September 08, 2011
Emotional Distress Claims: Still Limited
In early 2010, a SeaWorld trainer, Dawn Brancheau, drowned during a public session ("Dinner with Shamu"). Among the members of the audience were Suzanne and Todd Connell and their son, who all witnessed the drowning and were, understandably, traumatized by the experience. The Connells filed suit against SeaWorld on behalf of their son (and, I think, themselves) for both intentional and negligence infliction of emotional distress.
Last week, a Florida judge dismissed their claims with prejudice, finding that they had failed to allege outrageous conduct by the park (for the intentional claim) and that they had failed to show any precedent supporting a negligence claim for purely emotional distress when the plaintiff was "a complete stranger to the injured party."
Since we're starting IIED in the next week or so in my Torts class, and the boundaries of emotional distress claims generally are a foundational theme to the class, it's a compelling set of facts for me -- and perhaps for you.
I'm trying to get a copy of the opinion and will post it here if so.
Here's the opinion: Download SeaWorldIIED [PDF].
August 23, 2011
Goldberg's Book for 1Ls
TortsProf John Goldberg and Barry Friedman have written a primer on succeeding in the first year of law school. Entitled Open Book: Succeeding on Exams from the First Day of Law School, it is available here.
Here are the reviews and description:
I would definitely recommend this book. It gives great advice to students who have no idea what to expect when they take their first law school exams. --Cynthia L. Fountaine, Dean and Professor of Law, Southern Illinois University School of Law
No book is a guarantor of better results, but this one would certainly help the majority of students to add points to their exam results, and some students could literally turn their performances around by following the advice of this book. --Michael D. Murray, Associate Professor, Valparaiso University School of Law
- High-profile, experienced authors from elite schools with hands-on experience teaching the majority of the courses in the traditional 1L curriculum
- Distinctive central pedagogy: the pinball method of exam-taking
- Accompanied by Web site with content that is both free (e.g., sample outlines, class notes, case briefs) and for-sale (e.g., sample exams and memos written by professors giving feedback on the answers).
- Explains to students not just the how but the why of law school exams what makes law school exams different from exams students have encountered in other settings
- Detailed examples provide concrete demonstrations of exam-taking techniques
- Highly readable: prose is straightforward and humorous; key points accented with memorably amusing illustrations Not just an exam prep book; students are offered guidance on getting the most out of classes, and law school more generally.
I've glanced through the book, and it looks great.
August 04, 2011
Battery, Assault, Or Just A Request for Courtesy?
The element of intent in battery, assault, and other intentional torts is one of the trickier concepts to teach.
Now, via the Facebook page for the finest theaters in the land, Alamo Drafthouse, comes the story of Dale Fout and Brenda Godwin, who were both at a Dallas area theater (not the Alamo).Fout received a text and looked at it during the movie. Godwin, annoyed, tapped him on the shoulder and asked him to put it away. Fout responded...strongly, we'll say, telling her never to touch him and calling the police who, at his request, issued a citation for assault.
While you contemplate whether the facts would support a civil claim for battery, enjoy the Alamo's outstanding (if not for kids) presentation of a voicemail it received from a woman who was kicked out for texting during a movie:
May 11, 2011
Favorite Student Comment on My Exam Style
Yesterday as one of my 1L's was preparing to take my Torts II exam, he shared a comment from one of my former students:
"Robinette doesn't hide the ball. He dumps you into a ball pit and laughs."
April 06, 2011
Harvard Torts Exams (1871-1998) Available Online
Okay, actually Harvard made all the exams available, but we care about those in Torts. Here's the link. Thanks to Kyle Graham (Santa Clara) for the tip. Kyle also notes the earlier exams focused more on intentional torts than negligence, which doesn't surprise me given the character of tort law at that time.
March 26, 2011
Loyola-LA Seeking Torts Visitor
Loyola Law School, Los Angeles, is seeking a Torts podium visitor for Spring 2012. Please contact Associate Dean Sean Scott at email@example.com or at 213.736.1054 if you are interested.
March 24, 2011
Battery and Other Torts and STDs
Via Day on Torts comes this California appellate court decision (PDF) addressing a question frequently addressed in Torts books regarding consent and so on -- the liability of a partner for transmission of an STD in an otherwise-consensual sexual relationship. The opinion, while affirming liability for the plaintiff, also reduces the damages.
