00-4:00 PM, Wednesdays 3:00-4:00 PM or by
appointment (appointments preferred).

Course Objectives:

This is a required first-year course. The course objective is to introduce students

to the fundamental principles and policies of tort law. In addition, the course
introduces students to the American judicial system, the common law case
method, and the essentials of case analysis and legal discourse.

Required Text:

Vandall, Wertheimer & Rahdert, Torts: Cases and Problems (3 rd Ed., 2012). All
assignments are to pages in this text. I will also provide a series of short essays
(Sidebars) that are loosely keyed to the materials we cover in the text. I list
these items in the Course Documents file on Blackboard as we cover the
materials to which they are relevant. These pieces are not formally assigned but
are available for student enrichment. In addition, it may be helpful for some
students (but is entirely optional) to obtain a single volume summary of tort law.
There are several good ones on the market. I am partial to Kenneth Abraham, The
Forms and Functions of Tort Law (4 th ed. 2012).

Course Calendar, Class Participation, Attendance and Grading Policies:

I follow the general Law School policies on course calendar, class participation,
attendance and grading for exam courses, which are published on the law school
website. I reserve the option of designating one or more students for a transcript
designation for Adistinguished class participation.@

Laptop Policy:

In order to facilitate greater attention and class participation, I do not permit

students (except those needing accommodations see below) to use laptops or
other internet/accessible devices during class sessions. Students are
encouraged, of course, to take handwritten notes.

This policy is based in part on studies (conducted by Princeton University and

the University of California) which show that taking notes by hand rather than
typing improves learning, and that multitasking on computers during class by

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some students can interfere with learning by other students who have a direct
view of their computer activities.

Audio Recording Policy:

Audio recording of classes is generally not permitted. There are two standard
exceptions. Upon prior advance request, I will provide audio recording of
classes for students for whom recording of classes is an accommodation for
disability (see below), and for students who must be absent from class for
purposes of religious observance. I may make exceptions for other situations on
an individual basis, but only on request in compelling circumstances. When I
make an audio recording for any student, I will typically make the recording
available only to that student. Under no circumstances may any student or guest
make an audio recording of any class.

Disability Accommodations and Services:

The Law School has a policy of providing reasonable accommodation for

disabled students. Anyone needing special accommodations should contact the
Law School Office of Student Affairs (215-204-8574) located in Barrack Hall.

Academic Freedom:

The University has adopted a policy on Student and Faculty Academic Rights and
Responsibilities which can be accessed through the following link:
http://policies.temple.edu/getdoc.asp?policy_no=03.70.02 .

Work Requirements:

Class preparation:

Students are expected to prepare all assigned materials, including introductory

material, principal cases, and notes. Unless specifically notified otherwise,
students are responsible for all assigned materials, whether or not they are
discussed in class. Students are also responsible for any material covered in
class, whether or not it corresponds to a particular reading assignment. Students
should attempt to stay approximately 20 pp. per class hour ahead of where we
are in class at all times. (For example, if a given class ends with materials on
page 30 and the next class is a two-hour class, students should prepare through
page 70 for that class.) We will proceed more slowly at the beginning of the term,
and the pace will steadily increase during the term as students become more
familiar with what is required to prepare adequately for class. Materials that have
been read in advance should be reviewed in detail shortly before they are to be
covered in class.

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Chapter 1. Introduction: Pp. 1-14

This chapter serves as an introduction to the course. Through a series of cases,

it examines the challenging issue of determining the appropriate standard of care
in cases of accidental harm.

Chapter 2. Intentional Torts

This chapter covers torts which are based on intentional conduct. We will look at
battery, assault, false imprisonment, and infliction of emotional distress, with a
quick look at trespass to land and chattels and conversion. In each case we will
examine the elements of the tort and what sort of evidence is needed to prove
them. We will also examine the underlying policies that support compensation for
intentional harm.

Intent: 15- 25

Battery and Assault: 26-37

False Imprisonment: 37-45

Intentional Infliction of Emotional Distress: 46-57

Note on Trespass to Land and Chattels (no reading)

Conversion: 66-74

Chapter 3. Privileges

This chapter concerns defenses to intentional torts, which are often termed
privileges. Particular attention will be devoted to the role that consent plays,
as well as the role of necessity, both public and private. As in the previous
chapter, we will probe several of the decisions to elicit some of the underlying
policy considerations that direct legal decisions.

Consent: 75-97

Defenses to False Imprisonment: 97-106

Defense of Property: 106-110

Private and Public Necessity: 111-121

Chapter 4. Duty

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This chapter begins consideration of the large sector of tort law that addresses
accidental harm. At the heart of this inquiry is the negligence case, and one of
the principal elements of a negligence action is proof that the defendant-injurer
owed the plaintiff-victim a duty of care. We will consider the possible sources for
such a duty and limits on the scope of duty, as well as the policy considerations
that lie behind the duty inquiry.

Assisting Others: 123-128

Suits by Third Parties: 129-134

Professionals: 132-134

Duty to Control Others: 134-141

Emotional Harm: 141-165

Injury to Unborn Children: 165-175

Chapter 9: Liability of Landowners

I take this chapter out of the text sequence because most of the decisions
concern the question of when the owner/occupier of land owes a duty of care to
entrants on the land. The law has developed two competing approaches, one
based on the legal status of the entrant and the other based on a policy-oriented
functional analysis. Courts have struggled to resolve the tensions between these
two alternative methods of assessing duty.

