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Introduction:An Overview of Tort Law§ A. The Nature of Tort LawTort law is basically about collisions. Oftenthe collision is literal, as where two cars collide inan intersection,1 or a defective Coke bottleexplodes in the hand of a waitress,2 but evenwhere the collision is less literal it is no less real.For example, in defamation (libel and slander)cases,3 plaintiffs sue to recover for injury to theirreputations. Tort law must resolve the conflictbetween competing claims of the individual'sinterest in his reputation and the public's interest infree expression. Just as cars on the highwayusually pass one another without incident, sonewspapers and individuals can - usually - carryon their respective activities in harmony.Occasionally, however, collisions occur andsomeone is hurt. When that happens we turn totort law to decide who must pay for the injury: isthe injured party entitled to have the party thatcaused his injury compensate him, or should theloss "lie where it falls"4?What makes tort law so interesting (and at thesame time so difficult) is that there are no absoluteformulas by which such questions are resolved.The rules of tort law are rough approximations ofthe balance our society wants to strike betweencompeting values, and the "correct" decisionfrequently depends upon the facts of the particularcase. For example, we make automobile driversliable for the injuries they cause, but only whenthey are "at fault," or negligent. Manufacturers, bycontrast, are liable for the injuries caused by adefective product, even if they have exercised allreasonable care. Newspapers, to take another1example, are not liable for injuries to thereputation of "public figures," even the newspaperacts negligently, so long as it does not exhibit"reckless disregard" for the probable falsity ofwhat they are publishing.The primary problem in striking the properbalance lies in determining the standard forimposing liability. Should the defendant be liableirrespective of negligence (strict liability); liable ifnegligent; or liable only his behavior is even moreculpable than mere negligence (e.g., intentionaltorts)? In addition to the thorny questions aboutwhen to impose liability, tort law must alsoaddress issues of how to determine whether aplaintiff's harm was caused by a defendant'sconduct, how to calculate the proper amount ofdamages, the availability of special immunities ordefenses to liability, etc.§ B. The Structure of this BookThis book is divided into six parts, each ofwhich covers a distinct set of issues that are raisedin the administration of tort law. Part I, Personal Injury: The PrimaFacie Case, discusses what is usually thoughtof as the plaintiff's "prima facie" case in atypical tort suit: what must the plaintiff provein order to recover? Just a moment ago I saidthat the question of whether to shift theburden to the defendant depends uponwhether the injured party was "[1] entitled tohave the party that [2] caused his injury[3] compensate him." These three elementsmake up the building blocks of what aplaintiff must prove in a typical tort case, andthey are discussed in Chapters One, Two andThree respectively.5Li v. Yellow Cab, infra Chapter Five.2Escola v. Coca Cola Bottling Co., infra ChapterEight.34This subject is covered in Chapter Twelve."The general principle of our law is that loss fromaccident must lie where it falls, and this principle is notaffected by the fact that a human being is the instrument ofmisfortune." OLIVER WENDELL HOLMES, THE COMMONLAW 88 (1881).5A tort case is typically described as consisting ofan analysis of four elements: duty, breach, cause, anddamages. Harbeson v. Parke-Davis, infra Chapter Three.This text follows this general approach with one majorexception: Duty and breach are classed together asessentially a single question. Part III discusses in greaterdetail the question of how to determine what kind of dutythe defendant owes to the plaintiff. Because the "duty"question has confused generations of lawyers, not to

