Civil Engineering Chapter 5 This Summarizes American Tort Law Formidable Task Indeed The Same

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Chapter 5

This chapter summarizes American tort law, a formidable task indeed. At the

same time, the public policy issues raised by tort law may well be familiar to

students (whether they know it or not), providing fertile grounds for class

discussion.

First, some general comments about tort law. Until recently the tendency in

American tort law was to compensate victims, particularly those who suffer

But as is often the case in law, there are halts in expansion in liability and even

rollbacks when things seem to have gone too far. To be sure increased liability

became the fate of those who engage in certain activities, such as selling

cigarettes and medical drugs. But even here some believe that tort law may have

gone too far in regulating useful human activities. To the argument that risk could

always be insured, those who were concerned with over–extension of liability

pointed to the fact that not all risks could be insured and that even if insurable,

the premiums were high, coverage reduced or certain risks not insured.

Restatement (Third) of Torts: Liability for Physical and Emotional Harm. The

result is that there are now two, current definitions of duty: the traditional one

(centered on foreseeability) and the Third Restatement one (involving a

balancing of public policy concerns).

The Iowa Supreme Court decision of Van Fossen v. MidAmerica Energy

Company, 777 N.W.2d 689 (Iowa 2009), illustrates the differing approaches to

As the employee of a maintenance contractor, plaintiff worked for nearly two

decades at a power plant. During that time, he was exposed to asbestos

fibers. After he retired, his wife died from mesothelioma, having been exposed

to asbestos fibers when handling and washing her husband’s clothing.

Plaintiff sued the power plant owner in negligence for the death of his wife. The

owner asked the complaint to be dismissed on the ground that it did not owe a

duty of care to the wife. The trial court ruled in favor of the plant owner on the

ground that the wife was not a foreseeable victim of the owner’s conduct.

The supreme court agreed with the trial court’s ruling that the owner was

entitled to a dismissal of the lawsuit, but it did so using the Third Restatement

5.7.)

Another relevant policy consideration was the danger of limitless liability to an

indefinite class of plaintiffs. Imposing liability upon the plant owner in this case

2013).)

Section 5.6 addresses premises liability. Either the owner or prime contractor

(or both on a renovation project) may be subject to liability for those who enter

unto the premises and are injured by a natural or an artificial condition. The law is

transitioning from liability based upon the status of the entrant (invitee, licensee,

etc.) to the use of general negligence law (making reasonable conduct the

guidepost).

Section 5.8 covers products liability. Again, the discussion is complicated by

the existence of two Restatements of the Law. This text downplays the Second

Restatement of Torts and concentrates on the Restatement (Third) of Torts:

Products Liability, published in 1998. (For the instructor who wishes greater

detail, a side–by–side review of both Restatements is found in Sweet & Schneier,

Legal Aspects of Architecture, Engineering and the Construction Process,

Section 6.07 (Cengage Learning 9th ed. 2013).)

Answers to Chapter Questions

1.) What are the principal functions of tort law?

2.) What are the two different threshold classifications of tort law?

3.) What are the four elements a plaintiff must establish to prove a defendant was

negligent?

4.) What is the fundamental difference between the standard of care and a duty?

5.) What is foreseeability?

6.) What is the difference between contributory negligence and comparative

negligence?

a. Under contributory negligence the slightest negligence by a plaintiff was

sufficient to bar any recovery. But under comparative negligence the plaintiff

may bring a claim but then reduce any damages award proportionate to the

plaintiff’s percentage of fault.

7.) Under which doctrine is a land possessor liable for the injury of trespassing children

if the possessor knew or should have known that children are likely to trespass on

land containing a hazardous condition; the children because of their youth did not

discover the condition or realize the risk; and the possessor failed to exercise

reasonable care to eliminate the danger?

8.) What may be the difference in liability of an owner if the prime contractor injures

(a) a passerby and (b) a subcontractor’s employee?

9.) According to the Restatement (Third) of Torts: Product Liability, what are the three

ways a product may be defective?

10.) What are the two types of remedies for tort claims?