1. Studies in American Tort Law
Fifth Edition
Vincent R. Johnson
Copyright © 2013 Vincent R. Johnson All Rights Reserved

2. Focus: Rules, Process, Policy
Course Goals
Knowledge of substantive rules and acquaintance with the legal topography
Facility with the interplay of law and fact
Understanding of how tort law changes
Appreciation of the relationship between common law and statutes
Focus: Rules, Process, Policy
Copyright © 2013 Vincent R. Johnson All Rights Reserved

3. Preliminary Observations
Largely a common law subject
Concerned with the costs of accidents – past and future
Categories:
Intentional injury
Failure to exercise care
Encompassing recklessness and negligence
Strict liability
Remedies:
Damages, injunctions, restitution, self-help
Realities:
Settlement, cross-claims, contingent fees
Copyright © 2013 Vincent R. Johnson All Rights Reserved

4. Competing Public Policies
Base liability on fault
Limit liability in proportion to fault
Deter accidents
Spread losses broadly
Shift losses to deep pockets
Reconcile burdens with benefits
Foster predictability
Facilitate progress and economic growth
Promote administrative convenience and efficiency
Discourage the waste of resources
Accord due deference to co-equal branches
Fully compensate victims
Copyright © 2013 Vincent R. Johnson All Rights Reserved

5. Bases of Liability Liability based on Fault: Liability without Fault:
Intentional Torts
Recklessness
Negligence
Liability without Fault:
Strict Liability
Copyright © 2013 Vincent R. Johnson All Rights Reserved

6. Liability Based on Fault
Intentional Injury:
Purpose – subjective desire to cause a forbidden result
Knowledge – “substantial certainty” that a forbidden result will occur
Recklessness:
Subjectively defined: conscious disregard of a serious risk
Objectively defined: risk totally disproportionate to utility
Negligence:
Conduct posing an unreasonable risk of harm
Copyright © 2013 Vincent R. Johnson All Rights Reserved

7. Intent
Two Varieties:
Purpose – subjective desire
Knowledge – “substantial certainty”
Either is sufficient to establish an intentional tort.
Copyright © 2013 Vincent R. Johnson All Rights Reserved

8. Carelessness Two Varieties:
Negligence – ordinary lack of care
Recklessness – extreme lack of care
In some states, recklessness is called “gross negligence.”
Copyright © 2013 Vincent R. Johnson All Rights Reserved

9. Strict Liability What Makes Liability Strict?
Weakening or Eliminating the Usual Requirements of “Fault,” Namely Foreseeability or Blameworthy Conduct
There are Different Varieties of Strict Liability
Some a More “Strict” Than Others
Copyright © 2013 Vincent R. Johnson All Rights Reserved

10. Consequences of Classification:
The classification of a tort as intentional,
reckless, negligent, or strict liability has a
bearing on:
Scope of Liability
Punitive Damages
Defenses
Respondeat Superior
Insurance
Immunities
Worker’s Compensation
Statutes of Limitation
Bankruptcy
Copyright © 2013 Vincent R. Johnson All Rights Reserved

11. Contributory Negligence and Assumption of the Risk
Failure to exercise reasonable care on one’s own behalf
Assumption of the Risk:
Voluntary confrontation of a
Subjectively appreciated danger,
With no expectation that defendant will exercise care
Copyright © 2013 Vincent R. Johnson All Rights Reserved

12. Effect of Contributory Negligence:
At Common Law:
CN could be raised as a defense only in a negligence action and was always a 100% bar to liability.
Under Comparative Negligence:
CN is no longer always a 100% bar.
Under Comparative Fault:
CN is no longer always a 100% bar and may be raised in actions other than negligence, except, typically, suits based on intentional wrongdoing.
Copyright © 2013 Vincent R. Johnson All Rights Reserved

13. Comparative Principles
Two Varieties
Pure:
P’s Recovery is Reduced by P’s Percentage of Negligence or Fault
Modified:
If P is < 50%: Reduced Recovery
If P is > 50%: Zero Recovery
50-50 Case: Depends on Phrasing of State Law
Copyright © 2013 Vincent R. Johnson All Rights Reserved

14. Effect of Assumption of the Risk:
At Common Law:
AR (or its counterpart, consent) could be raised in any action and was a 100% bar to liability.
Under Comparative Principles:
AR is sometimes a 100% bar to liability and sometimes only reduces recovery (because in those cases it is “merged” with comparative negligence or comparative fault).
Copyright © 2013 Vincent R. Johnson All Rights Reserved

15. Liability Insurance Not all defendants have it
#15
Liability Insurance
Not all defendants have it
Ordinarily cannot be mentioned to the jury
Coverage is limited in amount
Certain types of harm are excluded
May cover persons other than the purchaser
May include a duty to defend
Some policies are self-liquidating
Insurer has right to accept or reject settlement offers
Insurer must exercise reasonable care in settling
Copyright © 2013 Vincent R. Johnson All Rights Reserved 15

16. Insurance Hypothetical
#16
Insurance Hypothetical
P is injured in “slip and fall”
D has $10,000 of insurance
P demands $9500
Jury is likely to find P contributorily negligent
Jury rejects contributory negligence argument and finds D liable for $20,000
Is the insurer liable in excess of policy limits?
Copyright © 2013 Vincent R. Johnson All Rights Reserved 16