Volume 16, Issue 1 - Symposium Issue, Part I: Reinventing the Canon: Great Tort Cases of the 21st Century

The tort of trespass to land has proven to be controversial as applied to airplane overflights (and more recently to drones) as well as to oil and gas production using hydraulic fracking technology. The key to applying trespass to intrusions above and below the surface of land is to distinguish between possession of land and the right to possess land. Surface owners have the right to possess the column of space above and below the surface (a kind of option value), but only to the extent that this space is subject to possible effective possession. The Pennsylvania Supreme Court in Briggs v. Southwestern Energy Production concluded that fracking can result in physical intrusions that can be detected using available monitoring technology. The court further concluded that such physical intrusions should be subject to trespass liability. We argue that these conclusions are correct insofar as such intrusions interfere with a surface owner’s possible effective possession – the action of the intruder necessarily means that the surface owner could also find it economically advantageous to engage in production activity in this portion of subsurface space itself. The decision confirms the utility of the law of trespass to the architecture of property, in that it establishes an indispensable baseline against which exchanges of rights and regulatory modifications of rights can occur.

In Bagley v. Mt. Bachelor, Inc ., the Oregon Supreme Court considered a topic of widespread, daily significance – the enforceability of tort waivers in the context of sports and recreation. Although these Sports Waivers vary considerably in their precise form and deployment, they function primarily to release organizers and providers of sports and recreation from claims of negligence. Almost every adult has signed such a waiver. Indeed, such waivers are so common that one might fairly think that (assuming the waivers are enforceable) the typical sports or recreation provider faces little to no accountability for its own negligence. Bagley stands out among recent cases because it opened new directions for how to evaluate and draft Sports Waivers.

Two tort law tenets are broadly accepted. First, litigants are to be judged based on their conduct, not on their character. In tort law, if not in heaven, the sinner is entitled to the same treatment as the saint. Second, it’s also broadly understood that, as comparative negligence supplanted contributory fault in the latter years of the last century, compensation stopped being binary; recovery became proportional. When, as is very often the case, the plaintiff and the defendant both err, the plaintiff’s entitlement to compensation is a matter of more or less, not yes or no. Against that backdrop, this Essay identifies four doctrines—the wrongful conduct rule, the “innocence” prerequisite to legal malpractice actions, the non-innocent party doctrine, and the complicity defense—that implicitly challenge both of these bedrock principles. We show how these “wrongdoer doctrines” extinguish claims, not just because of what the plaintiff has done but, rather, who the plaintiff is. And we also explore the doctrines’ other infirmities. Namely, these doctrines subvert the basic goals of tort law, authorize character assassination, defy consistent or principled application, rest on a false premise, and operate to resurrect a stealth version of contributory fault. Finally, this Essay, written for a symposium celebrating the great tort cases of the 21st century, highlights a recent opinion out of West Virginia that unmasked one such doctrine and appropriately relegated it to the dustbin of history.

Student suicide is a tragic problem on university campuses. Should universities have a tort duty to prevent them? Common law historically has shielded universities from liability based on the “suicide rule,” which holds that suicide is an intervening cause of harm and thus not within the scope of risk of negligence. Nguyen v. Massachusetts Institute of Technology represents a shift in this view, and begins to usher universities into an era of greater accountability, while mitigating the harsh impact of the suicide rule. This essay examines Nguyen as a classic example of common law’s incremental development. As with other areas previously off-limits to tort liability, Nguyen moves cautiously, opening the door to liability but with limits that avoid expansive liability in the absence of a university’s actual knowledge of suicide risk. It is too early to tell whether those limits will remain, or whether the basis for liability recognized in Nguyen will expand. Either way, Nguyen represents an important step in tort law’s response to a significant societal problem.

In the United Kingdom, as in some other parts of the Commonwealth, the courts have long embarked on a search for a general formula which can be applied to determine whether a duty of care arises in any given negligence case. In 2018, the United Kingdom Supreme Court delivered its judgment in Robinson v. Chief Constable of West Yorkshire Police , in which a plurality strikingly rejected as misconceived attempts to identify such a general test. Duty cases, the Supreme Court held, are to be decided by reference to precedent where applicable, or (where no such precedent applies) by analogy with the existing authorities. This approach curtails the role of policy in the duty of care enquiry. In this article, the decision in Robinson is put in context and its significance explained. It is argued that the approach to the duty question adopted in Robinson should be welcomed. Not only is that approach the best of the alternatives available, but it is the only one that is consistent with the methodology of the common law and the rule of law.

In Loomis v. Amazon.com, the California Court of Appeal confronts the most pressing products liability issue of our time: the extent to which an online marketplace is liable for injuries caused by defective products sold on its platform. In a trailblazing concurrence destined to enter the torts canon, Justice John Wiley highlights Amazon’s ability to influence the safety of the products it makes available for sale, and uses the case to remind us that the “deep structure of modern tort law” is built to “minimize the social costs of accidents.” Similarly, Justice Wiley cuts a clear path through the thicket of the economic loss rule, institutional (or vicarious) liability and punitive damages cases by following the torts lodestar: the irresistible simplicity of preventing harm.