Saturday, August 21, 2010

U.S. Inaction Lets Look-Alike Tubes Kill Patients -

Robin Rogers and her nearly full term baby died from a tube mix-up.
What causes of action should be recognized? Medical malpractice? Product liability design defect? Failure to warn? Regulatory error?
U.S. Inaction Lets Look-Alike Tubes Kill Patients -

Friday, August 20, 2010

Wisdom's Idiosyncrasies: Tips on judicial opinion writing

The dominant template for legal writing is the judicial opinion.  John Minor Wisdom was a masterly legal writer, hero of the civil rights movement as a 5th Circuit Court of Appeals judge,  and a bit of a curmudgeon of the old school (witness his opening line)

He gave his tips to his law clerks as “Wisdom's Idiosyncrasies”.  He offered it to the Yale Law Journal for publication shortly before his death in 1990.  109 Yale L.J. 1273

The memo can be found HERE

Tuesday, August 17, 2010

Policies - Torts - Fall 2010

Fordham Law School

Torts - Fall 2010 Policies
Mondays 10:30 - 12:15   Wednesday & Thursday 11:00 - 12:25   Room 303

George W. Conk
Adjunct Professor of Law
Senior Fellow, Stein Center for Law & Ethics
Rm 409
office hours by appointment (email preferred)

Required casebook:

Franklin, Rabin & Green, Tort Law & Alternatives, 8th Edition, Foundation Press
NOTE: 2010 update is posted on Lexis webcourse.

Suggested reading:

Shapo & Shapo, Law School Without Fear: strategies for success, Foundation Press

Mark A. Geistfeld, Tort Law: The Essentials,  Aspen/Wolters Kluwer


You must register or “enroll” in the Lexis webcourse.  Go to  Much of the required reading material is there, as is the full text of principal cases excerpted in the casebook.  I will post there (and email to you) the Powerpoint slides I use in class in outline format.  

Laptops and power point slides.  

Some teachers ban laptops as a distraction from listening and participating in discussion.  I don’t.  I used them at trial and deposition to take notes, so I allow the use of laptops.  Notes  are not a transcript but an editorial selection and supplement.  You will find it distracting to try to copy the full text of slides and the remarks of me and others.  The slides are usually not up long enough and there is a god bit of jumping around prompted by classroom discussion, etc.  Notes should be edited, filled in, etc. after class!  

When we finish a chapter I will send you (and post on Lexis) the slides I prepared in outline format.   (Old slides are on Lexis too.   Because the course changes every year the slides will change, so I recommend you take notes in class and wait for the new slides.)

Laptop abuse:Please resist any temptation to indulge in “IM’ing”, attending to email, etc.  It is rude, distracting to me as well as to you, and unproductive.

Course blog: Torts Today 

I have just started this blog.  I cannot attach files, only copy, compose or link to files.  The syllabus posted there has links to some materials which are freely accessible on the web, such as Supreme Court opinions or scholarly articles on SSRN (registration is free). As the semester goes on and I come across relevant material I may post it on Torts Today. Suggestions about how to make use of this blog are welcome.

Occasionally I may suggest you will find something of use or interest on my blog Otherwise, which as its name says, ranges far beyond law.
Otherwise - Commentaries on Law, Language and Politics

Otherwise has some material on torts and some useful material is already there.  If I recommend or require you to read something there I will tell you.  

You are not expected or required to pay any attention to anything I write that is not related to course material.


Regular attendance is expected and required.  If you cannot attend class, please drop a note to me by email before the class.  If anything is preventing you from attending class regularly, please feel free to discuss it with me privately.  The Dean of Students office is always available to provide confidential assistance with any problem that interferes with your studies.

Reading: All reading listed on the syllabus is required unless otherwise noted.   Slides developed by me are part of assigned reading, whether they are discussed in class or not.  They are generally posted in outline form when we finish each chapter.  (Previous courses slides are posted as archival material only and are not part of required reading.)

Lectures, slides,  and classroom discussion supplement and explain the subjects of the required reading.  Not all assigned reading material is discussed in class.  Some is discussed in depth, some lightly, some not at all.   Dialog is inherently unpredictable.  Class will reflect that.  Notes in the casebook and undiscussed material may be valuable resources for the final exam, which will be limited open book.  You should read the notes that follow principal even though they are infrequently discussed in class.  

Speaking in class: By all means.  Dialog is key to learning to think like a lawyer.  I will make every effort to recognize everyone who wants to speak.  I may call on you but generally I will seek volunteers.  

