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Torts, Volume TwoEric E. JohnsonAssociate Professor of LawUniversity of North Dakota School of LaweLangdell Press 2016
About the AuthorEric E. Johnson is an Associate Professor of Law at the Universityof North Dakota. He has taught torts, intellectual property, sales,entertainment law, media law, sports law, employment law, andwriting courses. He has twice been selected by students as thekeynote speaker for UND Law’s graduation banquet. His writing onlegal pedagogy has appeared in the Journal of Legal Education.With scholarly interests in intellectual property and the intersectionof law and science, Eric’s publications include the NorthwesternUniversity Law Review, the Boston University Law Review, the University ofIllinois Law Review, and New Scientist magazine. His work was selectedfor the Yale/Stanford/Harvard Junior Faculty Forum in 2013.Eric’s practice experience includes a wide array of business torts,intellectual property, and contract matters. As a litigation associate atIrell & Manella in Los Angeles, his clients included Paramount,MTV, CBS, Touchstone, and the bankruptcy estate of eToys.com.As in-house counsel at Fox Cable Networks, he drafted andnegotiated deals for the Fox Sports cable networks.Eric received his J.D. cum laude from Harvard Law School in 2000,where he was an instructor of the first-year course in legal reasoningand argument. He received his B.A. with Highest and SpecialHonors from the Plan II program at the University of Texas atAustin.Outside of his legal career, Eric performed as a stand-up comic andwas a top-40 radio disc jockey. Eric archives teaching materials onhis website at ericejohnson.com. His online exam archive includesmore than a dozen torts essay exams and a bank of multiple-choicequestions.i
For my mom, Gretchen Johnsonii
NoticesThis is the first edition of this casebook, updated December 2016.Visit http://elangdell.cali.org/ for the latest version and for revisionhistory.This work (but not including the cover art, CALI logo, and eLangdelllogo) is authored by Eric E. Johnson, published by CALI eLangdellPress, and licensed under a Creative Commons AttributionShareAlike 4.0 International License (CC BY-SA 4.0). 2016 CALI.All rights not expressly granted by this Creative Commons license arereserved. No copyright is asserted in U.S. Government works orother public domain material included herein.In brief, the terms of the license are that you may copy, distribute,and display this work, or make derivative works, so long as you give CALI eLangdell Press and the author credit; and you distribute any works derived from this one under thesame licensing terms as this.Suggested attribution format for original work:Eric E. Johnson, Torts: Cases and Context, Volume 2, 2016, publishedby CALI eLangdell Press. Available under a Creative Commons BYSA 4.0 License.This book is konomarked – requests for gratis permissions beyondthe scope of the Creative Commons license are welcomed. Contactfeedback@cali.org.CALI and eLangdell are United States federally registeredtrademarks owned by the Center for Computer-Assisted LegalInstruction. The cover art design is a copyrighted work of CALI, alliii
rights reserved. The CALI graphical logo is a trademark and may notbe used without permission.Should you create derivative works based on the text of this book orother Creative Commons materials therein, you may not use thisbook’s cover art and the aforementioned logos, or any derivativethereof, to imply endorsement or otherwise without writtenpermission from CALI.This material does not contain nor is it intended to be legal advice.Users seeking legal advice should consult with a licensed attorney intheir jurisdiction. The editors have endeavored to provide completeand accurate information in this book. However, CALI does notwarrant that the information provided is complete and accurate.CALI disclaims all liability to any person for any loss caused by errorsor omissions in this collection of information.Rights InformationSilkwood v. Kerr-McGee (in Chapter 13, Strict Liability): For the“FACTS,” all but the first and last paragraphs of the facts are taken,nearly verbatim, from James F. McInroy, A True Measure of Exposure:The Karen Silkwood Story, 23 LOS ALAMOS SCIENCE 252 (1995).The website from which this archived article was retrieved containedthe following:Copyright NoticeFor Scientific and Technical InformationOnly Copyright 2011 Los Alamos NationalSecurity, LLC All rights reservedFor All InformationUnless otherwise indicated, this information hasbeen authored by an employee or employees ofthe Los Alamos National Security, LLCemployee or employees of the Los AlamosNational Security, LLC (LANS), operator of theLos Alamos National Laboratory underContract No. DE-AC52-06NA25396 with theiv
