TORTS

PROFESSOR MARY COOMBS

TUESDAY/THURSDAY

9:30-10:50 AM

FRIDAY 9:00=10:20 AM

Unfortunately, the issues in this class involve whether something is tortious, not tortoises!!

Class website: http://faculty.law.miami.edu/mcoombs/Fall2007courses.htm

(don’t worry about the date: it’s this year’s materials)

office: G 473                                                                 tel: 284-3616

mcoombs@law.miami.edu                                          fax: 284-6619

ass't:Gloria Lastres glastres@law.miami.edu         tel: 284-4438

office hours: TF 11:00-12:00 and by appointment

(If I’m in my office with the door open, I’m presumptively available as well )

1. Attendance: Regular class attendance is required. If you miss four or more classes, you may be subject to sanctions, ranging from additional assignments, to grade reduction, to being involuntarily withdrawn from the course.

2. Preparation: Students should be prepared for class. Preparation includes reading the assigned materials and being prepared to participate in any assigned exercises related to these materials. Unless I indicate otherwise, you should focus on the main cases within the assignment, and any hypotheticals or questions provided beforehand. While I may have an on-call list, students should be prepared to speak in class at any time, even if they are not on that day’s list.. If there are special reasons why you will not be prepared on a particular day, you may so indicate to me prior to the start of that class, and you will not be called on. You should not be surprised to be called on shortly thereafter. This privilege may be withdrawn as to any individual if it is abused.

Questions and hypotheticals as well as material related to any assigned exercises will be posted to the class website. You should check this site regularly, since you will be irrebuttably presumed to have seen anything posted there! Exercises may be designed to be done during class and/or to be provided to me before class; they may be done individually or as part of a group. I will divide the class, as needed, into such groups.

Exercises to be done in class will always be provided at least 48 hours prior to that class. If they are to be turned in prior to class, they will always be assigned in a way that allows for a weekend between the day the assignment is posted and the day it is due.

3. Office hours: please feel free to come by during office hours or by appointment. I am also frequently available at other times (except for the hours before this class and when I am preparing for my other class (i.e. Monday and Wednesday mornings). Feel free to stop in if my door is open; I’ll tell you if it’s a bad time.

4. Grading: The grade will be based primarily on the final examination. Up to 20% of the grade (depending on the number of such assignments) may be based on the grades on any exercises which have been designated as to be graded. In addition, you will be eligible for a “bump up” for particularly good class participation [including participation both in class discussion and on exercises which are not separately graded]. Bump-ups can increase the final grade where the numerical grade is in the upper range of a particular grade (i.e. a high C+, but not a C+ barely above the C/C+ dividing line, could become a B). Grades can also be lowered at the margin for significant failures to demonstrate that you have done the needed preparation for class.

5. Cancellations and Make-up Classes: I will post information on if and when there are any non-emergency cancellations and if there will be make up classes well ahead of the date of any such class.

6. Notices to the class will be posted to the website. Please email questions or comments about the materials to me. If these seem likely to be of interest to the class generally, I will respond and post the question/comment and response on the website. If you wish to remain anonymous, please so indicate and I will arrange to respond in a way that maintains your anonymity. Remember that you are unlikely to be the only person puzzled by a particular rule, case or hypothetical. Sharing your ignorance is a step toward shared understanding.

Syllabus Part One

(All assignments page numbers refer to Epstein, Cases and Materials on Torts (9th ed.) or, if preceded by an “S,” the supplemental materials, which are posted on the website simultaneously with this syllabus.) Any additional supplemental materials, as well as questions or exercises, will be posted well before the class for which they are assigned.

Note:  We may cover portions of more than one listed assignment on a given day, but we will never start more than one assignment on a given day.  That is, if we ended a class in the  middle of assignment “x,” you can assume that in the next class we will ordinarily complete assignment “x” and also cover some, if not all, of assignment “x +1.” Thus, if you have read one assignment beyond whatever assignment we were discussing in the previous class,  you will always be prepared. Note also that some assignments are relatively long; these are typically preceded or followed by somewhat shorter assignments: adjust your reading pace accordingly.

In addition to classes as indicated, I hope to have one or two guest speakers. In particular, on October 27, my long-ago student and outstanding trial lawyer Ervin Gonzalezis scheduled to speak with us.

Introduction

For the first day of class we will use the McDonald’s coffee case as a springboard to discuss some of the issues of tort litigation and theory. No reading is required; you may want to look at the Wikipedia entry or some of the websites about the case that show up if you google “mcdonalds coffee” – note that most of them have a decided ideological perspective.

Intentional Torts

1. 3-11, 83-5                           battery

2. 22-35                                  conversion

3. 35-50                                  consent

(don’t read Canterbury for this assignment)                             

4. 50-65, 68-77                      other defenses to intentional torts

5.  79-83, 85-100                   other intentional torts

Negligence: introduction

6. 169-94                                reasonably prudent person test

7. 194-220                              calculus of risk test

8. 221-61                                custom (including malpractice)

9. 261-85                                effect of statutes

10. 285-98          judge v jury

11. 298-326 res ipsa

Plaintiff’s Behavior

12. 327-55                              contributory negligence

13. 360-82                              assumption of risk

14. 383-91 n.2,                       comparative negligence

393 n.5-401

Multiple Defendants

15. 403-28 joint and several liability

16. 429-48, S. 1-3                  vicarious liability

(Burch)

Causation

17. 449-62, 470-96                cause in fact

18. 497-506, 508n.1-12,        proximate cause (2 days)

515-32, 536-44, 545-47, S. 4-7 (McCain)

19. 549-62                 negligent infliction of emotional

                                    distress

Affirmative Duties

20. 563-606, S. 20-21           duty to rescue; duties of property

(Poleyeff)                               owners

21. 609-15, 623-44            special relationships

Strict Liability

22. 645-75                             animals and ultra-hazardous activities

Product Liability

23. 723-48                              Introduction

24. 748-72                              ALI; torts v contracts

25. 772-803, S.  25-27          manufacturing & design defects

(Force)

26.  806-32, S. 28-30             duty to warn

(Scheman-Gonzalez)

27. 842-52                              federal pre-emption

Damages

28. 853-83                            recoverable elements

29. 895-901, 884-92,            collateral sources/ attorney fees, punitive damages

910-15; Supp. 31-33

(FS§768.76; 768. 63)