viiiINTRODUCTION Chapter 1, Establishing a Breachof Duty, examines what the plaintiff mustprove about the defendant's conduct toentitle him to be compensated. As notedabove, the most common standard is thatof reasonable care, or to put it in thenegative mode, whether or not thedefendant was negligent. However, incertain kinds of cases liability can beimposed on a "no-fault" or "strictliability" basis. Chapter 2, Causation, considersa separate problem: if we have decidedthat the defendant breached a duty heowed, and thus should in fairness pay forthe injuries that his conduct causes theplaintiff, how do we know that thedefendant's breach of duty (rather thansome other force(s)) caused the injury? Inthe vast majority of cases causation isobvious, but where it is in doubt theanalysis is complex indeed. Chapter 3, Damages, examineswhat kinds of damages can be recovered,who can recover them, and how a dollarvalue is assigned to the plaintiff's loss. Part II, Defenses to a Personal InjuryCase, looks at the tort case from the defendant'spoint of view. Even if the plaintiff has met eachof the three elements of the prima facie case,other policy considerations may intervene toallow the defendant to avoid liability or reducethe amount of liability. Chapter 4, Immunity, looks atdoctrines that exempt certain classes ofdefendants from liability. It also looks at themodification or abandonment of suchdoctrines through statutory waiver andcaselaw restriction. Chapter 5, Contributory Fault,considers the principles that allow amention law students (and rarely helps to solve a problemto boot), this text starts from the facts of a situation andasks the question "Does the defendant's conduct in thiscase constitute a breach of duty?" It might seem easier tostart with the question, "What dut(ies) did the defendantowe the plaintiff?" and then proceed to determine whetherthat duty is breached. But modern commentators seem toapprove of a formulation of negligence law in which thereis “a default duty of reasonable care with regard to causingphysical harm.” W. Jonathan Cardi & Michael D. Green ,Duty Wars, 81 S. CAL. L. REV. 671 (2008)defendant to escape or reduce his liabilitybecause the plaintiff was at least in partresponsible for his own injury. Chapter 6, Multiple Tortfeasors, isconcerned with cases where the plaintiff'sinjury was caused by more than onedefendant. In such cases the court mustdecide how the responsibility for the injuryis to be allocated, and in particular whetherto make one defendant responsible for otherdefendants who may or may not be able topay their fair share. In addition, courts mustdecide how to handle cases where one partysettles for only part of the liability and theplaintiff pursues his claim against anotherdefendant. Chapter 7, Statutes of Limitation,deals with a familiar problem: what happenswhen the plaintiff waits too long to file hisclaim? How does the court measure theamount of time that the plaintiff is given tofile a claim, and what circumstances willallow an exception to the rule? Part III, Modification of Duty byStatus and Relationships, returns toexamine the origin and limiting principlesthat accompany the duty to use reasonablecare. In particular, it considers the numerouscases in which the defendant's duty of careto the plaintiff is affected by a contractualrelationship that exists between them.Courts must decide the significance of thefact that in many cases the parties have theopportunity to shape the transaction - toshift the entitlements - before the risk ofinjury is created. Chapter 8, Premises Liability,concerns a common transaction: wherethe defendant has permitted the plaintiffto use his land for some purpose. Mostcourts make the defendant's duty (andsubsequent tort liability) depend upon thenature of the relationship between them:whether it is business, social, ornonconsensual. Chapter 9, Product Liability,considers an analogous problem: wherethe plaintiff has agreed to buy thedefendant's product, and defendant hasagreed to sell it, what duties has the selleraccepted with respect to the safety of theproduct? What obligations has the buyeraccepted? RAILROAD CO. V. STOUTChapter10,Professional

INTRODUCTIONNegligence, deals with yet another set ofrelated parties: the provider and theconsumer of professional services, suchas medicine, law, accounting, etc. Whilethe standard of reasonable care works as agood baseline for predicting liability,there are peculiarities in the professionalcontext that require special attention.While most of this chapter focuses on themedical context, since the injuries thereare most spectacular, tort remedies arepursued in an increasing number ofprofessional specialties. Chapter 11, Rescuers, JustifiableReliance, and the Extension of Duty toRemote Plaintiffs, deals with one of thelaw's most difficult subjects: when toimpose upon someone a duty to usereasonable care. This chapter starts withthe premise that, ordinarily, tort liabilitycan only be predicated upon the defendanthaving acted in a way that caused theplaintiff's injury. In other words, thefailure to act ordinarily creates noliability. However, in some cases thedefendant may have assumed a duty toprotect the plaintiff from harm causedfrom some external source (e.g. acaseworker who intervenes in a childabuse situation, or an ambulance serviceresponding to an emergency call). Thereare particularly difficult questions abouthow far liability should be extended. Part IV, Intentional Torts, considersthose cases - relatively rare in terms of theeveryday practice of law, but fundamental to anunderstanding of the history of tort law - wherethe defendant intentionally causes injury to theplaintiff. Chapter 12, Intentional Torts: ThePrima Facie Case, analyzes the burden ofproof for the plaintiff in much the same waythat we did in the negligence cases.However, because the requirements aredifferent, and more technical in nature,close attention is paid to the criteriaestablished in the principal authority forsuch cases, the Restatement of Torts.ixlose the case because of the application of aprinciple denying recovery. Part V, Harm to Non-PhysicalInterests, treats those cases where the plaintiffsustains an injury to an interest other thanphysical well-being. For example, the plaintiffmay have suffered injury to reputation(defamation), or the defendant may haveinvaded the plaintiff's interest in privacy, or thedefendant caused harm to the plaintiff's businessinterests or his right to be free from wrongfullitigation. Chapter 14, Defamation, discussesthe cases where the plaintiff's right to hisreputation is injured by the defendant'suse (or abuse) of the first amendmentright to speak one's mind. Chapter 15, Privacy, is a topic relatedto defamation; but it involves an injury toa different interest - the right to be letalone, usually by some type of mediaexposure, but occasionally by otherintrusions. Chapter 16, Damage to BusinessInterests, addresses situations where thedefendant caused a business or propertyloss, for ex

An Overview of Tort Law § A. The Nature of Tort Law Tort law is basically about collisions. Often the collision is literal, as where two cars collide in an intersection,1 or a defective Coke bottle explodes in the hand of a waitress,2 but eve