TORTS I
SYLLABUS, Course # 5418
Prof. Victor Flatt
Fall 2007 – 9-10:20 – M,T, Th,,
Office hours:
TUII 124,
Phone # (713) 743-2155
e-mail: vflatt@central.uh.edu (I check e-mail
most everyday so this is a good way to reach me.)
Welcome to TORTS.
This course has two very important
purposes. One is to learn about “torts”
- that heretofore mysterious legal doctrine that governs the compensation of
individuals, groups, or entities for “wrongs” committed against them by another
party or parties. The other is to begin
the process of teaching you how to think about and reason with the law, specifically,
how to understand and use prior case law (and the occasional legislative
enactment) to predict the legal response to a particular set of facts, or to
understand how law can sometimes seem to not be controlled by guiding legal
principles.
In terms of the substance of torts we will
discuss the most common wrongs, how the prima facie case is established, and
how it is defended. While we will
examine most of the common torts, time does not allow us to cover everything. We will not spend much time on trespass, and
will spend no time on nuisance and dignitary harms. You can learn about these in other courses.
Although some of the concepts and the ways of
thinking about them may be new, you are all capable of understanding the material
(otherwise you would not be here), and my purpose is to help you understand
torts. Therefore, you should always feel
free to ask me questions, both in and outside of class. However, I cannot do it alone. While you are all capable of learning and
understanding this material successfully, it will require much work on your
part. You must not only read the
assignment, but try and think about it as well.
Write down any questions that come to mind. Ask questions of each other; consider
studying or discussing together.
Your grade will be based on your final, and
can be modified by classroom participation.
See below. (Lack of preparedness
and attendance will while harm your grade (see mechanism below)). There will probably be no time in class that
we will be actively accessing the internet.
Therefore, because of the distraction to other students, unless
specifically authorized, you may not use your computer to access the internet
in class. Failure to follow this
stricture will affect your participation grade, and may result in other
penalties.
In order to ease any initial anxiety, the
final will be open-book, note etc...
However, this is to ease anxiety only.
DO NOT DEPEND ON IT TO HELP
YOU DO WELL OR EVEN PASS THE TEST WITHOUT STUDYING. Having open notes will not relieve you of
the need to already know the material -- well.
Because you are first year students and not savvy to the ways of the law
school exam world, I will emphasize this point again (in a different
font). IF YOU DO NOT STUDY FOR THIS EXAM
AS YOU WOULD FOR A CLOSED-BOOK EXAM, YOU WILL DO VERY POORLY AND PERHAPS NOT
PASS.
To assist you in preparing for the exam and
understanding what you need to learn and what I will be looking for, there will
be a take-home mini-exam in the middle of the semester to prepare you a bit for
the kind of question that you will face on the final. Though this will not be graded in the
conventional sense, you must complete
this assignment, and it is part of required participation.
Although in much of law, arguments on both
sides of an issue are clear with one side being apparently stronger,
occasionally, decisions may seem to be based on policy or perspectives. Because you all bring different perspectives
to the class, your different understanding or “take” on these issues will be a
valuable educational tool for your classmates.
Therefore, class preparation and participation is critically
important. In order to encourage
participation fairly, and to help you
handle this in what I hope will be an effective but non-threatening way, on most days, I will ask you to sign a
sheet at the front of the class if you are prepared to discuss and participate
in that day’s class. If you do not sign
up for at least 70% of these occasions (there will be at least 30 of them), or
if you do sign up but are unprepared, you will be subject to a grade lowering
of 1 raw score point for each occurrence.
If you sign up for less than 40% of the classes where attendance is
taken, your raw score grade will be subject to a lowering of 3 points. This gives you some flexibility and control
over your own time. Being prepared does
not mean that you have to be an expert who gets all the answers right. Many times there may not be a “right”
answer. My goal is not to trick
you. You should be able to discuss the
readings intelligently and to have formed opinions about the cases and their
outcomes. Of course, common courtesy and
respect are expected in all classroom discussions.
Note
that signing up on the class preparation sheet AND KEEPING TRACK OF YOUR
PARTICIPATION will be YOUR RESPONSIBILITY.
The list will be at the front of each class in which it is
available. Make sure you are here in
time to sign it before the beginning of class.
If you are late by only a few minutes (which can happen to anyone), you
may still come to the front of the class and sign the list. When class has been going for several
minutes, I will remove the list and it will then not be available for
signature. (Okay, in case you are now thinking, “what a
dictator!” it isn’t that bad. I am being
this specific so that the process goes smoothly and is clearly understood and
is fair to all. The whole point of this
system is to not put people on the spot in a “Socratic” showdown for which they
may not be occasionally prepared.) If for any reason you are not able to
participate in this conventional manner, please feel free to contact me to
discuss the matter and possible alternatives.
Note that very good preparation and
appropriate participation may help your grade though it is important to note
that tracking such “extra” participation can be very subjective. To ease that problem I will try to keep
contemporaneous notes and only add raw points in very few circumstances.
Needless to say, class attendance is
mandatory as required by the ABA.
