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

Fall 2013

Intro to Tort Liability
Torts- Unintentional
1.       Duty of Care (“duty”)
2.       Breach of Duty (“Breach”)
3.       Actual Causation (“A Cause”)
4.       Proximate Causation (“Prox Cause”)
5.       Damages
Strict Product Liability
A cause
Prox Cause
Absolute Liability
(Lions, tigers, and bears)
Abnormally dangerous activities (explosives)
A cause
Prox. Cause
When Should Unintended Injury Result in Liability?
A.      Negligence or Absolute liability without fault?
a.       Hammon Tree v. Jemmer
i.      D drives car in P’s store after suffering a seizure behind the wheel. D has a history of seizures, is medicated for them, DMW aware of situation, D deemed safe to drive as long as he regularly visited doctors
ii.      Should strict liability or negligence doctrine apply? Negligence, automobile accidents are always negligent torts.

The Parties and Vicarious Liability
A.      Employer Employee
a.       Christensen v. Swenson
i.      D is guard for Burns, D taking unscheduled 10-15min break drives across street to café to pick up soup, while returning she hits P. P sues D and D’s employer
ii.      Three criteria exist to determine if someone is acting in the scope of their employment: 1)The Employee must be about the duties and assignments of the employer, as opposed to being wholly involved in a personal endeavor; 2) The employees conduct occur within the hours and boundaries of employment; 3) The conduct must be motivated by, at least in part, by serving employer’s interests .
iii.      Facts do not permit ruling of law against P, jury could determine that (2) still met even though outside of her workstation.
b.       Roessler v. Novak
i.      Radiologist messes up interpretation; radiologist is an employee of a independent contractor for the hospital. Can the hospital be sued under vicarious liability?
ii.      Yes, burden on hospital to prove no vicarious liability. Apparent Authority is authority which a principal knowingly tolerates or permits, or which the principal by its action or words holds the agent out as possessing.
iii.      1) A representation by the purported principal, 2) a reliance on that representation by a third party, 3) a change in position by the third party in reliance on the representation.
B.      Other points:
a.       Generally, this only applies when the servant was acting on the master’s behest or in furtherance of the employer’s goals.
b.       The employer is vicariously liable for torts of his employees. 
c.       Once the employee is found negligent, the employer is held strictly liable, although he can assert any defenses the employee may have had. 
d.       There is an important distinction between servants and independent contractors. Contractors govern themselves and thus it is unfair to impose strict liability. 
e.       Same rules seem to apply to intentional torts but problems arise b/c employees are not authorized to use force, thus, if an intentional tort is carried out while doing the employers business, the employer is held strictly liable; if the intentional tort is wholly unrelated to the employer’s business, the employer will not be liable.

Negligence Principle
Standard of Care    
A.      No liability when negligence if unforeseeable
a.       Adams v. Bullock  Cardozo
i.      Boy swinging wire off bridge hits D’s trolley wire and was electrocuted.
ii.      D’s trolley operation perfectly legal, accident out of reach of prudent foresight, the D would have needed gift of foresight to prevent, also even if foreseeable too costly to have D put wires unground
b.       U.S v. Carroll Towing  PxL > B = Liability
i.      Tug boat moving a ship out of the way so other ship could get in/out of the harbor wasn’t properly retied. It got lose, hit a tanker, sank while filled with U.S govt’ cargo.
ii.      Carroll towing soley responsible? D argues that if barge owners were onboard instead of absence (with no excuse) during the working hours of the day, they could have pumped the ship/called for help and prevented the total loss of cargo
iii.      If the burden is less than the probability of something bad happening and the damage that that something will cause then liability exists
c.       Bethel v. New York City- highest standard of care vs reasonable standard of care?
i.      P was hurt on D’s bus when wheelchair accessible seat collapsed under him. Judge instructed jury that “the bus company here…has a duty here to use the highest degree of care that human prudence and foresight…”
ii.      Highest standard was previously applied bc of highlevel of personal injury suits coming from RR’s, due to new tech revolutions and gov’t reg public conveyances are as safe as private one and do not require the highest degree of care but a reasonable one.

The Reasonable Person   
A.      Reasonable Person – Asks the Jury to envision what a reasonable person would do in similar circumstances (in abstract). This person represents societal views of judgment and morality.
a.       Variations- diminished mental capacity, medical conditions, emergency situations, and children.
b.       Diminished mental capacity- what would a person of similar mental capacity do
c.       Medical conditions- what would a person with similar medical conditions do
d.       Emergency Situations- Person do in similar situation
e.       Children- What would a child do

with valid excuse)
i.      P (bro and sis) get hit by car while walking with traffic (statute requires them to walk against it) because there were less cars on that side and they believed it to be safer. Negligence per se?
ii.      No contributory negligence, court believes legislatures intent was to make pedestrians walk against traffic for their own safety. Court cannot assume legislature would want to adhere to that statute if it put them in more danger.
Proof of Negligence  
A.      Actual notice or Constructive notice
a.       Negri v. Stop and shop (NY)
i.      P slipped and fell in D. D alleged fall resulted from dirty and broken baby food jars. Witness testifies 15-20mins prior to accident no sounds of jars breaking. Aisle was not cleaned or inspected for atleast 50 mins.
ii.      Enough circumstantial evidence to go to jury, so jury can decide if sufficient time elapsed for D to discover and correct defect.
b.       Gordon v. American Museum of Natural History (NY)
i.      P slipped near D’s entrance on white waxy paper from a concession stand (vicarious liability).  NY requires D to have actual or contrastive (defect visible and apparent for sufficient time to have been corrected) prior to accident.
ii.      No evidence that D actually knew the paper was there, nor any constructive notice. No evidence of anyone seeing the paper prior to accident, nor was the paper dirty proving it was there for a long time.
c.       Wollerman v. Grand Union Stores (NJ)
i.      P shopping at D falls on string bean. Employee standing nearby. Trial court dismissed the case for lack of evidence.
ii.      Reversed, jury could have inferred negligence from specific mode of operation of retailer. D could have been negligent by: 1)how they stacked the beans; 2) carelessness of an employee; 3) carelessness of a previous patron.
iii.       Once P prove mode of operation possibly negligent, burden shifts to D to make claims it took reasonable measures. More fair because D presumably has all the evidence in making these determinations.