American Tort Law
University of Insubria, Como, Italy
Ann C. McGinley
William S. Boyd School of Law
University of Nevada, Las Vegas
American Tort Law
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State law
Common Law system
Sometimes codified in statutes
Common law vs Code law?
The Restatement of Torts
Restatement (Second) of Torts
• Scholars and lawyers who
are members of the
American Law Institute
compile a statement of
what the law is (or should
be)
• Effort to make common law
of different states uniform
• Not binding law, but many
courts follow them when
deciding what the state
common law is
Example: Public Nuisance –
Restatement Second, § 821B
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(1) A public nuisance is an unreasonable interference with a right common to the
general public.
(2) Circumstances that may sustain a holding that an interference with a public
right is unreasonable include the following:
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(a) Whether the conduct involves a significant interference with the public
health, the public safety, the public peace, the public comfort or the public
convenience, or
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(b) whether the conduct is proscribed by a statute, ordinance or administrative
regulation, or
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(c) whether the conduct is of a continuing nature or has produced a permanent
or long-lasting effect, and, as the actor knows or has reason to know, has a
significant effect upon the public right. [Note: this seems to be a negligence
standard]
Tort cases in federal court
• Some federal laws governing torts
• Diversity jurisdiction – citizens are of different
states (or of a state and a foreign country)
• Federal courts apply the law of the state
whose law applies (usually where the injury
occurred)
• In climate litigation, some argue a federal
common law of public nuisance
Supreme Court (federal) or (state)
• Binding precedent
• Stare decisis
Lawyers’ Fees in Tort Cases
• Contingency Fees
What are torts?
Types of Torts
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Intentional
Negligence
Strict Liability
Products Liability
Personal and Emotional Harms
– Defamation
– Privacy
– Intentional Infliction of Emotional Distress
Intentional Torts
– Assault
– Battery
– False Imprisonment
– Trespass
– Conversion
What does “intent” mean?
• Acting with purpose to bring about the result
• Acting with knowledge that result is a
substantial certainty
• A high hurdle to prove intent, but at some
point we may find an intent in a climate
litigation case
– For trespass, you only have to intend to enter the
land
– For conversion, you only have to intend to take
the property
Trespass
• Voluntary entry upon the land of another
• Without consent
• Could this be used to challenge climate
change? (perhaps if your land is harmed by air
pollution)
• Problem: pollution may not be considered an
entry upon the land
Trespass Problem
• Cat howling on the wall between my
neighbor’s and my property. I throw a shoe
at the cat and the shoe goes into my
neighbor’s yard. Is this a trespass?
Image: Francesco Marino/ FreeDigitalPhotos.net
Conversion
• Treating another’s personal property as one’s
own. Converting that property to one’s
personal use.
eg. – finding a watch and keeping it
eg. – borrowing a car and never returning it
eg. – stealing a person’s diamond ring
• Can conversion be used to challenge climate
change? Probably not.
Negligence -- Elements
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Duty
Breach of duty
Causation (actual and proximate)
Harm
What Duty is Owed?
• Reasonable care – care
that an ordinarily
prudent person would
take under the
circumstances
• Would an ordinarily
prudent operator of a
factory permit
emissions to escape if
there is another
reasonable alternative?
• Would an ordinarily
prudent person drop a
banana peel on the
sidewalk?
Was it a breach of duty to not have a handrail?
To not use scrubbers to reduce emissions?
What’s the difference between these cases?
Causation
• Must Prove:
– Actual
– Proximate
Actual Cause
• Actual cause
-“but for” cause; doesn’t have to be the only cause;
or
-Defendant’s act is a substantial factor in bringing
about the injury [Can have more than one cause
but may be difficult to prove substantial factor if
many causes]
-Will it be difficult to prove actual cause in climate
change litigation?
Actual Cause?
Proximate Cause
Concept of limitation of liability
If too remote, courts will not find proximate
cause
Where do we cut the chain of causation?
Difficult to prove in climate change litigation
Climate Change Litigation:
Proximate Cause?
Which defendant is responsible?
• Even if you can prove
that emissions caused
climate change that
caused the hurricane,
whose emissions?
• Very difficult to prove
that any one hurricane,
etc. is caused by climate
change
Problems in Negligence
• 1. A young law student is walking to school at
the University of Nevada, Las Vegas. He
crosses the street when the light is green, but
a car comes out of nowhere and hits him,
breaking his leg and leading to extreme pain.
Analyze whether he has a cause of action for
negligence against the driver of the car.
Problems in Negligence
• 2. Same facts as #1 except that the light was
red when the student crossed. What result?
Problems in Negligence
• 3. Change the facts. Assume that the driver of
the car had the right of way but that he was
speeding. The plaintiff crossed the street
when the light was red. What result?
Problems in Negligence
• 4. Change the Facts. Assume that the driver
went through a red light because he was
drunk. He was served at a local bar, owned by
Joe. Assume that Joe served him 7 drinks and
then watched him leave and get into his car.
What happens if the student sues the bar for
negligence?
Problems in Negligence
• 5. A lives on a river downstream from B, a
battery manufacturing plant. Every day, B
discharges toxic chemicals into the river as a
result of the plant processes. A and his
children get leukemia. Do A and his children
have a negligence claim against B?
