Torts - Fall 2002
Professor Katherine Franke
Tues., Weds., Thurs. 9:50 - 11:00
This course will provide a basic introduction to the law of Torts. In 1871, Oliver Wendell Holmes wrote that "torts was not a proper subject for a law book," yet since 1874 torts has figured as a essential component in legal education throughout the United States. Notwithstanding the fundamental role that torts plays in American legal training, it is not a field that lends itself to easy definition. The field we call "torts" overlaps with contracts (for instance in cases dealing with injuries caused by products that are warrantied by the seller); property (e.g. trespass and nuisance); constitutional law (defamation cases, for instance) and, of course criminal law (tort law provides civil remedies for many injuries for which there could also be a criminal prosecution, such as assault or homicide). As such, it is difficult to set clear and coherent boundaries to this field we call "torts." Much of this is attributable to the curious historical development of American common law from the writ system to the present.
Black's Law Dictionary defines a "tort" as a "private or civil wrong or injury, other than breach of contract, for which the court will provide a remedy in the form of an action for damages." Tort law is primarily a product of common law, meaning that it has been developed by judges through a series of decisions about specific disputes. (Statutes have played an increasingly significant role in shaping tort law in recent years, however.) All of the questions that tort law confronts–such as what types of injuries should be legally recognized, under what circumstances we should compensate someone who has been injured by the acts of another, what constitutes compensation, what constitutes injury, and what social goals a system of compensation should advance–are subject to widely varying answers. Thus, tort law has varied considerably over the course of history, and continues to vary from country to country, state to state and sometimes even from case to case.
Professor Franke's Coordinates:
Office: Room 627
Home Page: www.law.columbia.edu/faculty_franke
Office Hours: Tuesdays 4-6pm. If you cannot make my office hours, I will also meet with students at other times by appointment. Please call my Assistant Jinah Paek to make such an appointment. Her office number is 4-2511, and e-mail is email@example.com.
Required Text: Marc A. Franklin & Robert L. Rabin, TORT LAW AND ALTERNATIVES (7th Ed. 2001) - available at Labyrinth, 536 W. 112th Street.
Supplementary Materials will be distributed throughout the semester - mostly through the class webpage.
Class attendance is mandatory. I expect you to have done the assigned reading for each class. Our discussions will be premised on the assumption that you have read and thought about the materials. You will not be able to follow the class discussions unless you are fully prepared each day. If you do not understand them after reading them, please bring specific questions to class, to your Teaching Assistant, or to me. I will assign problems periodically during the semester. Your TA will work on the problems in the sessions they hold with you.
I will divide the class into six on-call groups. Each day a different group will be on call. Each student may pass once during the semester for whatever reason. If you wish to pass, you may either tell me so before class, or when I call on you. Any student who is not prepared when called upon, and who has not passed may have their grade reduced one half point (see grading below).
Your grade will be based upon your performance on an in-class final exam. Should your score on the exam place you close to the border between two grades (say a B and a B+) your class participation can be used to bump you up. Should you not be prepared when called upon, and you have used up your one pass, I may drop your grade one half point should your exam place you near the border between two grades.
There are seven teaching assistants working with our section of torts. They will be available to answer your questions about issues covered in class, in problems, or in the book, and will meet with you weekly to review the material covered in class that week. Attendance at sessions with the TAs will be mandatory for the first 5 weeks of class (through the week ending Friday, October 10th). After that point, attendance is optional, but highly encouraged.
Our precise speed and the amount of time we end up spending on each unit will depend upon a number of factors that I cannot predict precisely. What I can say is that we shall move quite slowly in the first few weeks, then gradually pick up speed, and finally careen toward the finish line. To be on the safe side, you should try in your reading to stay a little bit ahead of the discussion (perhaps 10 pages ahead in the casebook); avoid getting too far ahead unless you have a photographic memory.
There are reading questions that accompany each assignment. Please keep these questions in mind as you are reading, and come to class prepared to discuss them. Your TAs will also review those questions with you in your weekly meetings with them.
We will not focus on every case assigned for each class. Sometimes one case in the assignment can be illustrative of the key points I want you to understand, and the other cases are used for comparing, contrasting, or reinforcing approaches. You must read and study them all because any one of them can be used for discussion and learning in class, and, of course, may be relevant to an exam question.
Page references to the Franklin and Rabin text are indicated in the Syllabus as "Casebook".
