The Wide World of Torts: Reviewing Franklin and Rabin's Tort Law and Alternatives

Publication year2001
CitationVol. 25 No. 04



The Wide World of Torts: Reviewing Franklin and Rabin's Tort Law and Alternatives

Bernard W. Bell(fn*)

Tort Law and Alternatives authored by Stanford Law School professors Marc Franklin and Robert Rabin, and recently released in its Seventh Edition, continues to serve as an excellent casebook.(fn1) To paraphrase the introduction to the American Broadcasting Company's popular sports anthology, the Wide World of Sports, the casebook spans the country(fn2) to bring students the constant variety of tort litigation.(fn3) Tort law is, in a sense, very traditional-late 19th and early 20th century caselaw provides much of its foundation and many of the basic doctrines have long been settled. At the same time, tort law undergoes continuous metamorphosis. Franklin and Rabin have managed to maintain a good balance between the old chestnuts, such as Brown v. Kendall(fn4) Byrne v. Boadle,(fn5) Palsgrafv. Long Island Railroad Co.,(fn6) McPherson v. Buick,(fn7) Escola v. Coca-Cola,(fn8) Summers v. Tice,(fn9) Ybarra v. Spangard,(fn10) Carroll Towing v. United States,(fn11) Martin v. Herzog,(fn12) Tedla v. Ellman,(fn13) Murphy v. Steeplechase Amusement Co.,(fn14) Rylands v. Fletcher,(fn15) and Vincent v. Lake Erie Transportation Co., (fn16)as well as cases raising very contemporary topics, such as "toxic torts,"(fn17) "wrongful birth," "wrongful life," law enforcement liability for inviting journalists to accompany them on their searches,(fn18) and "loss of a chance of life."(fn19)

In their new edition, the authors have made substantial changes while retaining the basic organization of the materials. They have added a few new sections-most importantly one new section more fully exploring vicarious liability has been placed in the casebook's first chapter and a second highlighting work-related injuries from defective products now appears in the products liability chapter. They have also significantly revamped several other sections, including those covering medical malpractice, negligent infliction of emotional distress, and defenses to intentional tort causes of action. The authors have replaced cases in several other sections as well, even a few staples, such as Rowland v. Christian(fn20) and Hoven v. Kelble.(fn21)

The rich and extensive notes following the principle cases remain a particular strength of the casebook. The notes serve a wide variety of purposes. And indeed, at times, the organization of the notes appears a bit of a haphazard-sometimes one can discern no obvious sequencing of notes on various concepts. Almost invariably, the first few notes following the principal case focus on the principal case itself and pose questions that encourage students to consider the case more thoroughly. These notes often highlight the implications of the case's procedural posture.

The authors also use notes to introduce substantive concepts related to the concepts illustrated in the principal case. The notes following McPherson v. Buick and Escola provide particularly good examples of this technique. In McPherson, the New York Court of Appeals expanded manufacturers' liabilities to include injuries produced by defective products sold to consumers indirectly through independent retailers. Escola features a concurrence by California Supreme Court Justice Roger Traynor that provides a classic statement of the rationales underlying the development of strict products liability. The notes after these two cases discuss whether strict products liability applies to various types of potential defendants, such as franchisers, product lessors, and sellers of used products, and whether various categories of potential plaintiffs can pursue strict products liability claims, including non-purchaser users of the product and bystanders who suffer injury from the product.(fn22) The notes following the duty to rescue cases, Farwell v. Keaton(fn23) and Harper v. Herman,(fn24) provide a second example of the use of notes to discuss topics related to principal cases. In their notes, the authors elaborate on the various exceptions to the general rule that citizens have no legal duty to rescue others in obvious peril, alluding to the various Restatement (Second) of Torts sections on the subject.(fn25)

