Don Herzog, Professor
Case book: Tort Law and Alternatives, Franklin and Rabin, Seventh Edition
I. INTRODUCTION TO TORT LIABILITY—WHAT IS TORT LAW UP TO?
1. Tort, definition -- French and Latin, definition points to wrong-doing and twistedness. A civil wrong, other than breach of contract. For an act to be a tort, there must be: a legal duty owed by one person to another, a breach (breaking) of that duty, and harm done as a result of that action.
Examples of torts are negligence, battery, and libel.
2. Classifications for locating torts in body of law
Private Law v. Public Law. Public law, what does Congress do, what do government agencies do.
Private law--torts is part of this body, addresses wrongs done to private groups/individuals.
Substance vs. procedural law-- Torts is a course in substantive law. Not a course in how to do it, but what to do.
Civil v. Criminal law -- Criminal law conceives of a crime as an injury against society at large. First party will often be "State" or "The people". Civil law actions are between two private parties. Note: There is the possibility of suing government in its capacity as a private actor. D.A. is not involved in a civil suit.
Private, civil substantive law has three components: contracts, property, torts.
3. Tort actions concern your rights and duties in situation where you have no contractual
arrangement with anyone. Classic example: you claim to have suffered wrong from someone you
have never met.
--Tort actions come in many varieties. Large majority are made up by judges over centuries, i.e.
common law origin. Judges have to make decisions about particular situations, regarding a cause of
action. Murder is a criminal law, wrongful death is a tort action. Judges will not generally allow thnew torts, as over the 20 century legislatures have taken more of a roll in codifying law.
4. Tort law protects your person and possessions, but also intangible interests like your reputation or
privacy, and even emotional tranquility (with some restrictions). Also concerns actions that will
protect your expectations and commercial dealings. Note: There is a tort called "wrongful
interference in contracts," borderlines contract law = A is going to sell B widgets and has a contract. C comes up and says "My widgets are better" and tries to get B to go with C rather than A. May be
a tort action. Intentional torts are those situations where someone meant to hurt you.
5. Tortfeasor -- person who commits the injury. An intentional tortfeasor has malice. Otherwise,
torts are concerned with negligence rather than malice.
6. 3 typologies regarding separation of tort law
a) Intentional torts = battery, assault
b) Negligence = unintended, carelessness, you are still responsible c) Strict liability = You weren't careless, you didn't intend it, but the fact that what you did harmed another person. Example: people who had dangerous pets, like a pit bull. Products liability is current area that is most concerned with this.
7. In reality, very few injuries allow action under the law.
8. Miscellaneous torts we discussed briefly or not at all
a) Invasion of Privacy
b) Misuse of Legal Procedures
c) Interference with Advantageous Relationships
d) Familial and Political Relations, Alienation of Affection
e) Loss of Consortium
f) Fraud, Misrepresentation, Negligent Misrepresentation
9. Pattern important in law
Step One: legal rule is stated
Step Two: case-periphery principle, does core principle control or not?
Step Three: Identify the justification for the rule, does it still properly apply in the case at hand.
10. Law is uncomfortable with the straight-on liability calculation (e.g. 70% probability)
See Larson v. St. Francis Hotel and Connolly v. Nicollet Hotel
11. Two opposite structured arguments
a) the slippery-slope argument--don't take the first step down this road, or terrible things will happen
b) Genius of the common law, defensible distinctions argument
Herzog likes #2, hates slippery slope arguments.
A. VERY FEW INJURIES ARE ACTIONABLE
1. Injury (not just misfortune – someone is to blame)
-- sense of insecurity
-- others think less of you – dignitary harm, nothing to do with whether or not victim
actual feels bad
-- violation of person, emotional distress
2. Cardozo in Palsgraf: "But bodily security is protected, not against all forms of interference or
aggression, but only against some."
B. ―NOBODY’S PERFECT‖ – NICE TRY BUT NO DEFENSE
1. You will get nowhere in a tort defense by claiming that you are:
a. normally a very careful person
b. just slipped up this once
2. For instance, even if you are an extremely careful driver with a perfect record, your
carelessness on one occasion may make you liable.
C. FAIRNESS & JUSTICE THROUGH TORT LAW (PUBLIC POLICY CONCERNS)
1. Prosser – there is no doctrine, courts do what they want. Duty is the sum total of
considerations of policy. However, Herzog wants to leave us with this: There are better and
worse arguments. Too easy to say you can do what you want. There's always room to say one
side is better than the other.
a) Two types of laws: Rules vs. Standards
i. Rule = Clear and precise, not a lot of room for debate. Speed limit is 65 mph
ii. Standards = Nothing crisp about the line here and always debate.
