This chapter offers an example of classic empirical instrumentalist analysis. The issue is whether American tort law should or should not adopt under the negligence cause of action a general duty to reasonably and affirmatively aid another in peril.

A traditional formalist approach to the question, one that seeks to begin with a first principle of morality that might be thought of as being part of a larger natural law and then engages in an application of deductive logic to reach a conclusion, would almost certainly resolve the issue in favor of adopting such a formal tort law duty, as has much of the developed world.

An instrumentalist analysis, in contrast, would seek to identify and weigh the practical benefits and costs of each plausible resolution of the issue, selecting as the authoritative legal rule the one that promises the best net societal benefit. The degree to which that rule accurately articulated a conventional moral or religious posture would be largely irrelevant.

This chapter develops and presents a thorough instrumentalist analysis of this fascinating and complex issue. In so doing, it provides a rich rationale for the current dominant position of American tort law.

The American Law Institute’s first ever Restatement of Medical Malpractice law provides an opportunity to examine how generic private law doctrine shapes itself to the distinctive core features of medical care. Various Restatement provisions reflect tort law’s recognition of key features of medical care that justify regarding medical liability as a distinct branch of negligence law. Tort law does so, however, in a somewhat anachronistic manner that regards medical care encounters in a highly individualized fashion -- one that sees patient care encounters as primarily dyadic (simply between doctor and patient), rather than being embedded in complex institutional, professional, regulatory, and economic structures. To some extent, this simplification helps determine legal obligations and enforce patient protections. In other respects, however, tort law has not yet adequately reflected fundamental changes in health care finance and delivery over the past generation or two. The Medical Malpractice Restatement considers these changes and responds to some of them, but not to others. Because a Restatement is, at its core, a synthesis of existing doctrine rather than a law reform enterprise, it is limited in the extent to which it can aim to improve or modernize law. Embedded in the Restatement are a number of key passages that point in potentially constructive directions that future evolution of tort doctrine might take. Other points of doctrinal rigidity, however, might require more overt law reform efforts to overcome.

This chapter begins the last section, a section that explores how the police power can be used to address modern social problems. We look at a number of these wicked problems, including housing, transportation, environmental degradation, and other predicaments, and connect our conception of the police power as described earlier in this book to the use of this power proactively to confront these especially difficult problems.

Dean John Wade, who replaced the great torts scholar William Prosser on the Restatement (Second) of Torts, put the finishing touches on the defamation sections in 1977.1 Apple Computer had been founded a year before, and Microsoft two, but relatively few people owned computers yet. The twenty-four-hour news cycle was not yet a thing, and most Americans still trusted the press.2

The laws of defamation and privacy are at once similar and dissimilar. Falsity is the hallmark of defamation – the sharing of untrue information that tends to harm the subject’s standing in their community. Truth is the hallmark of privacy – the disclosure of facts about an individual who would prefer those facts to be private. Publication of true information cannot be defamatory; spreading of false information cannot violate an individual’s privacy. Scholars of either field could surely add epicycles to that characterization – but it does useful work as a starting point of comparison.

In the spring of 2022, visitors to the Smoking Gun website would find a challenging “game, where [one’s] wasted time [was] well spent.”1

Coordinated campaigns of falsehoods are poisoning public discourse.1 Amidst a torrent of social-media conspiracy theories and lies – on topics as central to the nation’s wellbeing as elections and public health – scholars and jurists are turning their attention to the causes of this disinformation crisis and the potential solutions to it.

In this chapter we discuss two doctrines that are interrelated in that they impose liability either because of the relationship between the defendant and the tortfeasor (D2–D1) (vicarious liability), or the relationship between the defendant and the plaintiff (D2–P) (non-delegable duty of care).

We will start by examining vicarious liability, which is a form of strict liability. We will learn that the employer–employee relationship is the most common instance of vicarious liability. At common law, the employee who commits the tort is always liable, and so vicarious liability of the employer is in addition to the direct liability of the employee (tortfeasor). We will distinguish the employer–employee relationship from the relationship of principal–independent contractor, as the employer is not vicariously liable for the acts of independent contractors. Then, we will establish when the employee acts in the course of employment. We will also note the employer’s right of indemnity from an employee.

As we have already seen, there are three basic elements to a successful action in negligence:

1. (1) a duty to take reasonable care owed by the defendant to the plaintiff

2. (2) a breach of that duty of care by the defendant

3. (3) damage resulting to the plaintiff from that breach.

This chapter deals with the third element. This stage involves taking (yet again) three steps:

1. (1) Identify the damage having an adverse effect on the plaintiff to be recognised by law as damage for which compensation can be sought.

2. (2) Link the defendant’s conduct (act or omission) to the damage suffered by the plaintiff.

3. (3) Establish the scope of the defendant’s liability or, putting it differently, establish the extent to which the defendant should be found liable for the harm suffered by the plaintiff OR the type of harm suffered was within the scope of foreseeability.

Having discussed how the law of torts protects a person’s physical integrity and freedom of movement in the previous chapter, we will now consider how the law protects a person’s interests in property against certain types of interference, including trespass to land and trespass to personal property

In this chapter, we will explore the definitions and features of these trespass actions.

This chapter deals with defences to the trespass actions discussed in Chapters 6 and 7. As a general rule, the defendant bears the burden of proving the facts necessary to constitute a defence. Where the defence is established, the defendant will be relieved of liability.

It should be noted that some statutory defences, which are similar to common law defences, are provided by the civil liability legislation and/or Criminal Code in most of the Australian states and territories. Therefore, when considering such defences, the relevant legislation in a particular jurisdiction must be consulted. This chapter will discuss some of the most important defences available for trespass to the person, trespass to land and trespass to personal property.

The defences fall within three roughly divided categories:

1. (1) Self-help based defences

2. (2) Justification-based defences

3. (3) Fault-based defences

   We also consider a number of factors that are not defences to trespass at the end of this chapter.