U.S. Department of Energy. The U.S.Government has rights to use, reproduce, anddistribute this information. The public may copyand use this information without charge,provided that this Notice and any statement ofauthorship are reproduced on all copies. Neitherthe Government nor LANS makes anywarranty, express or implied, or assumes anyliability or responsibility for the use of thisinformation.v
About eLangdell PressThe Center for Computer-Assisted Legal Instruction (CALI ) is anonprofit organization with over 200 member US law schools, andan innovative force pushing legal education toward change for thebetter. There are benefits to CALI membership for your school, firm,or organization. eLangdell is our electronic press with a mission topublish more open books for legal education.How do we define “open?” Compatibility with devices like smartphones, tablets, and ereaders; as well as print. The right for educators to remix the materials through morelenient copyright policies. The ability for educators and students to adopt the materialsfor free.Find available and upcoming eLangdell titles at elangdell.cali.org.Show support for CALI by following us on Facebook and Twitter,and by telling your friends and colleagues where you received yourfree book.vi
Table of ContentsTorts, Volume Two . 2About the Author . iNotices . iiiRights Information. ivAbout eLangdell Press . viPreface . 17Acknowledgements . 22Part IV: Dealing with Accidents: Beyond Negligence. 2413. Strict Liability . 25Introduction . 25Strict Liability Basics, and Negligence Compared. 26The Absolute Duty of Safety. 27Animals . 28Case: Isaacs v. Monkeytown U.S.A. . 32Ultrahazardous or Abnormally Dangerous Activities . 37What Activities Qualify as Ultrahazardous or AbnormallyDangerous? . 38Case: Rylands v. Fletcher . 40The Economics of Strict Liability. 44Case: Indiana Belt Harbor R.R. v. American Cyanamid . 44Defenses and Limitations on Strict Liability. 58Strict Liability at Trial: Silkwood v. Kerr-McGee . 60Questions to Ponder About Silkwood v. Kerr-McGee . 6914. Products Liability. 71Introduction . 71Multiple Theories of Recovery for Products Liability . 71The Elements of Strict Products Liability . 73Sale by a Commercial Manufacturer, Distributor, or Retailer. 747
Case: Escola v. Coca-Cola. 76Case: Greenman v. Yuba Power Products . 80What Constitutes a Product. 84What Constitutes a Defect. 85Manufacturing Defects. 86Design Defects . 87Warning Defects . 89Case: In re Toyota Motor Corp. Unintended Acceleration . 90Note on In re Toyota Motor Corp. Unintended Acceleration . 98Reading: DOJ Press Release on Toyota Unintended Acceleration . 99Questions to Ponder About In re Toyota Motor Corp. . 107Problem: Hot Water . 10815. Safety and Health Regulation . 111Introduction . 111History of Administrative Regulation . 113Reading: The Jungle . 114Historical Note on The Jungle . 124Questions to Ponder About The Jungle. 124Administrative Agencies and the Law Governing Them . 125How Regulations are Made. 126Judicial Review of Regulations . 128Agency Enforcement of Regulations . 130Case: FDA v. Phusion Products LLC . 130Questions to Ponder About FDA v. Phusion . 139Case: FTC v. Phusion Products LLC . 140Historical Note on Phusion and Four Loko . 142Problem: Boogie Woogie Bugle Boy Beverages . 143Part V: Intentional Torts . 14416. Introduction to Intentional Torts . 145The Context of the Intentional Torts Within Tort Law . 145A Quick Overview of the Intentional Torts . 147A Preview of Intentional Torts Defenses . 1498
The Place of Damages in the Intentional Torts . 150Intent and its Various Iterations . 15117. Battery and Assault. 154Introduction . 154Battery . 154The Elements of Battery . 154Battery: The Act . 155Battery: Intent . 155Battery: Harmfulness or Offensiveness . 156Battery: The Touching. 157Case: Leichtman v. WLW Jacor . 158Questions to Ponder About Leichtman v. WLW. 160Battery: Damages. 161Case: Fisher v. Carrousel Motor Hotel . 161Questions to Ponder About Fisher v. Carrousel Motor Hotel . 165Case: Bohrmann v. Maine Yankee Atomic Power . 165Questions to Ponder About Bohrmann v. Maine Yankee . 169Assault . 169Case: I de S et Ux v. W de S. 169Historical Note on I de S et Ux v. W de S. 170The Elements of Assault . 171Assault: Intent . 171Assault: Immediate Apprehension . 172Assault: Harmful or Offensive Touching. 173Check-Your-Understanding Questions on Assault and Battery. 17318. False Imprisonment .
Eric E. Johnson is an Associate Professor of Law at the University of North Dakota. He has taught torts, intellectual property, sales, entertainment law, media law, sports law, employment law, and writing courses. He has twice been selected by students as the keynote speaker for UND Law’s graduation banquet. His writing on
