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

Torts – Gold – Fall 2013


1) The Central Themes of Tort Law

a. Primary concern of tort law is whether one whose actions harm another should be required to pay compensation for the harm done

b. Four Elements of a Negligence Claim

i. Duty – duty to someone else

ii. Breach of Duty – have to breach the duty of care to be negligent

iii. Causation – there must be a causal relationship between act and harm

iv. Damages – no damages, no negligence claim

c. Three Theories of Liability

i. Negligence – fault

ii. Strict Liability – liability without fault

iii. Product Liability

d. Hammontree v. Jenner – Jenner crashes his car through Hammontree’s store after having an epileptic seizure causing property damage and personal injury. Hammontree seeks strict liability jury instruction

i. HELD: In favor of Jenner. Strict liability will not be imposed on drivers in these circumstance.

1. No liability b/c no negligence. Can’t be negligent for something you can’t predict

2. Strict Liability can’t be applied to users of the highway, fixing responsibility becomes too complicated

e. Note Cases

i. Maloney v. Rath – Strict liability not imposed on defendant who non-negligently violated traffic law due to brake failure caused by her mechanic’s negligence

ii. Washek v. DMV – 96-yr-old man given license after passing test, then hits pedestrian. DMV not negligent b/c they did not negligently perform a “mandatory duty”

2) The Litigation Process

a. Questions about the law are for the court. Factual disputes require jury (or trier of fact) determination

b. Demurrer/Summary Judgment – even if the allegations of fact are true, there is no legal theory upon which P is entitled to relief.

c. At trial, P has burden of proving essential facts.

d. “Trial judge tries the case, and the appellate court tries the trial judge”

e. Damages compensate tangible and intangible loss

3) The Parties and Vicarious Liability

a. Vicarious Liability (respondeat superior)– D is liable for the torts of another person. Employers are vicariously liable for an employee when they are acting within the “scope of their employment” – form of strict liability (without fault)

b. “Scope of Employment” – Birkner Test

i. Conduct must be of the general kind employee was hired to perform

ii. Conduct must occur within the hours and special boundaries of the employment

iii. Conduct must be motivated, at least in part, by the purpose of serving employers interest

c. Christensen v. Swenson – Swenson hits a motorcyclist while on lunch break as security guard. Employer is sued on theory of vicarious liability. Issue is whether Swenson was within “scope of employment.” Trial court says no, grants summary judgment.

i. HELD: Reasonable minds could differ on all three Birkner elements, should have gone to a jury.

d. Agency Relationship – can be direct or apparent

i. Direct Agency – employer/employee or contractor/contractee

ii. Apparent Agency – See Roessler. Apparent authority where principal permits the authority of its agent. Three requirements of Apparent Agency

1. Representation by the principal (by the agent is of no consequence)

2. Reliance on that representation by 3rd party

3. Change of position of 3rd party in reliance on the representation

iii. Roessler v. Novak – Roessler sues hospital for negligence of radiologist, even though radiologist is independently contracted.

1. HELD: There was sufficient evidence that hospital created apparent agency. Doc works exclusively at that hospital, only radiology services there, no other options offered (evidence supporting the first element. The second two are undisputed)

2. CONCURRING: Non-delegable duty is preferable theory. Apparent agency is inefficient, unpredictable, and source of avoidable litigation.

e. Note Cases

i. Maloney v. Rath – D not held strictly liable for brake failure, but is held vicariously liable for the negligence of her mechanic in repairing the brakes. (contractor/contractee?)

ii. Baptist Memorial v. Sampson – Hospital posted signs and patients signed forms explaining some docs are not employees. No vicarious liability, hospital did not create reasonable belief of agency

iii. Some courts don’t require reliance on apparent agency, only that patient rely on hospital to provide competent care.


1) The Importance of Fault (History of Fault)

a. Brown v. Kendall – P gets hit in the eye with a stick as D attempts to break up a dog fight. Jury was instructed that D needed to take “extraordinary” care if his acts weren’t necessary, and burden of proof was on D

i. HELD: Negligence should be considered based on duty of “ordinary” care, not “extraordinary,” and burden of proof is on P.

ii. NOTE: Proper question is whether it was a lawful act, rather than necessary. If lawful, then only liable if not using ordinary care.

iii. Contributory Fault Chart (note, this changes with advent of comparative fault – %)

D – Fault

D- No Fault

P – Fault

D Wins

D Wins

P – No Fault

P Wins

D Wins

2) The Meaning of Negligence

a. Unreasonable Risk – Adams v. Bullock – Boy crossing bridge shocked and burned while swinging wire that touched power line of D’s trolley line.

i. HELD: No negligence b/c trolley company took reasonable care, installed wires in lawful and commonly used manner, and the accident was not foreseeable.