"Drive safely" would be a legal standard.
Skeptic says there is no real law, just mush. Law can be pushed and pulled in any direction. It arises because your case books are filled with very hard cases. You will get the optical illusion that all cases are hard. This is not true. Many cases are very easy and settled out of court or dismissed out of hand by lawyer. They don't get published in case books. When there is no place for appeal, the lawyer stops. There aren't a lot of published opinions. As a practicing lawyer, you have to take the precedent seriously and trying to make best arguments you can. You can't just say "the law is mush" and decide for us because you like us better. Law is not like an intricate computer program. How to make arguments about rules and standards and the gray area in between, that is important.
2. Two perspectives on tort law
a) Private law, backward looking. What happened in past and what arises from that?
b) Tort law is really public law and it is forward-looking (The "Economic" perspective)
It puts people in the future at large on notice of what the rules are.
What incentives does tort law give you? Public policy concerns figure here.
Existence of tort law can change people's incentives and change what people do. Is this an effect?
Can we justify tort law doctrines based upon their public policy implications? Courts can change the current of social practice and opinion if they so choose.
D. TORT LAW AND ECONOMICS
1. The Doctrine of the "Cheapest Cost Avoider"--Determine who can
"right the wrong" at the least cost. Give the duty to whomever
can implement it most cheaply.
A. Terrible result: Mother in Buel case would be cheapest cost avoider.
2. Economic Theory = Richard Posner, Univ. of Chicago.
Economists think purpose of law should be the following:
WORLD ONE WORLD TWO
Jim 100 150
Jane 80 70
Tom 110 50
Dorothy 90 170
TOTAL 380 440
So second state of the world, Jim and Dorothy have enough that they
could compensate Jim and Tom for being worse off while Jim and
Dorothy are still better off. Winners could compensate the losers.
Even if they don't compensate, economists will still say world 2 is
more efficient. So Kaldor-Hicks efficiency is controversial.
a) efficiency -- getting the most output for the least input, most output
for given level of input, or least input for certain level of output
b) [Kaldor-Hicks] efficiency--way of judging social utility; application
of utilitarianism; completely insensitive to distribution concerns.
c) Pareto optimality--If you move from world one to world two,
each individual must be at least as well off as they used to be.
Example above is not pareto-optimal. However we do not sell and
buy everything (like babies), even though it would be pareto-optimal .
d) Deadweight loss--If you stay in world one, there is a Kaldor-Hicks
inefficiency of 60. But it is not indefensible to stay in world one,
even though "society as a whole" is better off.
e) Descriptive claim = Economic theorists say that tort law actually does promote KHE
f) Normative claim = And they also say that's what it should be doing.
Tort law shouldn't be promoting a lot of deadweight loss.
Some pressure in theory toward egalitarian distribution, depending on
whether you calculate in utility units. Why markets are efficient means of
distribution as opposed to central command/socialism is a source of a
long history of economic theory.
3. Big economic theory question: What is Torts law up to?
??Can argue it has theoretical underpinnings. Despite Don's misgivings, law and
economics is currently the leading explanatory theory.
?????Can argue that Torts is just a weird laundry list of actions that grew up over centuries
of common law – it has no conscious design or function
4. Pareto Optimality:
??Descriptive/Positive Criterion: A situation is Pareto optimal if it is impossible to
change it to make one person better off w/out making another person worse off.
