Table of contents
- Introduction - Torts, Volume One
Chapter One - Basic Concepts
Chapter Two - An Overview of Tort Law
Chapter Three - Introduction to Negligence
Chapter Four - An Example of a Negligence Case
Chapter Five - When and to Whom is a Duty of Care Owed
Chapter Six - Breach of the Duty of Care
Chapter Seven - Actual Causation
Chapter Eight - Proximate Causation
Chapter Nine - Existence of an Injury
Chapter Ten - Affirmative Defenses to Negligence
Chapter Eleven - Common Law Liability in the Healthcare Context
Chapter Twelve - ERISA Preemption
Chapter Thirteen - Aftermatter
Torts: Cases and Context Volume One
Eric E. Johnson
Associate Professor of Law
University of North Dakota School of Law
eLangdell Press 2015
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 legal pedagogy has appeared in the Journal of Legal Education.
With scholarly interests in science and risk, and in intellectual property, Eric’s publications include the Boston University Law Review, the University of Illinois Law Review, and New Scientist magazine. His work was selected for 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 at Irell & 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 and negotiated 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 reasoning and argument. He received his B.A. with Highest and Special Honors from the Plan II program at the University of Texas at Austin.
Outside of his legal career, Eric performed as a stand-up comic and was a top-40 radio disc jockey. Eric archives teaching materials on his website at ericejohnson.com. His online exam archive includes more than a dozen torts essay exams and a bank of multiple-choice questions.
For Joe and Zane
This is the first edition of this casebook, updated December 2015. Visit http://elangdell.cali.org/ for the latest version and for revision history.
This work (but not including the cover art, CALI logo, and eLangdell logo) is authored by Eric E. Johnson, published by CALI eLangdell Press, and licensed under a Creative Commons Attribution-ShareAlike 4.0 International License (CC BY-SA 4.0). © 2015 CALI. All rights not expressly granted by this Creative Commons license are reserved. No copyright is asserted in U.S. Government works or other public domain material included herein.
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What Makes this Casebook Different
This book is different from other casebooks in at least three key ways.
First, this book departs from the traditional style of most casebooks. Rather than just presenting a series of readings, notes, and questions, this book makes a deliberate and systematic effort to explain the law. It’s an implementation of an approach I argued for in an article, A Populist Manifesto for Learning the Law, 60 Journal of Legal Education 41 (2010). In keeping with that approach, this book aims to be easy to read and to make it easy for students to learn difficult concepts.
There’s something to be said for challenging students to figure out things for themselves. But, in my view, traditional casebooks err too much on the side of providing students with opportunities to get befuddled. This casebook strives for a balance. There are many formidable primary sources in these pages, but they are presented within a treatise-like narrative that will, I hope, help students get more of a return from their investment in reading.
Key to the explanatory mission of this book is an emphasis on context. I want students to understand why they are learning what they are learning, and where it fits into the bigger picture of tort law and the legal system as a whole. You will find evidence of that commitment in the first sentence of the first chapter, and it carries through to the end. This book also aims for real-world context, putting doctrine in the context of litigation strategy and trial tactics.
Second, this casebook is free. It is free in both senses of the word.
In one sense, it is free in that it does not cost the reader any money. That is, the price is zero. You can get an electronic copy for free, or you can buy a printed copy for whatever the paper and ink costs. You can also print it out yourself.
The no-money sense of free is great, but this casebook is also free in a deeper sense: It is unfettered by proprietary legal claims so that you have the freedom to abridge, expand, repurpose, or adapt it as you wish. That is to say, this book is “open source.” Consistent with the terms of the Creative Commons license that this book is published under, generations of instructors and students will be able to rip and remix this book to suit their needs.
The license – which is simple to deal with – is CC BY-SA 4.0. It lets you change up and redistribute the book so long as you share it forward – that is, so long as you make it available to others under the same license. The CC license is, in essence, a legal trick to keep downstream users from locking the book up with their own proprietary copyright claims.