Problems in Private Nuisance
• 6. Now A lives in an area in the country where there
are no zoning regulations. A meat processing plant
moves in next door to A. The plant slaughters pigs to
make them into pork. It makes an unbearable smell
when the wind blows. A sues the plant for private
nuisance. What result?
Problems in Private Nuisance
• 7. What if A moved to his home after the
plant was in operation? Does he still have a
suit?
Problems in Private Nuisance
• 8. What happens if A is there first and a
chemical manufacturing plant moves in next
door. It spews out dangerous chemicals into
the air and makes it intolerable for A to go
outside because of the odor?
Problem in Trespass
• 9. Assume the same facts as in #8. Could the
plaintiff also sue for trespass?
Strict Liability, Products Liability
Strict Liability
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Certain activities – extremely dangerous
Eg.- blasting with dynamite, etc.
Toxic torts – environmental degradation
Nuisance – may attack climate change
Common carriers (airplanes, trains)
Products Liability
• Strict products liability –manufacturer and
seller liability for defects in:
– Manufacturing
– Design
– Warning
Restatement (Second) of Torts, 1965
Can this theory be applied to automobile design?
Design of other machines that produce emissions?
Restatement (Second) of Torts, Section
402A
• § 402A Special Liability of Seller of Product for Physical Harm to User or
Consumer
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• (1) Seller of product in a defective condition unreasonably dangerous to
the user or consumer liable for physical harm caused to the ultimate user
or consumer, or to his property, if
• (a) seller is engaged in the business of selling such a product, and
• (b) it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
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• (2) The rule stated in Subsection (1) applies although
• (a) the seller has exercised all possible care in the preparation and sale of
his product, and
• (b) the user or consumer has not bought the product from or entered into
any contractual relation with the seller.
Restatement (Third) of Products
Liability (1998)
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§ 2 Categories of Product Defect
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The product:
• (b) is defective in design when the foreseeable risks
of harm posed by the product could have been
reduced or avoided by the adoption of a reasonable
alternative design by the seller or other distributor,
or a predecessor in the commercial chain of
distribution, and the omission of the alternative
design renders the product not reasonably safe;
Difference between the Second
and the Third Restatements
• Second – easier for plaintiff to prove design
defect
– Test = consumer expectations
• Third – more difficult to prove
– Test = cost benefit analysis
Problems with Product Liability of
Car Manufacturer
• 1. Is the damage to the air from C02 emissions
damage to property?
• 2. Causation issues?
• 3. Is there a design defect?
• 4. Is it a defense if the manufacturer complied
with federal regulations by the Dept of
Transportation? (DOT)
Public Nuisance
• Can result from intentional, or negligent
conduct or from unreasonably dangerous
activity, and therefore create strict liability.
• Is ordinarily a common law concept; usually it
entails strict liability
– Can be state common law or
– Federal common law (we will see this later)
Public Nuisance – Restatement
Second, § 821B
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(1) A public nuisance is an unreasonable interference with a right common to the
general public.
(2) Circumstances that may sustain a holding that an interference with a public
right is unreasonable include the following:
•
(a) Whether the conduct involves a significant interference with the public
health, the public safety, the public peace, the public comfort or the public
convenience, or
•
(b) whether the conduct is proscribed by a statute, ordinance or administrative
regulation, or
•
(c) whether the conduct is of a continuing nature or has produced a permanent
or long-lasting effect, and, as the actor knows or has reason to know, has a
significant effect upon the public right. [Note: this seems to be a negligence
standard]
Problem in Public Nuisance
• 10. State of California brings a suit against the
defendants, a number of manufacturing
facilities that spew toxic chemicals and dirt
into the air and the water. What does the
state have to prove? What are the defenses?
Can the state get damages? Or can it only get
an injunction? What if the facility is in the
public economic interest?
Public Nuisance and Climate
Change
• 11. Assume that there has been a rise in the sea level
on beaches off of Alaska. Sea walls have been
inadequate and beaches are destroyed. The
community wants to sue for public nuisance caused
by the destruction of the beaches (caused by climate
change). The community has experts who will testify
that the emissions from oil and gas plants has caused
the climate change. Discuss how the suit should
proceed. What problems do you anticipate?
Public Trust Doctrine: Source =
State statutes or Constitution
• Requests the court to declare that:
• (1) atmosphere is a public trust asset;
• (2) Defendants have a fiduciary obligation as trustees
to take affirmative action to preserve the
atmosphere and other trust assets from impacts
associated with climate change; and
• (3) Defendants' fiduciary obligation is defined by
what the best available science has determined is
necessary to preserve the atmospheric trust.
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Butler v. Brewer, (AZ Ct of Appeals, 2013) Case was unsuccessful.
Questions
• Who would the plaintiffs be in a public trust
doctrine case?
• In a public nuisance case?
• In a private nuisance case?
• What are the possible remedies in these
cases?
Map of the US
State of Alaska
Map of US and Alaska
Kivalina, Alaska
People of Kivalina
Located on barrier island
Kivalina
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377 residents
95% native Inupiat
City sinking because of global warming
Cost to re-locate = $100 - $400 million
Poor city – no running water
Lawsuit against ExxonMobil, 8 other oil
companies, 14 power cos. and 1 coal co.
• Seeking damages for global warming that
contributed to sinking of island