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



FALL 2011

Chapter 1: Introduction to Tort Liability

· When Should Unintended Injury result in Liability?

o Hammontree v Jenner

§ Man is previously diagnosed with epilepsy, he takes medicine for seizures and is told it is safe to drive. He has a seizure and crashes into a building injuring people inside.

§ The plaintiff wants a strict liability instruction

· The court says no – he had no reason to anticipate the seizure and therefore he should be held to the principles of negligence. Driving is not like product manufacturing and therefore NO strict liability.

§ Notes

· Strict Liability – liability without fault.

· Negligence – only liable if there is fault.

· The Litigation Process

· The Parties and Vicarious Liability

o Christensen v Swenson

§ Security guard goes out on lunch break to place nearby because they only have 15 minutes; there were menus for the place in her guard post station. She crashes. Plaintiff wants to hold Burns (employer liable)

· Court says that the employer could be liable because the guard was acting within the scope of her employment.

· Court applies the Birkner test to see if employer is strictly liable:

o Employees conduct must be of the general kind the employee is hired to perform

o Conduct must occur substantially w/in the hours and ordinary spatial boundaries of employment

o Employees conduct must be motivated by purpose of serving employers interest.

· Ultimately the court says reasonable minds could differ so it is remanded

§ Notes

· Vicarious Liability – (Respondeat Superior) – holding an employer liable for employees action. This is a form of STRICT LIABILITY for the employer. Employee must be acting within THE SCOPE OF EMPLOYMENT (see Birkner Test/3rd Restatement)

· 3rd Restatement on Vicarious liability –

o An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control. An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.

o Roessler v Novak

§ Man badly diagnosed by radiologist at the hospital and suffers serious complications. Man sues the hospital for vicarious liability and they say that the radiologist was an independent contractor and therefore they should not be liable.

· The court says that an employer can be held liable for acts of its agent which are within the agents Apparent Agency

· Essentially, an employer is barred from denying liability based on an independent contractor when the employer permitted an appearance of authority in the agent and therefore justified a 3rd party’s reliance upon that appearance.

o Apparent Agency- authority which the employer knowingly tolerates or permits; or by its actions or words holds possession of the agent.

§ 3 criteria: (Subjective test)

· Representation by purported principal

· Reliance on that representation

· Detriment to third party in reliance on representation.

§ Restatement of Torts: (Objective Test)

· If recipient of services reasonably believes that someone is acting, as an agent then the employer of the contractor is liable.

· Peculiar Risk – Employer of independent contractor is vicariously liable for work that involves a peculiar risk if the contractor fails to take appropriate precautions in light of risk.


§ Terms:

· Agent – independent contractor, someone acting on part of employer

· Principal – hospital,

§ Notes

· Principal (hospital) can be held liable for acts of agent if the acts are within the scope of the agency.

o 2 types of agency

§ Actual Authority – have a contract of some kind

§ Apparent Authority – principal creates the appearance of authority of an agent.


Chapter 2 : The Negligence Principle

· Historical Development of Fault Liability

o Negligence Claim has 4 parts: (they will be talked about throughout outline)

§ Duty

§ Breach

§ Causation

§ Damages

o Brown v Kendall

§ 2 men’s dogs are fighting. One picks up a stick and was hitting them trying to break it up, he ACCIDENTALLY hits the other in the eye.

· 2 big take aways from this case:



§ Negligence – failure to take reasonable care.

o Originally – the only way a plaintiff could win is if they were at NO fault and defendant was at fault. (Before comparative/contributory negligence)

D – No Fault

D – Fault

P – No Fault

D wins

P wins

P – Fault

D wins

D wins

· The Central Concept: The Standard of Care

o Adams v Bullock

§ Kid walking on bridge swinging metal wire, it comes in contact with trolley line, he gets electrocuted

· Court says the defendant is not negligent. They had a duty to make all reasonable care. This was unforeseeable because it never happened before. Cardozo says you have a duty to prevent what is reasonably foreseeable.

o Braun v Buffalo Gen. El. Co-

§ Wires were insulated but insulation wore off, the wires were 25 ft above a vacant lot and all the surrounding buildings were built up.

