Torts II §132C
Spring 2007
Susan Keller
Reading Assignments
The casebook for the course is Henderson, Pearson and Siliciano, The Torts Process (6th
ed. 2003). All page references are to this text. Assignments labeled “handout” will be
distributed ahead of time in class (handouts 1 and 2 are attached to this syllabus). Principle
cases with starting page numbers in parentheses are noted for your reference. However, you
should read all pages listed in the assignment.
WEEK
1
(1/17)
TOPICS
ASSIGNMENT
Review of Negligence
Negligence Defenses:
353-364;
Contributory Negligence 366-371
Assumption of Risk
Comparative Negligence
CASES
See “First Assignment” sheet at WSU
website
Butterfield v. Forrester (353)
Davies v. Mann (354)
Meistrich v. Casino Arena (701)
Knight v. Jewett (368)
(1/24)
Comparative Negligence
and intentional torts;
Trespass and Nuisance
Handout 1;
379-386;
Handout 2;
390-400
Merrill Crossings v. McDonald (handout 1)
Ozaki v. Discovery Bay (handout 1)
Friendship Farms v. Parson (handout 2)
Adams v. Cleveland-Cliffs (390)
Davis v. Georgia-Pacific (395)
Waschak v. Moffat (397)
3
Trespass and Nuisance
403-412;
Handout 3
Strict Liability
413-417 (top);
420-435
Boomer v. Atlantic Cement (403)
Spur Industries v. Del E. Webb (408)
Prah v. Maretti (handout 3)
Turner v. Big Lake Oil Co. (420)
Siegler v. Kuhlman (423)
Foster v. Preston Mill Co. (431)
Products Liability:
Negligence theory
Warranty theory
437-450;
2
(1/31)
4
(2/7)
MacPherson v. Buick Motor Co. (439)
Henningsen v. Bloomfield Motors (443)
NO CLASS 2/14/06
5
(2/21)
Products Liability:
Strict Liability theory
Warning defects
214-217;
451-468; 472;
481-500 (top)
Escola v. Coca Cola (214)
Vandermark v. Ford Motor Co. (451)
Sheckells v. AGV Corp. (482)
MacDonald v. Ortho Pharm. Corp. (489)
Anderson v. Owens-Corning (495)
WEEK
6
TOPICS
ASSIGNMENT
Products Liability:
Design defects
500-502 (top)
508-534
Troja v. Black and Decker (508)
Heaton v. Ford Motor Co. (516)
Soule v. General Motors Corp. (520)
Vautour v. Body Masters Sports (527)
Products Liability:
Comparative Negligence
Practice Exams
Midterm Review
473-500
Murray v. Fairbanks Morse (473)
(2/28)
7/8
(3/6,
3/7)
CASES
SPRING
BREAK
9
Midterm;
Intro to Defamation
695-720
10
Defamation:
First Amendment
720-732;
Handout 4;
732-740
Gertz v. Robert Welch, Inc. (725)
Dun & Bradstreet v.Greenmoss (handout)
Wells v. Liddy (handout)
Milkovich v. Lorain Journal Co. (732)
11
Invasion of Privacy:
1. Intrusion
741-754
Hamberger v. Eastman (744)
Shulman v. Group W Productions (748)
12
Invasion of Privacy:
2. Public disclosure of
private facts
754-773
Diaz v. Oakland Tribune (754)
The Florida Star v. B.J.F. (764)
13
Invasion of Privacy:
3. False Light
4. Appropriation
773-784
Godbehere v. Phoenix Newspapers (773)
Carson v. Here’s Johnny Portable Toilets
(778)
14
Torts in Contract Settings
826-829;
833-839 (top)
Wal-Mart v. Sturges (833)
Review Exercises
Handout #1
MERRILL CROSSINGS ASSOCIATES vs. LAWRENCE HOWARD MCDONALD
SUPREME COURT OF FLORIDA
705 So. 2d 560; 1997 Fla. LEXIS 2033; 22 Fla. L. Weekly S 739
December 4, 1997, Decided
OPINION: [*560] HARDING, J.
McDonald was shot and injured by an unknown
assailant on July 30, 1993, in the parking lot of a
Jacksonville Wal-Mart store. He brought a personal
injury suit against Wal-Mart and Merrill Crossings
(the owner and developer of the shopping center)
alleging failure to maintain reasonable security
measures. The jury ruled in McDonald's favor,
finding Wal-Mart seventy-five percent negligent
and Merrill Crossings twenty-five percent
negligent. Merrill Crossings recovered a judgment
on its [**3] cross-claim for indemnity against WalMart plus attorney's fees and costs. Wal-Mart
appealed.
The First District Court of Appeal . . .
ultimately concluded that excluding the assailant
from the verdict form was not error.
Section 768.81 codifies "Comparative Fault"; it
provides in relevant part: ***
(4) APPLICABILITY.-(a) This section applies to negligence cases. For
purposes of this section, "negligence cases"
includes, but is not limited to, civil actions for
damages based upon theories of negligence, strict
liability, products liability, professional malpractice
whether couched in terms of contract or tort or
breach of warranty and like theories. In determining
whether a case falls within the term "negligence
cases," the court shall look to the substance of the
action and not the conclusory terms used by the
parties.
(b) This section does not apply . . . to any action
based upon an intentional tort . . . .
