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Rutgers University, Newark School of Law
Perry, Twila L.





A. General: when D’s conduct imposes an unreasonable risk upon another, which results in injury to that other; negligent actor’s mental state is irrelevant

1. must show ALL elements to establish a negligence claim against a D:

a. Duty à a legal duty requiring D to conduct himself according to a certain standard so as to avoid unreasonable risks to others

b. Breach à failure by D to conform his conduct to this standard

c. Causation à showing that D’s conduct was the cause (in 2 ways) of P’s injury

(1) Cause in Fact: D’s failure to at with reasonable care was the cause in fact of the injury to the P à a “but for” cause à a cause without which the injury would not have occurred

(2) Proximate Cause: a close causal connection between D’s act of negligence and the harm suffered by P that its fair to hold D liable as a matter of policy

d. Damages à the injury suffered by P; goal of tort law: RETURN P TO THE CONDITION THEY WERE IN BEFORE THE HARM

Hammontree v. Jenner: D was diagnosed with epilepsy years prior to driving a car and crashing into P’s bike shop injuring P; dr. testified b/c D was taking medication, it was safe for him to drive, P argued strict liability standard like products b/c he knew of condition and still drove; issue: hold D to strict liability for his actions?: hold: no à negligence instead; cannot require insurers to insure everyone from everything (too expensive premiums for everyone then), driving is not like product manu.

Vicarious Liability

A. General: imputing the tortious act of A onto B because of some special relationship between the 2 (respondeat superior doctrine: if B is employer of A and A was acting within the scope of his employment when accident occurred), holding B liable for A’s actions

B. Employee vs. Independent Contractors

1. Independent Contractor

a. hired to produce a certain result but is not subject to control of the one who hired him

b. vicarious liability does NOT apply to independent contractors

2. Employee à vicarious liability DOES apply

a. one who works subject to the control of the person who hired him

C. Scope of Employment requirement

1. ask: was A acting within the scope of his employment by B when the tort occurred?

a. yes when: acting with intent to further employer’s business purpose (still applies when this intent is coupled with personal intent, and if act is forbidden by employer because doctrine is irrespective of employer’s negligence)

b. Christensen v. Swenson: D guard working for plant was on lunch break within permitted range when driving back to work collided with P’s motorcycle injuring P; issue: D acting within scope of employment when accident occurred = vicarious liability holding plant liable?; hold: “reasonable minds could differ” à reverse sum. judge. for P

(1) Test for Scope of Employment:

1. what was agent doing? (duties to secure area, driving within area)

2. when are where? (she was within hours of employment and in the area of plant)

3. why? (take lunch breaks, better for morale serves employer’s interests)

(2) even though employer forbid activity, still can be held liable, but can use as evidence toward it being outside of scope in not furthering business purposes

D. Argument FOR Vicarious Liability

1. incentive for employers to use practices to minimize accidents

2. incentive for employers to be stricter when hiring

3. employers can afford to pay for the damages

E. Independent Contractors (exceptions)

1. Roessler v. Novak: P went to SMH hospital from referral, radiologist at hospital read scans and P suffered serious complications after surgery at that hospital, P sued hospital for radiologists’ negligence in misreading scans under vicarious liability (radiologist is agent of SMH), SMH says radiologist is independent contractor therefore not vicariously liable; issue: agency standard; hold: new trial (issues of material fact based on agency standard)

a. 3-prong scope of employ. test: (1) yes, (2) yes, **(3) reading for hospital OR for radiology company contracted by hospital?

b. agency standard: “principal may be held liable for acts of its agent…only if 3 elements are present:

(1) representation by principal: hospital never explicitly told P that radiologist worked for them

(2) reliance on that representation by 3rd party

(3) detriment: change in position by 3rd party relying, caused his detriment

c. implied/apparent authority: “authority which a principal knowingly tolerates or permits, or which the principal by its actions or words hold the agent out as possessing”

(1) only where the principal created the appearance of an agency relationship



A. Duty, Breach, Causation, Damages

B. Breach

1. P must show that D’s conduct imposed an unreasonable risk of harm on P due to D’s lack of care (NOT about what happened; only about D’s actions without hindsight to what actually occurred à were they reasonable or not)

A. P has burden of proof that D was negligent

2. Standard of Care

A. Ordinary Care

(1) Brown v. Kendall: P poked in eye with stick when D tried to break up dog fight; was D negligent? NO: act was lawful (legal right to separate dogs) and unintentional (didn’t intend to cause harm) therefore ORDINARY STANDARD OF CARE under the circumstances; hold: it was an accident b/c lawful, unintentional, and using ordinary care

a. P’s burden of proof to show LACK of due care:

1. burden of production of evidence to allow a rational factfinder to determine you’ve proven your case

2. burden of persuasion – you must persuade the jury by a preponderance of the evidence in civil cases

D – No Fault

D – Fault

P – No Fault

D wins

P wins

P – Fault

D wins

D wins

B. Reasonable Person Standard

(1) to determine that the risk of harm form D’s conduct was unreasonable, test is: whether a reasonable person of ordinary prudence would have conducted himself as D did under the circumstances: would he have: (a) recognized the risk, and (b) have striven to avoid it

(2) Factors to determine Reasonableness

a. Foreseeability of the risk: could D have foreseen that type of risk, therefore should have prevented against it?

