Select Page

Rutgers University, Newark School of Law
Gold, Steve C.



Winter 2011

I. NEGLIGENCE [DutyBreachCausationDamages]

General definitions:

Duty: An obligation owed to all foreseeable persons who may be injured by another’s failure to follow the required standard of care.

Standard of care: Care that a reasonably prudent person would exercise under the circumstances as necessary to prevent an unreasonable risk of harm to another person.

Breach: Failure to exercise due care/uphold the required standard of care

Causation: p must prove defendant’s actions were actual + proximate cause of p’s injury

Damages: p must prove actual injury or loss and not threat of future harm or nominal loss

A. Components of Negligence

1. Ordinary/due Care- The care that a reasonable person would exercise under the circumstances.

a. Brown v. Kendall- p is hit in the eye by a stick while the D is trying to separate two fighting dogs. The D owes a duty of ordinary care, the scope of this duty is defined by the reasonable person standard.


p fault

p no fault

D fault

D wins

p wins

D no fault

D wins

D wins

2) Burden of proof on p for neg. claim

3) Negligence régime for unintentional tort

4) Negligence standard is reasonable care

b. Adams v. Bullock- p child is electrocuted when 8 ft wire connects with un insulated trolley wire. D not liable because harm was unforeseeable & cost to prevent harm too great.

RULE: A business owner must take reasonable precautions to minimize harm from its operations of dangers that are known or should be known through reasonable inspection.

Factors for Breach:

1) Foreseeability of harm

a. Prior occurrence/notice? No

b. Type of harm

2) Cost to prevent harm – Feasible alternative design? No

3) Custom – Trolley wires were customarily hung/uninsulated

Braun- Electric Company hangs wires above a lot, during construction of the building; a worker is electrocuted by an expired insulated wire.

1) Foreseeability of harm

a. Company constructively admits danger by insulating the wires in the first place.

b. Company knew insulation expires in 3yrs

c. Possibility of a building going up on an empty lot in a growing city foreseeable.

i. kid swinging wire ¹ building going up

d. Insulation is a common building-industry precaution

2) Cost to prevent harm

a. possible/easy to insulate the power line

i. impossible/difficult to insulate the trolley

3) Custom – Insulating wires effectively was customary

Green v. Sibley- P tripped over mechanic kneeling to look at registeràno negligence b/c type of harm was unforeseeable.

2.) Special Case of Due Care/Factors for Breach of Care

àHammontree v. Jenner- In this case, due care would be taking medication to control seizures.

a. Factors for Breach:

1) Was seizure/impending harm foreseeable?

2) Did D take steps to avoid it?

b. Policy for Negligence Regime > Strict Liability

i. S.L. may open floodgates for driving cases; legislature should decide

HOLDING: Liability for harm caused by a driver stricken by illness which renders him incapacitated rest on negligence.

3. Vicarious Liability (doctrine of respondeat superior) (Strict liability theory)

a. RULE: For an employer to be found VL, an employee’s acts must be committed within the “scope of employment”

1) Birkner Test – Scope of employment test – all 3 factors must exist

1) Employee’s conduct must be of the general kind the employee is hired to perform, that is, the employee must be about the employer’s business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor.

2) Employee’s conduct must occur substantially within

a) The hours; and

b) Ordinary spatial bounda

Reasonable belief: Reasonable person in p’s position (receiver of services) would expect contractor to be an agent of principal – determined by facts; and

2) Plaintiff incurs physical harm as a result of contractor’s negligence

**Plaintiff friendly; no requirement of reliance-based change in position**


1) Representation by principal: p actually thought contractor was an agent of principle

2) Reliance: p changed position based on the representation

3) Detriment: p was hurt by his change in position

iii. Roessler v. Novak- p alleges that the D doctor should be considered an agent of the hospital, even though he is technically an independent contractor. [doctor had same uniform as hospital’s doctors, no signs, no disclaimer/waiver]

Counter: Baptist Memorial v Samson: apparent authority was not found when hospital posted signs stating “doctors are not employees” and requiring patients to sign forms.

Restatement of Torts, direct owner liability:

Peculiar risk doctrine: Even if the contractor itself was not negligent, If the principal failed to take precautions (e.g. hiring an ill-equipped contractor, provide proper safety equipment) against a risk that is peculiar to the contractor’s work, which the owner should have recognized.

Some states adopt a “Theory of Nondelegable duty”: When a principal hires an independent contractor to avoid liability, an inherent peculiar risk in the activity (e.g. medical treatment) may prevent the principal from delegating away their liability. This theory compels principals to be prudent when contracting work.