I. Course Introduction
Please read for our first class on Tuesday, September 10th:
"US federal government one step closer to cutting first checks to families of those killed or injured on September 11th" - National Public Radio pdf Wordperfect Word
Wednesday September 11th - Casebook pp.1-23 - Reading Questions -
II. The Tort of Negligence
Thursday, September 12th - The Negligence Principle
The Forms and Functions of Tort Law
Casebook pp. 29-37 - Reading Questions
Tuesday, September 17th- The Standard of Care
Casebook pp. 37-47 - Reading Questions
New York Model Jury Instruction on Negligence
Wednesday, September 18th - Objective and Subjective Standards of Reasonableness
Casebook pp. 47-58 - Reading Questions
Thursday, September 19th - Holmes' Reasonable Man Readings
Monday, September 23rd - Who Decides, Judge or Jury?
Casebook pp. 58-67 - Reading Questions
Further optional readings on Rules & Standards
Excerpt from Holmes' The Common Law
Tuesday, September 24th - Standard of Care - Custom
Casebook pp. 67-73 - Reading Questions
Start on Tuesday, September 24th, continue Wednesday, September 25th - Standard of Care - Statutes
Casebook pp. 73-85 - Reading Questions
Wednesday, September 25th - Proof of Negligence
Casebook pp. 85-101 - Reading Questions
No class Thursday 9/26 and Tuesday 10/1
Wednesday, October 2nd - Medical Malpractice
Casebook pp. 101-129 - Reading Questions
No class Thursday, October 3rd
Tuesday October 8th - Scope of the Duty: Nonfeasance and Duty to Rescue
Casebook pp. 130-158
Doing Good May Be No Shield When Bad Happens
Scope of the Duty: Obligation to Prevent Harm to Others
Wednesday October 9th - Casebook pp. 158-190
Thursday October 10th -
J.S. v. R.T.H.
Smith v. Sewell
Brandon v. County of Richardson
Soldier of Fortune Magazine Held Liable for Killer's Ad
New ABA Rules on Disclosure
Duty in Restatement 3d of Torts - General Principles
Tuesday October 15th - Intrafamilial Duties
Casebook pp. 214-225
Wednesday October 16th - Emotional Harm
Falzone 261-265, Buckley 270-78
Thursday October 17th - No Class
Tuesday October 22nd - Emotional Harm Continued
Portee 282-301, Baker v. Dorfman
Wednesday October 23rd - Cause In Fact
Casebook pp. 341- 368
Thursday October 24th - Cause In Fact Continued
Casebook pp. 368 - 391
Monday October 28th - Proximate Cause
Casebook pp. 399-419
Tuesday October 29th - Proximate Cause Continued
Casebook pp. 419-434
Palsgraf Record on Appeal
Marenght v. NYCTA
Wednesday October 30th - Defenses Contributory/Comparative Negligence
Thursday October 31st - Assumption of the Risk
Casebook 460-484 (up to, but not including, Roberts)
Tuesday November 5th - Negligence Questions/Review
Wednesday November 6th - Mid Term Practice Exam on Negligence
Thursday November 7th - No Class
III. Intentional Torts
Tuesday November 12th- Assault and Battery
Vietnamese Fishermen's Association v. KKK
Mink v. University of Chicago
King v. Galloway
Poliak v. Adcock
Wednesday November 13th- Intentional Infliction of Emotional Distress
Vietnamese Fishermen's Association v. KKK
Swenson v. Northern Crop Insurance
Thomburg v. Federal Express
Brandon v. Richardson County I
IV. Strict Liability
Thursday November 14th - Basic Doctrine
Casebook 498 - 520 - pp. 520-539 are optional
V. Products Liability
Monday November 18th - General Principles and Manufacturing Defects
Tuesday November 19th - Design Defects:
Potter v. Chicago Pneumatic Tool Co.
Castro v. QVC
Wednesday November 20th - Instructions and Warnings:
Burke v. Spartanics
VI. Handgun Cases - Various Approaches
Thursday November 21st - Negligence-based Approaches
Hamilton v. Accu-Tech - Trial Court
Hamilton v. Accu-Tech - NY Ct of Appeals
Monday November 25th - Product Liability Approaches
Morial v. Smith and Wesson
Hamilton v. Accu-Tech
Tuesday November 26th - Nuisance Approaches
meet at 8:50am - 10:00am in room JG 102
NAACP v. A.A. Arms
Young v. Bryko
Truman Smith v. Bryko Complaint
VII. September 11th Fund- Remedies
Monday December 2nd -
9:50-11:00 in Room 101
September 11th Victims' Compensation Fund of 2001 - the statute
Final Rules Implementing the Statute
Interim Rules - optional
Tuesday December 3rd - No Class
Wednesday December 4th -
NPR's Marketplace story on the Compensation Fund - requires RealPlayer
NPR's Marketplace story on how benefits are calculated - requires RealPlayer
North Section Reading
Middle Section Reading - pp. 25-58
South Section Reading
Thursday December 5th - Special Master Kenneth Feinberg
Monday December 16th - Review Session
Tuesday December 17th - Final Examination