Volume 16, Issue 2 - Symposium Issue, Part II: Reinventing the Canon: Great Tort Cases of the 21st Century

Fearn v Board of Trustees of the Tate Gallery , required the UK Supreme Court to resolve claims that by operating an open-air terrace, from which visitors could enjoy a high-level view of London, the defendants were committing the tort of private nuisance against the owners of nearby luxury flats. The Court decided that the intrusive staring into the flats by visitors to the terrace could be a form of private nuisance, but split as to whether the tort was being committed; a minority thought that it would be necessary to take account of the claimants’ flats being glass-walled, and consequently unusually vulnerable to ocular intrusion, and the possibility of the claimants mitigating their discomfort by using blinds, whilst the majority insisted that it was straightforward to hold the defendants liable. This article concentrates on the majority’s re-statement of the basic test for liability in private nuisance, in particular their shift from an approach that assesses the “reasonableness” (or otherwise) of the defendant’s activity to one that relies heavily on a distinction between “common and ordinary” and “special and unusual” uses of land. It concludes that several key elements in the re-statement will require further elucidation, and that the key distinction does not reflect the values that its proponents hoped that it would.

In re Facebook preserved a class action brought against Facebook based on its mass collection of web browsing data. Although the plaintiffs brought several common law and statutory causes of action, I will focus on the court’s analysis of intrusion upon seclusion. This is where the case makes its greatest contribution to 21st century jurisprudence. It clears up several puzzles that had troubled the tort (and indeed my own thinking) to the great benefit of tort theory and the progress of privacy law.

A symposium on great torts cases of the twenty-first century must include Intel Corp. v. Hamidi , the canonical case about whether unwanted e-mail spam sent to a company’s server could give rise to a trespass to chattels claim. While much has been written about Intel , in this Essay, we argue that Intel is as much of a classic for what it reveals about the old-fashioned tort as it is for its more closely examined ruling on “cybertrespass.” The dueling personal property analogies chosen by the majority and dissenting opinions in Intel reveal basic and fundamental disagreements about what sorts of conduct the traditional tort prohibits: specifically, when a plaintiff may obtain nominal damages or an injunction against a defendant’s contact with personal property when that contact does not have lasting physical effects. As we point out, this question arose in cases long before Intel and generated some discussion during the drafting of the First and Second Restatements of Torts. Now, the same question arises in Fourth Amendment law and the law of Article III standing, areas in which recent Supreme Court decisions have elevated trespass-to-chattels analyses to renewed significance. Our Essay indicates the need for further development on open questions in the law of trespass to chattels, suggesting some ways that central tort-law notions like intentionality and custom might provide firmer bases for recognizing the harm in unwanted contact with things.

Every day, state common law courts define the duty of care in negligence law. There is no formula for how courts should determine duty. Yet when judges are charged with important decisions about whether to open or shut the courthouse doors to whole categories of claimants, judges need some framework for decision. This article commends as an exemplar, the Utah Supreme Court’s decision in Boynton v. Kennicott Utah Copper, a take-home asbestos exposure case. The power of Boynton is not only the answer it provides, but also the coherent framework for analysis that Justice Constandinos Himonas’ opinion sets forth. The opinion’s framework incorporates established principles as well as important tort policies such as harm prevention. Boynton’s structure at once provides the stability and consistency of precedent befitting common law adjudication while also incorporating the public policy and pragmatic concerns that have long guided tort law’s development. Boynton’s framework achieves a similar result to the one in the Third Restatement—creating duty and no-duty rules with possibility of exception based on principle and policy factors. However, Boynton does so through traditional terminology that has aquired meaning through repeated historical application. Courts, scholars and students would be well advised to examine the Utah Supreme Court’s approach to duty analysis.

While largely unknown, the Indiana Supreme Court’s 2017 opinion Escamilla v. Shiel Sexton Co. deserves to be canonized for closely examining – and, ultimately, rejecting – the incursion of federal immigration law and policy into state tort law. For over two decades, state and federal courts have relied on the United States Supreme Court’s 2002 ruling in Hoffman Plastic Compounds v. NLRB , to deny future lost wages awards to successful tort claimants who lack documentation. Escamilla reveals the faulty logic underlying this caselaw and provides a clear and straightforward framework for future courts to employ when faced with this issue. Ultimately, Escamilla demonstrates why plaintiffs’ undocumented status, alone, is insufficient to allow tortfeasors to escape paying tort victims what often amounts to substantial damages. In doing so, Escamilla fortifies the compensation and deterrence functions of tort law.

This article addresses the intersection of three important topics: sexual assault, police misconduct, and employer liability for employee torts. As to the last of these, while there have long been debates among jurists in the U.S. concerning the proper scope of respondeat superior liability, courts have mostly adhered to an approach that focuses on whether the employee acted for the purpose of serving the employer’s interests. The narrowness of this purpose-based test, as compared to available alternatives, makes it imperative for lawyers, judges, and scholars to be attentive to other, less well-known, bases for employer liability. In Sherman v Department of Public Safety , the Delaware Supreme Court applied a particular version of one such doctrine – the “aided-by-agency” doctrine – to hold a police department accountable for its officer’s sexual assault of an arrestee. By articulating this doctrine in a thoughtful and circumscribed manner, the Court affirmed its reputation as a leader in the development of agency law, while also providing a helpful framework that can be applied to hold certain employers liable when employees take advantage of their employment-based authority over their victims to perpetrate assaults.

Brown v. USA Taekwondo grapples with the problems that have dogged California law governing the determination of duty in negligence for more than fifty years now. The great California duty decisions of the late 1960s— Rowland v. Christian and Dillon v. Legg —were the bookends to an age of American tort law inaugurated by MacPherson v. Buick and Palsgraf v. Long Island Railroad. MacPherson and Palsgraf altered both the internal structure of negligence law and tort law’s relation to contract and property by making reasonable foreseeability of harm the master principle of responsibility in tort. Rowland and Dillon brought the age of reasonable foreseeability to a close. As their implications unfolded over time, we learned that making reasonable foreseeability of harm the fundamental test for both the existence of obligation and the extent of liability imposes more responsibility than we can bear. Reaching the limits of reasonable foreseeability as the master principle of duty doctrine left courts hard-pressed to say when fundamental responsibilities of care should be expanded and when they should be contracted. Ever since, California courts have been muddling their way through duty cases. They have been uncertain both about when an actor bears some responsibility for reducing a risk or mitigating a harm and about how they should go about making such determinations. USA Taekwondo’s efforts to recast Rowland’s laundry list of relevant factors as a two-step test shows us how we might begin to bring our own age of confusion to a close.

This article considers the UK Supreme Court decision in Michael v Chief Constable of South Wales Police . It explains the significance of the decision in terms of its affirmation of the principle that public authorities, in the case, the police, are subject to the same duties of care as private individuals in the tort of negligence. While offering some support for this ‘equality principle’, the article questions whether the principle is justifiably applied so as to restrict public authorities’ liability to that of private individuals.

Law recognizes a necessary (i.e., but-for) factor as a factual cause. However, it is a common misconception that the but-for test is the exclusive test of factual causation. Longstanding case law reveals that a factor may be a factual cause of an outcome, even if it was neither necessary nor sufficient for it. This was recently unanimously confirmed by the Supreme Court of the United Kingdom in Financial Conduct Authority v . Arch Insurance ( UK ) Ltd ( 2021 ). In the law, there seems to be a uniform concept of what it means to be a factual cause, one that is wider than necessity and includes unnecessary and insufficient factors which are recognized as factual causes across a wide variety of legal contexts. This uniform concept of factual cause can be captured in a forensically straightforward way in an “extended but-for test”. Appreciation of unnecessary and insufficient factual causes, which are common, provides a more coherent frame in which to view the outcomes of certain earlier cases. It also illuminates the importance for clarity of legal reasoning of separating the context-independent factual cause issue from context-dependent analytical stages such as the scope of the rule and remedy, including loss quantification.

In Tacoma, Washington, on a late June afternoon in 2013, a police officer brutally shot an unarmed, mentally-ill, middle-aged homeless man four times in the back with a Glock 45. He was not a suspect in any criminal wrongdoing, and horrified eyewitnesses confirmed that he was not posing a threat to anyone, including the officer, at the time of the shooting. The victim, Cesar Beltran-Serrano, survived, and subsequently sued the city for his injuries. The case eventually landed at the Washington Supreme Court, where the court was asked to resolve two separate legal issues: does the public duty doctrine immunize localities from liability when an officer has affirmatively acted (rather than just failed to act), and can a police officer who intentionally shoots a person be liable in both negligence and intentional tort. The court found in favor of the plaintiff on both issues. In so doing, the court created a viable and accessible path towards greater police accountability. On this basis alone, the decision deserves a spot in this symposium issue on the Great Tort Cases of the 21st Century. Yet the case does still more: its holdings are important not just for plaintiffs bringing claims against police, but for parties in cases far beyond the police/city context. Most notably, the issue of whether negligence can co-exist with intentional assault and battery claims is of particular importance to sexual assault tort litigation and potentially opens pathways for other contexts as well. The dual holdings in Beltran-Serrano thus hold much promise for those seeking social justice through tort law.

This Essay integrates two ambitions: to lay out new theoretical foundations for antidiscrimination law and to demonstrate the practical significance of these foundations to tackle instances of wrongful discrimination beyond the reach of the current legal regime. Concerning theory, we articulate an account of wrongful discrimination grounded in private law’s basic commitment to reciprocal respect for the self-determination and substantive equality of private persons. Concerning practice, we argue that antidiscrimination law is currently at its pre-MacPherson v. Buick stage, meaning it is made up of isolated pockets of liability for discriminatory behavior. The gaps between them are indefensible since they necessarily undermine people’s fundamental right to be treated as equals by holders of normative powers such as proprietors, employers, and lessors. Nothing short of a full-blown tort of discrimination will enable antidiscrimination law to reach its own MacPherson moment. The theoretical account we develop provides the necessary framework for embarking on this crucial endeavor: a clear articulation of the normative foundations of this tort as an integral and indispensable part of private law in a liberal society. Drawing on existing tort doctrines, we identify important legal tools that can be utilized for prescribing the proper elements—duty, breach, injury, causation, and remedy—of a novel, generic tort of discrimination.