??Normative Criterion: A change is Pareto optimal if and only if the change leaves
everyone else at least as well off as they were before the change; if someone is left
worse off, then those who gained must compensate the losers – thus, total gains must
exceed total losses if compensation requirement can be fulfilled
5. Kaldor-Hicks Efficiency:
??Descriptive/Positive Criterion: A distribution is efficient if and only if maximizes
wealth across the population – the distribution of wealth is irrelevant
?????Normative Criterion: Total gains must exceed total losses for Kaldor-Hicks
efficiency to obtain, but those who gain are not required to compensate the losers
??Deadweight Loss: difference between a distribution that is not Kaldor-Hicks efficient
and a distribution that is Kaldor-Hicks efficient
?????See Hand Formula (infra at Standard of Care; Risk; Hand Formula)
6. Coase Theorem:
??When transaction costs are zero, an efficient use of resources results from private
bargaining, regardless of the legal assignment of duties; when transaction costs are
high enough to prevent bargaining, the efficient use of resources will depend upon a
proper assignment of duties
??In the real world, transactions do have costs, so properly assigning duties is necessary
for promoting Kaldor-Hicks efficiency
7. Normative component of Law and Economics
??Adherents to law and economics (e.g., Richard Posner) argue that legal duties should
be assigned in such a manner as to produce Kaldor-Hicks efficiency (failure of Coase
Theorem indicates that efficiency depends upon assignment of duties rather than
bargaining). We learned two answers as to how assignments of duty may maximize
Kaldor-Hicks efficiency – the subsidy thesis and the cheapest cost avoider thesis:
a) Subsidy Thesis: The court should examine the importance of each party (and
similarly situated parties) to macroeconomic health; duty should be assigned in
such a way as to subsidize those operations that promote growth or are vital to
macroeconomic health – i.e., liability should be shifted away from vital sectors of
b) Cheapest Cost Avoider (officially preferred): The court should examine the costs
each party would incur to prevent injury; duty should be assigned to the party that
would incur the lowest cost (i.e., the "cheapest cost" to "avoid" the injury). If duty
were assigned to the party with higher prevention cost, then deadweight loss
8. Application to Negligence: Fero and Kansas Pacific
??Both cases involve railroads causing fires to property along the railroad. In Fero, duty
was assigned to railroad because In Kansas Pacific, duty was assigned to property
owner because Law and Econ says that courts should determine which party is the
cheapest cost avoider and assign duty accordingly
9. Application to Nuisance: Carpenter
10. General application: factors to consider in law and economics analysis
??Costs of prevention to both parties (Trains would have to stop running to end fires)
??Costs of not preventing to both parties (haystacks would burn up if no prevent)
??Litigation costs (allowing landowners to sue railroads lead to flood of lawsuits)
??Incentive effects of assigning duties (duty on trains ? haystacks doused w/ gas)
11. Objections to Law and Economics
??Too "forward-looking" – Law and Econ decides cases based upon the expected
outcome that a duty assignment will cause – i.e., how will this decision impact the
actions of others, e.g., railroads and property owners. According to critics, judges
should, on the other hand, decide cases based upon the individual case rather than
subsuming the just outcome for the parties at hand to the wealth-maximizing
consequences preferred by Law and Econ. In other words, it is improper to use the
courts as an instrument of social policy rather than as a forum for resolving disputes.
a) Related criticism: Law and Econ can give a good reason for making Ds pay when
they breach a duty assigned by Kaldor-Hicks efficiency considerations – this
gives D the incentive to comply with such a wealth-maximizing duty. However,
Law and Econ cannot provide a satisfactory reason for why the P is paid for this
breach (i.e., the incentive would be just as effective if damages were paid, e.g., to
the government) – those who have been wronged hold a very precarious position
under a Law and Econ theory unconcerned with distributive questions.
b) Related criticism: Law and Econ. Presumes judges can make maximally
beneficial social policy. But judges are not trained in economics, and only have
the facts from the case at hand to work with. Moreover, courts only have limited
power to affect social policy.
E. FORESEEABILITY IS NOT EVERYTHING
1. See Waube v. Warrington. The answer to the question of whether court should expand duty of user of highway to third parties who view a loved one being killed or injured "cannot be reached
solely by logic, nor is it clear that it can be entirely disposed of by a consideration of what the D
ought reasonably to have anticipated as a consequence of his wrong."
2. Situations where there is a foreseeable risk but no duty.
A. Boat owner who was not liable for the 19-year-old's death when
he dove in water from D's boat.
3. Situations where there is a duty but no foreseeeable risk.
3. However, the risk reasonably to be perceived defines the duty to be obeyed, per Palsgraff.
II. INTENTIONAL HARM
A. BASIC DOCTRINE
?Punitive damages may be assigned for intentional torts.
?Insurance considerations: Parents are not generally liable for the harms inflicted by their
children. But there are exceptions, such as when parents are on notice of the child's tendencies
and know or should know that an occasion has arisen calling for their exercise of control.
?Victim compensation studies: Vast majority of valid intentional tort cases founder on the
insolvency of the perpetrator. What is the fairness of this?
a) Restatement (Second) of Torts: Intent requires "that the actor desires to cause
consequences of his act, or that he believes that the consequences are substantially certain
to result from it."
b) Continuum = negligence through recklessness to intent.
c) Subjective/Specific: Actor intends the contact
i) Vosburg: boy intends kick (a harmful or offensive contact) but not the specific
harm that occurred ? liable for battery and subsequent severe physical
consequences even though the specific consequences were not intended
d) Subjective/Substantial Certainty: Actor is substantially certain that her volitional act
will result in contact. But high likelihood (recklessness) is not enough.
i) Garratt: Child moving a chair a woman later attempts to sit in could constitute
battery (even though child did not have the specific intent to cause harm) if
the child was substantially certain that harm would result
ii) Don's bottle-cap scratching: Don not substantially certain harm will result
e) Transferred: intent to commit battery against one person, but accidentally contact third
party while committing act ? battery against third party
f) Capacity – Children and insane persons can have the intent required to establish a
claim for an intentional tort
(See Garratt for discussion of child's liability, Williams v. Kearby, p. 871, for a
discussion of insane person's liability)
2. Assault and Battery
a) Assault -- an intentional threat, show of force, or movement that could reasonably
make a person feel in danger of physical attack or harmful/offensive physical contact.
