Torts, Volume Two

Eric E. Johnson

Associate Professor of Law

University of North Dakota School of Law

eLangdell Press 2016

About the Author

EricE. Johnson is an Associate Professor of Law at the University of North Dakota. He has taught torts, intellectual property, sales, entertainment law, media law, sports law, employment law, and writing courses. He has twice been selected by students as the keynote speaker for UND Law’s graduation banquet. His writing on legal pedagogy has appeared in the Journal of Legal Education.

With scholarly interests in intellectual property and the intersection of law and science, Eric’s publications include the Northwestern University Law Review,the Boston University Law Review, the University of Illinois Law Review, and New Scientist magazine. His work was selected for the Yale/Stanford/Harvard Junior Faculty Forum in 2013.

Eric’s practice experience includes a wide array of business torts, intellectual property, and contract matters. As a litigation associate at Irell & Manella in Los Angeles, his clients included Paramount, MTV, CBS, Touchstone, and the bankruptcy estate of eToys.com. As in-house counsel at Fox Cable Networks, he drafted and negotiated deals for the Fox Sports cable networks.

Eric received his J.D. cum laude from Harvard Law School in 2000, where he was an instructor of the first-year course in legal reasoning and argument. He received his B.A. with Highest and Special Honors from the Plan II program at the University of Texas at Austin.

Outside of his legal career, Eric performed as a stand-up comic and was a top-40 radio disc jockey. Eric archives teaching materials on his website at ericejohnson.com. His online exam archive includes more than a dozen torts essay exams and a bank of multiple-choice questions.

For my mom, Gretchen Johnson

Notices

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Rights Information

Silkwood v. Kerr-McGee (in Chapter 13, Strict Liability): For the “FACTS,” all but the first and last paragraphs of the facts are taken, nearly verbatim, from James F. McInroy, A True Measure of Exposure: The Karen Silkwood Story, 23 Los Alamos Science 252 (1995).

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Table of Contents

Torts, Volume Two

About the Author

Notices

Rights Information

About eLangdell Press

Preface

Acknowledgements

Part IV: Dealing with Accidents: Beyond Negligence

13. Strict Liability

Introduction

Strict Liability Basics, and Negligence Compared

The Absolute Duty of Safety

Animals

Case: Isaacs v. Monkeytown U.S.A.

Ultrahazardous or Abnormally Dangerous Activities

What Activities Qualify as Ultrahazardous or Abnormally Dangerous?

Case: Rylands v. Fletcher

The Economics of Strict Liability

Case: Indiana Belt Harbor R.R. v. American Cyanamid

Defenses and Limitations on Strict Liability

Strict Liability at Trial: Silkwood v. Kerr-McGee

Questions to Ponder About Silkwood v. Kerr-McGee

14. Products Liability

Introduction

Multiple Theories of Recovery for Products Liability

The Elements of Strict Products Liability

Sale by a Commercial Manufacturer, Distributor, or Retailer

Case: Escola v. Coca-Cola

Case: Greenman v. Yuba Power Products

What Constitutes a Product

What Constitutes a Defect

Manufacturing Defects

Design Defects

Warning Defects

Case: In re Toyota Motor Corp. Unintended Acceleration

Note on In re Toyota Motor Corp. Unintended Acceleration

Reading: DOJ Press Release on Toyota Unintended Acceleration

Questions to Ponder About In re Toyota Motor Corp.