The open-source nature of the book provides considerable advantages. For one, it means instructors can create their own customized version of this book at no cost. Cut out the parts you don’t want, and fill-in anything you think is missing.
The CC license also means instructors will never be compelled to use newer editions, since older versions will stay available, and anyone can always keep re-distributing any version.
It’s helpful for learners, too. The open-source licensing means students can cut-and-paste from this book to create their own study materials.
CALI’s eLangdell Press, by the way, has a whole fleet of casebooks with open-source/share-it-forward licensing arrangements.
Third, this casebook is offered not merely as a one-way communication. Instead, this book constitutes an invitation to you. If you are an instructor, please get in touch with me. I would be happy to provide you with notes, slides, advice, and anything else I can offer. And as the semester moves forward, I’d very much like to hear how your class is going. If you are a student, I would love to hear your comments about how this casebook is working and how it could be improved. One the things I like best about teaching live in a classroom is that I can see from the reactions of students whether I’m doing a good job of explaining something. Since, in writing this book, I can’t see any faces, I am relying on you and other readers to not be shy about telling me what I am doing well and what I could be doing better. You can find me at ericejohnson.com.
Let me go on to explain a little about the format of the book.
Questions and Problems
There are two types of questions in this book, and they are separately labeled as such. In addition, there are problems for you to work.
Questions to Ponder: These questions are intended to be interesting and helpful to think about after reading the preceding material. You should not, however, attempt to figure out “the answer” to these questions. They are not meant to have clearly correct answers. Instead, the idea is to prompt you to think more deeply about one or more facets of the case.
Check-Your-Understanding Questions: These questions are intended to help you see if you absorbed the preceding material. Unlike “Questions to Ponder,” the questions labeled as “Check-Your-Understanding Questions” are intended to have right answers.
Problems: The problems in this casebook are much more involved than the questions. Rather than asking for you to ponder ideas or come up with simple answers, the problems call upon you to do analysis. That is, you are expected to apply what you have learned. With the problems, you mirror to some extent the task of the practicing lawyer. As you will learn by working through them, some of the problems in this book have well-defined solutions. Others are more open-ended and invite creativity. But all are meant to get you to utilize doctrine and concepts to generate fresh insights in view of new facts.
Editing of Cases
In editing the cases for inclusion in this book, I have strived primarily for readability and brevity. Thus, I have been quite liberal in cutting down courts’ text, and, in some cases, re-arranging it.
I have left a record of my editing either in the cases themselves, in the annotations below, or in the aftermatter at the end of the book. I realize most casebooks do not provide this level of detail about the editing, but by thoroughly cataloging my edits, I hope to facilitate the revision and adaptation of this book by others.
I have handled footnotes in a slightly unconventional manner. The reason why is that this book is being written to work in multiple formats, including print, the print-like PDF format, and various e-book formats with variable pagination. Achieving compatibility across formats presents a problem with regard to footnotes. Footnotes are no problem in print. But footnotes are often rendered awkwardly in e-book formats.
This is a particular problem for a casebook. Courts love footnotes. Gather together a collection of judicial opinions, and footnotes are everywhere. In truth, footnotes are a wonderful structural tool for writing, since they give the reader choices. Less essential matter is kept out of the text, allowing a time-pressed reader to forge ahead. Yet if a more probing reader wants to read the footnote material, the eyes do not have to go far to find it. Unfortunately, standards developers have not provided a way of dealing with digital footnotes that preserves all the functionality they exhibit on paper.
One way around the problem posed by continuous pagination in electronic formats would be to convert the footnotes to endnotes. Hyperlinking can then facilitate a reader’s movement from the text to the endnotes and back again. But that does not work in this casebook for two reasons. First, even though clicking links back and forth is easier than finding your way through a document with a scroll wheel or slide knob, clicking links is still time consuming. And with a lot of footnotes, the clicking time adds up. Second, this book is intended also to work well in a print distribution, and you can’t use hyperlinks to avoid page turning in a physical book.