Assault is the intentional causing of an apprehension of harmful or offensive contact.
i. Intention to cause apprehension of imminent harmful or offensive contact and
ii. Would a reasonable person fear the harm or apprehend the action as potentially
harmful or offensive?
iii. If you know that potential victim of assault has some idiosyncratic sensibility,
this is a tort action.
You have some legal room, but everyone does not have to kow-tow to all your
iv. Apprehension is belief that the harmful action is to come, even if you don't
really fear the person threatening.
v. People should induce belief that they are going to try to hurt you.
vi. Offensive means "related to reasonable sense of personal dignity."
vii. Conditional threats, even if unjustifiable, were not traditionally considered
viii. Cf. Alcorn v. Mitchell's spitting incident for a precedent where actual
physical harm does not occur.
ix. Words alone not enough without surrounding circumstances or past behavior
to go toward apprehension of imminent contact.
x. Threat to 3rd parties not enough, must be to own person.
b) R2T Definition:
"An actor is subject to liability to another for assault if
"a) he acts intending to cause a harmful or offensive contact with the person of
the other or a third person, or an imminent apprehension of such a contact, and,
"b) the other is thereby put in such imminent apprehension”
??Apprehension: perception or comprehension (of imminent contact)
i. Judged from the perspective of the plaintiff/assaulted
Subjective: plaintiff must feel apprehension
Objective: such apprehension must be a reasonable response to the action
ii. Apprehension is not equated with fear – a weightlifter can be assaulted by a
iii. Examples of apprehension
a) Allen: P's apprehension pursuant to having an unloaded gun pointed at her
was reasonable given that she did not know that the gun was not loaded
b) Doe: priest approaches P during the sign-of-peace portion after earlier
battery/sexual assault of P by priest. Ct. not dismiss case because P's
apprehension of offensive contact might be reasonable
iv. Not examples of apprehension
a) Grabbed from behind w/o prior warning – this is probably a battery (see
b) Fake punch from behind
??Imminence: Apprehension must be of imminent contact for assault to have occurred
i) Threats of future action are not imminent
Doe: proposed meeting with D. not sufficiently imminent
Threatening to drive across town to get a gun not sufficiently imminent.
ii) Conditional Threats are generally not assault.
iii) Threatening words alone are usually insufficient to establish assault.
"I would kill you if it wasn't harvest" is not imminent
Cannot say, "I'll kill you if you make a move" ? imminence
??Harmful/offensive (see below)
???????Contact - What constitutes it? Weird questions of social contact must be considered.
Your shirt that you are wearing is contact. Your wheelchair is contact. Your
horse that you are riding may qualify. A subway that you are riding is not
??Intent (see topic above)
d) Battery -- "The intentional infliction of a harmful or offensive bodily contact."
i) If the act is done without intent, the actor is not liable even if he has been
In these cases, the insult is to be weighed more than the injury to because that is
the real harm that would induce fighting.
ii) Knowledge of the unpermitted conduct is not required.
Thus, "A kisses B while asleep but does not waken or harm her. A is subject to
liability to B.
iii)The protection goes beyond direct contact with the person.
It also covers "anything so closely attached [to the plaintiff's person] that it is
ustomarily regarded as a part thereof and which is offensive to a reasonable sense
of personal dignity."
For example: striking a person's walking cane, striking the horse that the person is
riding, grabbing at a person's dinner plate.
iv) Transferred intent applies to offense of battery.
v) Some states have statutes that make a person liable for insults, which in their
common use tend to incite violence and a breach of the peace.
