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Rutgers University, Newark School of Law
Gonzales, Carlos

Gonzalez – Torts – Fall_2011

· Aims of tort law, generally: 1. Compensation for those harmed. 2. Deterrence 3. Corrective justice (Should annul wrongful losses and gains – balanced).

· Negligence, warranty, modern product liability (or strict liability). Duty, breach, causation, leg. cog. harm. Rule first. (Remember that it’s “but for” the breach, not Def., the harm occurred. Also when discussing breach, “This is unreasonable because…then common sense reason.) The counter to “but for” is “even if”. BREACH – failure to use reasonable care UNDER THE CIRCUMSTANCES. There is still a breach element in product liability – but focus on product itself not action or inaction of defendants.

· Misc: survival statutes permit the estate of a decedent to recover for damages he/she suffered before death. (Address all three theories and whether manuf., design, warning or not – if one of these not covered, say so.)

· Unintended Liability

· No strict liability for drivers who are suddenly stricken physically ill (Hammontree v. Jenner – seizure)

· Mental illness does not excuse negligence (Bashi v. Wodarz – wigged out)

· Falling asleep, liable – it is not a sudden physical attack (Kollerbohm vs. Co. of LA – sleepy sheriff)

· Vicarious liability:

· RESPONDEAT SUPERIOR: Employer liable for an employee’s negligence if it happens in the scope of employee’s job.

o Three-part test of Birkner Rule: The employee’s conduct must: 1. be of the general kind the employee is hired to perform, 2. occur substantially within the hours and ordinary spatial boundaries of employment, 3. be motivated, at least in part, by the purpose of serving employer’s interests.

o Christensen v. Swenson – guard crashes car on way to get food, didn’t have scheduled lunch breaks, was in uniform. court said jury should consider whether was in scope of duty (reverses summary judgment for employer).

o Indemnity – employer can then bring action against employee. Usually not a practical alternative, though.

o Employer might be liable even in case of intentional tort if fails to take reasonable steps to screen.

· APPARENT AUTHORITY. Normally, a company is not liable for acts of independent contractors, HOWEVER, Principal may be held liable to a third party for the acts of its agent that are within agent’s apparent authority.

o Roessler v. Novak – radiologist contractor in hospital, not hospital employee, but court reverses sum. judg. for hospital, says let jury decide.

o RULES OF APPARENT AUTHORITY, in Roessler, in Florida: a. representation of the purported principal (i.e. hospital), b. a reliance on that representation by a third party (i.e. patient), c. change in position by the third party in reliance on the representation. (deciding on treatment from scan?)

o Florida approach in Roessler differs from RESTATEMENT 2d §429, which says employer liable for acts of contractor if third party REASONABLY BELIEVES that services are being rendered by employer. PROF prefers this approach – less power for employer/principal to choose how to represent itself.


· Historical development of fault liability

o Scholars have found huge portions of strict liability in traditional English law (though not called that), especially in the English writ of trespass. That interpretation of trespass primarily addressed conduct that would today be considered basically criminal.

o Generally, a legal duty is owed to all foreseeable victims of tortious acts or omissions. A duty of care arises whenever one engages in risk creating activities or undertakes an action that imposes risk on others (from prof’s sample answer – paraphrase)

o If the act is unintentional and lawful, then defendant not liable, unless he was unreasonably careless (Brown v. Kendall, in which man accidentally strikes another while trying to break up dog fight)

· The Central Concept:

o The Standard of Care:

o There is a duty to adopt all reasonable precautions to minimize potential danger. The harm must be foreseeable. (Adams v. Bullock – boy hits trolley wire with stick, shocked. Court finds the trolley company couldn’t have foreseen or prevented, and can’t insulate lines.)

§ note Braun case cited in Adams – another person electrocuted by wires. was distinguishable because it was in a vacant lot in crowded urban area, insulation had worn off. Court found for plaintiff there.

§ Greene v. Sibley, Lindsay & Curr. Woman trips over cash register repairman. Court finds the worker was not negligent because he was in plain sight, burden on woman to watch her step.

§ LEARNED HAND’S FORMULA for determining reasonable precautions, vs. costs. From U.S. v. Carroll Towing (case w/ absentee barge master):

§ B

§ Roughly – even when there is foreseeability, if the cost of avoiding an accident is too high, then no liability. On other hand, railroad turntable cases – easy, cheap fix to save kids: Chicago, Burlington and Quince v. Krayenbuhl – RR case, predated Hand form. but same idea, found RR neg.

§ McCarty v Pheasant Run – woman attacked in hotel, court found hotel wasn’t negligent for having super sophisticated security, had decent security. Woman didn’t lock her door.

§ Random note on English law – note 8 pg. 48, Lord Reid says no excuse for the defendant to say it’s too expensive to avoid harm. Even if probability somewhat low, if the potential harm is high that should be taken into account. Difers sharply from the Hand formula in American law.

o 2.The reasonable person:

o Common carriers, like transit authorities, were held to a higher standard of care – the highest it can – rather than the usual reasonable care, not always true now

§ Bethel v. NYC Transit Authority. late ’90s – the court ditches the common carrier rule in favor of a reasonable care standard regarding broken bus seat.

§ Note – varying standards for gender, mental and physical disability. Usually, it’s the reasonable person standard, period, unless someone is suddenly struck unconscious.