March 03, 2011
Off to Cincinnati
I am heading to Cincinnati with the Western New England team for the Rendigs National Products Liability Moot Court competition, so I haven't had a chance to get posts together. But (a) you might enjoy reading the problem and briefs, and (b) I'd encourage you to bring a team in the future if you don't already. It is a well-run competition with generally solid problems (often reflecting very current issues) and judges.
(And I don't just say that because we won the national championship in 2009.)
September 30, 2010
Teaching Torts with Sports
Adam Epstein (Central Michigan College of Business) has posted to SSRN Teaching Torts with Sports. The abstract provides:
The purpose of this paper is to offer a pedagogical road map for an alternative way to engage students when arriving at the torts portion of the business law or legal environment course. It is designed to encourage utilizing sports cases and sport-related videos when teaching torts which can be effective and energizing. My research demonstrates that the prominence of sports related tort cases and examples are much more apparent in the negligence and intentional tort categories than in products liability or strict liability. More specifically, an effective way to relate the concept of negligence in sports is in the context of flying objects such as foul balls, bats, and hockey pucks. Incorporating intentional torts and sports usually begins with hits after the play, a pitcher intentionally hitting the batter, and the incidents of violence involving participants, fans, referees, coaches and parents. One of the best examples of products liability is the safety debate between using wooden baseball bats in professional baseball and the metal or aluminum bats in college baseball. Strict liability involving ultra-hazardous activities has its place for discussion in sports torts, but the breadth of litigation on the subject is clearly the least common of the four major tort categories rendering it virtually non-existent. Instructors are given hints as to how to engage students with sports torts regardless of their educational generation. Contemporary and classic cases are provided as examples.
August 16, 2010
Back To School
It's "back to school" week here at Charleston. As we all gear up for another school year, I thought I'd pose a question: Are you trying anything different this year?
A couple of my colleagues are experimenting with lap-top free zones in their 1L classes. I decided not to join the experiment mainly because we require students to purchase lap tops and it seemed inconsistent for me to then say "but not in my class." I am, however, giving a graded mid-term for the first time in Professional Responsibility. (I give my 1Ls an ungraded mid-term).
So, back to the question, are you trying anything different in your classes this year?
June 29, 2010
Retroactive Grade Inflation
Seriously. From the New York Times:
One day next month every student at Loyola Law School Los Angeles will awake to a higher grade point average. But it’s not because they are all working harder. The school is retroactively inflating its grades, tacking on 0.333 to every grade recorded in the last few years. The goal is to make its students look more attractive in a competitive job market.
Thanks to Kate Schaffzin for the tip.
June 25, 2010
Bernstein on Torts Pedagogy
Anita Bernstein (Brooklyn) has posted to SSRN Teaching Torts: Rivalry as Pedagogy. The abstract provides:
This contribution to a Tort Law Academic Workshop considers the ‘twin themes’ pervading torts pedagogy in the twenty-first century: (1) teaching torts for global practice and (2) teaching the common law in an age of statutes. Manifested at both transnational and national levels, the two themes have in common what may be understood as rivalries, where contrary rules and stances compete for power. The article explores illustrations of this competition that emerge in an American torts classroom, with attention to the interest that a ‘pedagogy of rivalry’ might hold for torts teachers and scholars working within common law systems outside the United States.
June 15, 2010
2010 Wacky Warning Labels Finalists
Never operate your speakerphone while driving," warns a label on a product called "Drive 'N' Talk." A motorized go-cart helpfully warns consumers that "this product moves when used." A bottle of swine growth supplement called "Piglet Blast" cautions, "For animal use only." The Bluetooth headset alerts its users that "use of a headset that covers both ears will impair your ability to hear other sounds." And a pair of swim goggles alerts users to the risk of pulling them away from the face, lest they "spring back and cause injury."
If you wish to use these in class, you can download pictures of the products here.
May 26, 2010
Popper's "Tort Reform" in Text Format
Earlier Andrew Popper's "Tort Reform" book received publicity both here at TortsProf (Sheila) and at the VC(Todd Zywicki). West has now announced that it will be available not only in electronic format (as originally advertised), but also as a traditional text (in paperback). It will be available in time for the fall semester.
April 07, 2010
Redesigning the Torts Course
Over at Prawfs, Erik Knutsen (Queen's University) has a provocative post arguing that first-year Torts should be taught as "Injury Law," focusing heavily on insurance principles.
