PIC POST! Lecture Notes.

[Ihaman]

[sickbadthing]

http://www.einstein.caltech.edu/Images/weber.gif

[Ihaman]

REFLECTION ON THIS IMAGE:

"I'm going to eat it's head" she thinks to herself as it's head slowly arrives at it's fate, her mouth. With one last cry for help the inanimate figure raises it's naked and exposed arm into the air, it's face smothered by it's attacker. Her mouth grows wider, she had previously not anticipated her forthcoming meal to be so large, her eyes squint and the bridge of her nose scrucnhes up to compensate. The monolith must eat now, but alas to no avail. Her grassy knoll is a carnivorous resting ground entrapping all those who have fallen or lain victim to it's vine entangled walls, her golden locks reflect the sunlight in a obscene gesture of irony, she pouts.

[Nimrod's Son]

http://strega1.home.netcom.com/believe.jpg

[C33]

Originally posted by Ihaman

REFLECTION ON THIS IMAGE:

"I'm going to eat it's head" she thinks to herself as it's head slowly arrives at it's fate, her mouth. With one last cry for help the inanimate figure raises it's naked and exposed arm into the air, it's face smothered by it's attacker. Her mouth grows wider, she had previously not anticipated her forthcoming meal to be so large, her eyes squint and the bridge of her nose scrucnhes up to compensate. The monolith must eat now, but alas to no avail. Her grassy knoll is a carnivorous resting ground entrapping all those who have fallen or lain victim to it's vine entangled walls, her golden locks reflect the sunlight in a obscene gesture of irony, she pouts.

grotesque

[Nimrod's Son]

Originally posted by Ihaman
"I'm going to eat it is head"

[Ihaman]

Originally posted by Crestfallen33

grotesque

I had a good time writing it, and the class seemed to be especially relieved of the constant "SHE'S IN PAIN BECAUSE HER MOMMY SPANKED HER" reflections.

[Ihaman]

Originally posted by Nimrod's Son

damn.

[sickbadthing]

I'm having a hard time seeing that girl's grassy knoll.

[twice]

http://www.ausgang.com/collect/gif/notes/list1.jpg http://www.ausgang.com/collect/gif/notes/list2.jpg http://www.ausgang.com/collect/gif/notes/list3.jpg http://www.ausgang.com/collect/gif/notes/list1a.jpg http://www.ausgang.com/collect/gif/notes/list2a.jpg http://www.ausgang.com/collect/gif/notes/list3a.jpg

[Ihaman]

Originally posted by sickbadthing
I'm having a hard time seeing that girl's grassy knoll.

cope.

[jczeroman]

I guess this is example enough, it is about 100k:

http://www.augustfalling.com/netphoria/notes.jpg

[Mayfuck]

ok, but my penmanship sucks.

[DevilSaint]

The sight of Spike Dudley constantly dying warms my heart.

[beef curtains]

Originally posted by Mayfuck
ok, but my penmanship sucks.

YUMMY ACETATE

[DeviousJ]

I used to just download the lecture notes before I took the exam. That way I could stay in bed

I write my notes in Microsoft Word .

Originally posted by Lizard Queen
I write my notes in Microsoft Word .

Advanced Torts
Bitter – Fall 2003

Class Info
§ Grade – 10% attendance/participation/written assignments and 90% final
§ Small written assignments – won’t affect grade much – maybe 5 for the semester – short and informal – might turn in on TWEN at assignment drop box – first assignment due 9/8 – will be graded Satisfactory/unsatisfactory (not letter grade), but if you do outstanding she might note that
§ Course material will be in TWEN (westlaw’s web teaching software) – use Westlaw password – she’ll use Course Material & Calendar function (she’ll plan 4 classes in advance)
§ No textbook
§ she wants to teach us black letter law and case law process
§ course packets for sections of the class (1st is Intro packet)
§ Supplements – don’t really need them b/c she explains the course doctrine clearly to us (true) – she doesn’t hide the ball
§ She uses recent cases from lawyers she knows – many outside speakers (the lawyers that litigated the case)
§ O’Conners COA book (2001) – sounds like a good tool for exams
§

Exam Info
§ 5-hour, open book take home exam anytime during finals
§ page limits per question
§ How she grades – exam is to discover how well can you do what she clearly asks us to do – NOT can we figure out what she wants from us
§ Grades – bell curve – median is about 2.8
§ My idea - maybe study using Dorsaneo’s litigation guide or Business torts textbook?
§ She’ll post a packet on TWEN with old advanced tort exams and some answers
§ She’ll try to minimize any mystery about the exam
§ Philosophy on tests – a good test is how well you know the material (not a test of how well we can guess what will be on the exam) – she doesn’t want the test to be a surprise
§ Focus on what we spent the most time on in class
§ Don’t worry about things in readings that we didn’t focus on in class
§ No preference on organization of answers (doesn’t care about Iraq)
§ Don’t have to know case names, can just say “crane case”
§ Grading – assigns issues numbers and grades on a scale for each issue (0-5 points per issue) – she adds up at the end
§ Format of questions – she uses lots of diff formats (no more than 1 long issue spotting q) – maybe none – 4 general types of q’s:
o Issue spotter (30 minutes) – 1.5 pg - issue of duty (******* S Ct and your own thoughts)
o Short answer - she does lots of these b/c she can cover lots (10-15 min) – short paragraph of facts – ex – comparative responsibility (advantage of adding a D)
o Kind of short answer – question on damages
o Q on a presentation/speaker – ex –Q on Vasquez case –
state whether or not you agree with the following stmts: (lists lots of stmts)
§ Take-home exam (5 hours – anytime during finals)
§ Each q will have page limits
§ Little issues – don’t discuss at length
§ 2 kinds of coverage concerns on final:
o things in reading we didn’t cover – not on exam
o things speakers said that we don’t have reading materials on – only big points will be on exam


Class Notes M, 8/25/03
§ Packet 1: What is Tort Law in 2003?
§ Tort law traditionally was judge-made in cases – grew by case law – always open to change at the decision of the courts
· So, tort law is haphazard – no cohesive body of law
· Changes often
§ Today, there are some tort statutes (Lanham Act)
· State tort statutes – add COA that seem tort-like (give civil compensation and damages to damaged parties) and that DOES NOT PREEMPT traditional tort rights (statutes just add COA for P, they don’t take away traditional tort COA) OR CAN PREEMPT tort remedy (and take away tort remedy)
§ CO Drug Dealer Liability Act
§ NJ Immunity of Nonprofit Directors (can’t sue directors of not for profit entities)
§ CO Baseball Spectator Safety (can’t sue the team if you are hit by a foul ball)
· Federal tort statutes – same as state – can create COA that don’t preempt or that do preempt or that preempt part of the tort COA (preemption may or may not be explicit)
· 9/11 Fund statute – says “take this 9/11 package or use tort law – not both”

Class Notes W 8/27/03
§ tort is state common law and statutes
§ Tort reform statutes can preempt or supplement common law
§ Tort reform can add remedies available to P (provide private right of action for money damages)
§ 9/11 Fund – its an alternative to tort law – “opt out” provision (by accepting the package, you can’t sue using tort, too)
§ negligence jury question – “did the negligence, if any, of the entity named below proximately cause the occurrence in question”
§ Duty – usually there is a duty unless a no duty exception applies (swiss cheese)
o No duty (exceptions to duty general rule) – landowners, no duty to affirmatively act (no duty to warn unless there is a special relationship – Tarasoff case), no duty to prevent pure emotional distress
§ Wrongful death and survivor statutes
o These allow others to sue on behalf of dcd
o who can sue using these? – dcd parents, spouse or kids (or the dcd’s estate)
o Survival statute - COA is for Dcd’s estate
o Wrongful death – COA is for those inured by dcd’s death (parents, spouse, and kids) (NOT lovers, same sex partners, siblings, grandparents)
o Damages – funeral/burial expenses, conscience pain and suffering before death (individualized inquiry into their pain – compare to 9/11, which gives same pain and suffering to all dcd), mental anguish for the alive people, loss of consortium (*******s sexual intimacy)
§ Smalley v. Koch Indus. (ho 2) – P’s Petition - TX
§ Girl killed in pipeline explosion
§ Dispatcher for Koch didn’t have safety info for callers
§ What Koch could have done differently (5 breaches of duty)
o could have found and repaired leaks caused by corrosion
o better on-site response after there is a leak
o better education/warning for local citizens (don’t drive if you smell a leak)
o cathodic protection – slows down corrosion – should have used this
§ No duty problem here b/c none of the “no duty exception” applies
§ Standard is “ordinary care” and the statute of oil
§ Res ispa loquitor – the thing speaks for itself – use when you don’t have info about what happened – here, we don’t need it b/c we have lots of info about what happened with the explosion
§ Causation – actual cause( but, for test) and proximate cause
§ “But, for” causation test – show the untaken precaution – if that precaution was taken, then would the loss have occurred anyway (if so, the COA fails to fulfill this element) – would the dcd have died even if the breach of duty did not occur?
§ Texas – proximate cause – where to cut off the ripple effect (Pfalsgraff) – cause which, in a natural and continuous sequence, unbroken by any new and independent cause, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person or entity using ordinary care would have foreseen…???