§ Children’s liability – child usually sued directly (parents rarely have vicarious liability, except under statute), blended standard that considers age and abilities and reasonable care of a child of same age. When engage in adult activities (dellwo), then held to adult standards. usually a cutoff age, around 6-7 – younger are unable to comprehend risk.

§ emergency doctrine – many states will permit an additional jury instruction which is aimed at informing the jury that the “acting with reasonable care under the exigent circumstances” Should not be held to same standard of care

· The Role of the Judge and Jury:

o In general/Railroad cases/common carriers:

o Baltimore & Ohio RR v. Goodman 1927, a standard of conduct is a matter of law, not fact. US Supreme Court reverses lower courts, says it’s per se negligence not to get out to look – no reasonable tier of law could find otherwise.

o Pokora v. Wabash Railway, 1934, reverses Goodman standard, says negligence fact-based, for jury.

o Whether a common carrier has met its “utmost care” burden is a matter for jury, not matter of law (Andrews v United Airlines)

o The role of custom:

o Failure to comply with common practice is not always negligence (Trimarco v. Klein – non-safety glass in shower door – industry standard vs. legal requirement.)

o The role of statutes:

o Failure to conform with a standard for safety is negligence. (Martin v Herzog)

o Negligence per se will not apply in a case when the risk that creates the accident is NOT the risk the the safety regulation was designed to protect against – i.e. slow-moving vehicles should stay right, but slow car in left lane, is hit by car that crosses median. Slow car not at fault for being that lane – reg. was meant to allow cars to pass. (Tedla v. Ellman – re. pedestrians walking with instead of against traffic)

o Licensing standards are not used to set standards of care. Those with licenses can still fall below the standard.

· Proof of negligence:

o Have to show that hazard is left unattended to for too long and that business had notice of hazard. (Negri vs. Stop and Shop – dirty baby food – left for long time on floor, constructive notice. Gordon v. Nat. Hist. Museum – doesn’t collect, can’t show food wrapper was on step for long time or that museum or food vendor was aware of danger.

o “Mode of operation” rule. (i.e. – a self-serve salad bar is likely to have more items fall on the floor for others to step on. the restaurant has to make sure that

tion for failure to do the screening. PROF wants us to know that a tort duty CAN come from a statute even if the statute does not explicitly say there is a private right of action. No need to know the three-part test from Uhr/Sheehy – federal test is very different. BUT, courts tend to err against private rights of action if not explicit in the statute.

· Policy Basis for Invoking No Duty

o Duty might not be owed to ALL foreseeable victims if the liability would be crushing. Often applies to utilities. Strauss v. Belle Realty – P falls down stairs during blackout in building’s common areas – ConEd owed duty to landlord, not directly to P. Also, Moch v. Rensselaer Water – no duty to 3d party.

o Social hosts do not owe duty re. guests’ alcohol consumption. Reynolds v. Hicks – wedding guests in DUI wreck.

o Commercial enterprises DO owe duty re. alcohol. Dram shop acts impose liability for harm resulting from intoxication when they overserve. (Drivers still on the hook too)

o Duty is owed if you give instrumentality to someone who you know is likely to misuse it. Vince v. Wilson. P wins case against def. who gave money to bad driver to buy car and was aware of driver’s bad driving. Also, duty if give keys to drunk person. Restatement §390. pg. 182.

· The Duties of Landowners and Occupiers

o No duty to warn trespassers of dangerous conditions in most situations.

o Duty to LICENSEES (allowed to be on premises, but landowner has no interest/gain in visit) is to warn of known dangers. (Carter v. Kinney – no duty to bible study visitor bc Kinneys didn’t know about ice)

o Duty to INVITEES (biz. or other interest/gain to landowner. Or place that is open to the public) – Landowner has duty to reasonably INSPECT for dangers (and warn of them). Might not be duty to warn of open and obvious dangers – courts split.

o Some jurisdictions have done away with the distinction between licensee/invitee. See Heins v. Webster Co. decision that in Nebraska eliminates diff. between licensees/invitees in favor of reasonable care standard, 7-part test: 1. foreseeability, 2. purpose of entry, 3. circumstances/time, 4. premise’s use, 5. reason. of inspect, warning, repair., 6. opportunity/ease of inspect, warn., repair, 7. burden on landowner in convenience and cost. (Also see Rowland pg 196).

o Former exam question – PROF LIKES FACT PATTERN -pg 201 – Galindo v. Town of Clarkstown. Loose tree on neighbor’s property falls on car. Beforehand, Clark tries to get tree attended to to protect house – sees parked car by tree but doesn’t warn. Court says Clark didn’t owe duty – tree on neighbor’s property. But split – dissent says he knew and it would be easy to warn.

o Attractive nuisance – higher standard of care owed to child trespassers. pg 193.

o Business’ duty of care to provide security to patrons, four approaches (Posecai v. Wal-Mart -Sam’s Club lot robbery):

o specific harm rule: no duty uncles he is aware of specific imminent harm (criticized as too narrow)

o prior similar incidents test: whether the business is on notice that there is a lot of similar crime on or near the premises.

o totality of circumstances (most common): nature, condition and location of the land.

o balancing test (what this La. court uses): address the interests of businesses and their clients by balancing the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts.