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

Torts_Gold.doc
Torts Outline

Duty is for judge to decide and causation, breach, and damages are all decided by the jury

Terms

Res ipsa loquitur-the thing speaks for itself (no more evid. b/c answer obvious
Pro tanto-for only to that extent
Non obstante veredicto-Trial judge may make decision to rule in favor of losing party even though jury verdict was in favor of other side
Respondeat superior-Defendants are being held vicariously liable for the torts of another person. Employers vicariously liable for employees acting within scope of their employment
Non-delegable duty-Duty to take reasonable care
Implied authority (parent authority)-authority which a principal knowingly tolerates or permits, or which the principal by its actions or words holds the agent out as possessing
Prima Facie-Evidence that would be enough to prove a case
Negligence-Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence.
Ordinary or reasonable care: the care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence.
Locus in quo-the place in which

Topics and Procedure

Plaintiff has burden of proof (two components
· Burden of Production: Must give sufficient evidence that jury rationally could believe
o Must satisfy this to get jury to hear you case
· Burden of persuasion in that their story of fact must be deemed true.
o This is decided by jury

Negligence

Negligence-legal concept in the common law legal systems usually used to achieve compensation for injuries (not accidents).
· “Negligence” is not the same as “carelessness”, because someone might be exercising as much care as they are capable of, yet still fall below the level of competence expected of them. It is the opposite of “diligence”.
· Negligence-Conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm.
· Posner Economic view of Negligence
o Negligence implies there is no moral indignation in the case in which the cost of prevention would exceed cost of accidents. Cant condemn defendant if actions to prevent cost more than accident

Introduction to Tort Liability Chapter 1

When should unintended injury result in liability?
· Hammontree v. Jenner
o Seizuring guy drives car through store owner’s window, injuring owner.
o Guy had history of seizures, but went to Doctors and did everything (meds, checks) to prevent seizures
o Decision: Seizuring driver negligent (not strict liability)
§ RULE: Suddenly incapacitated driver is not liable for negligence or strict liability
§ Arg. Against SL: confuse courts, all incapacitated liable for SL, & Def. don’t get choice to prevent “evil”
§ HOLDING: Negligence upheld
o POINT: INCAPACITATED DRIVER IS NOT NEGLIGENT; CANT ENFORCE STRICT LIABILITY B/C DEF. CANT PREVENT “EVIL”
o HOWEVER, KNOWLEDGE OF DISABILITY AND ACTS WHICH COULD POSE FORESEEABLE HARM DUE TO THAT DISABILITY IS NEGLIGENT IF THAT FORESEEABLE HARM OCCURS
· Maloney v. Rath
o The court refused the hold defendant strictly liable for her non-negligent violation of a traffic law (brake failure due to her garage mechanic’s negligence)
o Reasoning was that things unexpected happen making it difficulty to point fingers of strict liability (ex. Pedestrian might stumble or there is traffic light failure).
o Liable for negligence, however, b/c person has responsibility to make sure breaks work
o POINT: PEOPLE LIABLE FOR FALLING BELOW REASONABLE STANDARD OF CARE TO PROTECT THOSE AROUND THEM, BUT CAN’T BE HELD STRICTLY LIABLE FOR UNEXPECTED THINGS (DIFFICULT TO POINT FINGERS IF S/L

in eye causing damage
o Kendall didn’t intend consequences. Was accident.
o Trial court giving instruction erred saying if act not legally duty, defendant must show extraordinary care (and has burden of proof). Appeal instruction: if defendant acting lawfully, did he exhibit ordinary care?
§ Rule: If act is lawful, and person was exercising ordinary/reasonable care in their act, then they are not liable for negligence
§ Judge dismissed old cases deciding b/t trespass/cause of action b/c they didn’t evaluate enforcement of strict liability or negligence
o POINT: IF PERSON DOES LAWFUL ACT AND EXERCISES REASONABLE CARE, HIS OR HER ACTIONS ARE NOT LIABLE FOR NEGLIGENCE
§ TEST: is there duty? If so, what is scope of that duty?

B. THE CENTRAL CONCEPT
1) Standard of Care/Unreasonable Risk
· Duty, Breach, Causation, Damages

BREACH SECTION

Cases

· Adams v. Bullock
o Boy swinging 8ft wire on bridge hits trolley wire below and electrocuted
o Did trolley company exercise reasonable care to prevent?
o Yes, only extraordinary care could have prevented. Reasonable caution did not preclude this accident
o Cardozo rules against juries to reverse in favor of D. Other options (i.e. put underground unreasonable and impractical)
§ RULE: If trolley company exercised reasonable care to prevent accident, they are not liable for extraordinary/unforeseeable accident like boy
o POINT-FORSEEABILITY IS ESSENTIAL FOR NEGLIGENCE. NO FORSEEABILITY – NO NEGLIGENCE
· Braun
Wires hung 25 ft. in air over vacant lot, but then