***
We . . . agree with the district court that the
language excluding actions "based on an intentional
tort" from the statute gives effect to a public policy
that negligent tortfeasors such as in the instant [**8]
case should not be permitted to reduce their liability
by shifting it to another tortfeasor whose intentional
criminal conduct was a foreseeable result of their
negligence. See, e.g., Hall v. Billy Jack's, Inc, 458
So. 2d 760 (Fla. 1984) (lounge proprietor owes its
patrons the duty to protect them from reasonably
foreseeable harm); Holley v. Mt. Zion Terrace
Apts., Inc., 382 So. 2d 98 (Fla. 3d DCA 1980) (the
deliberate act of the rapist and murderer did not
constitute an independent intervening cause which
would insulate the landlord from liability for failing
to provide reasonable security measures); see also
Paterson v. Deeb, 472 So. 2d 1210 (Fla. 1st DCA
1985); Whelan v. Dacoma Enterprises, Inc., 394 So.
2d 506 (Fla. 5th DCA 1981); Rosier v. Gainsville
Inns Associates, Ltd., 347 So. 2d 1100 (Fla. 1st
DCA 1977) (a landlord's breach of an implied duty
to provide locks and maintain common areas in safe
condition may render landlord liable to the tenant
for injuries resulting from unauthorized entry and
criminal acts within the premises). The Restatement
(Second) of Torts states, "If the likelihood that a
third person may act in a particular manner is the
[**9] hazard or one of the hazards which makes the
actor negligent, such an act whether innocent,
negligent, intentionally tortious, or criminal does
not prevent the actor from being liable for harm
caused thereby." Restatement (Second) of Torts, §
449 (1965). Thus, it would be irrational to allow a
party who negligently fails to provide [*563]
reasonable security measures to reduce its liability
because there is an intervening intentional tort,
where the intervening intentional tort is exactly
what the security measures are supposed to protect
against.
Because we hold that section 768.81 is not
applicable to the instant case, it was not error to
exclude the intentional tortfeasor from the verdict
form.
BETTY J. OZAKI v. ASSOCIATION OF APARTMENT OWNERS OF DISCOVERY BAY;
SUPREME COURT OF HAWAI'I
87 Haw. 265, 954 P.2d 644
April 14, 1998, Decided
OPINION OF THE COURT BY LEVINSON, J.
***
The issue presented is whether the intentional
tort of a co-defendant deprives a defendant, against
whom only negligence is alleged, of the protection
of the modified comparative negligence rule set
forth in Hawai'i Revised Statutes (HRS) § 663-31
(1993).
***
I. BACKGROUND
On July 4, 1990, Cynthia Dennis was murdered
by Peter Sataraka, her estranged boyfriend, in her
apartment in the Discovery Bay condominium
complex (the condominium). On the night before
the murder, Sataraka and Dennis had engaged in a
confrontation at a nightclub. When Dennis left the
nightclub without him, Sataraka proceeded to the
condominium, where he and Dennis had lived
together briefly prior to the incident. After Dennis
failed to respond to Sataraka's attempt to contact
her by "enterphone," Sataraka asked the security
guard, Walker (who had frequently observed
Sataraka entering the building with a key and/or in
Dennis's company), to admit him into the building.
After entering, Sataraka discovered that Dennis was
not in her apartment; he therefore returned to the
lobby and conversed with Walker. After Walker
concluded his shift, Sataraka informed Walker's
replacement that he was "waiting for his girlfriend."
Dennis arrived home a short time later and
encountered Sataraka, who followed her into her
apartment. Dennis was found dead in her
condominium the next day. Sataraka was thereafter
tried and convicted of her second degree murder.
Dennis's sister, Betty Ozaki, and mother,
Teruko Dennis, (collectively, the plaintiffs) filed a
complaint against Discovery Bay and Sataraka . . . .
The complaint alleged that Discovery Bay had been
negligent in providing security and that Walker had
been negligent in "'allowing [Sataraka] through a
security door and onto an elevator . . . which lead to
[Dennis's] apartment.'"
A jury found that the negligence of both
Discovery Bay and Dennis had been causes of her
death. In a special verdict, the jury apportioned
ninety-two percent of the total fault to the
intentional conduct of Sataraka, five percent to the
negligent conduct of Dennis, and three percent to
the negligent conduct of Discovery Bay. Discovery
Bay moved for entry of final judgment in its favor
pursuant to the special verdict, arguing that,
because Dennis's negligence was greater than its
own, recovery from Discovery Bay should be
barred . . . . The plaintiffs countered that (1)
because one of the tortfeasors had acted
intentionally, Dennis's negligence could not be
compared to the negligence of Discovery Bay
pursuant to HRS § 663-31, (2) the jury should not
have compared Dennis's negligence to Sataraka's
intentional misconduct, and (3) notwithstanding the
jury's determination of Dennis's greater negligence,
Discovery Bay should be jointly and severally
liable with Sataraka for all of Dennis's damages. Id.
***
HRS § 663-31 provides in relevant part that "if
the [proportion of negligence attributable to the
person, for whose injury, damage, or death recovery
is sought,] is greater than the negligence of the
person or . . . the aggregate negligence of such
persons against whom recovery is sought, the court
will enter judgment for the defendant." Thus, by its
plain language, the statute requires that judgment be
entered in favor of Discovery Bay, inasmuch as the
jury's special verdict apportioned greater fault to
Dennis than to Discovery Bay. There is no
discernible reason why Discovery Bay should lose
the protection of HRS § 663-31 merely because its
codefendant committed an intentional tort. The
public policy underlying the decision to permit
recovery in strict product liability actions subject
only to reduction to the extent of the purely
comparative degree of a plaintiff's contributory
negligence--i.e., the "desire to create economic
incentives for safer products," . . . simply has no
bearing on the facts of this case. Thus, insofar as
HRS § 663-31 governs the plaintiffs' negligence
claim against Discovery Bay, the construct of pure
comparative negligence is inapplicable thereto.