TORTS SYLLABUS FALL 2016 Professor Eugene D. Mazo George Mason University Antonin Scalia Law School

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1 TORTS SYLLABUS FALL 2016 Professor Eugene D. Mazo George Mason University Antonin Scalia Law School

2 TORTS Professor Mazo Fall 2016 SYLLABUS Introduction This course examines the law governing civil liability for personal injury. The torts we will cover are both intentional and accidental. They include assault, battery, trespass, infliction of emotional distress, negligence, and actions arising from medical malpractice, unusually dangerous activities, and defective products. We will distinguish between three broad categories of torts: intentional torts, negligence, and strict liability. We will also learn about defenses to torts actions. Our casebook for the course will James Underwood, Torts Law: Principles in Practice (Wolters Kluwer 2014). In addition to the materials covered in the casebook, I will from time to time post other materials for you to read on TWEN. Although they are not mandatory, you may find other books to be a helpful to your learning process. These are not required, and there are no readings assigned from them, but you may wish to look through these books on your own to further your understanding of the material we are covering. I have order copies of Joseph W. Glannon, The Law of Torts: Examples and Explanations (5th ed. 2015). I also recommend Edward J. Kionka, Torts in a Nutshell (6th ed. 2015). Finally, a small paperback, Kenneth Abraham, The Forms and Functions of Tort Law (4th ed. 2012), provides a more advanced summary of our subject matter. Each of these additional books can be purchased online, in used condition, and at little cost. This course has several goals. The first is to familiarize you with the current concepts and doctrines in the field of tort law, including the elements of several of the most important tort causes of action. The second goal, which is also a goal of the entire first-year curriculum, is to introduce you to the techniques of legal reasoning. At the end of the course, you should be able to identify the elements of intentional tort, negligence, and strict liability actions and to know the defenses for each. The third goal is for you to gain an understanding of the public policy considerations that underlie our tort system and an appreciation for how judges fashion decisions in light of these. Administrative Matters Class Schedule: Our class will meet Monday and Wednesday evenings from 6:00 p.m. to 7:50 p.m. in Hazel Hall. I will start class promptly at 6:00 p.m. and will do my best to end on time. Please do your best not to be late. Being a professional includes consistent timely attendance. Attendance and Participation: I expect that all students enrolled in this course will attend our class and participate regularly. If you need to be absent or late, please send me an ahead of time to let me know the reason. Given that this is a course in which we are aiming to improve your critical thinking skills, I may call on members of the class and ask you to answer questions about the readings or about what we are studying. If you are unprepared or do not know the answer, you may simply say pass or I don t know the answer. I will then call on someone else. If you 2

3 take too many passes, I may ask that we speak outside of class. If two students in a row take a pass, the third person I call on will not be able to use this exit and must answer the question. So, please be considerate of your colleagues in the room. If you are making a serious effort, I won t care what you think about the material, but I care that you think something. I want you to articulate that something and elaborate on it. I will be interested in the position you are taking and in your ability to make a thoughtful argument for it, no matter what side of the debate you are on. Office Hours: My office hours are Mondays from 4:00 to 6:00 p.m. I generally have an open door policy and you are free to see me any time I am in my office, although if I am preparing for class I may ask you to come back at a later time. I will also stay in the room after each class to answer any questions you may have. Finally, you are also welcome to schedule an appointment to see me by ing me, which will guarantee that I will be in my office and can see you when it is more convenient for you. My office is in Hazel Hall, Room 306. My address is emazo@gmu.edu. My office phone number is (703) Please feel free to contact me at any time with your questions about our class and/or about what we are reading and learning. Laptop Policy: Professors find that class momentum is harmed when they call on a student unexpectedly and he or she has no idea what the question is because he is distracted by a computer screen. Thus, while I will allow the use of laptops for taking notes, organizing them, and assisting in a student s preparation for the final exam, I reserve the right to prohibit laptops from our classroom if students are using them for inappropriate purposes during class time. You are all being put on notice that your use of a laptop in this course depends on not abusing this privilege. TWEN: This is a service hosted by Westlaw that will function as our class listserv and webpage. I will from time to time post additional course materials on TWEN for the whole class, which you can download and read on your own.. You should learn how to use this service. Examinations and Grading: You will be given an optional midterm exam in this course. The midterm will consist of multiple choice questions and essays. It will be ungraded, and I will review the answers with you in class. It is meant to be a learning exercise and to introduce you to law school examinations. Whether you take it is up to you. Your final course grade will be determined by one final examination. This is mandatory, will be approximately four hours in length, and will consist both of multiple choice questions and of essays questions, with each comprising roughly half of the examination. Ninety percent (90%) of your grade will be based on the final exam, and 10% will be based on class participation. After the final examination is completed, I reserve the right to adjust a student s grade up or down to reflect excellent (or poor) class participation. The Readings When doing the readings, please focus on the principle cases that follow each assignment. Following each case in the text there are often questions, and you may read through them as well. I reserve the right to change the readings or to slightly alter the syllabus during the semester if it becomes evident that certain readings should be added (or omitted) for pedagogical purposes. 3