Problem: Hot Water

15. Safety and Health Regulation

Introduction

History of Administrative Regulation

Reading: The Jungle

Historical Note on The Jungle

Questions to Ponder About The Jungle

Administrative Agencies and the Law Governing Them

How Regulations are Made

Judicial Review of Regulations

Agency Enforcement of Regulations

Case: FDA v. Phusion Products LLC

Questions to Ponder About FDA v. Phusion

Case: FTC v. Phusion Products LLC

Historical Note on Phusion and Four Loko

Problem: Boogie Woogie Bugle Boy Beverages

Part V: Intentional Torts

16. Introduction to Intentional Torts

The Context of the Intentional Torts Within Tort Law

A Quick Overview of the Intentional Torts

A Preview of Intentional Torts Defenses

The Place of Damages in the Intentional Torts

Intent and its Various Iterations

17. Battery and Assault

Introduction

Battery

The Elements of Battery

Battery: The Act

Battery: Intent

Battery: Harmfulness or Offensiveness

Battery: The Touching

Case: Leichtman v. WLW Jacor

Questions to Ponder About Leichtman v. WLW

Battery: Damages

Case: Fisher v. Carrousel Motor Hotel

Questions to Ponder About Fisher v. Carrousel Motor Hotel

Case: Bohrmann v. Maine Yankee Atomic Power

Questions to Ponder About Bohrmann v. Maine Yankee

Assault

Case: I de S et Ux v. W de S

Historical Note on I de S et Ux v. W de S

The Elements of Assault

Assault: Intent

Assault: Immediate Apprehension

Assault: Harmful or Offensive Touching

Check-Your-Understanding Questions on Assault and Battery

18. False Imprisonment

Introduction

The Elements of False Imprisonment

False Imprisonment: Intent

False Imprisonment: Meaning of Confinement

False Imprisonment: Method of Confinement

False Imprisonment: Awareness

False Imprisonment: Scope of Privilege or Consent

Case: Sousanis v. Northwest Airlines

Questions to Ponder About Sousanis v. Northwest Airlines

Case: Montejo v. Martin Memorial

Questions to Ponder About Montejo v. Martin Memorial

19. Intentional Infliction of Emotional Distress

Introduction

The Elements of IIED

IIED: Intent

IIED: Extremeness and Outrageousness

IIED: Severe Emotional Distress

Case: Wilson v. Monarch Paper

Questions to Ponder About Wilson v. Monarch Paper

Case: Dzamko v. Dossantos

Questions to Ponder About Dzamko v. Dossantos

The First Amendment Defense to IIED

20. Trespass to Land

Introduction

The Elements of Trespass to Land

Trespass to Land: Plaintiff’s Real Property

Trespass to Land: Intent

Trespass to Land: Entry

Trespass to Land: Failure to Leave or Remove

Trespass to Land: Damages and Scope of Recovery

Reading: Trespass by Airplane

Case: Boring v. Google

Historical Note About Boring v. Google

Questions to Ponder About Boring v. Google

Problem: Champagne Whooshes

21. Trespass to Chattels and Conversion

Introduction

The Elements of Trespass to Chattels

Trespass to Chattels: Plaintiff’s Right of Possession in Chattel

Trespass to Chattels: Intent

Trespass to Chattels: Interference

Case: Intel Corp. v. Hamidi

Questions to Ponder About Intel v. Hamidi

The Elements of Conversion

Conversion: Intent

Conversion: Interference and Substantiality to Warrant Remedy

Conversion: The Remedy of Forced Sale (or Forced Purchase)

Conversion: Intangibles and Capturing Increased Value

Case: Moore v. U.C. Regents

Questions to Ponder About UC Regents v. Moore

22. Defenses to Intentional Torts

Introduction

Consent

Express Consent

Implied Consent

Case: Florida Publishing Co. v. Fletcher

Note on the Intermediate Appeals Court in Florida Publishing

Questions to Ponder About Florida Publishing

Note on Media Trespass and Implied Consent

Consent Implied By Law

Consent Obtained By Invalid Means

Case: Food Lion v. Capital Cities / ABC

Notes on Food Lion

Exceeding the Scope of Consent

Case: Koffman v. Garnett

Questions to Ponder About Koffman v. Garnett

Self-Defense, Defense of Others, Defense of Property

Case: Katko v. Brinney

Questions to Ponder on Katko v. Briney

Necessity

Cases: Vincent v. Lake Erie and Ploof v. Putnam

Questions to Ponder on Vincent, Ploof, and Economic Analysis

Case: Surocco. v. Geary

Historical Note on Surocco v. Geary

Questions to Ponder on Surocco and Economic Analysis

Part VI: Remedies

23. General Issues in Remedies

Introduction

Legal and Equitable Remedies

Damages

Additur and Remittitur

Attorneys Fees

Taxation of Damages

Taxes and Fees: The Bottom Line

Injunctions

Problem: Injunction on Ivan

Other Legal and Equitable Remedies

24. Compensatory Damages

The Idea of Compensatory Damages

Case: Texaco v. Pennzoil

Questions to Ponder on Texaco v. Pennzoil

Historical Note on Texaco v. Pennzoil

Nonpecuniary or General Damages

Case: Spell v. McDaniel

Questions to Ponder About Spell v. McDaniel

Caps on Nonpecuniary Damages

Mitigation

The Collateral Source Rule

Issues of Time: Past and Future Losses

Pre-judgment Interest

Figuring Future Losses

Reducing Future Losses to Net Present Value and Accounting for Inflation

Problem on Discounting Future Losses to Net Present Value

25. Punitive Damages

The Basics of Punitive Damages

Case: Mathias v. Accor Economy Lodging

Arguing for Punitive Damages

Case: Silkwood v. Kerr-McGee

Incidence and Magnitude of Punitive Damages

Caps and Rakes for Punitive Damages Under State Law

Federal Constitutional Limits on Punitive Damages

Case: State Farm v. Campbell

Questions to Ponder About State Farm v. Campbell

26. Multiple Tortfeasors

Introduction

Vicarious Liability

Respondeat Superior

Acting in Concert

Other Situations and Relevant Statutes

Joint and Several Liability – The Traditional Approach

The Realities of Shallow-Pocketed Defendants

Other Practical and Strategic Reasons Some Co-Tortfeasors Don’t Become Defendants

Joint and Several Liability – Modifications

Contribution –Letting the Defendants Fight It Out

Indemnification –Shifting the Loss

Settlements in Circumstances Involving Contribution

Case: Great Lakes Dredge Dock Company v. Tanker Robert Watt Miller

Problem: A Lucky Break for Bad Brakes?

