Select Page

Rutgers University, Newark School of Law
Perry, Twila L.



Fall 2014

1. Vicarious liability

A. Doctrine that assigns liability for an injury to a person who did not cause the injury, but who has a particular legal relationship to the person who did act negligently (employers and parents)

B. Respondeat Superior

i. “Let the master respond”

C. Employer/employee must act within the scope of employment

i. Christenson v. Swenson: D worked for Burns D1 as a gate guard. Went to go eat lunch and in doing so crashed into P. Rule of Law: The fact that an employee’s tortious acts were committed outside the property of the employer is not a per se bar to recovery under respondeat superior

Subjected to Birkner Test:

1. (1) Employee’s conduct must be of the general kind the employee is hired to perform, that is, the employee must be about the employer’s business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor

2. (2) Conduct must occur substantially within the hours and ordinary spatial boundaries of the employment

3. Conduct must be motivated, at least in part, by the purpose of serving employer’s interest.

D. General Rule

i. Employers are not vicariously liable for independent contractors, but may be liable if said contractors are deemed agents. There are two ways to become an agent:

1. express agreement between the two parties or;

2. Apparent Authority

a. Authority which a principal knowingly tolerates or permits, or which the principal by its actions or words holds the agent as possessing (elements below)

ii. Roessler v. Novak (apparent authority): P was evaluated by a surgeon at Sarasota Memorial Hospital. Resulting P was hospitalized for 2 ½ months due to doctor misreading x-rays.

Rule of Law: Apparent authority: authority which the principle knowingly tolerates or permits or by its actions or words holds the agent out as possessing


1. Representation by purported principle

2. Reliance on representation by a third party

3. Change in position by the third party in reliance on that representation

4. ONLY exists when principle creates the appearance of an agency relationship

iii. Apparent Authority does not arise from the subjective understanding of the person dealing with the purported agent or form appearances created by the purported agent himself. Apparent authority exists were the PRINCIPAL creates the appeareance of an agency

iv. Rationale for Apparent Authority

1. Principal should be estopped to deny the authority of an agent when the principal permits the appearance of authority in the agent and in doing so a third party relies on

E. Non-delegable duty

i. Party with such a duty may not absolve itself of liability by contracting out the performance of that duty. This would mean that there is no distinction between employees and independent contractors

ii. Dissent argued for this in hospitals

iii. Historically such a duty is considered if it’s an inherently dangerous activity or if the work requires special precautions

1. Peculiar risk exception

a. Employer liable for contractor if this type of risk is involved and contractor does not take proper precautions in light of risk

2. Negligence – inadvertent or unintentional failure to exercise that care which a Reasonable Prudent Person (RPP) would exercise; conduct which violates certain legal standards of due care. Negligence constitutes recovery in a tort action if it is the proximate cause of the injury to the P.

A. Prima Facie

i. You must show that there was a duty to the P, a breach of that duty, ad that the breach was the actual and proximate cause of the injury. Negligence may occur by a volitional act or by a willful and affirmative omission to act

B. Development of Negligence

i. Brown v. Kendall: Two dogs began fighting and their owners attempted to separate them. In an effort to do so, D beat the dogs with a stick and unintentionally injured the P. P brought suit against the D for assault and battery

Rule of Law: When a D unintentionally injures another while undertaking a lawful act, the P must prove that the D acted without due care as adapted to the exigencies of the circumstances

C. Standard of Care

i. Adams v. Bullock (extraordinary peril): Kid gets injured by swinging a wire around electric lines underneath trolley lines

Rule of Law: No negligence for not providing protection against an unforeseeable, extraordinary injury that is difficult to prevent. Harm must be foreseeable.


D. Hand Formula

i. United States v. Carrol Towing Co.: Barge got loose and sank. Appellee contends that appellant was partially to blame, because they could have had a bargee on board.

Rule of Law: When the burden of adequate precaution is high in comparison to the low probability of the accidne toccuring, then D’s conduct may be considered reasonable

BPL – Learned Hand Formula

B = Burden of adequate precaution

P = Probability of accident occurring

L = Loss or degree of injury

If – B
If – B>PL then possibly no negligence

ii. McCarty v. Pheasant Run: Woman almost raped at D’s hotel. Women argues that signs were needed to warn people to lock door

Rule of Law: Hand formula is better used as an analytical tool rather than a way to determine negligence


E. Reasonable Person

i. Bethel v. New York City Transit Authority: P was injured on a bus. P could not prove that D knew of the defective wheelchair seat. P relied on a theory of constructive notice, because of computer printouts, coupled with the highest standard of care owed by a common carrier at the time.

Rule of Law: The duty owed by a common carrier is the objective RPP standard

1. Reasonable standard provides flexibility/leeway, and factors in all the circumstances of the caes which would affect the reasonable conduct required

2. Constructive notice – presumed to have knowledge of something, even if they have no actual knowledge of it. Circumstantial evidence.

F. Emergency Doctrine

i. Pressing circumstances, a reasonable person may not always act in a manne


i. Reflects judgment/experience/conduct of many

ii. Support for relevancy/reliance comes from the direct bearing it has on feasibility, focusing on the practicality of a precaution in actual operation and the readiness which it may be employed

1. If you are able to show that the custom has been very well established you may be able to show that there was in fact a breach of duty

D. Role of Statutes

E. May play a role, not always

i. Majority view

1. Negligence per se

a. Matter of law, so that breach of duty is not a jury question

2. Martin v. Herzog: P was killed when D’s automobile crashed into P’s buggy. D requested a ruling that the lack of lights on P’s buggy was prima facie evidence of contributory negligence. Supreme Court of New York found that the P’s violation of a statute was a matter of law, not for the jury to decide.

Rule of Law: Jurors have no dispensing power by which they may relax the duty that one traveler on the highway owes under the statute to another.

3. Three elements needed to establish Negligence per se

a. Injury caused by D is the type of harm the statute was intended to prevent

i. Da Haen v. Rockwood Sprinkler: Man killed by a falling radiator in an elevator shaft. P says it violated a statute for failing to place bars around the shaft. Court found that the statute’s purpose was to prevent people from falling down the shaft, not radiators. Ruled in favor of D.

Rule of Law: a violation of a statute is not negligent per se when the injury which occurred is not the type which the statute attempted to prevent

b. P is a member of the class the statute intended to protect; and

c. D’s violation of the statute is unexcused

ii. Minority View

1. Violation of a statute is only evidence of negligence, therefore up to the jury to decide

F. Statutory purpose

i. Is the statute addressed to the type of harm that occurred?

ii. Does it apply to the type of P and D in thie case

1. If it doesn’t apply you can always rely on common law negligence

G. Excuses to violating statutes

i. Safer for you to violate

Tedla v. Ellman: Ps were walking along a road to the right of the centerline in violation of a traffic statute, when they were struck by a passing automobile. D maintained that Ps were guilty of contributory negligence as a matter of law because of their violation of the statute prohibiting walking on the wrong side of the road. Court ruled that Ps were not contributory negligent.