Class Notes, W 9/ 3 – (remember to print packet 1 – review of neg. basics
§ Review of negligence basics
§ Is there a duty problem? Look and see if there is a “no duty rule or pocket” with respect to this type of case
§ Negligence – state what the D could have done differently
§ Informed consent - new statute on this
§ Standard of care for negligence (breach) may be both by statute and by the ordinary prudent person (or doctor, etc.) standard
§ Must establish 2 types of causation – Actual (factual cause – but, for) v. Proximate Cause (scope of liability – cut off liability at some point)
§ Koch case – maybe P didn’t satisfy actual cause (but, for) b/c the explosion could have been caused by something other than D’s negligence – maybe what happened to cause the leak is freakish and was not caused by negligence acts
§ This is not “no fault” - must show that D’s standard of care (monitoring pipelines) was not reasonable – D doesn’t have to show that they did every monitoring test possibly everyday (must consider commercial reasonableness)
§ Actual cause – usually use “but, for” test, but in some areas of law (toxic tort) might use a different test-
§ Van Pena – convenience store sells beer to kids in gang (underage) and they rapes and murders some young girls – is convenient store liable to girl’s parents? - maybe a “but, for” problem (boys might have done this anyway), proximate cause problem, too (kids killing people is not really a harm within the risk we think of when we think of the danger of underage drinking) – also, intervening/superseding event (boys engaging in criminal activity)
§ Koch – intervening cause was the girl’s decision to get in a truck and drive after she smelled the gas smell
§ Superceding (totally changes the course of action – ex – criminal act – stops the chain of events for proximate cause) is a greater change than intervening (contributing factor – ex - decision to drive the truck – this act is FORSEEABLE (foreseeable people will want to leave when they smell gas)
§ Proximate cause – superceding and intervening causes deal with this (not with actual cause) - the superceding and intervening causes are also but, for causes of the event
§ Koch – her driving the truck could trigger a proximate cause issue (intervening event) and also a contributory negligence defense (maybe not b/c “the cry of danger invites rescue”)
§ 3rd restatement of torts – large change to “cause” law
§ Union Pump v. Allbritton (packet 3) – PROXIMATE CAUSE – Tx S Ct 1995
§ Construction worker driving truck with blinking sign that broke – he got out to fix it and someone got in a wreck –
§ Proximate cause consists of both cause in fact and oreseeability
§ Cornin – do we distinguish btwn cause in fact and proximate cause or is it all muddled (here, the majority muddles the two tests)
§ At a certain point, you must cut-off liability for one’s actions – many words and formulas for this assertion
§ Would Cornin agree to the 3rd restatement’s view?
§ Rstmt 3rd on Causation
§ § 6 – An actor whose failure to exercise reasonable care is a FACTUAL CAUSE (but, for) of physical harm is subject to liability for any such harm within the SCOPE OF LIABILITY (proximate cause)
§ § 26 – an actor’s tortuous conduct must be a factual cause of another’s physical harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct.
§ § 29 – “scope of liability” – An actor is not liable for harm different from the harms whose risks made the actor’s conduct tortious.
§ PJC – (pattern jury charge) –
§ Corporate Liability – piercing the corporate view – Packet 3
§ Q of WHO P CAN SUE
§ P doesn’t need to sue the insurer of the D directly (at least in TX)
§ Who to sue? Sue the EE or the corporation itself (and which corporation – parent?) If EE messed up in the scope of his employment, you can sue the corporation (even though it wasn’t really the corporations’ act)

Class notes M 9/8
§ Guest speaker – Marquette Wolf (attorney with law office of Ted Ryan) – SMU Grad –
§ Smalley v. Koch Industries – $296 million verdict and 350 judgment here
§ Pipeline ruptured (corroded pipeline) – she drove a truck and it caught on fire, killing the daughter – father (Danny) watched daughter (Danielle) die
§ Danny didn’t care about money at all – he turned down $10 million settlement offer
§ Danny chose Marquette’s law firm b/c of the information they provided to him on the case
§ Wrongful death claim – parents of dcd have this claim (Danny and Judy)
§ Texas PJC is the “answer key” – general negligence question
§ COA – negligence or intentional act – really negligence
§ res ipsa loquitor – something happened that shouldn’t happen – not a good theory here b/c it confuses the jury and b/c we know what happened
§ How can we recovery and from whom?
§ Potential negligence issues – coating, catholic protection, training, public education
§ Hired an expert to tell the lawyers about the industry and proper coating, etc.
§ Negligence – standard is ordinary care for a pipeline operator and negligence per se (violation of laws designed to protect Danielle)
§ Proximate cause – cause in fact (but, for) and foreseeability
§ Koch argued that this type of injury is not foreseeable
§ Was it foreseeable to Koch that Danielle would die?
§ Public education issue – even if Koch acted with ordinary care in maintaining pipelines, under Tx law, a pipeline offer is required to provide notice to people who live near pipeline that 1. there’s a pipeline nearby, 2. how to recognize an emergency, and 3. what to do in an emergency – Koch failed to do this! (should have mailed/handed out pamphlets)
§ 3 week trial
§ deciding who to sue – in Tx, consider if you may get punitives (here, probably yes) – can admit the net worth of the D
· parent/sub/maintenance co.
· need to look at parent co to get huge damages
· alter ego theory – want to show that little co. is not really run within itself – its run by the bigger company – joint enterprise and management
· EE’s weren’t even sure which co they worked for
· Comparatives
§ bifurcated trial – liability and exemplary damages (if you showed malice in the 1st trial)
§ murder – if Koch knowingly failed in safety procedures reasonably certain to result in death
§ large jury verdict – caps on exemplary damages, though
§ VERDICT – entered by jury and JUDGMENT – final amount entered by judge (*******s interest, caps, etc)
§ Issue of conscious pain and suffering, funeral expenses and punitive damages (for child killed) – q was there suffering (here – yes $100 million) – q of conscious pain before death is gruesome (knowing you are going to die) – she lived from 15-80 seconds
§ Bystander claim – if you experience a tragedy (saw, felt, heard, etc) – you have a claim – here, Danny heard his daughter scream and saw her burned body afterwards
§ Mock trials – these are important so you can anticipate questions the jury will have
§ Law firm spent 1.5 million on prosecution costs - contingency fee
§ Defense spent 6 million
§ COA – neg, neg per se, murder
§ Res ispa loquitor – not needed b/c it was the code and neg per se is much better – only use res ipsa if you don’ t have a good case
§ On appeal – the judge might reduce the amount
§ Here, case settled after trial and before appeal


Class Notes W 9/10
§ Today: preemption, alter ego (corporate), damages
§ Next two weeks: comparative responsibility (after House Bill 4) and guest speakers (workers comp death case)
§ Preemption
§ Statutes that preempt tort law –
§ Fed statutory law has supremacy over state statutory law (which preempts common law – unless there is a C’l problem)
§ Congress can preempt law in 3 ways:
· 1. explicitly (clear – statute says “we’re preempting),
· 2. impliedly b/c Congress has occupied the entire field
· 3. impliedly b/c there is an actual conflict btwn the Fed and State law
§ in 92 after Cipalone cigarette case, people thought there was no more implied preemption – explicit only – law was unclear
§ Fed Vehicle Safety Act – “a State may prescribe a standard only if the standard is identical to the standard prescribed under this chapter.” – sounds like an explicit preemption, but…
· Savings Clause in the Act – “compliance with this chapter does NOT exempt a person from liability at common law”
· So – if state COA is not specifically precluded by the federal law, the state law is probably ok b/c of the savings clause
§ Ask whether the statute explicitly preempts the case at hand
§ Alter Ego
§ General prob: Big corp and little corp – when can you get to the big corp for something that seems like was an act of the little corp (or its EE’s)
§ Alter ego is diff than piercing the corp veil
§ Enterprise liability
§ Joint venture
§ Agency
§ Respondeat superior
§ Damages
§ We’ll start with death cases, then nondeath, then other topics
§ Damages in Death Cases
· Mental anguish COA for wrongful death beneficiary
· COA for conscious pain and suffering (for dcd’s estate)
· Dillon v. Legg
o Bystander claim for mental anguish - near the scene of the accident, close family relationship, and he suffered serious ED from this
· Survivor can get mental anguish from the death of the dcd and as a bystander claim (if they witnessed it) – they got both and its separate – wrongful death and bystander claims (2) – you have a special anguish you have when you actually witness the accident
· Loss of companionship/society b/c the dead person is not there anymore
· Loss of inheritance – not usually for child predeceasing parent (usually, this is if the parent dies early, then kid can bring this)
· Loss of services of a pecuniary nature (this is also usually brought by a kid if the parent dies early)
· Wrongful death damages
o 1. bystander claim for mental anguish
o 2. regular mental anguish
o 3. loss of companionship/society
o 4. loss of inheritance (if you would have gotten an estate if the person died later)
o 5. loss of services of a pecuniary nature (for things the dcd person did for you of an economic nature)
· House Bill 4 – doesn’t change wrongful death claims
· Proposition 12 – puts caps on categories of non-pecuniary damages at $250k (mental anguish, loss of companionship, etc)
· Caps on damages – done by tort reform – caps certain categories of damages
· Wrongful death claims – for living people
· Survival claims – dcd’s estate
o Pain and conscious suffering prior to death
o Funeral/burial costs
· Next week: damages

Class Notes M 9/15 - DAMAGES – Packet 4
§ P’s and D’s lawyers as speakers next week
§ Thus – comparative responsibility
§ Nonfatal injury cases today – Damages (packet 4, page 8)
§ The person who was injured (not killed)(physical damage) – can get lost wages (past and future), medical and rehabilitative, pain and suffering, mental anguish, impairment (loss of ability to engage in hobbies), disfigurement
§ The person whose property was damages (property damage) – can get property damage (no mental anguish for loss of property or damage to property)
§ Others (spouse/child/parent of injured person) can get loss of consortium, loss of services of a pecuniary nature, loss of companionship/society – no pure emotional distress claim (unless bystander – 3 part test – zone of danger)
§ Does House Bill 4 (found in packet 4, page 6) alter the damages available? - House Bill 4 is passed legislation – it is the law! It separates economic and non-economic damages. Caps apply to non-pecuniary damages (max of $750,000 for non-economic damages)
§ Old way: jury would award medical, lost wages, medical, pain and suffering, disfigurement, impairment (hobbies)
§ Non-pecuniary - mental anguish, pain and suffering, disfigurement, and impairment
§ Pecuniary – medical, lost wages (past and future)
§ Proposition 12 in Tx just passed – caps non-economic damages to $250,000 in medical malpractice cases
§ Future expenses – these are discounted to their present value
§ Impairment – this should compensate the victim for the loss of richness of their life and its up to the lawyer to argue what this entails
§ Roberts v. Williamson (packet 4, page 12)
§ TX S Ct
§ Texas law does not recognize a COA for a parent’s loss of consortium resulting from a non-fatal injury to a child
§ Reagan v. Vaughn (minor child can recover loss of society when parent is injured) – this still stands, but the court is saying the inverse is not true
§ They say parent’s claim is different than child – the relationship is different – child is more dependent on the parent
§ Parent can still have loss of services of pecuniary value
§ Can money really compensate for the loss of consortium
§ Section 189.091 Proof of certain losses – loss of earnings, loss of inheritance – take into account federal income taxes, too! (instruct jury as to whether any awards they give are subject to taxes so they can appropriately adjust)
§ Periodic payment statutes – Tex passed this Spring – structured settlements – P picks this voluntarily (to allow D to make monthly/annual payments) – voluntary only (p 29 in packet 4)