1. Was the act lawful?

2. Were reasonable precautions taken to minimize risk?

3. Could ordinary care have prevented the injury?

ii. Note Case – Braun v. Buffalo – wires hung over vacant lot was negligent b/c it was foreseeable that someone may come into contact with them

b. B < PL – U.S. v. Carroll Towing – Bargee leaves barge unattended during work hours in busy harbor, it breaks free and sinks. Bargee’s absence will not always be negligent, was it in this case?

i. HELD: Yes, negligent. Burden of taking precaution was low (just had to be there during busy hours), probability that barge would break free was relatively high (work hours, busy harbor) and the gravity of the potential harm was high (boat sinks).

ii. B < PL – When the burden of precaution is less than the cost x probability of an accident, there is negligence (B

3) Defining the Standard of Care

a. Utmost vs. Reasonable Care

b. The Reasonable Person – Bethel v. NYC Transit – P injured on bus when wheelchair seat collapsed. Chair was inspected 11 days earlier, P claims proper inspection would have prevented injury. Jury instruction included duty of “highest degree of care.”

i. HELD: Remanded. The new standard of care for common carriers is “reasonable person standard.” Reasonable care is OBJECTVE standard. Takes into account:

1. Reasonably perceivable risk

2. Gravity of harm to others

3. Special relationship of dependency between victim and

lid excuse

ii. NOTES: Custom does not excuse violation of statues (i.e. jaywalking).

4) Proof of Negligence

i. The burden of proof is on P to prove that D’s conduct fell below the standard of reasonable care

ii. Most evidence found is torts is circumstantial; direct evidence is hard to come by

b. Negri v. Stop & Shop – P slips and falls on baby food in supermarket. Evidence that it had been there for a while – food was dirty and messy, witness didn’t hear jars fall w/in past 20 min, aisle hadn’t been inspected for an hour.

i. HELD: Remanded for trial. D had constructive notice of the condition (as opposed to actual), and had time to discover and remedy it

ii. NOTE: Question about notice is essentially, would a reasonable store have found out and cleaned it up? If yes – negligence

c. Gordon v. American Museum – Man slips on a piece of wax paper on defendant’s stairs. Man argues D should have found the paper and picked it up.

i. HELD: No evidence of actual or constructive notice of the paper, so no negligence. For constructive notice, defect must

1. Be visible and apparent, and

2. Exist for sufficient length of time prior to accident for D to remedy it

ii. NOTE: These two cases aren’t about what is or isn’t negligence. In both cases, if D had known, they definitely would have been negligent.

iii. NOTE: If P proves constructive notice, prima facie case is established and burden of proof shifts to D to show they took reasonable precautions.

d. Note Cases

i. Faricelli v. TSS Seedman – Blackened banana peel not enough to show constructive notice that it had been on the floor long enough (maybe b/c it could have already been blackened?)

ii. Kelly v. Stop & Shop – Business Practice Rule – no need for P to establish constructive or actual notice if biz practice creates continuous and foreseeable risk to customers. (almost SL)

e. Res Ipsa Loquitur – “Thing speaks for itself.” Harm/accidents that do not occur without negligence.

i. Elements of Res Ipsa Loquitur (conjunctive)

1. P was injured by an instrumentality exclusively within the control of D, and

2. It was the kind of accident that doesn’t normally occur without negligence, and

3. It was not due to any voluntary action or contribution of P

a. Third element not absolutely necessary due to theory of comparative negligence

ii. Once these elements are proven by D, a prima facie case has been established. The burden shifts to D to prove he took reasonable care to avoid the harm.

iii. Second Restatement – eliminates exclusive control requirement. “It may be inferred that harm suffered by P is caused by negligence of the D when:

1. The event is of the kind which ordinarily does not occur in the absence of negligence, and

2. Other responsible causes, including the conduct of P and third persons, are sufficiently eliminated by the evidence