1. Adams v. Bullock: P swinging wire on trolley line, electrocuted when hit exposed wire above; D’s duty: all reasonable precautions to minimize resulting perils from its actions; breach? NO à couldn’t foresee that type of harm, therefore shouldn’t be held liable for not protecting against it

2. Andrews v. United Airlines, Inc (66): briefcase hit P in head from overhead compartments; issue: was risk foreseeable therefore D negligence in not taking precaution?; hold: D didn’t prove that it was too expensive to use netting, others in industry were using nets, therefore could be D’s negligence; ‘under the circumstances’ considers industry practices

b. D’s knowledge of the potential risk à potential duty of D to discovery risks that are unknown to it to begin with

c. harm occurred as result of the activity?

d. industry customs

1. Andrews v. United Airlines, Inc.

2. Trimarco v. Klein: P tenant injured when glass door in D’s building broke; issue: standard of reasonableness based on industry standards of shatter proof glass, or conduct under circumstances?; hold: just because it’s an industry custom, does NOT mean its necessary for standard of reaosnableness – only goes to determining how reasonable it would have been to follow the custom (Learned Hand – cost, how prevalent is new way) à jury question

e. violating policy/statute (negligence per se doctrine: when safety statute has a close application to the facts of the case, an unexcused violation of the statute is negligence per se and D cannot argue it was too-high a standard of care)

1. Martin v. Herzog: statute requiring lights on buggies, P’s buggy didn’t have lights crashed into D’s car; issue: D’s negligence too close to the road overrides P’s negligence per se in violating statute?; hold: NO; P can’t recover because of his own negligence per se in causing the accident

2. 3 elements of negligence per se: (1) D violated statute, (2) statute was designed to protect against the SAME type of accident that occurred, and (3) victim was within the class of persons the statute was designed to protect

3. Telda v. Ellman junk collectors walking on wrong side of highway in violation of statute saying pedestrians must follow traffic laws struck by D; issue: follow Martin?; hold: NO à the statute is NOT a safety to protect others and themselves, just rules of the road; cannot assume legislature wanted strict adherence when following statute would have put P

nt (lower burden for P to prove D’s negligence – use it when you cant state exactly what D did that was negligent)

(1) 3 factors – if you have all 3, P has made prima facie case of D’s negligence:

a. accident is the type which doesn’t happen without someone’s negligence

b. the instrumentality was in complete control of D

c. P is completely free from blame (no voluntary action of P)

(2) if P makes prima facie negligence cause with res ipsa loquitur it shifts burden of proof to D to disprove negligence

(3) Byrne v. Boadle: P injured by falling barrel from D’s house; hold: not fair to make P call witnesses to testify to D’s negligence in allowing the barrel to fall from its warehouse; D has a duty to prevent barrels from falling out of the windows in its warehouse à D’s burden to disprove its negligence (P has made its prima facie case through res ipsa loquitur inferring D’s negligence)

(4) McDougald v. Perry: P driving behind D’s truck when tire came loose and hit P’s car; issue: res ipsa allow P not to have to further establish negligence?; hold: YES à (1) type of accident doesn’t happen except for someone’s negligence, (2) tire was completely in D’s control, and (3) P was not negligent in any way à jury can infer D’s negligence and now D must disprove it

(5) balancing of burdens: P shows little bit of evidence of D’s negligence shifts burden to D to disprove it (with res ipsa); in CA if D can create a rebuttable presumption with evidence that casts doubt on P, burden back to P to prove negligence (D wins); other states say the inference is stronger then rebuttable presumption, then D’s burden and P wins

(6) Ybarra v. Spangard: P patient underwent surgery and sued all Ds (doctors, nurses, etc.) when he suffered injuries after surgery; P couldn’t show WHO was negligent, but SOMEONE was (1st requirement of res ipsa), P was unconscious (3rd requirement); issue: res ipsa too narrow (D argued P couldn’t show who caused the injury therefore defeated claim); hold: using res ipsa all those who were in control of P (2nd req.) and the instrumentalities that caused the injury (all Ds) should be called upon to disprove their negligence à P cannot be required to point to which individual caused the injury; was unconscious, unreasonable burden for P BUT Ds are in the position to disprove their own negligence

E. Medical Malpractice: if D has higher level of knowledge/skill due to field, they must act within that standard commonly possessed by members of the profession

(1) expert testimony requirement in these cases so jury knows what the standard SHOULD be (States v. Lourdes [119] à it is proper to allow the use of expert medical testimony to inform the jury’s decision on the standard of care for res ipsa loquitur à P can’t point to what caused the negligence but the jury has no common knowledge of that type of procedure therefore they need expert testimony to ‘bridge the gap’)

(2) Sheeley v. Memorial Hospital [111]: P underwent procedure and suffered injuries from it, at trial judge denied testimony of another doctor as to the knowledge/practices of that type of doctor and the procedure; issue: hear expert testimony?; hold: YES; use NATIONAL standards (no longer strict locality rule) à any doctor with knowledge of or familiarity with the procedure, acquired through experience, observation, association, or education, is competent to testify concerning the requisite standard of care and whether the care in any given case deviated from that standard

a. justification for National Standard: medical technology and education of doctors is advanced far enough to allow doctors outside that specific town or field to testify as to the standard of care