4 Assignment # Topic Description Readings 1 Introduction to Torts Intentional Torts: Battery Intent and Offensive/Indirect Contacts 3 Scope of Liability Single vs. Dual Intent Debate 4 Assault The Elements Transfer of Intent 5 False Imprisonment The Elements Shopkeeper s Privilege 6 Trespass To Land Personal Property 7 Intentional Infliction of Emotional Distress Outrageous Conduct 8 Severe Emotional Distress Constitutional Protection 9 Defenses to Intentional Torts Consent 10 Defense of Self, Other, and Property Necessity Negligence: The Duty of Reasonable Care

5 The Objective Standard Actual & Constructive Knowledge 13 The Reasonable Person under the Circumstances Extraordinary Knowledge Physical Disability Mental Disability 14 Children Extraordinary Danger Sudden Emergency 15 Proving Breach of Duty The Learned Hand Formula Negligence Per Se 16 Custom Res Ipsa Loquitor 17 Recklessness as an Alternative Standard Causation Actual Cause: The But For Test Multiple Sufficient Independent Causes 19 Alternative Liability Increased Risk of Future Harm Loss of Chance 21 Proximate Cause Introduction The Direct Cause Test 22 The Foreseeability Test

6 The Substantial Factor Test 23 Superseding vs. Intervening Cause Special Duty Rules The Duty to Act: Act v. Omissions Special Relationships Compelling Action 25 Rescuers Firefighters 26 Duty to Protect Third Parties Heath Care Workers Employer-Employees 27 Duty Limited by Nature of Harm Emotional Distress 28 Mere Economic Harm Wrongful Pregnancy, Life, and Birth 29 Primary Assumption of Risk Duty Based on Victim s Status Trespassers (Adults & Children) 31 Licensees Invitees Time as Trigger of Duty Open and Obvious Dangers 32 Duty to Protect from Crime Modern Rejection of Three Categories 33 Duty Based on Defendant s Status: Professionals Professional Standard of Care 6

7 34 Informed Consent Limitation s on Professional s Duty 35 Affirmative Defenses Contributory Negligence & Comparative Fault 36 Assumption of the Risk Secondary Implied Assumption of the Risk Immunities Sovereign Immunity 39 Spousal & Parental Immunity Statutes of Limitation and Repose Actual Damages Special Economic Damages 42 General Non-Economic Damages Review of Jury Awards 43 Per Diem Awards Day in the Life Videos Hedonic Damages 44 Wrongful Death & Survival Claims Property Damages 45 Limitations of Actual Damages Failure to Mitigate Collateral Source Rule Statutory Limits 46 Nominal Damages Punitive Damages 7

8 When Permitted 47 Amount of Punitive Damages Apportionment of Damages Joint & Several Liability 49 Several Liability: Rejection of Joint & Several Threshold Level Joint & Several 50 Apportionment with Absent of Immune Actors Negligent Enabling Equitable Doctrines Creating Joint Liability Vicarious Liability Employees vs. Independent Contractors 53 Course and Scope of Employment Concert of Action Pulling It All Together 55 Strict Liability Unusually Dangerous Activities 56 Wild and Trespassing Animals Products Liability [if time allows] 8