If you are not one who likes to speak in class, speak to me any chance you can find.  You will learn that I enjoy discussions with students and am very approachable.   To be sure to have my undivided attention make an appointment to see me. 

Office hours: By appointment.  On the hour and half-hour.  Generally Monday and Thursday afternoons are best.   Please make appointments by email. 

Recommended reading

I recommend the Shapo book because their discussion on testing conveys very well what I look for in evaluating exams.

There are many nutshells, outlines, etc. that you may find helpful.  

Mark Geistfeld’s concise treatment Tort Law: The Essentials is good.

Of the broad treatises on torts I recommend Dan Dobbs, Handbook of Torts, West (2000).  You are not obligated to buy it.  But if you want to have such a treatise - that is the best available.


There will be a three hour open book essay-type final examination which will constitute the sole basis for your grade.  It can be hand written or done on laptop if you register with Exam 4.  You can bring the casebook, class notes and anything distributed in class or posted on the webcourse.  Prior years’ mid-term and final exams and model answers have been posted on the Lexis Blackboard as course documents.

Because my examinations are open book essays I expect you to cite to appropriate authorities among those materials.  But the most important thing is make a coherent argument, making your reasoning plain in words.  Reference solely to cases or statutes tends to be opaque unless the authority is so well known and the proposition it stands for is so precise that it is iconic.  (E.g. `First Amendment rights’ may be an effective substitute for explicit statement of freedom of speech, assembly or press, in context.  But coupled together each is stronger and more precise: Thus “John Peter Zenger’s case inspired the First Amendment protections of press freedom” is stronger than “John Peter Zenger’s case inspired the First Amendment”.

Judicial opinions are a good guide to what I consider to be model answers - as are model answers I have posted.   The judicial opinions in the casebook are heavily edited.  They generally omit the statements of facts and most citations to authority.  The full text of all principal cases will be posted on the webcourse.  They are valuable style guides to good legal writing.  I consider the opinion of Judge Cardozo in the landmark product liability case MacPherson v. Buick Motor Company (p. 550)  the north star for style and use of precedent and analogy to advance the law.

Strunk & White’s Elements of Style is, for me, the best guide to plain, effective modern prose.  Comments by me on rhetoric (the art of persuasive speech and writing) are sometimes posted on Otherwise.  Search in the google search box for “rhetoric”.

Judge Ruggero Aldisert is a master of legal prose.  Check out this post Judge Aldisert receives Golden Pen Award.

Syllabus - Torts - Fall 2010

Fordham Law School

Torts Fall 2010
Mondays 10:30 - 12:15   Wednesday & Thursday 11:00 - 12:25   Room 303

George W. Conk
Adjunct Professor of Law
Senior Fellow, Stein Center for Law & Ethics
Room 10- garden level

Required Casebook:

Franklin, Rabin & Green, Tort Law & Alternatives, 8th Edition, Foundation Press
June 2009 Update on Lexis webcourse.

Suggested reading:

Shapo & Shapo, Law School Without Fear: strategies for success, Foundation Press 

Mark A. Geistfeld, Tort Law: The Essentials,  Aspen/Wolters Kluwer

Course blog:
Torts Today 

Required Readings

August 30, September 1, 2  (estimated times of arrival  - actual times will vary)

Chapter 1 - Introduction to Tort Liability 
Fault-based, vicarious, and strict  liability

Casebook - pages 2 -  30
(Hammontree v. Jenner, Christensen v. Swensen, Roessler v. Novak)

Chapter 2 - The Negligence Principle

Historical Development of fault liability

Casebook pp. 31 - 39 (Brown v. Kendall)

 The Central Concept  - The Standard of Care

Casebook pp. 39-49
(Adams v. Bullock, U.S. v. Carroll Towing)

The Reasonable Person
Ordinary care or “ the utmost care, so far as human skill and foresight can go".

Casebook pp. 50 - 60
(Bethel v. NYCTA) 

 Bolton v. Stone [1951] A C 850 (read extended excerpt on webcourse, Course documents, Ch. 2 or the complete speeches of the Law Lords. 

Monday September 6 - Labor Day - no class

September 8, 9

The Role of Statutes

Casebook pp. 75 -  86 
(Martin v. Herzog; Tedla v. Ellman)

Functions of Judge & Jury
Who decides? Allocating power between judge and jury 

Casebook pp. 60 - 69
(B&O RR v. Goodman; Pokora v. Wabash Rwy. Co.; Andrews v. United Airlines)

The Role of Custom
Is ordinary care what is ordinarily done?