The notes also allow the authors to describe and briefly quote some of the old chestnuts that fail to make the casebook as principal cases. The authors cover H.R. Moch Co. v. Rensaleer Water Co.,(fn26) Ryan v. New York Central Railroad Co.,(fn27) Wagner v. International Railway Co.,(fn28) Ploofv. Putnam,(fn29) and The T.J. Hooper in this manner.(fn30)

Often, the notes offer information regarding subsequent developments related either to the principal case or the doctrine established by the case. For instance, after Tarasoffv. Regents of the University of California,(fn31) the authors chronicle the legislative responses to the case.(fn32) Such notes provide a bit of an institutional context, teaching students that the executive and legislative branches also shape tort law. On occasion, the notes will discuss judicial elaborations of the doctrine in the principal cases, like the notes following Dalury v. S-K-I Ltd.,(fn33) Riss v. New York,(fn34) and Hymonowitz v. Eli Lily Co.,(fn35) though the authors use notes in this manner less frequently. Sometimes the notes report information concerning subsequent stages of the litigation-such as the results of the retrial in Ybarra v. Spangard.(fn36)

The notes also often elaborate upon the law, providing the student with the alternative approaches that courts have taken, at least when the principal case itself does not outline the alternative approaches.(fn37) In addition to providing related cases, the authors often note the Restatement treatment of the issue.

The authors also offer thought provoking questions that force students to explore the rationale and potential limits of the doctrine discussed in the principal case. The authors use thought provoking questions and notes to explore the difficulties posed when a plaintiffs injuries could have been produced by either of two completely independent causes.(fn38) Another of my favorite series of questions, which the authors discarded in the new edition, raises the slippery slope problems created by the secondary harm doctrine. Defendants are liable not only for the harm initial they cause, but also for subsequent injuries their victims suffer during the course of medical treatment. Defining the precise extent of defendant's liability for subsequent mishaps presents difficulties-not every subsequent injury should be attributable to the initial defendant's negligence. For example, if a plaintiff suffers injury in a traffic accident that occurs two weeks after defendant negligently caused him injury and while the plaintiff is being transferred from one hospital to another in an ambulance proceeding at normal speed, should defendant still bear legal responsibility for the injuries that the plaintiff sustained in that later mishap?(fn39) Yet other examples of such thought provoking notes are those raised in connection with economic harm and egg shell plaintiff cases, when the authors ask whether some plaintiffs should be expected to selfinsure.(fn40)

Finally, the notes also provide key source material that provides a good starting point for research. However, the authors manage to avoid providing an undue clutter of sources.

In several respects, Franklin and Rabin's casebook provides a wonderful and effective vehicle for teaching torts, particularly to first-year students. The book develops important overarching themes while effectively presenting a wide variety of specific tort doctrines. The book also offers professors opportunities to sharpen students' legal abilities. In Part I of this review, I will discuss the first case in Franklin and Rabin's book and explain its usefulness in introducing several themes that both are critical to understanding tort law and assume a prominent place throughout the casebook. In Part II, I will focus on Franklin and Rabin's treatment of particular topics within the field of torts. I will concentrate on the materials regarding four aspects of negligence causes of action: duty to avoid exposing others to emotional harm unaccompanied by physical injury, medical malpractice, regulatory compliance, and proximate cause. I will also critique the materials addressing products liability, intentional torts, defamation, and privacy.(fn41) In Part III, I will discuss the usefulness of the casebook in imparting lawyering skills to first-year students-skills such as thinking creatively about facts, appreciating the importance of developing facts, legal analysis, and appreciating the procedural posture of cases.

i. hammontree v. jenner: previewing the major themes of Torts Courses

The text's first case, Hammontree v. Jenner(fn42) introduces the conceptual framework underlying the first eight chapters addressing unintentional torts. The case poses a conflict between two of the three major liability regimes applicable to unintentional torts: negligence and strict products liability. The court's ultimate resolution of the issue before it turns on whether a driver's loss of control due to physical incapacitation should be addressed under a regime of negligence or strict...

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