Notes W 9/17
§ Comparative Liability
§ Old way: If P did not put a certain D into the case, then none of the % of responsibility was allocated to them (just allocate fault among named D’s)
§ Tex Civ. Prac Rem. Code §33.001 – Proportionate Responsibility – Claimant may not recover damages if his % responsibility is greater than 50%.
§ Proportionate responsibility applies both to personal injury and to business torts
§ New Comparative Responsibility statute (packet 6) – *******s all involved parties – both named and unnamed parties – give it all to the jury to compare responsibility for the overall act
§ Joint and Severable Liability (packet 6 – p. 12) – a liable D is only liable for the % of damages equal to the % of responsibility, BUT the D is jointly and severably liable for all damages if (1) D caused greater than 50% or 2. D acted with intent to do harm in murder, assault, forgery, etc.
§ Settlement credit -
§ Settling person (page 6) means a person who has, at any time (even late in the trial), paid or promised to pay money or anything of monetary value to a claimant in consideration of potential liability for which recovery of damages
§ Responsible third party (p. 9) – means any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission… - for whatever reason, this RTP is not part of the litigation (ie – it was a criminal that got away) – you allocate a % to this RTP, but obviously P can’t recover from them , so P gets less money
§ Designation of Responsible Third Party (p 6) – D may seek to designate a person as a RTP.
§ If you don’t know who it is (it’s a criminal who escaped) – you can still name the unknown party as a RTP and call him “John Doe”
§ (P may move to strike D’s designation of RTP if D does not prove that the RTP is partially responsible)
§ (if a party has immunity (government, co with workers comp, etc) – it can still be a RTP) – this doesn’t violate immunity b/c the RTP will never have to pay anything
§ Contribution Defendant – 33.016 – diff than RTP – the contribution dependent doesn’t factor into the main questions like the RTP does
§ Means any D from whom any party seeks contribution with respect to any portion of damages from which that party may be liable, but from whom the claimant seeks no relief at the time of submission
§ The contribution defendant may have to pay D’s if the D’s pay more than their share
§ Can a contribution defendant (not really a party in the claim) also be a RTP? The D’s would get a benefit (b/c the jury might allocate some % of the liability to the RTP and then D’s may get paid back some by the CD). – Pryor didn’t answer. Seems like you could do both.
§ Contribution Rights – If D has to pay more than their % (b/c of J & S liability) – they have the right of contribution for the other D’s (to pay the % they should have paid)
§ Sometimes, P doesn’t sue all responsible D’s b/c those D’s don’t have $, relationships, J, etc.
§ P can’t recover for the % that they are responsible for
§ Responsible third party – usually this drives down the pot (P gets less money b/c the RTP is not in the trial and any comparative responsibility % allocated to them is not recoverable by P)
§ Speakers next week.


Notes Mon 9/22
§ Ed (D’s lawyer)and Carmen (P’s lawyer)- guest speakers
§ Vasquez v. Austin Commercial
§ P worked for Austin Commercial
§ Tex has no unions so we have lots of construction accidents
§ Tex uses illegal
§ P was decapitated and killed on the construction job (July 1988) – his widow and sons sue his ER
§ Pure Gross Negligence ER Case – can’t sue the ER unless it is pure gross negligence (if, just regular negligence – you just get worker’s comp)
§ For injuries (not death) – you can’t sue the ER if they subscribe to worker’s comp – need death to sue!
§ If ER doesn’t have worker’s comp insurance, EE can sue for any type of injury or death.
§ If EE died, the only people that can sue on their behalf are children and spouses (not parents of the dcd EE).
§ Negligence – co had noted crane cable problems (recommended replacement of cable multiple times) months earlier – co ignored this – great case for P’s lawyer
§ Referral fees to referring lawyers (can’t share fees with nonlawyers, but can with a lawyer) – usually, must pay 1/3 of attorney’s fees for just a phone call!
§ P’s lawyer must be proactive (not reactive) – must create the lawsuit
§ P must evaluate the client (Mrs. V) – check her **********
§ P then hires an investigator to go find out what happened (talk to police, get police report and photos, call VMI (get tv coverage of the accident – news), call EMS and medical examiner (any drugs in EE’s system),
§ OSHA investigates on the job accidents and writes a report
§ Here, EE wasn’t doing drugs, but even if he was, he was not contributorily negligent b/c he could not have done anything
§ Usually, D lawyer is appointed by D’s insurance co.
§ D had a “retention insurance policy” for a $1 million – D pays the first $1 million judgments and can pick their own attorney (insurer doesn’t pick lawyer – insured does) – SIR (self insured retainer/retention – type of policy)
§ Defense lawyer has many clients – D (Austin Commercial), D’s EE’s, insurance co.’s (many insurance co’s b/c lots of levels of insurance)
§ D – looks at court and venue and legal issues (elements P must prove, any caps on liability)
§ P must prove that a vice-principle either approved or ratified the corporation’s decisions – so, D tries to put the blame on a non-vice principle (b/c then the corporation is not liable)
§ D looks at liability analysis, damage analysis, and evaluation (of facts of the case and other similar jury decisions)
§ Tx – Tilley doctrine – defense attorney can NOT get involved insurance coverage issues btwn D and D’s insurer - 1 client (D) only
§ Doctrine of equitable subrogation – (American Home v. Canal) – if D’s attorney commits malpractice, the client (d) and d’s insurer can both sue the attorney
§ Gross negligence – an act or omission which, when viewed objectively from the standpoint of the actor at the time of its occurrence, involves an extreme degree or risk considering the probability and magnitude of the potential harm to others AND of which the actor had ACTUAL, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others (and must prove that this actor was a vice principle or his actions were ratified by a vice principle) – Tex Civ Pract and Rem 41.001 (Damages) – packet 7
§ D tried to show that the accident occurred b/c of another reason than the crane wire (b/c D knew the wire was bad, so need to show another reason that was not grossly negligent) – D tries to say cable broke only after the crane collapsed – however, it was clear that cable broke first (tension break)
§ Gammel case (like Dalbert, Robinson, etc.) – Tex – in packet 7
§ Hammerly Oaks v. Edwards (p. 18, packet 7)
§ definition of “vice principle” of D for gross negligence – “vice principle” encompasses 4 classes of corporate agents:
· 1. corporate officers,
· 2. those who have authority to employ, direct and discharge servants of the master,
· 3. those engaged in the performance of nondelegable or absolute duties of the master, and
· 4. those to whom a master has confided the mgmt of the whole or a department or division of his business
§ today, cases settle by mediation – including this one! (no face-to-face settlement anymore)
§ 3 fact scenarios:
· 1. Mrs. V – what are her damages – loss of consortium, (wrongful death or survivor) – also, the 3 sons – should D combine these in settlement offer?
· 2. 3 P’s – each represented by a diff lawyer – D tenders $6 million total and lets the 3 p’s work it out
· 3. 30 P’s (parents of injured kids, kids, and non-minor kids, and parents of dcd kids) - $6 million offer for all P’s – how to divvy it up?

Notes W 9/24 – guest speaker
§ how do we establish gross negligence? When viewed objectively from the standpoint of the actor the act involved an extreme degree of risk considering the degree of probability and magnitude of risk
§ vice principle – authorization or ratification of the EE’s act for the ER to be liable (p 22 of packet 7) – agent was unfit and the principle was reckless in employing them (people had told ER previously to fire crane operator b/c he was unfit)
§ Lone Star Steel litigation – lawsuit against steel plant that went bankrupt – EE’s sued –
§ Defense attorney has to please the corporation and defense attorney
§ You can’t represent all P’s if there is a conflict of interest (ie - they are all competing for a limited amount of money - insurance proceeds) and the way you represent each client and present the case may differ
§ To represent both the mom and kids – the mom/kids make a k together to decide on how they will split any proceeds (maybe 1/3 each) – lawyer must stay out of this k and the way they should split up the money – avoid conflict of interest this way
§ Soriano can act reasonably and choose with which P’s it should settle
§ Stowers letter – settle a claim unconditionally within the policy limits
§ Insurance co can tender the limits and let the P’s divide it up
§ Stowers demand - P makes a demand within policy limits
§ Bus accident – ins co settled with 30 plaintiffs and 4 nonsettling plaintiffs (parent of children killed) was left with nothing! Soriano case – insurance co can choose to settle with any P’s.
§ Mon – duty