Casebook pp. 69 - 75 (Trimarco v. Klein)
Morris v. West Hartlepool Steam Navigation Co., Ltd.  
1 All ER 385, [1956] (read extended excerpt on webcourse, Ch.2.,

September 13, 15, 16

Proof of Negligence
Casebook pp. 86 - 110 
(Negri v. Stop & Shop; Gordon v. American Museum of Natural History; Byrne v. Boadle; McDougald v. Perry; Ybarra v. Spangard)

Medical Malpractice - the standard of care for professionals

Casebook 110 - 131
(Sheeley v. Memorial Hospital; States v. Lourdes Hospital; Matthies v. Mastromonaco)

Suggested: N.Y. Public Health Law § 2805-d. Limitation of medical, dental or podiatric malpractice action based on lack of informed consent - webcourse

N.J. Model Civil Jury Charge 5.36a, 5.36b, 5.36c - webcourse

September 20, 22, 23, 27

Chapter 3 - The Duty Requirement: Physical Injuries 

Introduction, Duty, No Duty,  and Affirmative obligations to act
Rescue and exceptions to the no duty to rescue rule

Affirmative Duties, Restatement 3rd, Proposed Final Draft No. 1, §§ 7, 37, 40 (webcourse)

Casebook 132 - 148
(Harper v. Herman ;  Farwell v. Keaton, Moch v. Renssalaer)


Casebook 148 - 154
(Randi W. v. Maroc Jt. Unified School District) 

Casebook 157 - 168

Duty owed to a third party
(Tarasoff v. Board of Regents)

Policy reasons for invoking no duty of care

Casebook 175 - 194 
(Strauss v. Belle Realty, Reynolds v. Hicks, Vince v. Wilson)

In Re NYC Asbestos Litigation, 840 N.E. 2d 115 (NY 2005 (webcourse)

Olivo v. Owens Illinois, 895 A. 2d 1143 (NJ 2006) (webcourse)

Gipson v. Kasey, 150 P. 2d 228 (Ariz. 2007) (supplement)

September 27, 29

Duties of Landowners and Occupiers

3rd Restatement (draft) §§ 49 - 54 Duty of Land Possessors (webcourse)

Casebook 195  - 216
(Carter v. Kinney, Heins v. Webster County, Posecai v. Walmart)

September 30, October 4

Duty: Governmental Entities 
Casebook 229  - 263 

The Federal Tort Claims Act - Statutory excerpts (webcourse)

(Riss v. City of New York; Lauer v. City of New York, Friedman v.  State of New York, Cope v.Scott)

Wilson v. City of Jersey City, NJ App. Div. (2010) (webcourse)

October 6, 7, Tuesday October 12
Columbus Day, October 11 - no class

Chapter 4 - The Duty Requirement: Nonphysical Harm

Emotional Harm
Casebook 264 - 278
(Falzone v. Busch,  Metro North v. Buckley)

Casebook 286 - 298)
(Portee v. Jaffe, Johnson v. Jamaica Hospital)

Suggested reading: Chapter 8, 3rd Restatement, §§ 45, 46, 47 -Liability for Emotional Disturbance (webcourse)

October 13, 14, 18, 20, 21, 25

Chapter 5 Causation

Cause in Fact
But-for causation and admissibility of evidence

Casebook 339 - 356
(Stubbs v. City of Rochester; Zuchowicz v. U.S)

McDarby v. Merck, 949 A. 2d 223 (NJ App. Div. 2008) (webcourse) (read failure to warn and medical causation - omit punitive damages and preemption discussions)

Multiple defendants

Casebook 375 - 392
(Summers v. Tice; Hymowitz v. Eli Lilly & Co.)

Proximate Cause and the Scope of Liability
Scope of Liability: Unexpected harm

Casebook 401 - 414
(Benn v. Thomas; Polemis; The Wagon Mound)

Superseding causes

Casebook 416 - 425
(Doe v. Manheimer)

Hinojo v. New Jersey Manufacturers Insurance Company, 353 N.J. Super 261 (App. Div. 2002) (webcourse)

Suggested reading:  Restatement 2d - §§ 440 - 452; 3rd Restatement §§  33 - 34 (webcourse)

Unexpected victim

Casebook 425 - 439
(Palsgraf v. LIRR; The Kinsman Cases)

Suggested reading: Restatement (3rd) of Torts, Proposed Final Draft No. 1, Chapter 6, §§ 29 - 36 (webcourse)

October 27

Chapter 6  Defenses

Plaintiff’s fault 
Contributory negligence, comparative fault, avoidable consequences, assumption of risk

Casebook 440 - 475
(Fritts v. McKinne, Dalury v. SKI)

