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Rutgers University, Newark School of Law
Bell, Bernard W.

Professor Bell


HANDOUT: Bell, Did Somebody Say McDonalds?, etc.

Hammontree v. Jenner, (p. 3)
– Epileptic driver crashes into store, no liability. Unintentional injury should result in liability ONLY when negligence can be proven. No strict liability. Jenner exercised reasonable care (medication) and there was no reason to believe he would have a seizure.

D. The Parties and Vicarious Liability

Vicarious Liability – liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) because of the relationship between the two parties
– To be servant, principal can exercise physical control over performance of their work. The right to control the work of someone else is the key. – if employer has control, the employee can be considered a servant.
– The employee must be acting in the scope of employment for a vicarious liability claim.

Birkner Test: It will be considered outside the scope of employement:
– If the employee acts from purely personal motives.
– Are in no way connected with the employer’s interests
– Or, if the conduct is unprovoked, highly unusual, and quite outrageous.

RESPONDEAT SUPERIOR the imputed liability of one party for the unlawful act of another. Generally it only applies when the “servant” acts on the “masters” behest or in furtherance of his goals. Independent contractors cannot be held strictly liable b/c they govern themselves.
– Servant: to be a servant the principal must be able to exercise physical control over performance of their work. The right to control someone else’s work is key. To be servant they must be acting w/in the scope of their employment.
– Non-delegable duties: certain duties to be performed that an actor can delegate the performance of but NOT the liability.
– 3 Elements to see if within scopeof employment:
o 1. Conduct must be of the general kind that the employee is hired to perform and not involved wholly in a personal endeavor.
o 2. The conduct must occur within the hours and boundaries of the employment.
o 3. Conduct must be motivated, in part, by the purpose of serving the employer’s interest.

Ostensible agency – agency by estoppel – An agency created by operation of law and established by a principal’s actions that would reasonably lead a third person to conclude that an agency exists.
– Party asserting ostensible agency must demonstrate:
o 1. The principal, by its conduct,
o 2. Caused him or her to reasonably believe that the putative agent was an employee or agent of the principal,
o 3. That he or she justifiably relied on the appearance of agency.
– Agent – One who is authorized to act for or in plac e of another; a representatives.
– Principal – One who authorizes another to act on his or her behalf as an agent.
– Agency – A fiduciary relationship created by express or implied contract or by law, in which one party (the agent) may act on behalf o another party (the principal) and bind that other party by words or action.

Christensen v. Swenson (p. 18), Notes 1-4, 6-8
D was taking a short lunch break when his car was involved in an accident. D’s employer was sued. For an employer to be vicariously liable for the torts committed by an employee, the employee must have been acting w/in the scope of his employment.

Baptist Memorial Hospital v. Sampson (p. 24), Notes 1, 3-4
– Sampson was bitten by a spider and went to the emergency room at BMH. Sampson claims that the emergence room treatment by Dr. Zakul at BMH was negligent and led to permanent injuries. Dr. Z was not an agent of BMH, but an independent contractor. There were also signs stating tat they were independent contractors and BMH didn’t collect any fees for the services those physicians provided. S also signed consent forms, in which it states that BMH was not responsible for the judgment or conduct of any of the independently contracted physicians who provided medical services but rather they were self-employed and not an agent, servant, or employee of BMH. Court reversed the judgment and said S not be awarded damages.


A. A Historical Perspective
B. The Central Concept

1. The Standard of Care
Negligence: conduct falling below the std. of care that a reasonable person would demonstrate under similar conditions.
– B<PL = Negligence
– B>PL = then probably no negligence
– B= Burden of adequate precaution or the cost is less than
– P=Probability of accident occurring multiplied by the
– L= Loss or degree of injury
Duty of care: requires an individual to act in such a manner as to avoid injury to a person to whom he or she owes an obligatory duty.
Unreasonable risk – Balancing Test – Risk > Utility
– Generally Plaintiff must show that D’s conduct imposed an unreasonable risk of harm on Plaintiff.
Reasonable Person Standard of care – Where Defendant exercises reasonable care, no liability for any extraordinary resulting peril.
– Ordinary risk, requires ordinary care (what a prudent and reasonable person would use)
– Breach when Burden < Probability of injury x Potential Loss resulting à B<PxL

Adams v. Bullock (p. 38), Notes: All Notes
D ran a trolley system which utilized an overhead wire system. P was carrying a wire which extended over the bridge that over passed the wires and made contact w/ the wires causing a shock that burned P. Court ruled that a party will not be found negligent if he has taken reasonable precautions to avoid predictable dangers.