These statutes are probably to be construed narrowly, applying to only those
words which might make the particular individual retaliate because they might be
unconstitutional under the First Amendment otherwise.
e) R2T Definition:
An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of
another (or imminent apprehension), and
(b) a harmful contact with the person of the other directly or indirectly results
(c) an offensive contact with the person of the other directly or indirectly results
??Contact: contact with the person of another
i. Formalism: Formalistic rendering of "contact" (i.e., physical touching) works
fine in clear cases of (e.g., kick in Vosburg, spit in Alcorn)
a) May justify a questionable battery such as Leichtman (smoke was able to
make "physical" contact as it was particulate matter)
b) Seems counterintuitive in some cases (secondhand smoke)
c) Needs to be stretched in others (dig a hole for person to fall into)…
ii. Penumbral Cases:
a) Temporally/Physically-Displaced Contact: Garratt: court moving a chair a
woman later attempts to sit in constitutes contact, even though no touch
woman (part of the woman's person? Removal of an impediment to contact?)
b) Secondary Contact (stretching meaning of person): Objects in a person's
possession (e.g., cane, wheelchair, clothing) are a part of the person. Picard:
touching a camera held by P constitutes battery – the camera partook of the
inviolability of the P's person
c) Anti-formalist: contact requirement should be relaxed to accommodate
obvious cases of battery that do not fall within formalist conception of contact
(e.g., poison gas)
??What is offensive contact?
i. Definition: Contact which is offensive to a reasonable (see #2, infra.) sense of
personal dignity (Leichtman)
a) Offensive: disagreeable or nauseating or painful because of outrage to taste
and sensibilities or affronting insultingness (Leichtman)
b) Reasonable ? normative and factual/empirical inquiry
Normative (Miss Manners inquiry): What ought to offend personal dignity?
Or, what ought to be permissible?
Factual/Empirical (anthropological inquiry): What generally (or on average)
does offend personal dignity? What is permissible in the community?
Potential undesirable consequences – e.g., what if majority believe that
groping women (w/out consent) is not offensive contact?
Precludes unduly sensitive people from recovering
a) Leichtman: deliberately blow smoke into another's face constitutes battery
b) Alcorn, spitting into another's face constitutes battery
c) Wishnatsky: Pushing a door closed on P. is not offensive even though P.
offended because P. "unduly sensitive."
Contact would not offend the "ordinary person”
"ordinary" probably signals a normative inquiry
iii. Special Knowledge exception: tortfeasor not absolved of liability if had special
knowledge that the recipient of the contact would find the contact offensive.
g) Policy Concerns
??Purpose of tort of battery – protection of physical integrity/autonomy of person
??Provides nonviolent outlet for recourse when harmed/offended (more relevant in the
past?), thus protecting social order
?????Egg-shell skull rule may lead to a considerable disparity between a tortfeasor's moral
blameworthiness and legal responsibility
??Purpose of the tort of assault – Persons "have a right to live in society without being
put in fear of personal harm" (See Allen)
3. Intentional Infliction of Emotional Distress
a) I.I.E.D. = a tort of outrage. There is a parallel negligence tort, which is extremely hard
to win. Normally the law wants intention to be an aspect.
This tort is the intentional or reckless infliction, by extreme and outrageous conduct,
severe emotional/mental distress.
i. Some courts have permitted IIED claims to lie in cases of racial insults and
ii. Title VII.
-sexual harassment claims by women
-sexual harassment claims by men
-harassment in schools, Title IX
iii. credit collection practices
b)?R2T Definition: "[O]ne who by extreme or outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such bodily harm.”
i. Subjective/Specific: Actor intends to cause the emotional distress
ii. Subjective/Substantial Certainty: Actor is substantially certain that her volitional
act will result in emotional distress
iii. Objective/Reckless: a reasonable person would have or should have known that
the action would likely cause "serious" emotional distress (Womack)
iv. Lower threshold than in assault/battery – includes reckless behavior
v. Examples: Womack: Taking a man's photo for use in a child molestation case in
which he has no connection counts as intent because a reasonable person would
have or should have known serious emotional distress is likely to result
vi. Transferred intent does not apply here.
i. Definitions (atrocious, intolerable, and outside all bounds of decency)
a) R2T: "The case is one in which the recitation of the facts to an average
member of the community would arouse his resentment against the actor, and
lead him to exclaim, 'Outrageous!’”
b) Actions that "go beyond all possible bounds of decency" (Russell)
c) Conduct that is "atrocious and utterly intolerable in a civilized community"
d) Actions that "[offend] against…generally accepted standards of decency and
morality" (see Womack)
ii. Factors (some)
a) Time: time over which conduct/suffering took place
b) Relation: if D in position of authority over P, conduct may be more
i. Hamaker citing Hess: City Director's influence over city employees ?
ii. Jones: no finding that Clinton's authority made conduct more outrageous
c) Special Knowledge: D knows that P is particularly susceptible/sensitive to
i. Nickerson: D knows P was in insane asylum ? conduct more