Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
dissenter in Strauss objected, by the utility company’s shareholders in the form of lower returns to
capital or by the company’s employees in the form of lower wages? Determining the incidence of
tort liability in settings characterized by networks of contracts turns out to be exceedingly
complicated and to turn on the relative elasticities of supply and demand in the networks of
markets (capital, labor, consumer) in which the relevant firms are involved. Sometimes the best
one can say is that the incidence of a new tort liability is an empirical question. See, e.g., Price
Fishback & Shawn Kantor, Prelude to the Welfare State: The Origins of Workers’ Compensation
(2000) (employing sophisticated econometric techniques to conclude that the enactment of
workers’ compensation statutes created costs that were borne in part by employers and in part by
employees in the form of lower wages).
4. Subrogation claims. Ought insurance companies be able to sue utility companies to
recover losses sustained by the homeowners and tenants they insure? Some courts do not allow
these subrogation claims on the theory that such a liability scheme would doubly harm consumers:
if liability is imposed, the theory goes, consumers would not only pay homeowners’ or renters’
insurance to cover future risks but would also pay higher water rates to utility companies.
Franklin Mut. Ins. Co. v. Jersey Cent. Power & Light Co., 902 A.2d 885, 887 (N.J. 2006);
William Bufford & Co. v. Glasgow Water Co., 2 S.W.2d 1027, 1029 (Ky. 1928). An insurer may,
however, bring subrogation claims against utility companies that negligently cause property
damage as opposed to service disruptions. See E & M Liquors, Inc. v. Public. Serv. Elec. & Gas
Co., 909 A.2d 1141, 1143 (N.J. App. Div. 2006).
5. What about one party’s obligations to exercise reasonable care in controlling another?
The next materials take up this problem.
Kline v. 1500 Massachusetts Ave. Apartment Corp., 439 F.2d 477 (D.C. Cir. 1970)
WILKEY, J.
The appellee apartment corporation states that there is “only one issue presented for
review . . . whether a duty should be placed on a landlord to take steps to protect tenants from
foreseeable criminal acts committed by third parties”. The District Court as a matter of law held
that there is no such duty. We find that there is, and that in the circumstances here the applicable
standard of care was breached. . . .
I
The appellant, Sarah B. Kline, sustained serious injuries when she was criminally
assaulted and robbed at approximately 10:15 in the evening by an intruder in the common hallway
of an apartment house at 1500 Massachusetts Avenue. This facility, into which the appellant
Kline moved in October 1959, is a large apartment building with approximately 585 individual
apartment units. It has a main entrance on Massachusetts Avenue, with side entrances on both
15th and 16th Streets. At the time the appellant first signed a lease a doorman was on duty at the
main entrance twenty-four hours a day, and at least one employee at all times manned a desk in
the lobby from which all persons using the elevators could be observed. The 15th Street door
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