Although I will not necessarily take formal attendance at every class,
absences will be noted, and a serious breach of attendance (over six times) may
result in a lowered grade (or failing grade in extreme circumstances). Your book will be Cases and Materials on
Torts (8th Ed.) by Richard Epstein. Page
numbers refer to assignments in that book unless otherwise noted. And
Assignments may be broken up – remember you are responsible for all assignments
between dates for that first date.
If assignments are given for more than one day, you must do the entire
assignment by the first day to be prepared for that day. We will try to stay on schedule, but we
always have room for some flexibility if required by the class. At least twice in the semester, I will be at
speaking engagements when we are having class.
To make up this time, most of the other classes will be 1 hour and fifteen
to one hour and twenty minutes instead of one hour and ten minutes which is the
standard time. Thus be prepared for class to go to 10:15 and 10:20 frequently.
Although the class may seem confusing at
times, try to stay focused on the big picture.
We are studying the evolution of how our society responded to issues of
harm and fault over time. The syllabus
should provide a good outline and road map.
Assignments:
8/20 I.
Introduction and overview
criminal v. civil law; elements
of a tort; questions of fact v. law
you
may wish to read the textbook’s introduction, though it is not required.
8/21
II.
Intentional Torts (duty not to intentionally harm) (battery) (Note - we will be discussing battery and
little bit on trespass only –we will generally confine our discussions of
defenses and the prima facie case to battery)
Assignment: 3-20
8/23
III.
Defenses to intentional tort (battery)
A. Consent
Assignment: pp.20-33
8/27 and 8/28
B. Non-consensual defenses
1. Insanity or reduced capacity
2. Self-defense and defense of
others
3. Defense of property
Assignment: pp. 33-46
8/30 – NO CLASS Professor conference
9/3 – No class – labor day
9/4
Non-consensual
defenses continued-
4. Recapture of chattels
5. Necessity
-private vs. public
Review
of Intentional Torts
Assignment: 46-59;
9/6
IV. Historic development of duty to others
- the early cases
Assignment: pp. 81-90
9/10
- Policy Issues: strict liability
v. negligence
Assignment: pp. 128-141
9/11
-
the emergence of negligence
Assignment: pp. 99-128
9/18
V. Modern Negligence - 1st 2
elements: breach of duty
A. The reasonable person
Assignment: pp. 143-165;
9/20 (class goes from
B. Reasonability as a calculation of risk
Assignment: pp. 165-187
9/24 – to assist professor Zamora, we are switching
this Torts class for his Contracts class on Thursday. Therefore this week you will meet Tuesday and
Thursday from 9-10:20 in BLB 240, and then on Thursday from
9/25
C. Custom
Assignment: pp. 187-225
9/27 (first class in BLB 240 at
D. Unreasonable b/c of statutory violation
or criminal act
Assignment: pp. 225-245
9/27 (second class in TUII 209)
VI.
Proof
(An
Aside) - Who Decides What (questions of fact and law)
Assignment: pp. 247-260
-
the doctrine of res ipsa loquiter and problems of factual proof
Assignment: pp. 260-285 ;
10/1 and 10/2
VII. Defenses to negligence based on
plaintiff’s conduct
A. Contributory negligence
Assignment: pp. 287-304, 308-318
Handout
of take-home practice exam. If you are
timing yourself, you should only spend 1 and one half hour on taking this
exam. Get Ready and then set aside the
time between now and turning in, and have your written answer ready by class
time on 10/22.
10/4
B. Comparative Fault (in class exercise)
Assignment: pp. 336-352
10/8
C. Assumption of risk
Assignment: pp. 318-329
10/9 and 10/11
VIII. (An Aside, Part II) - Issues with multiple
defendants
A. Joint and Several Liability
-allocation of harm between joint
tortfeasors
Assignment: pp.353-375; 425-435
10/15
B. Vicarious Liability
Assignment: pp. 375-392
10/16 and 10/18
IX. Causation
A. Cause in Fact
Assignment: pp. 393-418
10/22, 10/23
B. Proximate Cause
Assignment: pp. 435-450, 456-471,
review of negligence elements
10/25 – NO CLASS Professor speaking at conference
10/29
REVIEW of Mid-term
10/30 and 11/1
X. Other Duties - Affirmative Duties
A. Duty to Rescue
Assignments:
pp. 495-513
11/5
B. Duty of Owners and Occupiers
Assignment: pp. 513-534
11/6 and 11/8
C. Gratuitous Undertakings
D. Special Relationships
-what about the government?
Sovereign immunity, waiver, Sec.
1983 actions
Assignment: pp. 534-541, 548-568
11/12 XII. Strict Liability (strict duty)
A. Intro.
B. Conversion
C. Animals
Assignment: pp. 569-589
11/13
D. Ultrahazardous Activities
Assignment: pp. 589-608
11/15
XIII. Products Liability
Assignment:
pp. 651-654; 665-668, 675-689
11/19 and 11/20
Products
Liability Continued/ Product Defects
Assignment:
pp. 697-725; 728-736
Thanksgiving
11/26 and 11/27
XIV. Damages
Assignment:
pp. 773-800
11/29
Damages
cont.; wrongful death/ Punitive damages
Assignment:
pp. 816-842