· Court determined it was reasonably foreseeable that the empty lot would be built up and therefore they had a duty to protect against the wires.

o Greene v Sibley Lindsey, & Curr co. –

§ Woman looks over and sees mechanic working on cash register. She trips over him. Court said this was not negligence, all she had to do was look

o Notes

§ Negligence is doing something that a reasonably prudent person would not do, or the failure to do something that a reasonably prudent person would do.

o United States v Carroll Towing

§ No one was on the Anna C (boat)- another crew comes up and fixes lines, they were negligent in securing their boat and it got loose and it and cargo sank. Defendant who negligently tied the rope says there should have been a Bargee on the Anna C and therefore they were negligent too

· Court applies the Learned Hand Test which says B < PL. If the burden is less than the probability and Injury (L). The court says that the bargee didn’t have to be on all the time, but he hadn’t been there in 21 hours and it was the middle of day during a busy time so he should have been there. Remanded for allocation of damages.

§ Notes

· Learned Hand Test – B < PL

o If the burden is less than the accidents you avoid a reasonable person should take those precautions.

o Here: Burden – having bargee on board. Probability was high, injury was high therefore negligence.

o Hand Formula should result in the least economic cost to society.

· The Reasonable Person

o Bethel v NYC Transit Authority

§ Bethel sits on handicap seat, it collapses. 11 days prior repairs were made to wheelchair lift. PL says that if seat were inspected accident could have been avoided. Prior to this common carriers were held to the utmost standard of care.

· Court says that common carriers are now under the reasonable standard of care under circumstances.

· Reasonable care test – It is objective –

o Not measuring what they were thinking, testing conduct. Would a reasonable person act that way? Based on a fictional person.

o Exceptions to reasonable person standard of care

§ children: Dellwo v. Pearson children must adhere to adult standard of care when engaging in adult activities; but in child activities, standard is a reasonably careful person of the same age, intelligence, and experience; minority view: based on age of child (0-7 no liability, 7-14 rebuttable presumption of no liability, 14+ open question of liability)

§ mental disability: not definite that mental disability relieves D of negligence; must conform to standard of care of a reasonable person under similar external circumstances (Rest §283B – unless child, m

breaking the law because observance would subject them to more imminent danger.

· Cardozo left wiggle room with Negligence per se.

o De Haen

§ Statute had 2 purposes – keep workers from falling in hole and also keep stuff from falling down hole.

o Di Ponzio

§ Leaving car running at gas station was illegal to prevent fires, not to prevent rolling and pinning someone else- therefore this was outside the purpose of this statute to establish negligence

o Rushnik

§ Leaving keys in a car illegal to prevent theft, harm was done against the thief, not against the civilians that could have been harmed. – Law was not designed to protect unauthorized users from consequences of their own conduct. – key point- must know the safety purpose of the statute – (there also may not be one)

· Proof of Negligence

o Plaintiff has the burden of Proof that defendant’s conduct fell below the standard of care

§ Def must have ACTUAL or CONSTRUCTIVE notice of defect.

o Negri v Stop & Shop Inc.

§ PL slipped and hit head at Stop and Shop. Broken jars of baby food were dirty and messy, witness didn’t hear any jars break for 20 min before, aisle had not been cleaned for one or two hours.

· It was the Stores duty to clean it up IF THEY KNEW ABOUT THE SPILL

· Court found that the circumstantial evidence was enough to show the store had CONSTRUCTIVE NOTICE of the hazardous condition.

· Cannot prove the store definitely knew, but a REASONABLY CAREFUL STORE OWNER should have known about spill.

o Based on circumstantial evidence the def had constructive notice.

o Gordon v American Museum of Natural History

§ Man leaving museum going down the steps and slipped on stair- saw wax paper in the air as he is falling. He says museum should have had constructive notice or actual notice of dangerous condition based on wax paper flying around 15-20 min before.

· The court says that there was NO CONSTRUCTIVE NOTICE

o General awareness of litter is not sufficient constructive notice.

· Constructive notice – defect must be visible and apparent and it must exist for a sufficient length of time prior to accident to permit defendant’s employees to discover and remedy it.

o Notes

§ In order to prove negligence – plaintiff has to prove that the land owner ACTUALLY knew or had CONSTRUCTIVE notice of the condition.

§ Can use circumstantial evidence to establish constructive notice.

§ Business practice rule –customer need not establish actual or constructive notice when business practice provides a continuous and foreseeable risk of harm to customers

· Ex: salad bar

o Byrne v Boadle

§ Barrel falls out of window from DEF shop and knocked down plaintiff. No one saw how it fell.

· Court says that the occurrence of this accident implies negligence. Barrel was owned by DEF and its falling is prima facie evidence of negligence.

· RES IPSA LOQUITUR – No evidence of negligence but the occurrence of an act implies negligence

o 3 criteria:

§ Instrumentality causing injury was under exclusive control of defendant.

§ Accident is one that would not, in ordinary course of events, have occurred without negligence on part of one in control.

§ Plaintiff is completely free from blame.