Select Page

Rutgers University, Newark School of Law
Gonzalez, Carlos

Carlos Gonzalez, Torts,  Fall 2013

A. Strict Liability
1. Regardless of culpability or fault.
B. Negligence
1. The omission to do something which a reasonable person, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person wouldn’t do.
2. Requires fault- P has burden of proof.
3. FOUR elements of any tort plaintiff’s legal claim:
·         Duty:
o   Arises when a person is involved in any activity- he’s under a legal duty to act as an ordinary, prudent, reasonable person under the same or similar circumstances in order to take precautions against creating unreasonable foreseeable risks of injury to other under that circumstances.
o   Objective test- the same test for everyone in society.
o   The standard of care remains the same for everyone but the degree of level varies with the circumstance (discussed later).
o   Two exceptions:
§  Superior Abilities, skills or knowledge- heightened standard (never gets lower).
§  Actor’s physical conditions are considered- A person is expected to know his physical handicaps and is under a duty to exercise the care of a person with the same handicap, under the same circumstances.
·         Exception: A physical, sudden, unexpected illness which renders a driver unconscious will not be grounds for an action in negligence or strict liability, UNLESS he has constructive notice or actual notice of ONSET of illness.
o   Hammontree v. Jenner- D not liable b/c he suffered an epileptic seizure.
§  DMV is part of gov. Government agencies will not be held liable unless they failed to do something they’re legally required to do or do something they’re legally prohibited from doing.
o   Kollerbohm v. Count of L.A- D liable b/c D had burden of proof to show that his sleep apnea was sudden & unexpected but couldn’t.
o   Bashi v. Wodarz- D liable b/c “wigging out” is a mental attack- they’re hard to prove & easy to fake.
·         Breach- Do D’s actions or inactions fall below the applicable legal standard of care?
·         Causation- Did D’s breach (action or inaction) actually and proximately cause P’s harm?
·         Harm- Did P suffer a legally cognizable harm
C. Vicarious Liability

Is an employer responsible for liabilities stemming from his employee? If an employee commits to a tort during the “scope of his employment”, his employer will be liable (jointly with the employee). Applies to all torts, including intentional harm and strict liability.

3 part Birkner test in deciding whether an act is done in the scope of employment:
1.      Employee’s conduct must be of the kind that the employee is hired to perform. Must be about the employer’s business and the duties assigned by the employer, as opposed to being a wholly personal endeavor.
2.      The employee’s conduct must occur substantially within the hours and ordinary special boundaries of the employment.
3.      Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest
Intentional torts can be considered in the scope of employment. Ex:
·         Clark v. Pangan: Postal worker hit a subordinate in a paperwork related dispute. If an employee’s actions are for personal reasons and are “unprovoked an outrageous” it CAN be considered out of scope
·         Baker v. Francis Hospital- striking patient was considered vicarious liability to the hospital because it was caused by a work related stimulus
·         Assault in order to collect bills, vicarious liability applies
·         Improper screening can hold employer vicariously liable if can be forseen to be in the scope of the work. Ex bouncer at a bar with a criminal assault record Note 7 pg 23
An independent contractor is not considered under the hiring employer’s responsibility, 3rd party UNLESS:
Apparent Agency: It seems that the independent contractor is an employee. 3 part test:
1. Representation by the person purports an employee 2. Reliance on that representation by 3rd party 3. Party could have changed position had it not relied on the representation
Ex.  Roessler v. Novak- Independent contractor misread scans, hospital is liable because the patient reasonably assumed they were an employer. If told otherwise they could have chosen a different place to have scans done.
Non delegatable duty: Either way hospital is liable
Inheritantly dangerous activity: Employer also liable if independent contractor failed to take appropriate precaution in light of the risk. Ex. Note 6 pg 29 independent fuel transporter did not have proper equipment for pumping oil, fire ensued

II. Negligence

A.     Breach
Liability for Negligence
·         The plaintiff cannot recover if both plaintiff and defendant were using ordinary care, or if the defendant was using ordinary care and the plaintiff was not, or if neither party was using ordinary care.
Standard of Ordinary Care
·         The standard of ordinary care is determined on a case by case basis. It is that kind and degree of care which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger.