Basic Approaches: 393-414

Additional Categories of Plaintiff: 414-438

Taxonomy of Plaintiffs: 446-451

Chapter 5. Negligence

This chapter addresses the heart of the negligence action, which is the question
whether the party whose negligence is being claimed has breached the
applicable standard of care. We will consider cases that attempt to identify the
main components of the default reasonable person standard of care, cases that
develop variations on that standard to deal with particular classes of actors, and
professional standards applicable to individuals with professional skills such as
doctors and lawyers. We will also consider the challenges involved in proving
breach, and the various techniques that courts have adopted for assembling and
assessing the relevant evidence. One important development will be the use of

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economic analysis as a tool for determining when the imposition of negligence
liability will lead to the efficient optimization of accident costs.

Standard of Care: 177-188

The Reasonable Person: 188-199

Professional Standards: 199-208

Duties of Disclosure: 208-219

The Role of Custom: 220-223

Judge & Jury: 223-227

Statutory Violations: 227-241

Proving Negligence: Res Ipsa Loquitur: 246- 263

Chapter 6: Cause In Fact

This chapter concerns the element of factual or physical cause, which is actually
a component of all torts but is presented here as one of the essential elements of
the negligence case. Among potential complicating factors, we will consider the
challenges involved in evaluating multiple contributing causes, as well as the
difficulties associated with using statistical probabilities and expert scientific
testimony as alternatives to direct proof of a causal connection.

Introduction: 265- 268

Concurrent Causes: 268-270

Failure to Identify the Specific Actor: 270-279

Difficulties in Proof: 279-294

Chapter 7: Proximate Cause

In addition to factual cause, the law also requires proof of legal or proximate
cause. Not every factual cause is a basis for liability. Instead, the law employs a
variety of sometimes quasi-philosophical but more commonly policy-oriented
considerations that are aimed at determining which, among a plethora of factual
causes, are sufficiently close or immediate to warrant the imposition of
liability. We will examine several famous attempts to formulate a general
standard for determining proximate cause, all of which have both strengths and
weaknesses. We will also look at the sometimes complicated doctrine of
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intervening and superseding cause. And we will explore the ways that the
duty inquiry discussed in Chapter 4 often shades into the proximate cause
inquiry, and vice versa.

Theories of Proximate Cause: 295-316

Intervening and Superseding Causes: 316-339

Economic Loss: 339-343

Duty v. Proximate Cause: 343-345

Chapter 8: Multiple Defendants: Joint and Several Liability

One complicating factor in tort law is the challenge of allocating responsibility

among various actors in circumstances where more than one actor is potentially
causally responsible for a single accident. This chapter will consider alternative
methods of allocation, beginning with the common-law baseline of joint
responsibility, followed by the more recent (often statutory) trend toward
independent and successive liability. This chapter also affords an occasion for
considering the impact of the corporate/insurance industry-driven program of
tort reform that has dominated tort law development over the last 30 years.

The Joint Tortfeasor Problem: 347- 392

Note on Tort Reform (no reading)

Chapter 12: Traditional Strict Liability

Chapters 4-9 consider various aspects of the negligence case. A longstanding

potential alternative to negligence is an action for strict liability, in which an
actor who causes injury to another is held responsible even if he/she/it has
exercised reasonable care. This chapter considers two traditional zones of strict
liability for items that escape from the land and for explosives that developed
during the 19th century heyday of negligence.

Strict Liability of Landowners and Occupiers: 517-524

Strict Liability for Explosives: 525-537

Chapter 13: Products Liability

One of the most remarkable 20th century tort developments was the advent of
strict liability for defective products. This chapter traces that development,
beginning with strict liability actions for food, drink, and other items of personal
consumption, leading to the mid-20th century doctrine of strict liability for nearly
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all products that was eventually captured in Restatement (Second) 402A. The
chapter also considers the reaction to 402A in the final decades of the 20 th
century, leading to the adoption by some jurisdictions of the more negligence-
oriented version of product liability advanced by the Third Restatement of Torts:
Products Liability.

Food & Drink: 539-547

Contract and Tort (the Privity Defense): 547-557

Strict Liability for Defective Products: 557- 567

Defining Defect: 567-586

Failure to Warn: 587-604

Prescription Drugs: 604-614

Note on Federal Preemption for FDA-approved drugs and medical devices (no
reading)

Alternative Feasible/Reasonable Design - The 3d Restatement: 614-618

Chapter 14: Defenses

Up to this point, the materials dealing with accidental harm have focused on the
plaintiff-victims case against the injurer-defendant(s). But the law has long
recognized that the defendant may avoid liability in a negligence action by
showing either that the plaintiff was also causally negligent, or that the plaintiff in
some way assumed the risk of the resulting harm. This chapter examines the
development and current operation of these plaintiffs conduct defenses, both
in the traditional negligence case and under product liability. At the end of the
chapter, we will also briefly consider recent developments in federal
constitutional law under which various regulatory systems established by federal
statutes and administrative law have been determined by the Supreme Court to
preempt traditional common-law tort liability, thus providing what is effectively
a defense of tort immunity.

Comparative Negligence: 619- 631

Assumption of Risk: 631- 665

Role of Plaintiff=s Conduct in Traditional Strict Liability: 665-670

Role of Plaintiff=s Conduct in Products Liability: 670-708

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Another Note on Federal Preemption: 709

Chapter 10: Damages

The ultimate objective of tort law is to provide a means of compensation for

damages, and proof of damages is an essential element of any action for
accidental harm. This chapter considers the various types of damages a plaintiff
may seek, and how they are proven. It also considers recent federal
constitutional developments that have limited potential recovery for exemplary or
punitive damages.

Punitive Damages: 453- 476

Pecuniary and Noneconomic Damages: 476-496

Final Examination:

The final examination will be a closed-book, in-class examination. You will not be
allowed access to any materials or information beyond what is contained in the
examination itself.