United States v. Carroll Towing (p. 41), Notes: All Notes
P’s attendant left the barge unwatched for 21 hours. The barge broke loose from the pier through the negligence of D’s servant. Barge was sunk. There is a duty of care to protect others from harm when the burden of taking adequate precautions is less than the product of probability of resulting harm and the magnitude of the harm.

2. The Reasonable Person
REASONABLE PERSON STD a.k.a. std. of due care: a uniform degree of behavior against which a persons conduct can be measure when determining liability in negligence cases.

– Children are held to standard of like age, intelligence and experience except when engaging in adult activities for which adult qualifications are requires.
– Mentally/developmentally handicapped – (there is no accounting for this) standard is of reasonable person under like circumstances – does not relieve actor for liability.
– Physical handicapped – reasonable person under like disability.
– No exception for voluntary intoxication
– Professionals, doctors, lawyers, etc are held to the standards of their profession
– Courts will allow custom over reasonable person
– Emergencies

Bethel v. New York City Transit Authority (p. 47), Notes 3-9, 11, 12
P alleged that D was negligent when it failed to repair a wheelchair accessible seat on one if its buses that collapse under him. Court found that a common carrier like D is subject to the same duty of care as any other potential tortfeasor.

C. The Roles of Judge and Jury
1. In General
Judge – RULES give law. It is strict and may be limiting.
Jury – STANDARDS apply facts to law. Less strict.

Baltimore & Ohio Railroad v. Goodman (p. 58), Notes: All Notes
Goodman was killed when his truck was struck by a B & O Railroad train. There was a section house that obstr

inquire and who could have learned of the fact through the exercise of reasonable prudence. – D should have known of the hazard.
– Must be visible and apparent and must exist for a sufficient time to permit D to discover and remedy it. Court conclusively presumes an event occurred or fact is true based on circumstances.

– Reasonable person standard – objective standard.
– Aids in determining reasonableness:
– Common sense
– Custom (Trimarco)
– Statute
– Violation
– Compliance w/ statute

– Breach of due care requires notice.
– Plaintiff has burden of Proof!!! 3 types of evidence:
o Real evidence (documentary)
o Direct evidence (eyewitness)
o Circumstantial evidence (constructive, res ipsa, mode of operation)

– Res Ipsa Loquitur – I know the defendant was negligent, I just can’t tell you precisely how! A ROL giving rise to an inference of negligence where the instrument inflicting the injury is in the exclusive control of the defendant and where such harm could not ordinarily result in the absence of negligence.
o Conditions – events that ordinarily doesn’t occur absent negligence and defendant’s exclusive control. 3 factors must be established by preponderance of the evidence:
§ 1. The injury was not caused by the intervention of a third party not under the defendant’s control, i.e., the defect could only have been caused by the defendant’s negligence.
§ 2. The plaintiff was free of any negligence or mishandling of the instrumentality.
§ 3. The injury would not have occurred but for negligence.
o Procedural significance – merely permissible inference to defeat directed verdict motion OR something that shifts the burden of production [but NEVER burden of persuasion])
o Multiple defendants in the medical context (Ybarra)
§ You don’t know who is negligent, but that there is some negligence somewhere. Don’t know the instrumentality or who is responsible, so you bring a suit against the whole team.
– Res Ipsa Loquitur- 4 elements:
– 1. Accident doesn’t normally happen without negligence; no third party intervention –
– 2. D must have exclusive control over instrumentality that caused injury
– 3. No evidence that P acted voluntarily.
– 4. P did not contribute – P is free of all negligence or mishandling of the instrumentality.

– Mode of operation: choosing self-service, operators agree to assume responsibility of conduct of customers who create hazards. P’s don’t need to find third party who created hazard, instead, store is negligent.

Negri v. Stop and Shop, Inc. (p. 86)
P, while shopping at D fell in the store aisle where many broken jars of baby food lay. The baby food was dirty and messy and there was evidence that the aisle had not been cleaned any where b/t 50 min’s to 2 hrs. P asserted that D was negligent and that the evidence presented was sufficient to prove that S has constructive notice of a dangerous condition which caused injury to its customers and did nothing to remedy the condition. A ∏ may