Because of these concerns, I have adopted a zero-footnote/zero-endnote policy for this book.
Yet there is nonetheless footnote material in many cases that deserves to be read. So, where I felt footnote material was important, I have incorporated it into the inline text. I have adopted this convention for marking footnote material:
A The superscript right-pointing descending arrow indicates the beginning of footnote material.
@ The superscript left-pointing descending arrow indicates the end of a passage of footnote material.
While this system works well, there is one wrinkle: Sometimes courts put footnote references in the middle of a sentence. Where this has happened, I have had to depart from the exact linear order of the text, usually by inserting the footnote material after the end of the sentence.
Because I think it is good for the reader to be able to get a sense of the relative fidelity of the edited version of a reading compared to the original, I have left editing marks in many places.
Editing a casebook presents a special challenge in indicating what edits you have made. Courts themselves, when writing opinions, include an enormous amount of quoted material. Thus, unedited court opinions are filled with ellipses to show where the quoted version differs from the original. If I used ellipses in editing the opinions themselves, how could the reader of this casebook tell my edits from the court’s?
To avoid such ambiguity, I have used a special mark in lieu of an ellipsis where the chopping was mine:
~ The superscript tilda denotes matter omitted.
The superscript tilda also has the advantage of being less obtrusive than an ellipsis.
 Brackets indicate an insertion. The insertion may be mine or the court’s.
The insertion is generally mine if the brackets are not in a quote, although you’ll notice that some courts use brackets in and around citations as part of their adopted citation style.
Any other editing marks you see are the court’s, not mine.
While I have sought to indicate significant edits in the text, as I’ve just described, I also have made unmarked changes. In such cases, I left them unmarked because I felt marking them would have been unduly distracting. In particular, I have liberally omitted citation matter from cases, including parallel cites, portions of cites, and whole cites. (Note that I didn’t remove all citation; in many places I thought it was helpful or even essential.) Other unmarked edits are cataloged in the aftermatter at the end of this book.
First and foremost, I want to acknowledge and thank my students, particularly my torts students over the years at the University of North Dakota. They helped me immeasurably to grow as a teacher, and they provided invaluable feedback for the early forms of material that evolved into this casebook. A particular note of thanks is due my 2014-2015 and 2015-2016 torts students. Many of them went above-and-beyond-the-call in helping me ferret out typos and rework unclear passages. Since they are current students, I won’t list names, but I am truly indebted to them. I also owe thanks to the faculty, staff, and administration at the University of North Dakota School of Law for their considerable support.
Many other people lent me their time and advice to help with this book. In particular, I grateful to Michael L. Corrado, Murray Tabb, Patti Alleva, Paul LeBel, Keith Richotte, Adam Gutride, Jim Dedman, Brian Schmidt, Devin Rogers, Pete Boll, Susan Carlson, Karen Martin, Jan Stone, and, especially, my wife, Kit Johnson. I also want to thank the anonymous reviewers who, through the CALI editing process, provided excellent counsel.
In addition, I want to thank many people who have helped me in indirect but important ways by having illuminating discussions with me about torts – discussions that ultimately helped me frame the explanations that appear in this book. Those people include Paul Gowder, Sanne Knudsen, Sandra Sperino, John L. Watts, Bruce L. Hay, Guido Calabresi, and, most especially, my own torts teacher, Jon Hanson.
I am also grateful to Justice Raymond D. Austin who suggested Benally v. Navajo Nation to me as a good teaching case, as well as Jennifer L. Schulz for making the same suggestion with regard to Dobson v. Dobson.
Finally, I want to warmly thank Deb Quentel and everyone at CALI for supporting me in this endeavor. I am grateful to them not only for their work with regard to this particular project, but also more broadly for their efforts to make legal education more efficient, effective, affordable, and accessible.
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