Mon 9/29
§ Wed – duty
§ Next week – business torts (framed around 3 large cases)
§ Today, we’ll cover:
§ Return to statutory questions on comparative
§ Compensatory and exemplary statues from new tort
§ Basques – exemplary standards
§ Insurance – duty to settle
§ Periodic payment
§ Duty and practical explanation
§ Comparative responsibility and responsible third parties (packet 5)
§ (P. 6 – part D) – D1 is a contribution D and a responsible third party - can D be both a contribution D and a RTP? Yes.
§ RTP’s (D2, D3 and P) and Contribution D’s (D1, D2 and D3) – why wouldn’t the D’s want all D’s *******d as RTP’s (b/c this could decrease your chance of getting joint and severable liability)
§ Pro –defendant rules – D’s can get contribution from D’s that P didn’t name in the lawsuit (that D is not an RTP, but is a contribution D) – so that D doesn’t get any % of the comparative responsibility allocated to them (good for D’s for joint and severable liability - pro – defendant)
§ § 33.016 Claims Against Contribution D (packet 6 – p. 14)
§ joint and severable liability – if you pay more than your share, you should can get contribution from other D’s – the current state of RTP’s and Contribution D’s is sort of in opposition to this
§ settlement credit (packet 5, p. 8)
§ exists in all cases in which there is a settlement credit
§ Main jury charge - *******s RTP, settling party, P’s, D1, D2 (a settling party is done – P can’t get more relief from them, and D’s can’t get contribution from them – but you do assign the settling party a % of the comparative responsibility)
§ The amount of damages that the jury comes back with (100k) is reduced both by the P’s percentage of fault and by the % of fault attributed to any settling parties (pro-rata settlement credit). So, if the settling party has 20% comparative liability, then the 100k jury award is reduced by 20k (in Texas even if the settling party actually settled for only 5k or settled for 100 k) (other J’s reduce by the actual amount of the settlement)
§ Compensatory/Exemplary Damages (packet 7)
§ Tex. Statute (pecuniary v. nonpecuniary damages – (p. 4 – Damages – uses lots of words – exemplary, compensatory, economic, noneconomic)
§ Compensatory damages (we already did this)
§ Ex – Danielle Smalley (if she was burned, but still alive)
· Medical (past and future)
· Lost wages – past
· Lost wages – earning capacity future
· Impairment (past and future)
· Disfigurement (past and future)
· Mental anguish & Pain/suffering (past and future)
· Loss of companionship and society
§ To calculate lost future earnings (earning capacity) – estimate using capacity, grades, life expectancy
§ § 41.008 – limitation on amount of recovery (exemplary damages) – Exemplary damages can’t exceed the greater of:
· (a) 2X’s economic damages plus noneconomic damages (not to exceed $750k) or
· (b)$200,000
§ Economic damages = medical expenses (past nad future) and lost wages (past and future)
§ Pecuniary/nonpecuniary damages -this categorizes all types of economic and noneconomic damages for the purpose of applying caps (ex – cap on exemplary damages)
§ Hammerly Oaks case (?)
§ Anytime you want to get a corp liable for exemplary damages you must show TWO things: 1. gross negligence/malice - 2. WHOSE acts can form the predicate for gross negligence (more people than just vice principle)
§ Hammerly Oaks: A corp is liable for the act if:
· (1) if the corporation itself authorizes the act
· (2) the corp ratified the act, or a vice-principle ratified the act OR
· (3) the relevant actor was a vice principle
§ In the Austin Cement case (gross neg for ignoring worn-down cable on crane) – 1. corp authorized the act (retaining the cable) or 2. corp ratified the act (retention of the cable)
§ Elements of ratification - in Tex. Case law on TWEN
§ Insurance
§ Duty to Settle (handout 9/29) –
§ Usually, violation of DTS is a tort by the insurance co (can be breach of ins. k, too)
§ When ins co unreasonably rejects a reasonable settlement offer (gamble on going to trial and they lose b/c jury awards greater than policy limits) – then insurer will pay the excess judgement over policy limits (if ins co was unreasonable in not settling)
§ Tex Farmers Ins. v. Soriano - Stowers DTS arises if (1) claim against ID is within scope of insurance coverage in policy (2) there is a demand within policy limits and (3) the terms of the demand are such that an ordinary prudent IR would accept it
· Also – when faced with settlement demands, IR may reasonably settle with any 1 claimant, even thought this may diminish/exhaust the proceeds available to other claimants
§ Insurance policy language (k) is standardized by state gov – CGL, homeowner, auto, D & O,
§ CGL – get coverage and duty to defend (IR has duty and right to defend – can pick the lawyer, decide to settle, etc.)
§ Duty of loyalty – IR and ID - who is the “client” of the lawyer?
§ If IR rejects settlement offer and verdict is huge against the ID – the ID is screwed – so maybe IR violated DTS and should reimburse ID for the loss (amount of damages above policy limits)
§ “Stowers DTS” – from the Stowers case –

W 10/1
§ Comparative responsibility
§ Does this apply to exemplary damages?
§ DUTY – (packets 8 and 9) – like swiss cheese (usually, there’ a duty except little “no duty” pockets)
§ 2nd restatement is confusing
§ misfeasance (acting in a wrong way) v. nonfeasance (failure to act)
§ misfeasance
· §7 – An actor has a duty of reasonable care when the actor’s conduct creates a risk of physical harm to another.
§ Nonfeasance (sections from new 3rd rstmt of torts)
· § 37 No duty of care for risks not created by actor (general rule that nonfeasance is ok)
· § 38 – Duty based on earlier conduct creating continuing risk of harm
· § 39 – Duty based on special relationship with person subject to risk
· § 40 - Duty based on special relationship with person posing risks to third persons
· § 41 – Duty based on undertaking (must continue aid)
· § 42 – Duty to 3rd persons based on undertaking to another (this is like § 41, except is applies when it is the 3rd party that is suing)
· § 43 – Duty based on taking charge of another who is helpless
§ Examples in packet 9
· Duty to affirmatively act is limited in the “nonfeasance” instances – don’t want to create it too broad where you have a duty to act to protect everyone (ex – limit “undertaking” damages to recovery only by the person you tried to help)
· Boy dies during game of Russian Roulette – did the other players have a duty to stop him?

Notes M 10/5 DUTY
§ Packet 9 – duty problems and packet 8 – tort rstmt on duty
§ Breach – show what the D could have done differently in the situation
§ § 40 – special relationship btwn ER and EE
§ An actor in a special relationship with another owes a duty of reasonable care to 3rd persons with regard to risks posed by the other that arise out of the relationship. Special relationships sufficient to create such a duty *******:
· A parent with a minor child
· A mental health professional with patients
· An ER with EE’s acting outside the scope of employment and
· A custodian with those in its custody
§ § 42 – An actor who gratuitously or for consideration undertakes to render services to another has a duty of reasonable care to a third person in conducting the undertaking, if:
§ (a) – the actor should recognize that the undertaking reduces the risk of physical harm to which a 3rd person is exposed, and either b, c or d is met;
§ (b) – the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or
§ I – the actor has undertaken to perform a duty owed by the other to the third person, or
§ (d) – reliance by the other or a third person on the actor’s exercising reasonable care in the undertaking causes the harm
§ a terrible breach does not = a duty! You don’t care how badly the person breached their “duty” if there is no duty at all.
§ Unforseeable plaintiff, proximate cause – Pfalsgraff – is there a duty to an unforeseeable P? Also, the manner of what happened (superceding/intervening event – like a criminal act) might have been unforeseeable.
§ We’re not redoing the landowner duty issues – greater duty for invitees to the property than to non-invitees (3 categories: trespasser, guest, and invitee)
§ Business owners invite people on the property, so maybe they have a higher duty (misfeasance v. nonfeasance)
§ Misfeasance, nonfeasance, and landowner with respect to hidden conditions on the property
§ By undertaking to provide security (security guard, etc), you must do so non-negligently (people rely on your security)
§ Landowner duty stops when the person leaves the premises (don’t have to follow them out of the parking lot, etc)
§ Statutory duty to report – the duty of school officials, including teachers, to report cases of suspected child sexual abuse or other abuse (statute in NY)

BUSINESS TORTS

Mon 10/13
§ Next week – defense lawyer speakers (Mike Gruber)
§ Today: Prof. Bomberg (securities prof)
§ H.O. – ESP’s Outline of the Renick v. Beck case (we’ll go over her model answer)
§ Timeline:
§ Formation of first limited partnership VSM/Blockbuster I (investors Renick, Murphy, Howell) (VSMI, Inc is the general partner) (1986)
§ VSMLP becomes general partner of VSM/BB
§ VSMLP and Blockbuster do a deal where BB acquires VSMLP without the consent of the limited partners (R, M. and H)
§ BB manages the sub partnership and doesn’t give any cash distributions to limited partners
§ Limited partners (R, M. and H) sell their limited partnership interests to Blockbuster (1991) – purchase agreement contains a release that releases BB from any claims
§ D 1: Beck
§ COA – Breach of fiduciary duty
· 1. Duty
o arises b/c they are business partners and there is a relationship of trust and confidence (general partner has a duty to limited partners)
o Was Beck the fiduciary of the limited partners?
o Is there an “agency” relationship?
· 2. Breach of duty –
o show transaction was not fair/equitable.
o Fiduciary relationship has lots of stringent responsibilities – can show breach by proving breach of any one duty (easy to do). Responsibilities *******:
§ Reasonable use of confidence (no misuse of confidence) (abuse of trust) - this doesn’t really mean confidence in a secrecy/silence sense the word, its about trust
§ Act in good faith and scrupulous honesty
§ Don’t place personal interest in front of others’ interests (personal gain that conflicts with duties as fiduciary) (self-dealing)
§ Fully and fairly disclose all important information to Renick
o Breach must be within the scope of the relationship – must define scope first.
§ COA – Breach of Duty of Good Faith and Fair Dealing – only for special relationship of trust and confidence (has not spread past insurer/insured)
§ COA - Tortious Interference with Existing Contract
· 1. Intentional act (purpose of knowledge with substantial certainty) – independent wrongful conduct
· 2. interfered with the performance of a contact between P and a third party (maybe Beck is a party to the contract, such that he can’t have interfered)
· 3. by inducing or otherwise causing the third person not to perform the contract
§ COA – Fraud
· 1. Material misrepresentation that is (1) false stmt of fact or (2) promise of future performance made with the intent not to perform as promised or 3. stmt of opinion based on false stmt of fact or 4. stmt that maker knows to be false
o Mere silence does not = misrep, unless there is a duty to disclose (failure to speak)
· 2. Misrep is made with knowledge of falsity or made recklessly without any knowledge of the truth
· 3. Misrep is made with the intention that it should be acted on by the other party
· 4. Other party acted in reliance on the misrep and thereby suffered injury
§ COA – Civil Conspiracy
· as a predicate, we need an underlying crime/ tort
· actors are liable for all acts performed in furtherance of the conspiracy, even acts they were not involved in personally
· 1. two or more persons - Beck/Blockbuster/VSMLP
· 2. object to be accomplished – acquisition of VSMLP by BB
· 3. meeting of minds over the object or course of action
· 4. one or more unlawful, overt acts – misreps, fraud, conflict of interest, breach of fiduciary duty
· 5. damages as a proximate result