Inevitable Accident
·         An inevitable accident is one which the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency under the circumstances.

Brown v. Kendall- Rule: The plaintiff has the burden of proof to show that the defendant did not use ordinary care. Trespassing alone does not hold defendant liable, must still be able to show negligence

1.      Determining Standard of Care
A.     Foreseeability – necessary
·   Adams v Bullock- boy swinging large wire on a bridge that strikes another wire far below is not foreseeable. Not liable
·   Braun- failure to maintain electrical wires was foreseeable that someone could be injured, not insulated.
·   Store employee fixing something under desk and woman trips over him. Court says she saw him previously so its her fault. Gonzo says there should have been at least a sign or something alerting customers
B.     Learned Hand Formula
a.       How burdensome will it be to take precautions against the harm? What is the degree of care demanded?
i.      B
B>PL= probably no liability for negligence.
b.      B- burden of adequate precautions or the cost.
c.       P- probability of accident occurring.
i.      Likelihood that conduct would cause injury to others. NOT THE SAME AS FORESEEABILITY.
d.      L- loss or degree of injury.
i.      Magnitude of loss; seriousness of injury. Focus on the likely harm, not the actual harm.
e.       United States v. Caroll Towing- tug breaks free from line in harbor & hits other boat, causing barge to overturn.
i.      Harbor was crowded and bargee did not show up to work.
ii.      There is a duty of care to protect others from harm when the burden of taking adequate precautions is less than the product of the probability of the resulting harm and the magnitude of the harm.
f.       Burlington and Quincy v. Krayenbuhl- child loses leg on train turntable.
o   Inexpensive to get lock for turntable,

le standard is met, obviously no negligence.
·         Andrews v. United Airlines, Inc.- luggage falls from overhead bin and hits P.
o   Question of negligence goes to jury, not clear cut for summary judgement
o   Uses the Common Carrier Rule. This case states it: owes both a duty of utmost care and the vigilance of a very cautious person towards its passengers
2. The Role of Custom
·         P asserts D’s deviation from custom as evidence of lack of due care.
·         D tries to show compliance to custom.
·         Custom itself does NOT establish a breach of duty.
·         Compliance with custom does NOT establish due care, either.
·         Trimarco v. Klein- P falls through glass door & argues that industry standard requires safety glass door.
o   Failures to comply with industry custom doesn’t automatically mean negligence, goes to jury to decide.
o   What is customary doesn’t always meet the standard of care.
o   Rule- Liability can be established with custom when it has been ignored and it was proximate cause of injury BUT it is still subject to whether reasonable person under circumstances would adhere to it and outside factors of cost, availability, scope of use so that it is a prevailing custom.

3. The Role of Statutes
·         Violation of Statutes- negligence per se (in itself)
o   When a safety statute has a sufficiently close application to the facts of case at hand, D’s unexcused violation of that statute is “negligence per se” and conclusively establishes D’s negligence.
o   P must show 3 part test:
§  D violated the statute
§  The ax must be in the class of risks that the criminal statute was trying to prevent.
§  P must be a member of the class of persons that the statute is trying to protect.
o   When dealing w/ criminal statues, P must convince court that they should “borrow” the criminal statute and use it for civil liability.
o   Martin v. Herzog- P drives w/o lights (statutory violation), D coming the other way- crosses divider & hits P.
§  Unexcused omission of statutory signals > D’s negligence.
§  In most states, failure to abide by a statute that protects human life constitutes negligence per se, which can be a prima facie case of contributory negligence.
o   Tedla v. Ellman- Ps were supposed to walk on one side of street but violate statute and walk on other side b/c it was less dangerous for them. They get hit from behind.
§  Court sees no comparative negligence- ok to violate statute if it’s safer to do so.
§  Must look at what the intention of statute is- safety of pedestrians.
o   Rule- The statute must have been intended to protect against the particular kind of harm that P seeks to recover for.
o   Compliance is persuasive but not CONCLUSIVE. Should consider it but it’s not the be all end all. 
o   Licensing statutes
§  Purpose of statute is only to protect from non-skill person.
§  P cannot argue that just b/c a person doesn’t have a license, they were negligent b/c they may be skilled drivers & this doesn’t fall under statute’s intent.