Missing the Mark on Duty, Again. Regents v. Superior Court — Goldberg & Zipursky

Post by John C. P. GoldbergBenjamin C. Zipursky

The California Supreme Court has an iconic status in American tort law. It is, after all, the Court that gave us strict products liability. It also led the charge to liberate negligence law from no-duty rules that barred various claims against negligent drivers and landowners.

Perhaps the best known of the Court’s duty decisions is Tarasoff v. Board of Regents (1976). A Berkeley graduate student (Poddar) became obsessed with a young woman (Tarasoff). Eventually, Poddar confronted Tarasoff at her parents’ home and stabbed her to death. The Court held that, although Tarasoff lived off campus and was not an enrolled student, because Poddar had talked about killing Tarasoff with his therapists, they were obligated to take steps to protect her. Like most other Torts professors, we teach Tarasoff as emblematic of the California Court’s then-progressive, pro-plaintiff disposition, and its role as a trailblazer for courts around the country.

Imagine our surprise, then, to read a recent California Court of Appeal decision ruling that, so far as California law is concerned, universities owe no duty to their students to protect them against attacks by other students. More jarring still was that this case—Regents v. Superior Court—featured both another horrific knife attack and the same defendant as in Tarasoff: the Regents of the University of California. As Justice Perluss argued in a persuasive dissent, the Court of Appeal’s holding that UCLA owed no duty of care to its student is untenable. The core issue in the case is not duty, but breach (and perhaps causation).  Breach, of course, is a question for the jury.  

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A School’s Duty of Care to its Students: Munn v. Hotchkiss School — Goldberg & Zipursky

Post by John C. P. GoldbergBenjamin C. Zipursky

Having participated in intensive debates among tort scholars over the place of duty in negligence law, we were especially interested to see the Second Circuit’s recent decision in Munn v. Hotchkiss School, No. 14–2410–cv., 2015 WL 4604288 (2nd Cir. Aug. 3, 2015).  (Thanks to the Volokh Conspiracy and How Appealing for bringing the case to our attention.)  

Facts and Outcome in the Federal Courts

Fifteen-year old Cara Munn was bitten by a tick while hiking on a forested mountain in China during a summer trip organized by Hotchkiss, her New England prep school. The tick transmitted encephalitis, which in turn caused Cara serious neurological damage, leaving her permanently unable to speak. Cara and her parents sued Hotchkiss in federal district court, arguing that the school was negligent under Connecticut law for failing to warn them that the trip might bring her into contact with disease-bearing insects, and in failing to take steps to ensure that Cara took protective measures such as using insect repellant, wearing proper clothes while walking in forested areas, and checking for ticks. A jury awarded them $10 million in economic damages and $31.5 million in noneconomic damages.

Hotchkiss appealed. A unanimous decision by a very able Second Circuit panel comprised of Judges Walker, Lynch, and Lohier neither affirmed nor reversed. Instead, in an opinion by Judge Walker, it certified two issues to the Supreme Court of Connecticut:  (1) whether public policy supports the imposition of a duty of care in such circumstances, and (2) whether the damages award was excessive.

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Private Law is Happening — John Goldberg

Post by: John Goldberg

Kudos to NPL blogger Daniel Markovits for assembling and hosting last week an excellent two-day conference at Yale Law School as the capstone to his Spring ’15 Private Law Seminar. (It is surely a good sign for the field that Harvard and Yale now both have established programs on private law.) 

Here was the line-up of panelists and readings, which encompassed an appropriately diverse yet overlapping set of topics and methodologies, and gave rise to excellent discussions.

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Tort Law ABCs … — John Goldberg

Post by John Goldberg

In part what it means to take private law seriously is to be mindful of the proper application of basic legal concepts. In that spirit, I will from time to time point out instances of what I take to be sloppy legal analysis. Apologies to those who end up as blog fodder. Lord knows everyone makes mistakes.

Today’s example comes from a plain-vanilla, slip-and-fall case, Bongiorno v. Americorp, Inc., 159 So.3d 1027 (Fla. Ct. App. 2015). The plaintiff slipped while in a restroom in the office building in which she worked. She sued the owner on a premises liability claim.

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Private Law – A Response to Bainbridge — John Goldberg & Henry E. Smith

Post by John Goldberg and Henry Smith. Steve Bainbridge’s reaction—“WTF is ‘private law’?”—is understandable. It shows why the “New Private Law” is new! Along with Matt Bodie, he asks why areas like corporate law are not part of private law. The short answer is that they are, up to a point. Corporate law, family law, … Read more