October 28

Federal Preemption
McDarby v. Merck, 949 A. 2d 223 (NJ App. Div. 2008) (webcourse)
Wyeth v. Levine, 129 S. Ct. 1187 (2009) (webcourse)

November 1

Chapter 7 Strict Liability

Casebook 506 - 512, Notes 512- 514
(Fletcher v. Rylands, Rylands v. Fletcher, Notes)

November 3, 4, 8, 10, 11, 15

Chapter 8  Liability for defective products
The privity obstacle, strict products liability, manufacturing, design, and information defects; defenses; work-related injuries

Casebook 550 -  595

Introduction and manufacturing defects

(MacPherson v. Buick Motor Co.; Escola v. Coca Cola Bottling Co.)

Restatement 2d, Section 402 A (webcourse)

Design Defects
(Soule v. GM, Camacho v. Honda)

Hinojo v. NJM, 353 N.J. Super 261 (App. Div. 2002) (reasonable alternative design)

Halliday v. Sturm & Ruger, 368 Md. 186 (2002) (consumer expectations)


Casebook 595-620
(Hood v. Ryobi, Vassallo v. Baxter)

Defenses & Work Related Injuries

Casebook 620-644
(GM v. Sanchez, Jones v. Ryobi, Liriano v. Hobart)

Crippen v. N.J. Central Concrete, 176 N.J. 397 (2003) (webcourse) 

November 17

Chapter IX Trespass & Nuisance

Casebook 669-697
(Martin v. Reynolds, Boomer v. Atlantic Cement)

November 18, 22, 29, December 1

Chapter X Damages and Insurance

Compensatory damages

Casebook 698 - 706, 726 - 732

(Seffert v. LA Transit Lines; Death Damages)

NY & NJ Jury instructions (webcourse)

Wage Loss
Madeira v. Affordable Housing Foundation, 469 F 3d 219 (2d Cir. 2006)

Proving economic loss
Sample economists reports (web course - Daniel v. Eckerd)

Caps, Remittitur, Additur, Collateral sources

(Arrington v. ER Physicians, 2006 La. App. LEXIS 2164) (webcourse)
Harvard/Rand Factsheet on impact of limits on non-economic damages

Wrongful Death cases
(jury instructions and statutes) (webcourse)

Sample economic report (Daniel Jones) (webcourse)

Thanksgiving break Wednesday November 24 to Sunday November 28

December 1, 2

The Federal Civil Rights Action and Liability of Federal Officials

Casebook 949-971
(Wilson v. Layne) 
Ashcroft v. Iqbal, U.S. Supreme Court (2009)  


Thursday, August 12, 2010

Twentieth Century Tort Theory

Writing in 2002 John Goldberg here summarized and commented on the principal theoretical approaches to tort law which gained currency in the 20th century.   These are academic constructs which had some influence in how judges understood and developed the law of torts.  

From the Introduction:
As we consider the "new negligence," it may be useful to set the record straight on the thinking of the last century, one that is growing distant more rapidly than the calendar would suggest. This Article undertakes that task by analyzing five idealized theories representing the dominant approaches to tort law in twentieth-century U.S. and Canadian scholarship.  The five are labeled: compensation-deterrence theory, enterprise liability theory, economic deterrence theory, social justice theory, and individual justice theory.  Specific   disputes in modern tort law--for example, whether to hold actors liable for accidental harms under a standard of fault or strict liability--have taken place within the conceptual space created by these theories.

Giants of Torts

A living tradition:
In re Lead Paint Litigation, 191 N.J. 405, 450 (N.J. 2007)  Zazzali, C.J., dissenting
 In an ordered society, one purpose of the law, particularly the common law of torts, is to provide a corrective mechanism for injustice. ..See W. Page Keeton et. al., Prosser and Keeton on Torts  (5th ed.1984)  supra, at 15. Common law claims must keep step with the schemes of those who would unfairly profit at the expense of others. It is our responsibility to ensure that formalistic distinctions and outdated definitions do not thwart justice. Rather, we must mold the common law to the unanticipated injustices that inevitably arise as our society advances through time. Our duty is "[t]o sustain, to repair, to beautify this noble pile" that is the common law. 4 William Blackstone, Commentaries on the Law of England 436 (1765-69).

William Blackstone (1723 - 1780)  Commentaries on the Law of England (1765 - 1769) are a key historical document.  It is available HERE, courtesy of The Avalon Project and Yale Law School:
THE more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society, in order to protect the weak from the insults of the stronger, by expounding and enforcing those laws, by which rights are defined, and wrongs prohibited. This remedy is therefore principally to be sought by application to these courts of justice; that is, by civil suit or action.  For which reason our chief employment in this volume will be to consider the redress of private wrongs, by suit or action in courts. 