March 02, 2010
Torts Visitor Opening at FIU
From Howard Wasserman (FIU) comes news of a torts visitor opening at Florida International University in Miami:
Florida International University College of Law invites
applications from candidates for one or more visiting
faculty positions beginning in Fall 2010. Areas of
curricular preference include Property, Criminal Law,
Torts, Environmental Law, And Trusts and Estates. Visits
could be for either the fall or spring semester or for the
ABOUT FIU COLLEGE OF LAW:
Part of Miami's public research university, the College of
Law is a dynamic urban law school with approximately 600
students. FIU College of Law was established in 2000,
enrolled its first class in 2002, and currently has 30
full-time faculty members. In the spring of 2007, the FIU
College of Law moved into a new state-of-the-art building
at the heart of the main university campus. Over the past
two years, our FIU on-campus community has been enriched
through the addition of a new medical school and the
construction of the Frost Art Museum.
The FIU community and the College of Law are strongly
committed to the pursuit of excellence and the goal of
ensuring opportunities within the legal profession for
individuals who represent different groups as defined by
race, ethnicity, gender, sexual orientation, socioeconomic
background, age, disability, national origin, and religion.
Applicants should have a J.D. degree; applicants with
additional advanced degrees are also encouraged to apply.
Applicants must possess a strong commitment to teaching and
a record or the promise of outstanding scholarship.
Applicants interested in joining the FIU College of Law
faculty as a visiting faculty member should send a cover
letter expressing interest and a resume to:
CONTACT: Associate Dean Joelle Moreno
Chair - Faculty Appointments Committee
Florida International University
College of Law
11200 S.W. 8th Street
Miami, FL 33199
You may also send application materials electronically to
For more information, please visit our website at:
Florida International University encourages applications
from candidates who would continue to enhance the diversity
of our College of Law faculty and university community and
does not discriminate on the basis of race, color, national
origin, ancestry, sex, disability, religion, age, sexual
orientation or veteran status in its education and
employment programs or activities. FIU is also a member of
the State University System and an Equal Opportunity, Equal
Access, Affirmative Action Employer.
February 22, 2010
Bernstein on "Pervading"
Honored to be here for a guest post. In choosing my topic, I’ve decided to forgo the chance to, ahem, promote my own recent torts publications and instead write in response to the request I’ve heard most often from colleagues over the years: Any suggestions of how a Torts instructor can integrate professional responsibility or legal ethics into this course?
This question broaches the pervasive method. Professional responsibility folks have long debated the issue of venue: Should this subject occupy its own course, or instead pervade a larger curriculum? I’ve expounded on the issue elsewhere, referring to the pioneering pedagogy that Deborah Rhode staked out decades ago. For now let’s assume that you are interested in making occasional references to legal ethics or professional responsibility issues as they are presented by the material you cover in your Torts class.
Disclaimer: I am not necessarily advising you to do so. Everything we put into our classes displaces something else we could do with the same unit of time. No matter which political ideologies we hold, we all believe in the microeconomics tenet of scarcity!
That said, it’s nice to gain an option. So I’ve gathered a half-dozen torts-and-professional- responsibility points that won’t demand too much preparation effort or time in class. They have the almost paradoxical virtue of making what you do in class more theoretical and more hands-on practical. You can emphasize either aspect.
1. The contingent fee. Whenever your text includes a case with a plaintiff who appears to lack wealth, you can tell students how personal injury lawyers typically get paid for their work. From there, mention ethics issues that accompany the contingent fee, which is an attorney’s gamble that prosecuting a tort claim for a client will pay off. And from there…
2. … you can introduce conflicts of interest between lawyer and client by asking which conditions would make a lawyer want to settle while a client wants to press on toward trial. Then ask what would make a lawyer want to go to trial while the client prefers fast cash. You might be surprised—at least I’ve been surprised—to hear first-year students argue that the lawyer’s preference should prevail.
3. Truth versus partisanship. Do plaintiffs tell the truth under oath about, say, their own lack of comparative negligence? For scrutiny of the other side of the caption, you can use cases involving entity defendants, which invite attention to concealment of evidence and well-financed stonewalling.
