Torts: Cases, Principles, and Institutions
third Edition

Torts: Cases, Principles, and Institutions

by John Fabian Witt

This is the second edition of Torts: Cases, Principles, and Institutions, a casebook for a one-semester torts course that carves out a distinctive niche in the field by focusing on the institutions and sociology of American tort law. The book retains many of the familiar features of the traditional casebook, including many of the classic cases. Like the best casebooks, it seeks to survey the theoretical principles underlying those cases. But it aims to supplement the cases and principles with editorial notes that focus students’ attention on the institutional features of our tort system, including features such as the pervasiveness of settlements, the significance of the market, the role of the plaintiff's bar, the importance of private insurance, the contingency fee, and the jury

. These institutional arrangements are what make American tort law distinctive. They are how the substantive doctrines of tort law are translated into the practice of torts lawyers. And they are sociologically fascinating in their own right.

TCPI integrates the institutional materials into the cases and notes rather than segregate them into separate sections of their own. It does so because its aim is not to teach the details of any one institution, such as the mechanics of the law of subrogation or workers’ compensation. Few one-semester torts classes can take up so much material. Instead, the book integrates the institutional material into the main text to draw general lessons about the massive, sprawling systems of private administration that American law has created under the umbrella of our torts system.

John Fabian Witt, Torts: Cases, Principles, and Institutions, Second Edition, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License. CALI® and eLangdell® are United States federally registered trademarks owned by the Center for Computer-Assisted Legal Instruction. The cover art design is a copyrighted work of CALI, all rights reserved. The CALI graphical logo is a trademark and may not be used without permission. Should you create derivative works based on the text of this book or other Creative Commons materials therein, you may not use this book’s cover art and the aforementioned logos, or any derivative thereof, to imply endorsement or otherwise without written permission from CALI. 

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John Fabian Witt is Allen H. Duffy Class of 1960 Professor of Law at Yale Law School. His most recent book Lincoln’s Code: The Laws of War in American History was awarded the American Bar Association's Silver Gavel Award, was selected for the 2013 Bancroft Prize in American history, was a finalist for the Pulitzer Prize, and was a New York Times Notable Book for 2012. He has taught torts for fifteen years at Yale, Columbia, and Harvard.

Professor Witt’s previous writings include the prizewinning book, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (Harvard University Press, 2004) and Patriots and Cosmopolitans: Hidden Histories of American Law (Harvard University Press, 2007). He has authored articles in the American Historical Review, the Columbia Law Review, the Harvard Law Review, the Yale Law Journal, and other scholarly journals. He has written for the New York Times, Slate, the Wall Street Journal, and the Washington Post. In 2010 he was awarded a John Simon Guggenheim Memorial Foundation Fellowship for his project on the laws of war in American history. Professor Witt is a graduate of Yale Law School and Yale College and he holds a Ph.D. in history from Yale. He is a fellow of the American Academy of Arts and Sciences. He served as law clerk to Judge Pierre N. Leval on the United States Court of Appeals for the Second Circuit

Introduction. Torts: Cases, Principles, and Institutions
Introduction.1 - About the Author
Introduction.2 - Notices
Chapter One. AN INTRODUCTION TO AMERICAN TORT LAW
1.1 - Principles and Institutions
1.2 - An Introductory Case: The Tort of Battery
1.2.1 - Vosburg v. Putney
1.2.2 - Anatomy of a Torts Case
1.2.3 - The Pervasiveness of Settlement
1.2.4 - The Size of the Tort System
1.2.5 - Accident Rates and the Deterrence Goal
1.2.6 - Intent and Corrective Justice in the Battery Cause of Action
1.2.7 - Garratt v. Dailey
Chapter Two. INTENTIONALLY INFLICTED PHYSICAL HARMS
2.1 - Trespass
2.1.1 - Trespass to Land
2.1.2 - Trespass to Chattels
2.2 - Defenses to Trespass
2.2.1 - Self-Defense
2.2.2 - Defense of Real Property
2.2.3 - Defense of Chattels
2.2.4 - Consent
2.2.5 - Necessity (Revised)
2.3 - Emotional and Dignitary Harms: The Example of Assault
Chapter Three. STRICT LIABILITY AND NEGLIGENCE: HISTORY AND INTRODUCTION
3.1 - Common Law Beginnings
3.2 - Negligence Versus Strict Liability
Chapter Four. THE NEGLIGENCE STANDARD
4.1 - The Reasonable Person
4.1.1 - Introduction
4.1.2 - Physical Traits
4.1.3 - Children
4.1.4 - Mental Illness
4.1.5 - Rationales for Choosing Between Subjective and Objective?
4.1.6 - Unreasonable Faiths?
4.1.7 - Unreasonable Women?
4.2 - Cost / Benefit Calculations and the Learned Hand Formula
4.2.1 - Negligence Basics
4.2.2 - Critiques of Cost-Benefit Reasoning
4.2.3 - In Defense of Cost-Benefit Reasoning
4.2.4 - The Logic of Cost-Benefit
4.2.5 - Claim Resolution in the Real World
4.3 - Judges and Juries
4.4 - Custom
4.4.1 - The Basic Rule—and Its Functions
4.4.2 - Custom and Medical Malpractice Cases
4.5 - Statutes and Regulations
4.5.1 - Violations of Statutory Standards
4.5.2 - A Regulatory Compliance Defense?
4.5.3 - Torts in the Modern State: Implied Private Causes of Action
4.6 - Proof of Negligence
4.6.1 - The Basic Problem
4.6.2 - Res Ipsa Loquitur
4.6.3 - Federal Constitutional Constraints on the Burden of Proof
4.6.4 - A Note on Settlement Mills
4.6.5 - Aggregation and Sampling by Bellwether Trials
4.7 - Negligence Puzzles
4.7.1 - Should Wealth Matter?
4.7.2 - Seavey’s Paradox
4.7.3 - The Utility Monster
Chapter Five. PLAINTIFFS’ CONDUCT
5.1 - Contributory and Comparative Negligence
5.1.1 - Contributory Negligence
5.1.2 - Comparative Negligence
5.2 - Assumption of Risk
5.2.1 - Implied Assumption of Risk
5.2.2 - Express Assumption of the Risk
Chapter Six. CAUSATION
6.1 - Causation: An Introduction
6.2 - Causation-in-Fact
6.3 - Lost Chances and Indeterminate Plaintiffs
6.4 - The Problem of Multiple Tortfeasors
6.5 - Alternative Liability and Indeterminate Defendants
6.6 - Causation Beyond Torts
6.6.1 - The Criminal Law
6.6.2 - Employment Discrimination
6.6.3 - Environmental Law
6.6.4 - Securities Litigation
6.6.5 - Psychological Conventions around Causation
Chapter Seven. PROXIMATE (“LEGAL”) CAUSE
7.1 - Introduction
7.2 - Unexpected Harm
7.3 - Unexpected Manner
7.4 - Unexpected Person
7.5 - Completely Unexpected?
7.6 - Proximate Cause Beyond Torts
7.6.1 - Proximate Cause and Criminal Law
7.6.2 - Proximate Cause and Consequential Damages
Chapter Eight. THE DUTY PROBLEM
8.1 - Is There a Duty to Rescue?
8.1.1 - Cases
8.1.2 - Liability for Good Samaritans?
8.2 - Landowners and Occupiers
8.3 - Negligent Infliction of Emotional Distress
8.4 - To Whom Does a Defendant Owe a Duty?
8.4.1 - The Duty Debate (Part 1)
8.4.2 - Cases and Materials
8.4.3 - The Duty Debate (Part 2)
8.5 - Pure Economic Loss
8.6 - Relational Interests
8.6.1 - Spouses
8.6.2 - Children
8.6.3 - Unmarried partners
8.7 - Tort Immunities
8.7.1 - Intrafamilial Immunities
8.7.2 - Charitable Immunity
8.7.3 - Employers’ Immunity
8.7.4 - Sovereign Immunity
8.7.5 - Government Officer Immunity
8.7.6 - Statutory Immunity
8.7.7 - Wartime and National Security Immunities
8.7.8 - Immunity Reconsidered
Chapter Nine. MODERN NON-FAULT LIABILITY?
9.1 - Vicarious Liability
9.2 - Abnormally Dangerous Activities
9.3 - Nuisance
9.3.1 - Private Nuisance
9.3.2 - Public Nuisance
9.4 - Strict Liability for Products?
9.4.1 - Beginnings
9.4.2 - Manufacturing Defects
9.4.3 - Design Defects
9.4.4 - Warning Defects
9.4.5 - The Preemption Question
Chapter Ten. DAMAGES
10.1 - Compensatory Damages
10.1.1 - Pecuniary Damages
10.1.2 - Nonpecuniary Damages
10.1.3 - Environmental Damages
10.1.4 - Death Cases
10.2 - Damages in Practice
10.2.1 - Plaintiffs’ Lawyers and the Contingency Fee
10.2.2 - The Role of Defendants’ Insurance
10.2.3 - Subrogation; or, The Role of Plaintiffs’ Insurance
10.2.4 - The “Bronx Jury” Effect
10.2.5 - Beyond Dollars
10.2.6 - The Death of Liability?
10.3 - Mass Settlements
10.3.1 - The September 11th Victim Compensation Fund
10.3.2 - Aggregation: Class Actions and their Limits
10.3.3 - The Vioxx Settlement
10.3.4 - The BP Oil Spill
10.3.5 - State Attorneys General
10.4 - Punitive Damages