Part VII: Special Issues with Parties and Actions

27. Immunities and Tort Liability of the Government

Introduction

Family Immunities

Charitable Immunity

Government Immunities

Immunities for Individuals in the Government Context

The Federal Tort Claims Act and Limited Waivers of Sovereign Immunity

Case: Kohl v. United States

Questions to Ponder About Kohl v. United States

Different Views of Discretionary Function

Diplomatic Immunity and Immunities for International Organizations

The Firefighter’s Rule

Problem: Museum Gala

28. Constitutional Torts

Introduction

Section 1983

The Elements of a §1983 Action

Person

Acting Under Color of State Law

Depriving a Person of a Right

Case: Scott v. Harris

Bivens Actions

Case: Bivens v. Six Unknown Agents

Bivens Since Bivens

Case: Minneci v. Pollard

Questions to Ponder About Minneci v. Pollard

29. Thresholds of Life

Introduction

Wrongful Death

Case: Benally v. Navajo Nation

Questions to Ponder About Benally v. Navajo Nation

Survival Actions

Loss of Consortium

Problem: Death on Route 12

Unborn Plaintiffs

Case: Dobson v. Dobson

Questions to Ponder About Dobson v. Dobson

Part VIII: Oblique Torts

30. Transactional Torts

Introduction

Intentional Economic Interference

Case: Calbom v. Knudtzon

Questions to Ponder About Calbom v. Kundtzon

Case: Speakers of Sport v. ProServ

Questions to Ponder About Speakers of Sport v. ProServ

Fraud

Case: Berger v. Wade

Fraud: Pleading Requirements

Case: Committee on Children’s Television v. General Foods

Questions to Ponder About Committee on Children’s Television v. General Foods

Breach of Fiduciary Duty

Case: April Enterprises v. KTTV

Questions to Ponder About April v,. KTTV

Historical Note on April v. KTTV

Problem Based on April v. KTTV

31. Defamation

Introduction

The Basic, Unconstitutionalized Doctrine of Defamation

Defamatory Statement

The Per Se Categories

Beyond the Per Se Categories

Regarding a Matter of Fact

Of and Concerning the Plaintiff

Published by the Defendant

The Necessity of an “Extra Condition”

Check-Your-Understanding Questions About the Extra Condition

Defamation and the First Amendment

Case: Bindrim v. Mitchell

Questions to Ponder About Bindrim v. Mitchell

Case: Masson v. New Yorker Magazine

Historical Note About Masson v. New Yorker

Questions to Ponder About Masson v. New Yorker

Defamation Privileges

32. Privacy Torts

Introduction

False Light

Intrusion Upon Seclusion and Public Disclosure

Case: Shulman v. Group W

Questions to Ponder About Shulman v. Group W

Aftermatter

Unmarked Edits Generally

Idiosyncratic Unmarked Edits in this Volume

Preface

(For both volumes)

What Makes this Casebook Different

This book is different from other casebooks in at least three key ways.

First, and most importantly, this casebook is free. It is free in both senses of the word. In one sense, it is free in that it does not cost the reader any money. That is, the price is zero. You can get an electronic copy for free, or you can buy a printed copy for whatever the paper and ink costs. You can also print it out yourself, if you’d like. The no-money sense of free is great, but this casebook is also free in a deeper sense: It is unfettered by proprietary legal claims that would prevent it from being abridged, expanded, repurposed, or adapted. That is to say, this book is “open source.” Consistent with the terms of the Creative Commons license that this book is published under, generations of instructors and students will be able to rip and remix this book to suit their needs.

Next, this casebook is different from many traditional casebooks in that it has made a deliberate effort to explain the law, rather than just present a series of readings and questions. All casebooks contain some explanatory matter, but few casebooks emphasize it. This is changing. More and more casebooks are built around the idea of actively explaining concepts to the reader rather than relying solely on the judicial opinions’ internal exposition. This book embraces that trend.

Finally, this casebook is offered not merely as a one-way communication. Instead, this book constitutes an invitation to you. If you are an instructor, please get in touch with me. I’d love to hear how your class is going, and I would be happy to provide you with notes, slides, advice, and anything else I can. If you are a student, I would love to hear your comments about how this casebook is working and how it could be improved. An advantage of in-person speaking over writing is that you can see from the reactions of students whether you are doing a good job explaining something. Since, in writing this book, I can’t see any faces, I am relying on you and other readers to not be shy about telling me what I am doing well and what I could be doing better. You can find me at ericejohnson.com.

Questions and Problems

There are two types of questions in this book, and they are separately labeled as such. In addition, there are problems for you to work.

Questions to Ponder: These questions are intended to be interesting and helpful to think about after reading the preceding material. You should not, however, attempt to figure out “the answer” to these questions. They are not meant to have clearly correct answers. Instead, the idea is to prompt you to think more deeply about one or more facets of the case.