4. Solicitation. Students often don’t know that a lawyer may not approach an injured stranger and offer to represent this person in pursuit of legal redress for the injury. I’ve long been fascinated by this prohibition (and have explored what it has, and doesn't have, in common with the criminalization of solicitation in the context of street prostitution). The ban seldom emerges from cases in a Torts text, but you can often find it just below the surface. For example, in the book I now use, one decision speaks disparagingly of plaintiffs’ experts, implying that they had tried to use dishonest boilerplate affidavits. Rejection of their testimony can open a conversation about mass torts as lawyer-driven business enterprises rather than responses to the needs of hurt individuals.
5. Witness coaching. Consider the way judicial authors use “the facts” to support the decisions they make to permit or bar recovery in tort. How do these judges know what happened? Many of the cases in your text will be appellate opinions reviewing lower court judgments following a trial. This case law may raise the possibility that witnesses (especially plaintiffs) were coached by their attorneys. I recommend the law review article by Bill Hodes defending this practice. His thesis, which you can summarize in class, is provocative.
6. Tort liability for attorney misbehavior. Sometimes Torts gives students the impression that anybody can sue anybody for anything. It can be refreshing to turn this plenary breadth against our own occupation. The Goldberg, Sebok & Zipursky text that I use gives instructors an early opportunity to raise the subject by presenting duty—including the limited duty to prevent economic loss—up front. Another convenient point to raise this issue arises when you reach a medical malpractice case. “That’s medical malpractice,” you can say by way of opening a discussion. “What would be legal malpractice? How might a lawyer cause injury by failing to fulfill the standard of care?” Tort liability for “abuse of process” and “malicious prosecution” can come up later, if you so desire.
- Anita Bernstein
- Anita Bernstein
Anita and Stuart Subotnick Professor of Law
Brooklyn Law School
 A couple of jurisdictions do permit this overture.
 John C.P. Goldberg, Anthony J. Sebok, & Benjamin C. Zipursky, Tort Law: Responsibility and Redress 242 (4th ed. 2008) (reprinting Aldridge v. Goodyear Tire & Rubber Co., 34 F. Supp. 2d 1010 (D. Md. 1999)).
 W. William Hodes, The Professional Duty to Horseshed Witnesses--Zealously, Within the Bounds of the Law, 30
December 02, 2009
McFarland on Teaching Torts
Robert McFarland (Jones School of Law) has posted to SSRN Teaching the Law of Wrongs Without Searching for What is Right. Here is the abstract:
This essay fits into a growing body of academic literature examining a crisis of identity in the legal profession. Three recent reports (Carnegie Foundation Report, MacCrate Report and Best Practice in Legal Education Report) link professional malaise to the the state of legal education in America.
This essay argues that a significant problem is embedded in the structure and pedagogy of the traditional first-year curriculum. First-year students are typically not invited to develop an understanding of jurisprudence or professionalism in the first-year. Instead, the typical first-year pedagogy focuses on development of analytical ability and writing skill at the expense of development of a coherent legal philosophy.The typical student learns to set aside questions of justice in order to “learn the rules” and write the brief. Because students are not permitted to search for "right" answers to any question, students develop a fierce cynicism which follows them into the profession and manifests as professional malcontent.
My argument is advanced in three parts. Part one examines the crisis of identity currently afflicting the legal profession and connects this problem to the place where professional identity is formed: law school. Part two follows a student through her first-year experience in torts and describes a process whereby the student loses her moral identity in order to obtain rigorous analytical ability. She learns to set aside her own qualms in order to learn “the law” but is not equipped nor given the opportunity to reconcile the law with her moral and ethical instincts. Part three then argues that this process is problematic because the first year lacks balance and proposes changes allowing the student to learn analytical ability without developing a cynical view of law and justice.
November 24, 2009
Products Liability Casebooks
It's that time of year - time for family, time for turkey, and time to select your casebook for your spring courses. A reader wonders what case book to use for a Products Liability course.
Do you use -- Henderson & Twerski's Products Liability Problems and Process? - Fisher, Green, Powers & Sanders's Cases and Materials on Products Liability? - Phillips, Terry, Vandall & Wertheimer's Products Liability: Cases, Materials, Problems? - Owen, Montgomery & Davis's Products Liability and Safety, Cases and Materials? - Another book?
Please share your input in the comments.
October 07, 2009
AALS Torts & Compensation Systems Annual Section Newsletter
Here is the annual newsletter of the AALS Torts & Compensation System Section: Download AALS Torts Section Newsletter The newsletter provides a great roundup of torts scholarship, developments and news. Our thanks to Mike Rustad for highlighting TortsProfs in the newsletter!