Week Three, Part 3 - Torts: Stand & Deliver

Professor Rice strides into Torts, his eyes darting over the class. He crosses himself and leads us in prayer. Then he tosses a stack of photocopies to the students on the front row.

As the handouts circulate, Rice says, “My method for taking attendance is ‘visual reconnaissance.’" He cups his hand at eyebrow level. “I look around and see if anyone's here.” We laugh.

Other profs at ND Law seem to agree. If you don’t come, tough. It’s your loss. Only one class, Legal Ethics, has a sign-in sheet.

Rice tells us there are three bases for tort liability: intent, negligence, and strict liability. We turn to Brown v. Kendall,” an 1850 case from Massachusetts. I’ve read it twice, but still don’t understand the legal aspects.

Rice scans the list of students. “Mr. Hickey.”

Mike Hickey raises a tentative hand. His face turns red and it now matches his hair.

“From now on, when you're called to a brief case, stand up!” Rice barks. “There are very few courts where you can lounge back. Part of the law school process is learning how to stand up and talk about a case.”

Yikes! Rice is taking Socratic pain to a new level. Hickey gets to his feet, shaky as a toddler.

“My job is not to harass you, but to argue against you,” Rice says. “This will help you someday in New York City municipal court.”

Hickey looks doubtful.

Rice asks, “Well, did you like it?”

“Like it?” Hickey rubs his hands on the front of his corduroys.

Rice pretends to be exasperated. “Yeah. Like. It?”

“What’s the antecedent of ‘it’?” Hickey asks.

Rice looks at the ceiling as if seeking divine help. “Where’d you go to school?”

“Georgetown.”

“Major?” Rice asks.

“Philosophy.”

“That explains everything!” Rice waits for the laughter to die down. “Did you like the holding?”

“Can I ask you another question?”

“You just did,” Rice says. More laughter.

“Are you asking if I thought the outcome was just?”

The bantering continues with all the laughs at Hickey’s expense. Rice backs up to review the facts. Defendant Kendall tried to stop two dogs from fighting by beating them with a stick. In the process, he injured the eye of Plaintiff Brown, who was standing nearby.

Professor Rice questions Hickey on the meaning of ordinary care, due care, extraordinary care. What if both the plaintiff and defendant are using ordinary care? Conversely, what if both are not using ordinary care? How about if the defendant is using ordinary care and the plaintiff is not? Rice twists the issues like he’s playing with a Rubik’s cube, then he thanks Mr. Hickey for an outstanding job.

I find the terms confusing and the legal points meaningless. It doesn’t help that Rice talks fast and mumbles at the end of his sentences.

Just get it down the best you can, I think. You can figure everything out later.

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