W 10/15 Partnerships
§ Oct 20 (P’s lawyers in BB – Mike Gruber) – Oct 27 (finish up with law on issues in BB, finish up with duty) – Nov 3 (professional malpractice) – Nov 12 (Randy Johnston)- Nov 17 (business defamation, lanham act, daubert in business torts)
§ HO on partnerships (packet – Overview of law on GP’s, LP’s, and LLC’s)
§ Partnership Interest gives you
§ Power – right to manage partnership business and make managerial decisions
§ Money – right to distribution rights (% of profits)
§ Limited partners (in a LP) may just have distribution rights and not managerial power rights
§ Partnership interest is freely assignable – (partners can transfer their money rights), but the general partner cannot assign his right to make managerial decisions unless the other partners agree (or they have a k)
§ Some actions of general partner require consent of the limited partner
§ GP can delegate the right to make managerial decisions (if he gets LPs’ permission), but he may still remain the GP
§ A corporation can be a general partner
§ There is no tort for “pure economic loss” – ex – wreck in front of you made you miss a $10 million dollar deal – you can’t recover for this loss – ripple effect is too loss – if you were involved in the wreck and had property damage, you can get economic loss, too
§ Professional malpractice is a tort which provides recovery for economic losses (Formosa)
§ DAMAGES
§ Stmt re damages from Roger Carlile (expert witness for P) –
· 31. the actual damages suffered by P’s determined on a per store basis using the price per share of BBEC common stock on the date of the BB acquisition (Aug 25, 1989) including prejudgment interest – $2m
· 32. the actual damages (from 1989-91) – $6 mil – diff time period
§ Stmt re Damages from Erickson (from D)
· Actual damages by P can’t exceed the fair value of P’s limited partnership equity interest in VSMI/BB I
· Can’t get actual damages from exclusion from the BB acquisition b/c BB would not have *******d this in the transaction given pooling problems
· Actual damages and wrongful profits are not valid
§ Put P in the same position they would have been in absent the tort from D
§ Disgorgement of wrongful profits made, damages proximately caused by the wrongful conduct, benefit of the bargain

Mon 10/20
§ Guest speakers for the real Blockbuster case
§ Partnership law, duty and tort COA (and defenses/damages)
§ Gruber and Hail (Godman Gruber – 150 attorneys – almost all litigation)
§ $123 million judgment in the real Blockbuster case
§ BB case – 2 cases – 3 limited partners put in 2.4 million into the LP –
§ Case #1 - Howell (LP) -123 million dollar judgment
§ Case #2 – Renick and Brock (2 LP’s) – settled for a large amount
§ SOL for breach of fiduciary duty – 4 years
§ Facts:
§ Howell liked the BB store, and called his financial advisor – Beck
§ Beck – was starting an LP to start 3 new BB stores
§ All 3 limited partners (HRB) became partners in Beck’s LP that held the 3 BB stores and the general partner was VSM, Inc. (Beck was the SH in this)
§ Only the general partner (Beck) profited and the LP’s didn’t
§ Want to control who the GP is in a limited partnership
§ Beck didn’t put in much money, but he got lots of return (much more than the LP’s)
§ Beck set up a series of LP’s to own/operate BB stores (all LP”s were owned by VSMI as the general partner and VSMLP as the limited partner)
§ Transfer of LP stock from VSMI to VSMLP – they got the LP’s consent for this
§ Reverse triangular merger – tough to understand
§ GP has a veto right over all possible sales of assets/stock – so the LP’s won’t get FMV for the stock b/c the GP was associated with the potential buyer

Wed 10/22
§ Q’s:
§ How was Beck a fiduciary to the LP’s?
§ Financial advisors don’t have a per se (as a matter of law) fiduciary duty to their clients (even though they have a special relationship) – odd.
§ Also, Beck was a controlling GP and thus may owe a fiduciary duty to the LPs in the limited partnership. Like duty of good faith and fair dealing.
§ Huge damages for breach of fiduciary duty – you get to recoup all the profits that were wrongly made (unjust enrichment) – constructive trust
§ Tortious interference claim (interference with the partnership contract). Judge dismissed this in SJ. Need a third party (someone on the outside), and if the parties are too close there is no COA. Here, the parties (Beck and LP’s) are both parties to the same contract, so there is no 3rd party. You can’t “tortiously interfere” with your own contract.
§ Fraud/inducement to fraud/nondisclosure fraud (3 COA) – what do these causes of action owe to the breach of fiduciary duty claim?
§ Evidence rules allow certain evidence for some claims and not for others. So, claim the maximum number of COA so that you can get the maximum amount of evidence in.
§ Jury Q – Was the 1994 transaction (acquisition of the LP by BB) fair? (A transaction is not fair if there was a breach of fiduciary duty. Lists 8 total ways that a transaction should be found not to be “fair”). If not, what are the damages. Texas likes broad form jury questions.
§ The SOL precluded some of these COA. 2 year SOL for breach of fiduciary duty (now its 4 years). 4 years for fraudulent nondisclosure.
§ Nondisclosure - fraud via omission (not an actual false stmt) – only have this if there is an affirmative duty to speak (like in a fiduciary relationship)
§ Fraud - damages are very limited
§ Accounting COA – sue for profits due to you under the profit agreement. COA doesn’t accrue until a few years after the wrap-up of the partnership (long SOL).
§ Conspiracy claim.
§ Defenses - Release, equitable estoppel (like release), waiver (intentional relinquishment of a known right), SOL
§ LP’s signed a release of liability. Other party has to prove that the release was fair.
§ Tort COA (can get exemplary damages) v. contract claims (only benefit of the bargain damages).
§ P – through in as many COA as possible
§ Most cases settle - 95% (the cases that don’t settle are usually a result of P and D not understanding each other’s case). You need to fully understand your opponent’s case. Look at the big picture.
§ Have a master trial plan and all lawyers working on the case adds to that (keeps everyone abreast of the big picture). Envision the appeal and get things on the record. Its easier to get a verdict than to keep it on appeal
§ Most young associates switch firms after 2-4 years. Be in the middle for chargeable hours. Make yourself valuable. Have a mentor. Don’t do a task without understanding where it fits in overall. Volunteer for projects.

M 10/27
§ Review:
o Elements/Issues of COA (elements overlap)
§ Breach of fiduciary duty
§ Breach of duty of GF/fair dealing
§ Tortious interference with k and prospective k
§ Fraud
§ Fraudulent nondisclosure when there is a duty to disclose
o Partnerships
§ GP has general liability
§ Control persons of GP probably have fiduciary duty to LP’s
§ Veil piercing may be available to get to controlling person of a corporate GP
o Economic loss rule – Formosa case
§ Packet 10 – Economic torts – good general treatise information
§ Remedies/damages
§ Economic loss rule
§ Elements for COA
§ Is there a fiduciary duty and if so, what is the scope of the relationship?
§ Principles/agents – this is always a fiduciary relationship – all agency relationships have a fiduciary relationship for the scope of the authorized agency –
· Fiduciary relationship does not necessarily = agency relationship
· Some fiduciary relationships are NOT agency relationships
· All agency relationships ARE fiduciary relationships
· General partners and limited partners are in a fiduciary relationship, but aren’t agents for each other
· (Rsmts 3.d of agency) Agency is the fiduciary relationship that arises when one person (a principal) manifests assent to another person (an agent) that the agent shall act on the principal’s behalf and subject to the principal’s control and the agent manifests assent or otherwise consents to act.
· Are all EE’s agents of the principal corporation? Usually, yes, but only for the scope of their employment (which is small for most low-level EE’s).
· When an agent is a professional and is negligent in carrying out their duties, that is both breach of contract and a tort for professional malpractice (for lawyer, accountant).
o This is an exception to the economic loss rule (against awarding damages for pure economic loss rule).
§ Fiduciary responsibilities of directors and officers
· A director, officer or senior manager has fiduciary obligations to the corp that is composed of two main duties:
o Duty of care (subject to common law “business judgment rule”
o Duty of loyalty (no self-interest, usurping corporate opportunity, trading on insider info, etc)
§ Economic loss – international misrep (fraud) and negligent misrep
§ Conspiracy COA – use b/c then the laws of evidence allow much evidence into the court –
§ Packet 11 – fiduciary duty and its application in contexts other than ptnships
§ Crim Truck v. Navistar
· Establish fiduciary relationship either as a matter of law or submit the question to the jury as a question of fact
· Ct says franchisor/franchisee relationship is not, as a matter of law, a fiduciary relationship
· No special or confidential relationship that gives rise to special duties here
· No relationship of personal trust and confidence in most k’l relationships, even though k is not assignable
· Maybe you should just write in the contract “this is a fiduciary relationship” so the courts will know what you intend
· You can’t exculpate your fiduciary duties with a contractual provision.
· No duty of good faith and fair dealing b/c this is limited to insured/insurer relationship context
§ Anton v. Merrill Lynch - Brokers and their clients
· Ct doesn’t say whether or not a broker is an agent of the client (agency relationship such that there is definitely a fiduciary relationship, too).
· Broker may be in an agency and fiduciary relationship with the client, but this depends on the facts of the relationship and is not established as a matter of law
· Scope of relationship is narrow (only to the actual brokerage account holdings) – does not extend to prospective investments/accounts
§ Collins v. Smith - family relationship – testamentary relationship and dealing with elderly
· Daughter may have fraudulently induced dad to sign a will before death
· Daughter had a fiduciary relationship with the dcd, but she did not breach her duty
· Executor of an estate does have a fiduciary relationship to the estate (not to the beneficiaries, though – this would be a conflict of interest)
· Fraudulent inducement
o 1. material misrep was made
o 2. rep was false
o 3. speaker knew it was false or made it recklessly without regard to truth
o 4. reliance
o 6. injury
§ Pabish v. Kellar – closely-held corp (p 17)
· SH in a closely-held corp may be in a fiduciary relationship, but not necessarily as a matter of law (depends on facts of the case)
· Depends on whether a confidential relationship existed
§ Icom Systems v. Davies (p 20) – usurping corp opportunity
· There must be a fiduciary relationship btwn the parties to give rise to a COA for usurping of a corp opportunity.
· Usurping corp opportunity – corp must prove that officer/director misappropriated a business opportunity that properly belonged to the corp
§ Brewer (p 23)
· As a matter of law, an associate has a fiduciary duty to their law firm.
§ Smith v. Tilton (p 27)
· Religion
· Tort COA against a ministry and minister
· Representations of religious beliefs are constitutionally protected speech (1st A) – so this does not give rise to a tort COA for misrep
· To claim “we will pray for you if you send $” and then they don’t pray – this is fraud!
§ Packet 12: caselaw on partnership and fiduciary duties
§ These cases were cited and used in the BB case
§ We will not go through these cases in great detail – most parts of these cases are not on point
§ Crenshaw v. Swenson – basic points re: fiduciary obligations of managing partners in GP and general partners in LP
§ Huffington – abandonment – waiver – intentional relinquishment of a known right (this is a defense)
§ Miller v. Kendall – Damages – issue of time of stock valuation under different theories
§ Bennnet v. LSP – person who controls the GP – notion of control - this person has fiduciary obligations to the limited partners

Wed 10/29
§ Today: cases in packet 12, issues in packet 13, packet 14 (agency, duties and relations in corps, Enron), damages, and packet 15 (Zixit)
§ Damages and defenses – we still need to cover these
§ Packet 13 – (3 cases on economic loss rule, waiver of a right of refusal, and discovery rule for SOL)
§ Formosa Plastics
· Economic loss rule (stranger v. nonstranger cases)
· No claim for “tortious breach of a k” – this is just a simple breach of k claim (not a tort claim)
· COA for negligence can not be based on allegation that a party negligently failed to perform a k
· You can have a tort COA in a k’l relationship as long as you have a tort COA (and the elements)
§ Waiver – affirmative defense – a party who intentionally relinquishes a known right or engages in intentional conduct inconsistent with claiming that right
§ SOL – purpose of the doctrine is to preserve the integrity of the trial process (evidence)
§ Computer Assoc. v. Altai – SOL
§ SOL does not begin to tick until P knew/should have known about the fraud/misrepresentation
§ Discovery rule – provides exceptions to SOL for people who did not know they were injured (SOL begins when they know/should have known about their injury) – often for exposure to toxic substance – ie – mold
· Does not apply to fraud/misrep cases
§ Tx does not have the discovery rule for inherently undiscoverable injuries (for objectively verifiable injuries – like a foreign object in the body after surgery)
§ Packet 14 – Enron
§ Relationship btwn officers, directors, and SH (agents, fiduciaries, or both)
§ You can have a fiduciary obligation without an agency relationship
§ Agency relationship – fiduciary – principal has the right to control the agent
§ Standard for determining an agency relationships’ existence is objective (would most people think the relationship existed) and not subjective
§ Agent acts on principals’ behalf and subject to his control
§ Tenant/LL – not agency relationship
§ A binding k is not necessary for the creation of an agency relationship
§ Corporations
· BOD – not agents of corp – yes fiduciaries
· Officers – yes agents of corp – yes fiduciaries
· SH (owners of corp) – not agents – not fiduciaries
§ Fiduciary obligations have a certain scope (for BOD/officers – its for the management/running of the company)
· Duty of care – discharging duties in good faith in a reasonable manner, to be informed
· Duty of loyalty – no self-dealing
§ Business judgment rule – officers/BOD owe a duty of care in making corp decisions, but juries won’t second guess business decisions
§ Enron
· Enron itself was owned by Enron SH’s and run by BOD and officers
· Owned 97% of many Limited partnerships (not subsidiaries of Enron, so it doesn’t have to consolidate financial statements) – so, debt and losses in those LP’s don’t go on the Enron financial statements
· Enron (as a limited Partner) owes certain duties to the limited partnerships
· Fastow (CEO of Enron) is also running the limited partnerships – so he has fiduciary obligations to Enron and is in some position of trust to the LP – conflicting interest (conflict of interest)
· BOD – approved an agreement than allowed Fastow to make decision for both Enron and the LP’s – this breaches the BOD’s fiduciary duty to the shareholders of Enron
· Arthur Anderson and Vincent & Elkins – both accused of professional malpractice
§ Packet 15 – Internet defamation case
§ 3 COA – defamation (of a corp), business disparagement and tortious interference with a prospective contract
§ Defamation
· Defamation
o Slander – spoken defamation
o Libel – written defamation
· Old Common law – must show defamatory stmt (tends to be injurious to reputation), published (communicated to another person), if defamatory per se, then jury can infer/presume damages (you don’t have to prove damages) or you can prove damages
· Now you must show malice – D made the stmt either knowing it was false or with reckless disregard to the truth
· P must now prove the stmt is false (tough BOP)
· No more “defamatory per se” – P must always prove damages
· Still have presumed damage if the person is a public figure or public person
· Defenses – truth or privileges at common law

Mon 11/3
§ Guest speaker – Eric – D lawyer
§ ZixIt v. Visa
§ Prospective company (internet payment security) sues co. whose EE posted negative comments about the Co. on Yahoo investment board – stock price fell
§ Jury found for D
§ 3 COA
· 1. defamation
· 2. product disparagement
· 3. tortious interference with prospective k – may need an independently tortious act
§ D’s opening stmt
§ D defends by saying:
· 1. the writer of the e-mails was not a VP, so the co should not be vicariously liable (not in the course/scope of his employment)
· 2. the postings were not the cause of the decrease in stock price (the cause was really just that Zixit was a bad product)
§ David Cook – came up with Blockbuster, tolltag, and now Zixit
§ Visa tried to come up with security tools for internet purchases and had failed (tortious interference with k – tried to get investors to invest in their own product (Verified By Visa) rather than ZixIt
§ Zixit technology had problems (security breach)
§ Tough damages (decrease in stock prices) – many independent causes affect stock price
§ Settlement offer of $10 million was rejected by Cook/Zixit (he’s rich enough to take the gamble on maybe getting zero)
§ P had a business expert (CFI) testify about causation (but for the email postings, the stock price would have been higher) – used financial/business models

Wed
§ 3 things today: liability case in Zixit, damages in Zixit, exam talk
§ packet 15
§ Zixit case
· COA for defamation, business disparagement (falsehood), and tortious interference with prospective contract
· Elements - COA for Intentional Interference w/ Prospective Relations/Contract
o 1. intentional
§ actor desires to bring it about or if he knows that interference is certain or substantially certain to occur as a result” (does not have to be desire/purpose – it can be a incidental result of action)
o 2. interference
§ via inducing or causing 3rd person not to enter relation or preventing the relation
o 3. D’s conduct was independently tortious/wrongful (D’s conduct would be actionable under a recognized tort)
o must show parties had reasonable probability of entering a relationship
o Zixit – here, the co is suing for the damage to prospective relationships with banks/investors (didn’t invest/give loans to co b/c of the e-mails)
· Elements – COA for Business Disparagement (damage to product)
o 1. publication by D of disparaging words (defamatory words)
o 2. falsity
o 3. malice
o 4. lack of privilege
o 5. damages (lost profits/stock price
o here, there were 400 e-mail postings – do you consider each individually or look at total effect? S Ct says look at publication as a whole
· Diff btwn:
o business disparagement (damage to product – lost profits – words about the Zixit computer product itself and its failures)
o business defamation (damage to reputation – lost stock price – words about the Zixit corporation and its reputation)
· Elements (Defamation – here, libel) @ common law
o this is a strong restriction on 1st A rights (freedom of speech)
o NOW (after NY Times case) – if D is a “public figure or public official” – P must show
§ 1. defamatory stmt (can be true or false)
§ 2. published
§ 3. of and concerning the P
§ 4. P must prove falsity (if he is claiming falsity)
§ 5. P must show stmt was made with actual malice (knowledge of falsity or reckless disregard for the truth)
o is Zixit corp a “public figure”? – yes, usually, corps are (publicly traded, in the news, etc)
o damages – no damages presumed unless you prove actual malice or public figure/official
o public figures/officials invite public comment
o private figure in a public matter
o damages – injury to reputation – hard to prove
· jury q in Zixit
o Was Paul acting in the scope of his employment, such that Visa will be liable, when he posted the e-mails (or did Visa later ratify his actions). Jury said no (Paul was acting as a lone Ranger), so case is over.
§ Ratification – corp promoted Paul and continued his employment – jury said no ratification
§ Paul is not a vice-principle of the corp
§ “within scope of employment” does NOT require that corp actually allowed/ratified the action
o Defamation (harm to reputation) – look at postings as a whole (not individual stmts) – could have listed each stmt and let the jury decide on if it was defamatory
o What sum of money would compensate P?
o Did D act with malice (for exemplary damages)?
· Business tort damages
· Next: legal malpractice
Mon 11/10
§ Speaker today– Randy Johnson (legal malpractice attny – P’s side)
§ Trials are dog fights – what you are doing hurts people (some deserve it, some don’t) -that’s your job
§ Clients don’t enjoy the trial – trial is only fun for the lawyer – you get to be someone’s champion
§ You must hurt people (or you’ll be guilty of malpractice), but don’t enjoy it or you become a bad person
§ Big firms – lawyers don’t need partners, they need clients
§ If you go to a big firm, remember that only the other partners vote on who becomes a new partner (clients don’t vote). – This makes a conflict of interest (help other partners at the expense of client service).
§ Legal malpractice-
§ Issue is proximate cause (tricky area)
§ Lawyer has a fiduciary duty to her client
§ Elements:
· 1. Duty
o privity – duty only to client, or to 3rd parties, too?
· 2. Breach of duty
o most common breach is failure to do something on time (miss deadline, SOL, time to declare witness, being ready for trial)
o if you file a motion for continuance and you lose (tell judge your not ready for trial) – client may sue you for malpractice (you obviously were ill-prepared for the trial)
o as a lawyer, you need to know the law
o lawyer’s bills are often used by the P in malpractice cases (look for any irregularities) – don’t charge a client for alcohol, overhead (library, letterhead, etc) – is it ok to charge for on-line Westlaw charges
· 3. Proximate cause
o But, for test
· 4. damages

Wed 11/12
§ Mon – we’ll review & talk about the test
§ Wed- A&M Bonfire case (immunity and § 1983)
§ Legal Theories Against Attorneys (packet 16)
§ COA #1 – Legal malpractice
§ duty by P to D
§ breach of duty
§ breach proximately caused P’s injury
o but, for test AND
o foreseeability test (scope of risk)
o BOP is on client to prove that his suit would have been successful but for the negligence of his attorney, and to show what amount would have been collected had he recovered a judgment (case within case)
§ damages occurred
o P, client, must bring forth experts on reasonable care in the industry of legal services (unlike breach of fiduciary duty – don’t need an expert there)
§ #2 – Breach of fiduciary duty
o lawyer is a fiduciary to his client (as a matter of law)
o fiduciary relationship btwn attny and client imposes on attorney a duty to exercise in all his relationships with this client-principal the most scrupulous honor, GF and fidelity to his client’s interests
o ex – sleeping with a client may be an abuse of trust (may be malpractice, too)
o duty of loyalty (no conflict of interest)
§ #3 - Negligent misrep
§ cases – McCamish, Martin
§ #4 – fraud
§ #5 – breach of contract
§ valid k
§ P performed and D breached
§ P suffered damages
§ #5 – DTPA – deceptive trade practices
o client is a “consumer” such that this applies to legal services
o § 17.46 – “failing to disclose info concerning the service which was known at the time of the transaction if such failure to disclose was intended to induce the consumer into a transaction…”
§ does a conflict of interest always = breach of fiduciary duty?
§ Legal malpractice insurance
§ These are not standard form
§ Exclusion for intentional torts?
§ Professional responsibility for lawyers
§ Mere violation of Model Rules or ABA rules is not, by itself, legal malpractice (not negligence per se)
§ The violation of the model rules may, in some J’s, be admitted as evidence in a legal malpractice
§ Case within a case
§ In malpractice, to show proximate cause – you must show that but for the negligence of the attorney, the outcome of the case would have been different
§ Insurance defense attorney
§ who is the lawyer’s client? 1 client – the ID (not the IR)
§ counsel must tell client of all settlement offers
§ if IR rejects reasonable Stowers demand (duty to settle), then IR may be liable for over and above the policy amount
§ ex of malpractice-
§ failure to communicate settlement offer – this is a breach of duty – now, look at causation (if he had communicated the offer, would (or should) case have settled and client have gotten $?). If case would not have settled anyway, then no causation/damage b/c of the attorney’s breach by not communicating the settlement offer.
§ IR has the right and duty to defend and the right to settle the case
§ Yarcheski v. Reiner (p 18)
§ Lawyer fails to file appeal for his client (prof), but client must show but, for causation as an element of malpractice
§ proximate cause requires client to show he would have won the appeal if lawyer had filed it
§ if COA was breach of fiduciary duty, there is no causation issue
§ ct finds for D (attorney) b/c they think the client would have lost on appeal, so no damages b/c of the breach (even if they had better representation, they would have lost)
§ Burrow v. Arce (p 22 in packet 16)
§ In malpractice case, if there is violation of the fiduciary duty, the attorney may forfeit his fees (irrespective of whether the breach caused the client actual damages – ie, whether but, for the client’s breach the outcome would have been diff (client would have won the case)) – actual damages to client not required
§ Ct may find that lawyer forfeits part/all of the fee by the breach
§ Attorney misrep under the DTPA (packet 16)
§ Latham v. Castillo (p 29)
o What can a lawyer do or not do to be subject to a DPTA claim?
§ It has to be more than a “failure to exercise care”
§ if lawyer makes a false claim (affirmative misrep) to the client (says he filed the claim, but he didn’t) - that can violate DPTA and constitute fraud, too
§ pure negligence alone is not enough (this is malpractice)
o ex – actual damages – 50k, mental anguish 20k
§ malpractice damages are just actual damages (not mental anguish), but DTPA allows recovery of mental anguish damages
o to get mental anguish damages, use DPTA and NOT common law causes of action
o under DPTA, P can recover for mental anguish damages without proving economic injury
o in criminal law cases and family law cases, the client may recover for mental anguish on attorney malpractice cases (these are exceptions to the Latham case) – have to ask if the mental anguish was foreseeable
o Texas – Proposition 12 may limit malpractice non-economic damages to $250,000
§ under DPTA use actual damages (can ******* mental anguish – pure emotional distress attached to the economic damages from the misrep)
§ Peeler v. Hughes & Luce (part II of packet 16, p 37)
o Lawyer caused P to go to jail (criminal defense was negligent), but the lawyering was not the sole proximate cause of P’s injury (the fact that she went to jail)
o “But, fo”r test
o Issue - Is the criminal conduct the sole proximate or producing cause of the client’s eventual eviction and damages, such that a legal malpractice claim cannot be shown absent a showing that P has been exonerated from the criminal conviction?
§ Ct holds that b/c of public policy, P’s who have been convicted of a criminal offense may negate the sole proximate cause bar to their claim for legal malpractice in connection with that conviction ONLY IF they have been exonerated on appeal or otherwise.
§ This is b/c the criminal was the cause of their injury (jail time) unless they can prove they were innocent and went to jail anyway b/c of their attorney (that is malpractice)
§ Only innocent convicted criminals may sue their lawyers for legal malpractice
§ There is no “harm” in sending a guilty person to jail
§ SOL is 2 years for SOL and 4 for legal malpractice/fraud
o When does the clock start ticking? When all appeals in the underlying claim are exhausted (not when the wrongful conduct/breach occurs)
o This extends the SOL pretty far, so legal malpractice insurance is really expensive
o Long-tail exposure for legal malpractice – can be a long time btwn the screw-up and the claim (like asbestos cases) – hard for insurance system to predict these losses
o Most legal malpractice insurance is on a claim-made basis and not an injury-based policy
§ Judgmental immunity in legal malpractice – (not in Texas) – special instruction to the jury that even if the lawyer made a mistake, if that mistake was in a good faith exercise in judgment, the lawyer is not liable (subjective standard)
§ If lawyer made on a decision when faced with two good options, and it turned out to be the wrong choice – this does not violate the regular standard of care, so this is not negligence
§ Vogel v. Touhey (pt II of packet 16)
o Former client was judicially estopped from asserting malpractice claims (intentionally relinquished her claim of malpractice by knowledge of issues with the settlement agreement that she signed before signing it)
o Acceptance of settlement agreement barred subsequent legal malpractice action
§ A non-client (3rd party) can only use § 552 (negligent misrep) to sue a lawyer – other than that you need privity
o Lawyer must basically know that this 3rd party will be relying on the legal work that he is doing
o Ex – beneficiary of will prepares the lawyer who drafted the will


Mon 11/17
§ Wed – gov immunity (get packet)
§ Mon- P’s lawyer in the A&M bonfire case
§ Texas Tort Claims Act (go through the statute to see if there is govt’l immunity) – this is diff than Federal law (5th Cir. Bonfire cases)
§ EXAM REVIEW
§ She’ll update the syllabus
§ Packets 1-18
§ She has looked at what we did and didn’t do in the packets
§ Focus on what we spent time on in class
§ No big issue spotting Q’s
§ Exam should hopefully cover everything we did
§ Packet 1
· How statutes interact with common law in tort
o More than negligence per se
o Preemption (just a little bit – not too detailed)
§ Packet 2
· Review of negligence – basic elements
· This packet has lots of little “snippets”
· We covered duty and proximate cause (but, for and foreseeability)
· Actual causation (but, for) details (two concurrent causes, exceptions to but, for test) – we covered these 1st year and they are in the packet, but we didn’t cover these in class, so it won’t be on the exam really
· Duty – we went into detail
· Damages – we covered these
§ Packet 3 - Causation, corporate liability, vicarious liability
· We covered this packet in pretty much detail
· No heavy duty corporate law, but we did cover how to sue diff companies on diff theories
· Damages – we covered these, except
· Harwood Tire v. Arlington??? – we covered this
§ Packet 4 - Compensatory damages
· we did some of this, but not taxes, inflation, pre-judgment interest, collateral sources, periodic payments
· we did get to categories of damages, House Bill 4
§ Packet 5 – punititves and vicarious liability
· Not much on Mary Carter Agreement, but we did the rest of the packet pretty thoroughly
· Gammill – reliability issue extends to all expert testimony (Dalbert/Gammill testimony) applies to all in
§ Packet 6 – duty
· These materials are good
· She expects us to be able to understand the concepts of duty in the 3rd Restatement (even though its not the law yet)
§ Packet 7
· Comparative Responsibility material
o Covered pretty thoroughly, except the case at the end dealing with partner agreements
· Settlement materials
§ Packet 10 – business torts
· economic torts, remedies, economic loss rule, tortious interference, fraud, fiduciary relationships
§ packet 11
· fiduciary duty in specific relationships - covered pretty closely
§ packet 12
· lots of cases- long packet
· details of these cases are not too important – we didn’t really cover them
· We really examined other cases – Crim Truck & Zixit cases, though (in another packet)
§ Packet 13
· Economic loss rule (covered pretty well), concept of waiver, SOL
§ Packet 14
· Agents/principals – Enron
· Fiduciary duty
· Light brush over Enron case
§ Packet 15
· Internet defamation and disparagement
· Zixit case – damages and causation issues
§ Packet 15A – short packet – good info – I don’t have it – must print out from Twen!!
· Lots of valuation methodology for damages (we didn’t really cover these) – discounted cash flow, lost revenue, etc
· Categories of damages available under each COA (reputational, lost profits), etc
§ Packet 16 – lawyer misfeasance
§ Packet 18 – govt’l immunity
§ General – do we need to know details about the case?
· We are expected to know fundamentals about the case
· She won’t ask us about little details in the cases or from the speakers
· we covered the Vasquez case in the most detail

Wed 11/19
§ There is no packet 17
§ There is a packet 15A (3 pages on business tort damages)
§ Printout from web – 2 Bonfire items
§ Packet 18 – Govt’l Immunity
§ P sues state, state agency, state unit, city, US, US agency (FDA) – may have a defense of sovereign/governmental immunity
§ P sues state/city/Fed EE (police officer, etc) individually – there may be immunity that flows from govt’l immunities
§ If P sues state or state EE on a claim for violation of federal law in federal court – this raises issues of 11th A - this is part of Bonfire case
§ Diff issues btwn P suing state and suing fed gov – today we are looking at state
§ Issues of contribution
§ Federal Tort Claims Act (works like Tex Tort Claim Act)
· Voluntarily gives up some of the gov immunity, if P’s case fits into the little categories in the Act
§ Tex. Tort claims Act – waives govt’l immunity in some cases -
”sovereign immunity is waived and abolished to the extend of liability created by this chapter.’
§ Govt’l immunity is an affirmative defense (not an element of the COA)
§ Two cases today: Bosley and Lancaster (p suing unit of state/city gov and also suing individual EE’s)
§ Dallas County Mental Health & EE v. Bossley (packet 18, p 14)
· D is in the govt’l hospital, escapes (from doors not locking properly and/or nurse not locking it correctly) and commits suicide – his estate sues the gov unit
· In Texas, a govt’l unit is immune from tort responsibility, unless legislature has waived the immunity for that type of case in the Texas Tort Claims Act
· Here, the gov is immune b/c this exception doesn’t apply – leaping in front of a truck (suicide) is the CAUSE of death, not the door
· P sues the gov hospital (entity), 2 doctors, the nurse, and other EE’s (individ. persons)
· CAUSATION – use “but, for” and proximate cause test
· The unlocked doors at the govt’l unit (hospital) permitted, but did not “cause”, P’s death- so no waiver of govt’l immunity
· Pryor disagrees with the causation outcome and thinks that causation is met
§ Exception to govt’l immunity – Tex. Civ. Prac & Rem § 101.021(2) – Tex. Tort Claims Act – “a govt’l unit is liable for personal injury/death caused by the condition/use of the tangible personal or real property…”
· Govt’l unit = the state, agencies, departments, bureaus, courts, cities, counties, school districts, emergency service org, and “any other institution/organ of gov created by state law”
· CAUSED = “but, for” test and proximate cause (need both)
§ Largest area of govt’l immunity waiver is under § 101.021 – waiver for acts of govt’l EE for (1) operation/use of vehicles/motor-driven equipment (buses, police cars, etc) and (2) condition or use of tangible personal or real property
§ Claim against a state actor
· 1. start with the premise that the govt’l unit is immune from tort liability UNLESS the legislature has waived immunity (can’t sue the state unless they consent to be sued)
· 2. ask if the unit being sued is really a govt’l unit
· 7. court reasons on if P’s accident was CAUSED by the “condition or use” of the gov property – (causation means “but, for” and proximate cause”)
§ Bonfire – the bonfire is a “condition or use” that caused the deaths

Mon 11/24 - Speaker
§ Steve DeWolf – P’s attorney in the A&M bonfire case
§ Life Advice
§ Do your best at your job – do it right - don’t half ass it. Go Hard or Go Home.
§ Have some life balance – you don’t want to get burned out
§ Strategy (overall picture) v. tactics (individual plans of attack)
§ Trial work is like war
§ Develop a good reputation and work hard – act/look nice
§ Writing – clean/crisp – make every word count – be responsive/organized
§ Don’t just work hard (# hours) – work smart- think about the case
§ A&M spent $2 million on the final report
§ State ct – Tex Tort Claims Act – there’s a cap on damages (occurrence max) – very limited b/c of sovereign immunity (can’t sue gov or agents of gov) – also, you have to file in Texas (probably in College Station)
§ Fed Ct – they filed in Fed district court in Galveston
§ Parents of hurt students didn’t want to sue the other students (just wanted to sue A&M itself and its officials
§ 11th A – can’t sue a state gov in federal court (A&M)
§ b/c of 11th A, they decided to focus on suing A&M officials (Dr Bowen, etc)
§ State created danger theory (§ 1983) – has been adopted in most circuits of fed ct, except 5th – if A&M allowed bonfire to go on university grounds and knew it was dangerous
§ He did a pres release along with the filing of the lawsuit
§ Dealing with judges
§ State court judges – easy-going – easy to deal with
§ Fed ct judges – appointed for life – hard to deal with – tough
§ Depositions – limited to 6 max per official (or judge can set for even less)
§ Argument – but, for A&M officials involvement in Bonfire, Bonfire could not exist (made $, used it as a recruiting tool)
§ Officials knew there were dangerous problems with bonfire and did nothing about it
§ A&M Document - “the more we take control of Bonfire, the more we will be liable if something happens”
§ July 2002- judge ruled against P in rule 12(b)(6) – that P didn’t plead a case that the state created the danger
§ Aug 2003 – ct of appeals – rev’d and remanded – facts show that this case should go to a jury
§ 11th A immunity – P’s suit against a state entity is barred in federal court (jurisdictional immunity) (unless waived by the state or allowed by Fed law)
§ 42 USC § 1983 – provides a cause of action against every person who under state statute subjects or causes any citizen to be deprived of the rights, privileges, and immunities secured by the C and laws (substantive due process – deprived by the state created danger theory)
§ P alleges that university officials violated the Due Process Clause by failing to protect the victims from a state created danger
§ State created danger COA requires:
§ 1. state actors increased the danger to him (state officials created the danger by failing to ensure Bonfire’s structural integrity) and
§ 2. state actors acted with deliberate indifference (requisite culpability – degree of certainty of harm is greater than gross negligence)
· the environment created by the state actors must be dangerous,
· they must know it is dangerous, and
· they must have used their authority to create an opportunity that would not otherwise have existed for the crime to occur

Mon 12/1 – governmental immunities (this phrase can mean lots of things)
§ 3 major kinds of govt’l immunity
§ sovereign immunity
§ governmental unit can’t be sued (Tex Tort Claims Act lowers the immunity shield in some cases)
§ Bossley case – in Texas, governmental units (like A&M) are immune unless they waive immunity per the Tex Tort Claims Act
§ “official immunity”
§ City of Lancaster case - immunity is claimed not for the government, but for officers/EE’s of the gov (police officers)
§ Immunity for government EE’s operating if (1) discretionary acts (2) good faith) and (3) within scope of authority
§ This isn’t a statutory immunity really – its common law
§ 11th A immunity
§ prohibits actions in fed court under fed law unless state has waived this immunity or congress has expressly abrogated this immunity
§ ex – Bonfire case in fed ct
§ Immunity under Tex Tort Claims Act
§ A “governmental unit” is liable under this chapter for …
· Govt’l unit – state, agencies, departments, city, etc
§ Gov is liable for:
· (1)property damage, personal injury, and death proximately caused by the wrongful act or negligence of an EE acting within the scope of employment if:
§ (a) the damage arises from motor-driven vehicle/equipment and
§ (b) EE would be personally liable to P under Tex law (doesn’t create a new tort – just allows you to sue gov on old torts) and
· (2) PI and death caused by a condition of tangible personal or real property if the govt’l unit, were it a private person, would be liable under Tex law
§ municipality
§ a municipality is a governmental unit, but is liable only for its governmental functions (not for all functions)
§ if the municipality is acting in a “proprietary manner” (not as a government) the P can sue them regularly (no immunity)
§ Bossley case –
§ P loses b/c of the court’s interpretation of “cause” for “death…proximately caused by the acts of neg of an EE acting within the scope of EE”
§ Case involved man breaking out of state hospital and committing suicide
§ Cause – actual (but, for) and proximate cause
§ Pryor thinks tort is met
§ No need to resort to “official immunity” for the EE b/c TTCA contains 101.06 “a judgment in an action or settlement of a claim under this chapter bars any action involving the same subject matter by the P against the EE for the claim
· its like collateral estoppel –
· You can’t sue the state gov ( and lose) and then sue the gov EE
§ City of Lancaster case
§ Deals with motor-driven equipment
§ EE of govt’l unit in the scope of employment
§ “official immunity” – applies to individ gov EE’s – here, claim is against police officer EE’s driving police car
§ this is the current law in Tex
§ officers were operating in GF – not trying to do anything bad (trying to catch a bad guy)
§ was EE operating with “discretion”? - EE made a judgment call on if a high-speed chase was called for in the situation (give them breathing room to make the decision. Discretionary acts (no ministerial acts) are provided immunity (b/c EE has to make decisions) if the EE acts in good faith. So, the officers are off the hook and not liable here
§ So, is the city liable? No – the EE’s aren’t liable, so the city is not liable either.
§ 2 types of D’s
§ EE’s and state unit
§ A&M case
§ 11th A immunity – C’l recognition of the state’s original sovereign immunity
§ exception for “state created danger” – did A&M affirmatively create the danger (and have a high level of indifference to it)? If so, you may be able to sue the unit and the official.
§ Here, A&M is sued under Fed law