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

Fall 2005
Professor Perry



Hammontree v. Jenner (California 1971) p. 3

i. Liability of drivers stricken by sudden illness usually rests on principles of negligence rather than strict liability; not treated the same as products liability as P wants
ii. Seizure was not foreseeable but it did occur and defendant’s car struck plaintiff

Holmes on strict liability – p. 6

i. Favors a system of negligence; unless an act is of a nature to threaten others, unless under the circumstances a reasonably prudent man would not have foreseen the possibility of harm, it is no more justifiable to impose liability for an act than if someone has a seizure and injures another
ii. If you choose not to be careful then you are negligent – choice of evils

Posner: A Theory of Negligence – p. 7

i. Takes an economic view of negligence
ii. Judgment of negligence has tones of moral disapproval because it implies that there was a cheaper alternative to the accident
iii. “where the measures necessary to avert the accident would have consumed excessive resources, there is no occasion to condemn the defendant for not taking them
iv. Not negligence if the benefit exceeds the cost of taking precautions

Goals of Tort Liability

i. Compensate the injured
ii. Deterrence
iii. Corrective Justice – to right a wrong
iv. Controlling costs of administering tort system – keep down costs; efficient system

Ways to Compensate

i. Leave the loss where it falls – decreases incentives to be careful
ii. Tort Liability – shifting the loss
iii. Insurance system



i. Complaint filed by plaintiff stating what occurred and what relief is sought
1. Defendant can:
a. File a Motion to Dismiss: says that even if all of the facts alleged are true, P cannot recover because not based on any sound legal theory
i. if motion to dismiss is granted, the litigation will be at an end unless the plaintiff decides to appeal
ii. if the motion is denied then the judge is saying that the plaintiff has stated a good legal theory and will be entitled to recovery if she can prove the facts in the complaint are true.
b. Answer the complaint
ii. Discovery
1. Interrogatories
iii. Motion for Summary Judgment: judgment granted prior to a trial if the judge thinks that there is no genuine issue of material fact for a jury to decide
iv. If summary judgment denied, parties go to trial
1. At trial, P has burden of proof; must prove facts by preponderance of the evidence
2. witnesses testify
v. Directed verdict/judgment as a matter of law: asks the judge to rule that the evidence on one side is so lacking on at least one essential fact that no jury could reas

vi. Assuring compensation to victims
vii. Spreading the loss caused by an enterprise equitably

If employee is found to have been negligent then employer is automatically liable – reminiscent of strict liability b/c no fault on part of employer is required
Also similar to negligence because the employee must be at fault for the employer to be liable
Restatement (Second) of Agency §228:

i. Conduct of a servant is within the scope of employment if, but only if:
1. it is of the kind he is hired to perform;
2. it occurs substantially within the authorized time and space limits;
3. it is actuated, at least in part, by a purpose to serve the master; and
4. if force is intentionally used by the servant against another, the use of force is not unexpectable by the master
ii. Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Baptist Memorial Hospital System v. Sampson (Texas 1998) p. 24

P suing hospital for doctor’s inability to treat spider bite