Oliver Wendell Holmes, Jr. (1841 - 1935)

His Lectures The Common Law (1883) are perhaps the most influential work in the history of American tort law.  His essay The Path of the Law (1897) is one of the most influential in our legal history, famous for its realist, rather than moralist approach:
When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts

 Benjamin Cardozo (1870 - 1938)

As a judge of the New York Court of Appeals, then the U.S. Supreme Court, Cardozo was an innovator.  His opinion in MacPherson v. Buick Motor Company (1916) freed tort law from the doctrinal strait jacket that limited the liability of a manufacturer to those with whom it dealt directly.  One of the great common law judges, Cardozo showed how the law must adapt to change:
From this survey of the decisions, there thus emerges a definition of the duty of a manufacturer which enables us to measure this defendant's liability. Beyond all question, the nature of an automobile gives warning of probable danger if its construction is defective. This automobile was designed to go fifty miles an hour. Unless its wheels were sound and strong, injury was almost certain. It was as much a thing of danger as a defective engine for a railroad. The defendant knew the danger. It knew also that the car would be used by persons other than the buyer. This was apparent from its size; there were seats for three persons.
It was apparent also from the fact that the buyer was a dealer in cars, who bought to resell. The maker of this car supplied it for the use of purchasers from the dealer just as plainly as the contractor in Devlin v. Smith supplied the scaffold for use by the servants of the owner. The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the car would not be used. Yet the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion. Precedents drawn from the days of travel by stage coach do not fit the conditions of travel to-day. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.
A living tradition:
In an ordered society, one purpose of the law, particularly the common law of torts, is to provide a corrective mechanism for injustice. ..See W. Page Keeton et. al., Prosser and Keeton on Torts  (5th ed.1984)  supra, at 15. Common law claims must keep step with the schemes of those who would unfairly profit at the expense of others. It is our responsibility to ensure that formalistic distinctions and outdated definitions do not thwart justice. Rather, we must mold the common law to the unanticipated injustices that inevitably arise as our society advances through time. Our duty is "[t]o sustain, to repair, to beautify this noble pile" that is the common law. 4 William Blackstone, Commentaries on the Law of England 436 (1765-69).

In re Lead Paint Litigation, 191 N.J. 405, 450 (N.J. 2007)
Zazzali, CJ, dissenting

Wednesday, August 11, 2010

Welcome to Torts and to the study of law

What is it about?  As a descriptive matter torts is about a certain type of claim: that one who has acted unreasonably toward another, causing harm, may be held responsible for the damage suffered and compelled to pay compensation at the demand of the victim.  Courts judge the validity of such claims and the nature and extent of damage for which the victim can demand compensation be paid by the tort-feasor.

Most tort claims arise from negligent conduct, but some are imposed even though an actor behaved reasonably.  We call that strict liability.  Intentional harms may entitle the injured party to both compensatory damages (to make good the loss) and punitive damages (to punish and deter such conduct in the future).

And Welcome to Law School

Speaking, writing, interrogating, critical reading are key skills for lawyers.  Thanks to  John Houseman as the stern professor in The Paper Chase   many fear speaking in class.  This won't be that kind of experience.  But I hope you will each have the opportunity to develop some of those skills in our class.  In that vein HERE is Abraham Lincoln, a self-taught lawyer, on Notes for a Law Lecture in 1850.  An excerpt on diligence and speech is below:

I am not an accomplished lawyer. I find quite as much material for a lecture in those points wherein I have failed, as in those wherein I have been moderately successful. The leading rule for the lawyer, as for the man of every other calling, is diligence. 
Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done. When you bring a common-law suit, if you have the facts for doing so, write the declaration at once. If a law point be involved, examine the books, and note the authority you rely on upon the declaration itself, where you are sure to find it when wanted. The same of defenses and pleas. In business not likely to be litigated, -- ordinary collection cases, foreclosures, partitions, and the like, -- make all examinations of titles, and note them, and even draft orders and decrees in advance. 
This course has a triple advantage; it avoids omissions and neglect, saves your labor when once done, performs the labor out of court when you have leisure, rather than in court when you have not.
Extemporaneous speaking should be practised and cultivated. It is the lawyer's avenue to the public. However able and faithful he may be in other respects, people are slow to bring him business if he cannot make a speech. And yet there is not a more fatal error to young lawyers than relying too much on speech-making. If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance.